The Constitutional Court has ruled that Uganda’s laws criminalising indecent assault must protect men as well as women, declaring provisions that limited protection to female victims discriminatory and unconstitutional.
In a judgment delivered on November 4, 2026, a five-member panel led by Justice Cheborion Barishaki also struck down provisions of the Magistrates Courts Act that allowed magistrates to participate in investigating and preparing criminal charges before presiding over the same cases.
The decision arose from consolidated Constitutional Petitions No. 3 and 8 of 2025, filed by human rights lawyers Steven Kalali, Martins Kirya and Michael Aboneka against the Attorney General.
The petitioners challenged provisions of the Penal Code Act and the Magistrates Courts Act, arguing that they violated constitutional guarantees of equality, non-discrimination, judicial independence and the right to a fair hearing.
On the Penal Code Act, the petitioners challenged Sections 115(1) and 115(3), which criminalise indecent assault and insulting the modesty of a woman or girl.
The provisions had restricted the protection to female victims, leaving men without equivalent protection under the same offences despite being capable of suffering similar forms of sexual abuse.
The Constitutional Court agreed with the petitioners, finding that the distinction between male and female victims had no sufficient constitutional justification.
“The undisputed evidence, including the Respondent’s own concession, is that men are equally capable of suffering the harm addressed by section 115(1) and (3) of the Penal Code Act,” Justice Barishaki ruled.
“There is no rational, let alone constitutionally sufficient, basis for the Legislature to protect one gender from this form of injury while withholding equivalent protection from the other.”
The Attorney General had argued that the provisions were intended to provide affirmative protection to women and girls, who have historically faced particular vulnerabilities.
However, the court rejected the argument, explaining that affirmative action should address historical inequalities rather than create discrimination by denying another category of people equal protection of the law.
The judges ordered that the words “any woman or girl” in the contested provisions be replaced with “any person”, thereby extending the protection against indecent assault to everyone regardless of gender.
The court also found Section 115(3), which criminalises insulting the modesty of a woman or girl through words, sounds, gestures or the exhibition of objects, constitutionally problematic because it did not sufficiently define the prohibited conduct.
Justice Barishaki observed that criminal laws must be sufficiently clear to enable members of the public to understand what conduct is prohibited and the consequences of breaking the law.
“Citizens must be able to understand what conduct is prohibited. A penal provision of unlimited subjective reach offends the principle of legality,” he ruled.
The court invoked Article 274 of the Constitution to modify the existing law in the interim and directed the Attorney General to present an amendment Bill before Parliament within 12 months.
The proposed amendments must formally extend the protection to all persons and provide clearer definitions of the conduct prohibited under Section 115(3).
The second part of the judgment concerned the Magistrates Courts Act, particularly Sections 42(1)(c) and 42(2)–(6), which permitted magistrates to participate in preliminary inquiries, investigations and preparation of charges in private criminal prosecutions before potentially hearing the resulting cases.
The petitioners argued that the arrangement compromised judicial impartiality by allowing the same judicial officer to perform investigative, prosecutorial and adjudicative functions.
The court agreed, finding that a magistrate who participates in investigating an alleged offence and preparing charges cannot subsequently be regarded as an independent and impartial judicial officer when determining the same case.
The judges held that the arrangement violated Article 28(1) of the Constitution, which guarantees every person the right to a fair hearing.
The Attorney General, through State Attorney Johnson Natuhwera, conceded that the provisions were inconsistent with the constitutional framework established in 1995, when the Director of Public Prosecutions (DPP) was granted independent constitutional authority over criminal prosecutions.
“We find that indeed section 42, and the MCA entirely, is pre-1995 Constitution, and in 1995 the office of DPP was given special status to handle prosecution and given special powers,” Natuhwera told the court.
“Involving the magistrate, which is the Judiciary, in investigating and prosecuting, and yet he is the one again to determine the same matter, contravenes the independence of the Judiciary.”
However, the Constitutional Court declined to abolish private prosecutions, recognising their importance as a mechanism through which individuals can seek criminal justice where appropriate.
Instead, it directed that magistrates should limit their involvement to examining preliminary jurisdictional questions and determining whether there is sufficient initial evidence to justify a private prosecution.
The responsibility of preparing the actual charge sheet must be left to the complainant, their lawyer or the Director of Public Prosecutions.
The magistrate who conducts the preliminary examination must not preside over the subsequent trial.
The court consequently directed the government to amend Section 42 of the Magistrates Courts Act within 12 months to ensure that the law clearly separates investigative, prosecutorial and judicial responsibilities.
The judgment was delivered by a five-member panel comprising Justice Barishaki, who presided, and Justices Oscar Kihika, Margaret Tibulya, Cornelia Kakooza Sabiiti and Musa Ssekaana.
The court made no order as to costs, observing that the petitions had been brought in the public interest.
The decision addresses two important aspects of Uganda’s criminal justice system: equal protection of all victims of indecent assault and the independence of judicial officers from investigative and prosecutorial functions.
It also places an obligation on the government to review the affected legislation and bring it into conformity with the Constitution within the period set by the court.
