His latest conviction and sentencing by Justice Jobarteh comes barely six years after a rape case filed against him before Justice Ebrima Jaiteh of the High Court was struck out for lack of diligence from the state to prosecute him.
In this case, Ukwai was charged with two counts of rape contrary to section 3(1) (a) and punishable under Section 4(1) (bb) of the Sexual Offences Act, 2013.
The prosecution alleged that sometime in April 2025, in the West Coast Region of the Republic of The Gambia and within the jurisdiction of the High Court, under coercive circumstances, Moses Ukwai unlawfully engaged in a sexual act with a seven-year-old girl (name withheld) by penetrating her thereby committing an offence.
The prosecution also alleged that sometime in April 2025, in the West Coast Region of the Republic of The Gambia and within the jurisdiction of the High Court, under coercive circumstances, Moses Ukwai unlawfully engaged in a sexual act with an eight-year-old (name withheld) by penetrating her thereby committing an offence.
The Accused, Mr. Ukwai pleaded not guilty to both counts. Faced with this plea and in an attempt to discharge the arduous burden required of them by law, the Prosecution called eight witnesses and tendered five exhibits.
At the close of the prosecution's case, the accused person testified, called no witnesses, and tendered one exhibit. In his defence, Ukwai denied raping the two children.
However, Elizabeth Jatta, a nurse who examined the victims, told the court that despite their vaginas being intact, one of the victims had bruises between the two minoras Vagina
In delivering her judgment, Justice Jobarteh said Moses Ukwai’s defence of denial was not supported by any credible evidence and did not call any witnesses to corroborate it.
“From the evidence adduced before the Court. I am satisfied that the accused indeed penetrated PW4, PW4 being seven years at the time, the court is satisfied that the accused had unlawful carnal knowledge of PW4 under coercive circumstances: Accordingly, I find the accused guilty as charged on count one,” Justice Jobarteh affirmed.
With respect to count two, regarding the alleged sexual assault on PW2. She (PW2) testified that the accused removed her pants and inserted his penis in her. PW3 testified that PW2 informed her that the accused was "rubbing his penis" on her.
Justice Jobarteh said this description does not constitute penetration. She said it described an act as rubbing or conduct, which while potentially unlawful and indecent, does not meet the legal definition of rape.
“The act of “rubbing" a penis on a person's body does not constitute the penetration required for a conviction of rape. Courts have consistently held that penetration, however, slight, is an essential ingredient, and where this ingredient is not proved, the charge must fail. This, is the threshold also required under section 2 of the Sexual Offences Act 2013, for rape to be established,” she said.
Justice Jobarteh said the absence of medical evidence supporting penetration is a critical deficiency in the prosecution's case. She said if the medical evidence fails to support the allegation of penetration, no conviction can properly be founded on the testimonies alone, particularly where those testimonies are contradictory, equivocal and unsworn testimony of a child.
Justice Jobarteh further stated that the prosecution has not only failed to prove its case beyond a reasonable doubt but has adduced evidence that affirmatively contradicts the allegation of rape. She said in such circumstances the only proper verdict is acquittal and discharge.
“In respect to count two, the prosecution I hold, has failed to establish the offence of rape against the accused and he is accordingly acquitted and discharged on count two. The court, however, holds that the prosecution has proved its case beyond reasonable doubt on count one. Accordingly, I find the accused Moses Ukwai, guilty as charged on the offence of rape in count one,” Justice Jobarteh declared.
Plea in Mitigation by Defence Counsel
Colley, counsel for Moses Ukwai, pleaded for leniency, citing his client's first-time offender status and role as breadwinner for his family in Nigeria. She stated Ukwai came to The Gambia seeking better opportunities, is a farmer and businessman, and is remorseful.
Sentencing by Hon. Justice Sidi K. JOBARTEH
Hon. Justice Jobarteh acknowledged the plea but emphasized sentencing requires balancing mitigating factors against the offence's gravity, harm to the victim, and societal interests. She noted Ukwai's conviction for raping a 7-year-old child, an offence carrying a life imprisonment penalty under the Sexual Offences Act 2013.
Justice Jobarteh stated the offence targets vulnerable children, breaches trust, and erodes their sense of safety. She emphasized the need to deter such crimes, protect the public, and denounce the behaviour. Ukwai was sentenced to life imprisonment, with the right to appeal.
