Are customary and statutory laws on defilement effective?

In this article, I shall make reference to the legal provisions on defilement and use the Luk custom mentioned above as a case study in order to illustrate the disconnect between the formal and informal justice in addressing defilement. One of the ways in which the Penal Code Act is meant to deter simple and aggravated defilement is through providing punishment to the off ender as stipulated under Section 129 which states: “Any person who performs a sexual act with another person who is below the age of 18 commits a felony known as defilement and is on conviction, liable to life imprisonment”.

For aggravated defilement, the punishment is death. On the other hand, the ‘Luk’ custom provides that any man who impregnates a girl out of marriage must pay a penalty usually in terms of cattle. Specifically, in the Lango, the perpetrator is given three choices which include: marrying the impregnated girl through paying bride price which is equivalent to two cows; paying “Luk” penalty only for the child in which case the child will belong to perpetrators’ clan, or; denying the responsibility for the pregnancy; in which case the girl and the child will remain in the clan of the latter.

The situation notwithstanding, we notice several drawbacks in the laws and customs against defilement such as in the Luk custom which used not to take into account the age of the girl while punishing the perpetrator yet the Penal Code Act puts the age of a girl at below 18 years for the case of defilement to stand.

On the other hand, the legal punitive measures are diluted by the lack of efficient methods of proving age compounded by an ineffective birth registration system and exacerbated by inconsistencies and contradictions between the Constitution and Statutory Laws”. Article 31 of the Constitution and Section 129 of the PCA deem 18 years as the age of majority, while customary law under Section 11 (a) of the Customary Marriage (Registration) Act deems the age of majority to be I6 years for girls and 18 years for boys. In some customs, age is determined by physical appearance.

These inconsistencies create contention and confusion as to when a child becomes of age, thus posing difficulty in harmonising the application of both statutory and customary law. It should be noted that often times the family of the girl uses “age” to extort exorbitant payment of Luk penalty and as a threat in the pretext of “reporting the case to police”.

Negotiations then begin, not on the crime but on the payment to prevent the crime prosecution from proceeding. If the case is already reported to the police, sometimes these negotiations involve the police so that the case is withdrawn.

Meanwhile the family of the accused will do anything, including selling land to ensure the perpetrator is not arrested and prosecuted and hence they pay heft y fees to the girls’ parents to compromise the case from proceeding to the police and court. Research carried out by the Lango Cultural Foundation (LCF) from nine clans in 2020 revealed that under the Luk Custom, more than 211 cases were registered, of which in 46 cases a penalty was paid while in 165 cases no Luk was paid. In all these cases, 66 were cases involving minors resulting into child pregnancies and only 24 were reported at the police.

As stated above, in these circumstances s neither the statutory law on defilement nor the Luk custom is implemented eff ectively. Therefore, whereas the statutory laws and the Luk customs aim at deterrence of defilement, impregnating girls and cohabitation, the remedies provided by both the law and the Luk custom do not address the psychological and social well-being of the girl child, which put her at a more disadvantaged position than before and in the end, they suffer as a result of the crime and abuse of the Luk custom.

The custom focuses on the placement of the impregnated girl and her child into a clan but where the boy chooses not to marry her or claim the child, the placement option backslides, leaving her socially worse off than before. The payment to the clan is for the clan to benefit and not to the girl.

Even under the formal law, if the accused is found guilty and is imprisoned, it has no direct effect on the girl; she will remain with her child living at the mercy of her family. To address the disconnect in enforcing formal and customary law, it is imperative for government to work hand-in-hand with traditional and faith-based institutions to implement the Luk custom with the police assisting the families to fi nd the responsible culprits when they go into hiding. This will go a long way in reducing the number of unwanted teenage pregnancies.

Way forward There is need for in-depth research to study the current actual level of prosecution of defilement cases; the obstacles in accessing justice, among others in a bid to gather evidence, and contrib[1]ute to developing knowledge to inform actions that ensure justice and protection for victims of defi lement. Further, the process of birth and death registration should be effectively and professionally executed to enable ease in presenting evidence of age in court, with copies in the government registry additionally. Government should consider educating the public on the function of the National Identification and Registration Authority (NIRA).

This way, under Luk implementation, higher clan leaders will be able to sieve cases of defilement and ensure the families do not frustrate their prosecution. Once this custom is well-implemented, the government, traditional institutions and the faithbased institutions may work together on defilement cases.

There is need to amend the defilement law and to change the Luk custom to cater for the survivor of defilement and pregnancy. Formerly, the law could change to cater for other punishments that benefit the defiled girl and her child.

This could include the responsible person paying enough cash to take the girl back to school or taking full responsibility of the latter. Under customary law, part of the Luk payments should be paid to her directly to assist her and the child. Additionally, any laws being passed should be shared with traditional institutions for consultation, so that the institutions can advise government on customs they have that are similar or different to the law and how they might interact.

They can also discuss the likely impact of the interface and avoid the law and customs affecting the people negatively, especially the most vulnerable. In conclusion, therefore I wish to aver that often, state actors and civil society organisations have a presumption that the problems of human rights abuse lie in bad or ‘backward’ customs and on this basis, traditional institutions are co-opted to work with others on these issues. It is never made clear what these “bad” customs encompass.

Sometimes the customs referred to are not well-defined or are of the past and no longer applicable, or sometimes the custom is being abused by the people, who are the custodians. Thus, if customs are not explicitly spelt out at the time laws are being made, we shall continue to have the law and the custom interfacing and undermining each other, with people choosing which way to follow for their own benefit. When this happens, those that the law and the customs are meant to protect lose out, in this case the survivors of GBV.

The notion of sexual gender-based Violence (SGBV) is relatively unknown in Uganda, with many believing the term refers to the most serious cases where physical injury is sustained. Nevertheless, SGBV manifests in various forms such as defilement, and rape, among others. In an attempt to deter the impact of SGBV, particularly in defilement cases, the government enacted legislations such as the Penal Code Act, 120.

Similarly, many tribes in greater north[1]ern Uganda have in place a common custom called “Luk” (In Lango, Acholi, Alur, Kumam) “Ekingol” (in Teso) and “Omusaru/Ekisaru” (in Bunyoro) intended to deter cohabitation and pregnancies outside marriage. This being so, in practice, the government and traditional institutions do not work in tandem to ensure that the statutory laws and these customs are implemented harmoniously. Instead, both institutions undermine each other and consequently fail to achieve the intention for which their laws and customs were put in place.

In this article, I shall make reference to the legal provisions on defilement and use the Luk custom mentioned above as a case study in order to illustrate the disconnect between the formal and informal justice in addressing defilement. One of the ways in which the Penal Code Act is meant to deter simple and aggravated defilement is through providing punishment to the off ender as stipulated under Section 129 which states: “Any person who performs a sexual act with another person who is below the age of 18 commits a felony known as defilement and is on conviction, liable to life imprisonment”.

For aggravated defilement, the punishment is death. On the other hand, the ‘Luk’ custom provides that any man who impregnates a girl out of marriage must pay a penalty usually in terms of cattle. Specifically, in the Lango, the perpetrator is given three choices which include: marrying the impregnated girl through paying bride price which is equivalent to two cows; paying “Luk” penalty only for the child in which case the child will belong to perpetrators’ clan, or; denying the responsibility for the pregnancy; in which case the girl and the child will remain in the clan of the latter.

The situation notwithstanding, we notice several drawbacks in the laws and customs against defilement such as in the Luk custom which used not to take into account the age of the girl while punishing the perpetrator yet the Penal Code Act puts the age of a girl at below 18 years for the case of defilement to stand.

On the other hand, the legal punitive measures are diluted by the lack of efficient methods of proving age compounded by an ineffective birth registration system and exacerbated by inconsistencies and contradictions between the Constitution and Statutory Laws”.

Article 31 of the Constitution and Section 129 of the PCA deem 18 years as the age of majority, while customary law under Section 11 (a) of the Customary Marriage (Registration) Act deems the age of majority to be I6 years for girls and 18 years for boys. In some customs, age is determined by physical appearance. These inconsistencies create contention and confusion as to when a child becomes of age, thus posing difficulty in harmonising the application of both statutory and customary law. It should be noted that often times the family of the girl uses “age” to extort exorbitant payment of Luk penalty and as a threat in the pretext of “reporting the case to police”.

Negotiations then begin, not on the crime but on the payment to prevent the crime prosecution from proceeding. If the case is already reported to the police, sometimes these negotiations involve the police so that the case is withdrawn.

Meanwhile the family of the accused will do anything, including selling land to ensure the perpetrator is not arrested and prosecuted and hence they pay heft y fees to the girls’ parents to compromise the case from proceeding to the police and court. Research carried out by the Lango Cultural Foundation (LCF) from nine clans in 2020 revealed that under the Luk Custom, more than 211 cases were registered, of which in 46 cases a penalty was paid while in 165 cases no Luk was paid. In all these cases, 66 were cases involving minors resulting into child pregnancies and only 24 were reported at the police.

As stated above, in these circumstances s neither the statutory law on defilement nor the Luk custom is implemented effectively. Therefore, whereas the statutory laws and the Luk customs aim at deterrence of defilement, impregnating girls and cohabitation, the remedies provided by both the law and the Luk custom do not address the psychological and social well-being of the girl child, which put her at a more disadvantaged position than before and in the end, they suffer as a result of the crime and abuse of the Luk custom. The custom focuses on the placement of the impregnated girl and her child into a clan but where the boy chooses not to marry her or claim the child, the placement option backslides, leaving her socially worse off than before. The payment to the clan is for the clan to benefit and not to the girl.

Even under the formal law, if the accused is found guilty and is imprisoned, it has no direct effect on the girl; she will remain with her child living at the mercy of her family. To address the disconnect in enforcing formal and customary law, it is imperative for government to work hand-in-hand with traditional and faith-based institutions to implement the Luk custom with the police assisting the families to find the responsible culprits when they go into hiding. This will go a long way in reducing the number of unwanted teenage pregnancies.

Way forward There is need for in-depth research to study the current actual level of prosecution of defilement cases; the obstacles in accessing justice, among others in a bid to gather evidence, and contribute to developing knowledge to inform actions that ensure justice and protection for victims of defilement. Further, the process of birth and death registration should be effectively and professionally executed to enable ease in presenting evidence of age in court, with copies in the government registry additionally. Government should consider educating the public on the function of the National Identification and Registration Authority (NIRA). This way, under Luk implementation, higher clan leaders will be able to sieve cases of defilement and ensure the families do not frustrate their prosecution. Once this custom is well-implemented, the government, traditional institutions and the faith-based institutions may work together on defilement cases. There is need to amend the defilement law and to change the Luk custom to cater for the survivor of defilement and pregnancy. Formerly, the law could change to cater for other punishments that benefit the defiled girl and her child.

This could include the responsible person paying enough cash to take the girl back to school or taking full responsibility of the latter. Under customary law, part of the Luk payments should be paid to her directly to assist her and the child. Additionally, any laws being passed should be shared with traditional institutions for consultation, so that the institutions can advise government on customs they have that are similar or different to the law and how they might interact.

They can also discuss the likely impact of the interface and avoid the law and customs affecting the people negatively, especially the most vulnerable. In conclusion, therefore I wish to aver that often, state actors and civil society organisations have a presumption that the problems of human rights abuse lie in bad or ‘backward’ customs and on this basis, traditional institutions are co-opted to work with others on these issues. It is never made clear what these “bad” customs encompass.

Sometimes the customs referred to are not well-defined or are of the past and no longer applicable, or sometimes the custom is being abused by the people, who are the custodians. Thus, if customs are not explicitly spelt out at the time laws are being made, we shall continue to have the law and the custom interfacing and undermining each other, with people choosing which way to follow for their own benefit. When this happens, those that the law and the customs are meant to protect lose out, in this case the survivors of GBV.

Report

Research carried out by the Lango Cultural Foundation (LCF) from nine clans in 2020 revealed that under the Luk Custom, more than 211 cases were registered of which in 46 cases a penalty was paid while in 165 cases no Luk was paid. In all these cases, 66 were cases involving minors resulting into child pregnancies and only 24 were reported at the police.

Judy Adoko is an advocate of the High Court with Oyugi and Company Advocates and the Executive Secretary of Lango Cultural Foundation