The Constitutional Court has delivered a major blow to two controversial provisions of Uganda’s criminal justice system, declaring unconstitutional a law criminalising the insulting or molesting of a woman’s modesty and nullifying provisions that allowed magistrates to play multiple roles in private prosecutions.
In a landmark ruling, the court declared Section 115 of the Penal Code Act unconstitutional, finding that the provision was discriminatory because it specifically criminalised conduct targeting women and girls without extending equivalent legal protection to men.
The court has consequently directed the Attorney General to present an amendment Bill before Parliament within 12 months of the judgment to address the constitutional defects.
The judges also nullified Section 42 of the Magistrates’ Courts Act, which provides for private prosecutions, ruling that its framework improperly combines investigative and judicial functions in the hands of magistrates.
The decision is expected to trigger significant changes in how private criminal prosecutions are initiated and processed in Uganda, while forcing Parliament to reconsider provisions that have been part of the country’s criminal justice framework for years.
Steven Kalali’s constitutional challenge
The ruling follows a constitutional challenge filed by human rights lawyer Steven Kalali, who questioned why Ugandan law criminalised conduct described as insulting the modesty of a woman or girl but did not provide equivalent protection for men.
Kalali argued that Section 115 violated constitutional guarantees of equality before the law and freedom from discrimination based on sex.
He also challenged Section 42 of the Magistrates’ Courts Act, arguing that it compromised judicial impartiality by allowing magistrates to participate in investigative and prosecutorial processes before eventually hearing the same cases.
The petition raised concerns under Articles 20, 21 and 28 of the Constitution, which provide for the protection of fundamental rights, equality and the right to a fair hearing. The Independent Uganda:
Ssemakadde case brought Section 115 into the spotlight
The controversial provision had attracted considerable public attention following the prosecution of Uganda Law Society President Isaac Ssemakadde over alleged insulting remarks directed at Director of Public Prosecutions Jane Frances Abodo.
In November 2024, lawyers Joshua Byamazima and Tonny Tumukunde initiated a private prosecution against Ssemakadde under Section 115(3) of the Penal Code Act.
The prosecution followed a viral video in which Ssemakadde allegedly made derogatory remarks about Abodo during a public gathering in Kampala.
The provision criminalised uttering words, making sounds or gestures, exhibiting objects or intruding upon the privacy of a woman or girl with the intention of insulting her modesty.
A conviction attracted a maximum prison sentence of one year.
Ssemakadde challenged the proceedings, questioning the constitutionality of the provision and the manner in which the private prosecution had been initiated.
He subsequently filed constitutional proceedings arguing that Section 115(3) was vague, excessively broad and inconsistent with constitutional protections.
The Constitutional Court’s latest decision now places the provision’s continued existence in serious legal jeopardy.
Magistrates stripped of controversial private prosecution powers
The second limb of the judgment addresses Section 42 of the Magistrates’ Courts Act, which has traditionally provided a legal avenue for individuals to initiate criminal proceedings against others without relying on the police or the DPP to bring the charges.
Under the previous arrangement, a complainant could approach a magistrate with a complaint alleging that an offence had been committed.
The magistrate could assess whether a prima facie case existed, undertake consultations, draw up and sign a formal charge and subsequently preside over the criminal proceedings.
The Constitutional Court has now found this arrangement constitutionally problematic because it places functions that should remain separate within the same judicial office.
The concern is particularly significant because a judicial officer who participates in investigating allegations and preparing charges risks compromising the impartiality required when subsequently determining the accused person’s guilt or innocence.
The court has therefore directed the Attorney General to propose amendments providing for private prosecution charges to be drawn up by the complainant or the Director of Public Prosecutions rather than the magistrate.
The decision does not necessarily mean that individuals will lose the ability to initiate private prosecutions. Rather, it requires Parliament to establish a constitutionally compliant framework that separates the preparation of charges from judicial determination.
Previous High Court proceedings had already raised questions about the safeguards surrounding private prosecutions, including the need to establish a prima facie case and avoid abuse of court processes.
Parliament faces 12-month deadline
By directing the Attorney General to table an amendment Bill within 12 months, the Constitutional Court has placed responsibility on government to ensure that the affected legislation is brought into conformity with the Constitution.
The Attorney General will be expected to prepare amendments addressing the discriminatory nature of Section 115 and restructuring the private prosecution framework under the Magistrates’ Courts Act.
The ruling is a significant development in Uganda’s constitutional jurisprudence, particularly on equality before the law, judicial independence and the separation of functions within the administration of criminal justice.
It also sends a strong message to Parliament that laws inherited or maintained within the country’s criminal justice system cannot remain immune from constitutional scrutiny.
The immediate significance is twofold: a criminal provision challenged for gender discrimination has fallen, while a longstanding legal mechanism for private prosecutions has been ordered to undergo fundamental restructuring.
