Study Notes on Incest Law and Case Law

Definition of Incest

  • Incest is defined as an unlawful act of having sexual intercourse with a consented relative.

Legal Framework

  • According to Penal Code Act Cap 128 Section 138:

    • Subsection (1):

    • Specifies any person who engages in sexual intercourse with a relative, with the awareness of the familial relationship, commits an offense.

    • The recognized relationships include:

      • Mother/Father

      • Mother’s daughter/Father’s son

      • Daughter/Son

      • Father’s mother/Father’s father

      • Mother’s mother/Mother’s father

      • Son’s daughter

      • Daughter’s son

      • Sister/Brother

      • Wife’s mother/Husband’s father

      • Wife’s daughter/Husband’s son

      • Father’s sister/Father’s brother

      • Mother’s sister/Mother’s brother

      • Brother’s daughter/Sister’s son

      • Sister’s daughter/Son

      • Father’s brother’s daughter/Father’s son

      • Mother’s sister’s daughter/Mother’s sister’s son

      • Son’s wife/Daughter’s husband

      • Father’s wife/Mother’s husband

    • Penalty:

      • Upon conviction, the offender is liable to imprisonment for a term of seven years.

      • If the offender is under eighteen years of age, the penalty is imprisonment for life.

    • Subsection (2):

    • It is noted that sexual intercourse constitutes an offense regardless of consent from the other person.

    • Subsection (3):

    • If convicted in relation to a person under the age of twenty-one years, the court may:

      • Divest the offender of all authority over that person.

      • Terminate guardianship if the offender is the guardian and appoint another as guardian.

    • Subsection (4):

    • The High Court may vary orders made under subsection (3) at any time by appointing a different guardian.

Case Law: Barugahara V Uganda (1969) 1EA 2

  • The case discusses the conviction of Nserimi Barugahara for incest.

    • Facts:

    • The victim’s mother was aged seventeen at the time of her marriage to Barugahara and lived together as husband and wife in Kampala.

    • The victim was born when the mother returned home to Toro.

    • When the victim turned twelve, she was brought by Barugahara to live with him.

    • They lived together under the same roof, during which Barugahara engaged in sexual intimacy with the victim, resulting in her pregnancy.

  • Defense Argument:

    • Barugahara argued that the victim’s mother was never his wife.

  • Court's Ruling:

    • The court held that the offense of incest is committed regardless of whether the relationship is traced through lawful wedlock.

Legal Requirements for Prosecution

  • Corroboration Requirement:

    • It is required that the evidence of a female witness, who may be liable to prosecution for incest, must be corroborated.

Further Legal Provisions

  • Section 139 of the Penal Code Act Cap 128:

    • This section further stipulates the ingredients necessary for proving an incest charge.