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January 14, 2003

You Defiled a Child, Not an Idiot!

From:, Africa - 14 Jan 2003

New Vision (Kampala)

January 14, 2003

Joan Mugenzi

Whose side is the law, if a man guilty of commiting adultery is fined sh200 in a court of law?

Worse still, a child is defiled but the case cannot proceed because it has to be amended to define the victim as "an idiot", simply because she is deaf.

That is the penal code that our legal system has keenly adhered to since the British colonial rule. This lamentable law has left a couple in Mbale in tears. Their six-year-old deaf daughter has been defined as an idiot.

Cissy (not real name) was two years ago allegedly defiled by 53-year-old Wilson Wepepaka in Mbale.

The incident took place at the senior quarters in Mbale. When Dr. J. William Twinomuhangi, the medical officer at the Mbale regional hospital examined the girl, she had a ruptured hymen, inflamed labia minora and severe abdominal tenderness.

Wepepaka was also examined and some of the blood found on his underwear was the same as that of the girl, according to the police report.

Wepepaka was remanded in Malukhu prison since he could not enter any plea. Since no serious follow up was done at the time, Wepepaka completed the mandatory 365 days that one can stay on remand. He was released in January 2002.

Cissy's father (name withheld) made a complaint to the Inspector General of Police. In October last year, and on November 5 the Mbale District Police Commander ordered that Wepepaka be re-arrested.

What is, however, shocking, is that although the case had been going on as a defilement case it was amended to read: "defilement of an Idiot."

The twist in Cissy's case is because she cannot stand in court and testify against the suspect since she cannot speak. The culprit gets a lesser punishment, if at the time of defiling a girl, he knew that the girl is deaf.

Section 124 of the penal code states that "Any person who, knowing a woman or girl to be an idiot or imbecile, has attempts to have unlawful carnal knowledge of her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile, is guilty of a felony and is liable to imprisonment for 14 years."

Given that the maximum sentence of this case is not death as would be the case in a normal defilement case, the case can as well be tried by the Grade I magistrate.

Defilement is a capital offence, whose maximum sentence is death and is only triable by High Court.

If at the time of defiling the girl, the culprit did not know that the girl was deaf, then he would be charged under section 123. The case would be treated like the culprit defiled a normal child.

Section 123 sub section 1 states that: "Any person who unlawfully has sexual intercourse with a girl under the age of 18 years is guilty of an offence and liable to suffer death."

Sub section 2 states that any person who attempts to have unlawful sexual intercourse with a girl under the age of 18 years is guilty of an offence and is liable to imprisonment for 18 years with or without corporal punishment.

John Aboda, the head of the Criminal Investigations Department in Mbale, told Women's Vision that the case was amended when Wepepaka's file was forwarded to the Director of Public Prosecutions in Kampala for further investigations.

This type of treatment for the defilement of disabled girls is highly regrettable.

Woman activist and lawyer, Jackie Asiimwe-Mwesige, says: "Punishment for people who defile such children should even be graver because they are using a person who cannot defend herself; a person who is not in her rightful mind."

J.M. Morrissey, director of the Ngora School for the Deaf, says deaf girls need to be protected.

"We talk about the rights of children, female children, but we also need to talk about the rights of a deaf female child," he adds.

Morrissey observes that the treatment accorded to the defilement of a deaf child shows that there is no respect for the deaf community. No one seems to care that they can be abused, no one is responsible when they get pregnant and no one cares when they get Sexually Transmitted Infections or get HIV/AIDS.

"The way the Mbale case is being handled for example, shows that they are saying that the deaf can give you free sex when you need it," says Morrissey.

"An idiot is somebody who should go to Butabika because they are mentally unbalanced, but the deaf are normal. The only problem with the deaf is that they don't hear. They use sign language and that is their mother tongue," he says.

"When they refer to the deaf as idiots, it is a misunderstanding of the handicap. I think they are just trying to have a direct translation of the vernacular kasiru (luganda word for foolish), that is used to refer to the deaf," argues Morrissey.

Sidney Asubo, the state attorney in Mbale, says they do not look at the deaf as foolish.

"An imbecile is somebody who is not as perfect as the rest in terms of the mind, but the abnormality is not as bad as being insane. Imbeciles include the retarded, the dumb, and the deaf. It excludes the blind. Determining the judgement of the case depends on many factors. Sometimes even up to the time of court, you may not be aware of the charge. The case is highly dependant on whoever is handling it," explains Asubo.

Florence Mukasa, the executive director of the Uganda National Association for the Deaf (UNAD), does not believe that the judges should simply follow existing laws anyhow.

"Why should responsible people like judges call us idiots?" she wonders. "We are not foolish. Why should someone knowingly defile a deaf child and end up with a Grade I Magistrate? The laws presuppose that we don't matter. Justice should prevail non-discriminatory. Why should they look at us like we are insane? When we are defiled or raped, it hurts."

Morrissey says the idea that the blind, deaf and the physically handicapped do not have any worth must change. He observes that "no where in the constitution does it say we chose four idiots to represent the different handicaps."

In any case, observes an activist: "If idiots interact with and sit in the same parliament with the other members of parliament, then all parliamentarians are idiots."

"We went wrong somewhere in the judiciary. This must change," says Morrissey. "The idea that such a case is not tried in High court is a misdemeanor. The culprit can get away with it."

Mukasa advises the judiciary to make use of interpretation services.

"They are not giving us a chance to get an interpreter who understands our language. Because one cannot talk, they imagine she is an idiot. Does that mean because someone is deaf, she has no rights and therefore should be used by people as they please?" she queries.

Peter Edoku, a lawyer with the Law Reform Commission, says that the section that talks about imbeciles, is meant for adults.

"Idiots have a mental problem and they can be adults. Since such adults might not be in position to negotiate for sex, the culprits are charged for defiling an idiot," says Edoku.

"In law we don't define a girl, but a child is anybody under the age of 18 so once a child is defiled, even when such a child is an idiot, then that is defilement," he adds.

"That section that talks about idiots should be amended to be more specific. It should state that if you defile an imbecile of such an age, then this is the punishment," says Edoku.

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