Kalali challenges law protecting modesty of woman, not men

KAMPALA, UGANDA | THE INDEPENDENT | Human Rights lawyer Steven Kalali has petitioned the Constitutional Court, challenging the constitutionality of certain provisions in the Penal Code Act and the Magistrates’ Courts Act.

Specifically, Kalali contests Section 115 of the Penal Code Act, which criminalizes indecent assaults and insulting the modesty of a woman or girl, punishable by 14 years or 1-year imprisonment, respectively.

He argues that this provision is discriminatory, as it only protects the female gender and not the male gender, violating Articles 21, 20, and 28 of the Constitution of Uganda, which guarantee equality before the law and non-discrimination based on sex.

Furthermore, Kalali challenges Section 42 of the Magistrates’ Courts Act, which empowers magistrates to participate in consultations and investigations about the commission of an offense.   He asserts that this provision compromises the principle of impartiality and the right to a fair trial, as the magistrate effectively acts as both investigator and judge.

Kalali’s petition seeks several reliefs, including declarations that the contested provisions are unconstitutional, orders annulling these provisions, and permanent injunctions restraining the respondent and its agents from enforcing them.

The petitioner, an advocate and strong believer in the rule of law, constitutional governance, and human rights, states that he has brought this petition in the public interest. He argues that the provisions in question promote inequality, undermine the right to a fair trial, and perpetuate injustice, particularly against male Ugandans.

Kalali cites the case of Uganda Law Society President Senior Counsel Isaac Ssemakadde, who is currently facing charges of insulting the modesty of a woman at Buganda Road Chief Magistrate’s Court, as a recent example of the injustice perpetrated by these provisions.

He urges the court to declare the provisions unconstitutional to promote equality, fairness, and justice in Uganda’s legal system.

“That if the provisions of section 115 (1) & (3) of the Penal Code Act are not annulled, it is likely to cause/promote anarchy as many male Ugandans continue to face injustice/unfair trials as against the female gender, the recent example being one of Mr. Ssemakadde Isaac who is under trial at the Chief Magistrate’s Court of Kampala at Buganda Road over similar charges,” reads the petition.

In addition to the discriminatory nature of Section 115, Kalali also argues that it violates the principle of equality before the law, as enshrined in Article 21 of the Constitution. He contends that the provision’s failure to protect the male gender from similar forms of assault and insult is a clear infringement of their rights.

Kalali further asserts that the provisions of Section 42 of the Magistrates’ Courts Act are not only unconstitutional but also undermine the integrity of the judicial system. By allowing magistrates to participate in investigations and consultations, the provision creates a conflict of interest, which can lead to biased decision-making and undermine the right to a fair trial.

The petitioner also argues that the international community recognizes the importance of equality before the law and the right to a fair trial. He cites various international treaties and conventions, including the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights, which Uganda has ratified. Kalali contends that these treaties obligate Uganda to ensure that its laws and practices conform to these international standards.

Orders Sought   

– A declaration that the provisions of Section 115 of the Penal Code Act are unconstitutional because they discriminate against the male gender.

– A declaration that the provisions of Section 42 of the Magistrates’ Courts Act are unconstitutional because they violate the principle of impartiality and the right to a fair trial.

– An order annulling the provisions of Section 115 and Section 42 for being unconstitutional.

– A permanent injunction restraining the respondent and its agents from enforcing the provisions of Section 115 and Section 42.

The Constitutional Petition comes barely a week after the Buganda Road Court Chief Magistrate Ronald Kayizzi summoned the Uganda Law Society President Isaac Ssemakadde to appear before him on January 29th, 2025, and answer charges of insulting the modesty of a woman (The Director of Public Prosecutions Jane Frances Abodo).

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