The Supreme Court will Wednesday afternoon deliver its verdict on a petition filed by lawyers at local firm Certa Law questioning article 133 in the 2018 penal law that tackles defilement.
The penal law prescribes 20 to 25 years of imprisonment to anyone convicted for defilement.
However, if the defiler is found to have been living with the victim as husband and wife, the penalty becomes life imprisonment "that cannot be mitigated by any circumstances," something that the lawyers are challenging as unconstitutional.
The lawyers argue the article violates the constitutional right of a judge to take independent decisions basing on mitigating circumstances surrounding the case.
Certa Law Firm, which is represented by Managing Partner, Florida Kabasinga, filed the petition at the highest court of the land last month.
Taking away judge's discretionary powers
In an interview with The New Times, Fiston Rwagitare, a lawyer at the firm argued that the law should not tamper with the discretionary powers given to the judge by the constitution.
Then the judge will be able to look at the context in which the crime was committed and have the latitude to listen to any mitigating circumstances that the suspect may present so that where necessary, he or she can pass a lighter sentence.
"Take an example of an 18-year-old boy defiling a 17-year-old girl. You can say they are almost the same age despite the fact that one is considered an adult by the law.
So, look at a situation where they have sex and the girl gets pregnant, and as a result of circumstances like fear of rebuke from parents, they say let us elope and stay together as husband and wife (cohabiting). In this case, the boy will get a life imprisonment without considering any mitigation circumstances," he said.
He said this contradicts the Constitution which provides that a judge should make decisions in independence without interference of any person or institution.
"We find this law faulty because the judge is not allowed to use his rights to look at the situation in which the act was done and see if there are mitigating circumstances.
The judge should have room for that. But the law is closed: if defilement is followed by cohabitation, it is automatically life imprisonment without considering mitigation circumstances."
He gave an example of two cases where two 18-year-olds were found guilty of defiling 17-year-olds and were sentenced to life imprisonment, despite the fact that even prosecution had asked that they get lesser penalties,
"Court failed to get a way of giving them lesser penalties. Now we are saying that such a child, with such a tender age is needed by the country and his family.
Such a child may not know so much, and yet he finds himself in a crime that takes him into life imprisonment. We are not supporting defilement, but we are saying that as a victim has to be given justice, also the perpetrator needs to be justly treated," he said.