Uganda Forum Against Corrupt Entities

Fight corruption in your community

Insulting the modesty of a woman in Uganda is an unconstitutionally vague and discriminatory offense

by · Published · Updated

You probably didn’t know that there is a criminal offense called insulting the modesty of a woman. You rightly thought that the freedom of speech is strong enough to accommodate colourful and insulting language. However, there is an offense called insulting the modesty of a woman and it’s weaponised against men who have the foresight not to use violence at home but run their mouth with colorful and insulting language. The offense has come into focus because it is being weaponised against Uganda Law President Isaac Ssemakade who allegedly used colourful and insulting language against DPP Abodo. It is not the state prosecuting him but some of his political opponents in Uganda Law Society. The offense is not only antiquated but it is also poorly drafted and an undue burden on the freedom of speech.

  1. Firstly the offense abridges equal protection of the law. Why not modesty of a man? It’s unconstitutionally discriminatory.
  2. Secondly is there a presumption of modesty or is the Prosecution required to prove that the specific alleged victim is modest. The offense is unconstitutionally vague.
  3. Thirdly is the test of insult subjective or objective. Should the words be capable of being understood as insulting by the specific victim or any reasonable person.
  4. Is any reference to the private parts of a woman insulting to the modesty of a woman.

Ingredients of insulting the modesty of a woman contrary to section 128 (3) of The Penal Code Act

The offense of insulting the modesty of a woman is provided for by Section 128(3) of the PCA. The section provides that:

Any person who, intending to insult the modesty of any woman or girl, utters any word, makes any sound or gesture or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman or girl, or intrudes upon the privacy of such woman or girl, commits a misdemeanour and is liable to imprisonment for one year.

The offense requires that the accused person intends to insult the modesty of a particular girl or woman and utters words or makes gestures intending that they be heard or seen by such woman or girl. It requires that the accused person target a specific woman or girl and that the targeted girl or woman hears the words or sees the gestures. Therefore to succeed on this charge the prosecution must prove the following ingredients of the offense:

  • The accused person uttered any word intending that such word or sound shall be heard by the complainant.
  • The accused uttered the words with the intent to insult the modesty of the complainant.
  • The words insulted the modesty of the complainant.

In Isaac Kimaze Ssemakadde v Uganda (Byamukama Joshua and Tonny Tumukunde) Justice Gadenya Paul Wolimbwa blessed ingredients of the offense that do not include a specific woman and that exclude the requirement that the specific woman heard the words and was insulted. He blessed the erroneous ingredients suggested by the Chief Magistrate who proposed that the ingredients of the offense are:

  1. A person utters any word, makes any sound or gesture or exhibits any object.
  2. He or she does so with intent that that word or sound shall be heard or that the gesture or object shall be seen by that woman or girl or intrudes upon the privacy of that woman or girl.
  3. The intention to insult the modesty of any woman or girl.
  4. It is the accused person who uttered the said words or who made the said sound or gesture.”

Section 128(3) expressly requires that the accused person intends to insult a specific girl or woman and the Chief Magistrate rightly pointed out in his ingredient number 2 that the accused person should intend that the words be heard by that girl. However in ingredient number three he refers to any woman or girl yet the section expressly states that “the words or gestures be seen or heard by such girl or woman“. This is a reference to a specific person not any busy body or bystander. It is not even sufficient for the offense that the words were heard by a boy or a man. The section requires that they be heard by such a girl or woman. If Parliament wanted the offense to apply whenever the words were heard by any woman or girl whether she is the target or not it would have stated that “the words or gesture be heard or seen by any woman or girl or anyone” The Chief Magistrate omitted entirely the requirement that the girl be insulted by the words. The opening statement of the section requires that the accused person intend to insult the modesty of any girl or woman. This means that someone must be insulted by the words otherwise an accused person can run his or her mouth without realizing that what they are saying is insulting or the insulting words could be aimed at no one at all. For example if I walk into a bar and start insulting my deceased spouse or an unnamed woman not present in the bar. Can it be said that I insulted the modesty of a woman just because there are other women in the bar that heard the insults?.

Furthermore, take the offense of threatening violence. It’s not enough that I threatened to injure or kill someone. The person threatened must hear the threat and actually feel threatened. As defined by the statute the offense requires a complainant who heard the words and was insulted. Imagine the case of a blind girl who does not see the gesture or an absent minded woman who does not hear the words. Is it sufficient that a man heard the words? Is it enough that other women heard the Words? What if it relates to invasion of privacy, whose privacy is relevant? What if the victim perceives it as a joke or doesn’t feel insulted by the words. What if the victim piles on and utters profanities of her own. What if the words are in a different language that the people present do not understand? What if the victim does not understand the insulting words due to language barrier but other women that are present do so?

What is modesty and who has it.

The word ‘modesty’ is not defined anywhere in the Penal Code Act. The dictionary meaning of modesty most relevant to section 128 titled indecent assaults is “behavior, manner, or appearance intended to avoid impropriety or indecency.” Without guidance of precedent on the definition of modesty or a statutory definition we had regard to precedents from other common law jurisdictions. In applying Section 509 of the Indian Penal Code which is identical to section 128 (3) of the PCA in Singh Lachhman Singh v. The State, court held that the word “modest” means ‘decorous in manner and conduct; not forward or lewd; shame fast, which means when used for men, it means the quality of being modest, and in relation to woman, ‘womanly propriety of behavior, scrupulous chastity of thought, speech and conduct’

In Ramkripal Singh v. State of Madhya Pradesh AIR 2007 (crl.) SC 370 the Court stated that ‘the essence of women’s modesty is her sex’. It is an attribute associated with female human being which reflects a particular class. Per the court, the ultimate test for whether the modesty of a woman has been outraged, assaulted is that the action of the offender should be such that it may be perceived as one which causes annoyance or insult to women’s sense of decency and modesty or an affront to her dignity.

I disagree with the Supreme Court of India when it infers a presumption of modesty in the statute. What if I am talking about a convicted pedophile or rapist or a woman of public ill repute? What if What I said is actually true? What if I am talking about a prostitute? It can not be true that every woman has modesty and decency. In addition, there is a presumption of mensrea and therefore, unless the statute expressly excludes it, the prosecution is required to prove intent. In addition criminal statutes are interpreted restrictively in favor of the accused person with any ambiguity resolved in favor of the accused person. Furthermore, it should be noted that the test for insult proposed by the Supreme Court is subjective. This erroneous because it leads to an absurd result since it makes the insult dependent on the sensibilities of the complainant. In any offense based on utterances it must be proved that the utterance had an effect on the victim. In this case it must be proved that the utterance insulted the victim. The utterance must be one that would insult any reasonable person in the circumstances of the complainant and that it insulted the specific complainant. Words are subject to interpretation and context, We perceive and understand them differently. What one might understand and perceive as an insult will vary from one person to another. One might even be prevented by circumstances from hearing or understanding the words that are uttered.

If the insult depended on the sensibilities of the woman in issue, a law-abiding citizen would not be able to tell which words to avoid. What if the words have a special meaning to the specific woman that is insulted? What if the words are not reasonably capable of an insulting interpretation? The proper test must be that the utterance or action of the offender should be such that it is perceived by any reasonable person as one which constitutes an insult to women’s sense of decency and modesty or an affront to her dignity and that the specific woman was insulted as a result.

For example, the accused person is said to have stated that the complainant’s vagina has been destroyed by HIV and that she will die. In applying the proposed test to the words uttered by the accused person court must ask itself whether the words uttered by the accused person are such that they can be perceived by a reasonable person as words which constitutes an insult to women’s sense of decency and modesty or an affront to her dignity. The accused person was basically telling the complainant that her vagina has been destroyed by HIV and that she will die. I wonder whether it is the reference to the complainant’s vagina that makes the words an insult to the modesty of the complainant? It is can not be the law that any reference to a Woman’s vagina or its qualities amounts to an insult to a woman. HIV is a chronic disease that affects human beings and thousands of women in Uganda are living with HIV. It can not be an insult to say that a specific woman has HIV and that it is in her vagina. These words are not capable of being construed as an insult to the dignity of the complainant.

Is there a legal presumption of modesty.

The offense requires an insult to the modesty of a Woman or dignity of a woman. So, the question becomes whether every woman is presumed to have this modesty? Even if there is a presumption of modesty, does it apply to every woman? Is it a rebuttable presumption? Is any insult or insinuation that one has a sexually transmitted disease an insult to a woman? Is this law a blanket prohibition against insulting women? What about men, is it okay to insult them? What if am talking about a convicted pedophile or rapist or a woman of public ill repute? What if What I said is actually true? What if am talking about a prostitute? It can not be true that every woman has modesty and decency.

There is no reasonable interpretation of the law that can conclude that a presumption of modesty is imposed by Section 128(3) of the Penal Code Act. The principle of legality requires that criminal laws must be construed strictly in favor of the accused person. If the legislature wants to impose a presumption of modesty, then it should clearly state so. Since there is no presumption of modesty, the prosecution is always required by the letter of Section 128(3) to prove that the complainant has the modesty (i.e., propriety of behavior, scrupulous chastity of thought, speech and conduct’) for the accused person to insult. The defense is at liberty to prove that the complainant lacks the necessary modesty to insult. If the prosecution does not lead evidence to prove that the complainant has modesty or evidence that the complainant was injured by the statement over and above normal human insults then the prosecution must fail. Furthermore, as pointed out above the words that the complainant’s vagina has been destroyed by HIV (AIDS) and that she will die cannot be understood by a reasonable person as an affront to the dignity of any woman. We can not bless any rule that makes it a criminal insult to refer to a woman’s vagina or that any insinuation that a woman’s vagina is diseased is an insult to her modesty.

Read More

Tags:

Admin

Every action you take against corruption however small is a big step towards eradicating corruption in Uganda. So do something today to show that you are against corruption and impunity in your community

You may also like...