PROSECUTOR v. TUYAMBAZE

# PROSECUTOR v. TUYAMBAZE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-04-08 - Case/document no.: RPA 0087/12/CS - Collection: Supreme Court

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PROSECUTOR v. TUYAMBAZE [Rwanda SUPREME COURT – RPA 0087/12/CS (Hatangimbabazi, PJ, Karimunda and Gakwaya, J.) April 8, 2016] Criminal Law – Infanticide – It is considered infanticide rather than throwing a baby in a covert place, the fact of abandoning a newborn to a place, being aware that it could succumb – Law no 27/2001 of 28/04/2001 relating to the right of the child against violence, article 44 and Decree Law no 21/77 of 18/08/1977 instituting the penal code, article 314. Criminal Law – Mitigating circumstances – Personal life of the accused can serve as mitigating circumstances – Decree – Law no 21/77 of 18/08/1977 instituting the penal code, article 77. Facts: The accused appeared before the High Court, Rusizi chamber seating in Karongi, where she was alledged to have thrown the newborn in latrine. The accused pleaded guilty. The court convicted her and sentenced her to twenty years of imprisonment because she pleads guilty and seeks forgiveness. Not pleased with the court’s decision, she lodged an appeal before the Supreme Court, stating that she pleaded guilty and sought forgiveness the very first day, but her penalty was not reduced enough. At the opening of the hearing, her Counsel requested that the court may first requalify the offence as he found that his client was sentenced over the infanticide whereas what she committed was nothing other than hiding the baby to whom she gave birth as the said baby died on the way to hospital later on. The prosecutor states that the accused did not throw the baby at the toilet but rather into the toilet, explaining that it is a dirty place, even the baby succumbed to dirty. Held: 1. The act of throwing a newborn into toilet of which the accused is alleged differs from hiding a baby in a covert place which is normally committed by parents or guardians who wish to escape from parenthood responsibilities but whose aim is not about killing the latter. The fact that the accused threw her baby in the toilet knowing she was alive, plainly shows how she was determined to kill her, as she wished no one to recognize that she gave birth and she did so being aware that the baby will die of dirty and that no one will know that. 2. Though the accused committed a grave offence, the hard life through which she experienced should be added to the fact that she is first offender and she admitted the offence since the very first time and asked forgiveness.to be considered as mitigating circumstances. Therefore, the punishment of 20 years of imprisonment sentenced by the High Court, Rusizi chamber seating at Karongi is changed to five years of imprisonment. Appeal granted Appealed judgment changed with regard to the penalty. Accused must be immediately released as her sentence is already served. Court fees reserved to the public treasury Statutes and statutory instruments referred to : Law no 15/2004 of 12/06/2004 relating to evidence and its production, article 119.

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Law no 27/2001 of 28/04/2001 relating to the right of the child against violence, article 44. Decree – Law no 21/77 of 18/08/1977 instituting the penal code, articles 77,82,83 and 314. No case law referred to. Doctrine: CR Snyman, Criminal Law, Durban: Lexis-Nexis, 2008, at p. 454. Jonathan Burchell, Principles of Criminal Law, Cape Town: Juta, 2005, at p. 673. Judgment BACKGROUND TO THE CASE [1] This case was first tried in the High Court, Rusizi chamber seating in Karongi in which Tuyambaze Emérance was alledged to have thrown the newborn in latrine on 08 November2010, at 5 a.m when she was going to transport some bananas from Murama.This happened when she felt bad in her berry while she was on half way, as a result, she turned back home and then gave birth to a normal baby who she immediately threw in the toilet. The defendant appeared before the court accepting the charges against her. [2] Considering the court case no RP 0004/10/HC/RSZ as tried on 28 November2011, the Court found that before various justice sectors as well as the court, she declared that she was impregnated by a man who exploited her destitution, and refused to assist her. She explained that when she was on the street the baby was born and did not cry and she thought of miscarriage, and then she opted to throw the baby into the toilet.Her expression is similar to the ones of Nzigiyimana Théogène and Nyirabutondwe Agnès whose testimony summarizes that they heard a baby crying from the toilet. Further, the medical checkup report asssures that Tuyambaze Emérance gave birth to a baby some days before. The Court, thus decided that those evidences were enough to declare her guilt, where she was sentenced with a diminished sentence of twenty years (20) as she accepted the charges and asked for remittance. [3] Tuyambaze Emérance was not happy of the court decision and then appealed before the Supreme Court stating that she appeared before the court accepting all charges against her and asking for remittance over all justice sectors, albeit, the penalty was not reducted as it ought to be. [4] On the occasion of public hearing on 07/03/2016, where Tuyambaze Emérance was present and assisted by the Counsel Rwigema Vincent, whereas the Prosecution was represented by Munyaneza Nkwaya Eric, the Prosecutor on National level. [5] At the opening of the hearing, Counsel Rwigema Vincent requested that the court may first requalify the offence as he found that his client was sentenced over the infanticidewhereas what she committed was nothing other than hidding the baby to whom she gave birth as the said baby died on the way to hospital later on. ANALYSIS OF THE LEGAL ISSUES

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II.1. To determinethe qualification of the offence to which the offenceTuyambaze Emérance is alleged. [6] Both Tuyambaze Emérance and her counsel state that the day on which the crime was committed Tuyambaze Emérance had gone to transport bananas, and she surprisingly delivered a child, and she was overwhelmed with the fear that his father will beat her with an axe as he used to tell her that he will do so. As a result he wrongly advised herself to throw the newborn in the toilet, yet later on she comforted herself and revealed it to her father. Her paternal father and the old woman the owner of the toilet in which she threw the new born took the baby from it while still alive and then washed it [the baby] where the baby died on the way to hospital, this clearly shows that she has never thrown the baby in the toilet yet she put it in a covert place. They concluded saying that the High Court, chamber of Rusizi seating in Karongi mistakenly concluded that the committed crime was the one known as killing one's baby whereas it was hiding one's baby; she therefore requests this court to correct those mistakes. Therefore, Tuyambaze Emérance should be punished for having thrown the baby in a covert place as per the article 44 of the Law no 27/2001 of 28/04/2001 relating to Rights and Protection of the Child against violence. [7] The representative of the Prosecution states that both Tuyambaze Emérance and counsel Rwigema Vincent falsely interprete article 44 of the Law no 27/2001 of 28/04/2001 relating to Rights and Protection of the Child against violence, for Tuyambaze Emérance did not throw the baby nearby rather into the toilet. He further clarifies that within the toilet is not a covert place as per the law, rather it is a dirty place, the fact that the dirty resulted into the baby's death, hence the right article to be based on is the article 314 of Decree Law no 21/77 of 18/08/1977 instituting the penal code that was into force at the time of crime instead of the article 44 of the Law no 27/2001 of 28/04/2001 stated above. THE VIEW OF THE COURT [8] Article 44 of the Law no 27/2001 of 28/04/2001 relating to Rights and Protection of the Child against violence stipulates that “A parent or guardian who abandons a child in a hidden place or uses someone else to do so and the child is found, shall be sentenced to imprisonment of between five years and fifteen years and pay a fine of between fifty thousand and two hundred thousand francs..” [9] Article 314 of the Decree Law no 21/77 of 18/08/1977 instituting the penal code that was in use at the time of the crime stipulates that “it is termed filicide, killing, or assassination of the baby over deliverance or shortly after the deliverance; terming them killing or assassination will be based on strategy through which they were committed.” [10] The case file shows that when she was interviewed before prosecution, Tuyambaze Emérance stated that that day aroundr 5h:00 a.m, she gave birth to a baby half way when she was going to transport bananas, after noting that the new born did not cry, she imagined that the baby was dead, and threw it into the toilet belonging to Nyirabutondwe Agnès (quotes 5- 11, 17-18). Appearing before this Court, Tuyambaze Emérance stated that she threw her baby knowing it was alive. Furthermore, Nzigiyimana Théogène also states that he is one of those who were called upon by Nyirabutondwe Agnès, telling them that she heard a baby crying into her toilet, reaching there they destroyed it, and took it from there breathing, washed it, yet the baby died when they were half way towards hospital at Murunda (quotes 8-9).

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However, doctor’s report as produced on 09 November2010 states that the baby was abandoned after birth, and that there were some insects in baby’s navel and mouth which clearly reflect that the baby died as a result of being put in a filthy place ((“Cordon ombilical lié. Dans la bouche comme dans le moignon ombilic, des nombreuses larves d’insectes sont observées montrant que le bébé est décédé après avoir été déposé dans un milieu infect »”) (quote 12). [11] The Court finds that the act of throwing a baby after birth of which Tuyambaze Emérance is alleged differs from the one qualifies as hiding a baby in a covert place which is normally committed by parents or guardians who wish to escape from parenthood responsibilities but whose aim is not about killing the latter. Law scholars argue that the crime of hiding a child in a covert place is called crimen expositionis infantis and is almost committed by parents who wish their abandoned child to be recuperated by humanitarian people, and they throw them where they can keep an eye on them,1 which is different from what Tuyambaze Emérance did. [12] The court finds that, regarding this case, as Tuyambaze Emérance herself reveals and as declared by witnesses and doctor’s report she threw her baby in the toilet knowing the baby was alive, this plainly shows how she was determined to kill the baby, as she wished no one to recognize that she gave birth basing on the fact that her father used to frighten her that he will beat her with an axe, and then decided to throw the baby into the toilet early in the morning hoping that the baby will die of dirty and that no one will know that. The Court finds that throwing a child in a covert place aiming to kill him/her is termed infanticide, the offence that Tuyambaze Emérance committed,2 hence, the High Court, Rusizi chamber, seating at Karongi made no mistake deciding that the crime committed byTuyambaze Emérance was no other than infanticide. I.2. To know whether Tuyambaze Emérance should benefit from more penalty reduction. [13] Tuyambaze Emérance states that she was impregnated the time when she was living a very miserable life as her mother had left her due to her father's domestic violence, and he used to tell her that he will beat her with an axe, under those circumstances she was impregnated by a man from whom she used to gain bread for feeding her little sisters whom she was in charge. She declared that she found herself pregnant surprisingly and that she did not plan to where to commit such a crime, she thus accept the gravity of the crime she committed as she threw the child into toilet live and she regrets to have abandoned cultural values of Rwandan mothers, and that she requests for the remittance as she is now aware of the gravity of the crime she committed. Finally, she requests for the Court to be tolerant and permit her to benefit the penalty reduction up to the time she served in the prison so far. [14] Counsel. Rwigema Vincent states that his client was impregnated at 17 years of age, albeit Sibomana Célestin who impregnated her used his power as he was an important trader in that region and then corrupted grass root leader to the extent that those leaders issued a certificate testifying that she was impregnated at 18 years of age so as the promoter of her 1 “Crimen expositionis infantis [include] cases where someone abandoned a child in order to avoid parental responsibility but without the intention to kill, in a place where it was likely to be found.” CR Snyman, Criminal Law, Durban: Lexis-Nexis, 2008, at p. 454. 2 “Infanticide is the killing of newly born child. [It includes] abandoning a child with the expectation that it would die.” Jonathan Burchell, Principles of Criminal Law, Cape Town: Juta, 2005, at p. 673.

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pregnancy should not be sued by the court for having sexually violated and practically impregnated the legally minor lady. He, the counsel, further revealed that that trick caused the High court, Rusizi chamber seating at Karongi to punish Tuyambaze Emérance as not a Rwandan whose age is under 18 while the maximum punishment that she would have given before any penalty reduction being based on mitigating circumstances would be a sentence of 20 years, thus the counsel requested the court to base on the fact that his client committed theoffence when she was under 17, accepted the crime openly, and asked for forgiveness and she was the one responsible for feeding her young sisters, and she should furthermore benefit the penalty reduction basing on the article 77 and 83 of the Decree Law no 21/77 of 18/08/1977 instituting the penal code which was in use at the time of offence. [15] The representative of the Prosecution states that attached to quote 25 of the case file was the certificate of birth of Tuyambaze Emérance showing that she was born on 23/08/1992, and she committed the crime on 08/11/2010, which means that she committed the offence when she was 18. He further explains that basing on the gravity of her crime, she should be sentenced to life imprisonment, however basing on the fact that she accepted the crime and asked for forgiveness, her defense was considered, and she consequently benefited the penalty reduction up to 20 years, this implies that there is no other way out to other penalty reduction since the first one was reasonably enough. THE VIEW OF THE COURT [16] The article no 119 of the law no 15/2004 of 12/06/2004 relating to evidence and its production stipulates that “ for prosecution cases , evidences base on all grounds for what happened and ascertained by the law, when both parties were provided all means to appear before the court for defence. The Court, thus, definitely declares that both parties evidences are true and can be acceptable.” [17] Article 82 of the Decree law nº 21/77 of 18/08/1977 instituting the penal code which was in use at the time of offence, stipulates that only the judge values the grounds for mitigating circumstances reasons for the offender, be it those appeared in, on or at time, that in time of accepting them he/she must give supporting reasons, article no 83, paragraph 2, entails that in case there are mitigating circumstances, the sentence of life imprisonment turns into a sentence of imprisonment of 2 years maximum. [18] Regarding the fact whether Tuyambaze Emérance was punished as an adult while she committed the crime when she was 17 years of age, the Court finds “Attestation d’identité complète” and “Attestation de naissance” issued by Executive Secretary of the sector of Musasa on 26/11/2010 showing that Tuyambaze Emérance was born on 23/08/1992, while the crime was committed on 08/11/2010, this means that she was 18 when she committed the crime, and apart from saying it, Tuyambaze Emérance and Counsel. Rwigema Vincent assisting her in the court, fail to prove their basis on stating that Tuyambaze Emérance was 17 when she committed the crime, thus, the High court, Rusizi chamber seating at Karongi made no mistake punishing her as an adult one. [19] However, considering that her acceptance of the crime should not categorically be considered as mitigating circumstances, Tuyambaze Emérance states that she was impregnated by Sibomana Célestin, who later on abandoned her after remarking she was pregnant, the day the offence was committed when she bore a living baby yet afraid that her father who used to tell her that he will beat her with an axe could know it, then she opted for

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throwing the baby in the toilet belonging to Nyirabutondwe Agnès, this utterance matches with the ones of Nzigiyimana Théogène, Nyirabutondwe Agnès and the findings of the medical report ascertaining that the born was a normal baby, who was thrown in the toilet, and then died later on the way to hospital as a result of filthy environment in which it was thrown, in the mouth as in the umbilical stump there were a lot of insect larvae, all these, as she stated, put light on the way she committed the crime, hence her acceptance of the crime should be considered. [20] The Court finds that even if Tuyambaze Emérance committed a grave crime by throwing her baby in toilet who later on died of critical dirtiness, the fact that she was a young lady of 18 years old at the time of the offence, and the fact she, together with her little brothers were abandoned by her mother who failed to support the violence of her father, the fact that she was continuously violated by her father who used to tell her that he will beat her with an axe, and then be violated by Sibomana Célestin who was older than her to whom she used to casually work so as to gain living bread for her little sisters, all these show that the life conditions she was living in are the ones which caused her to have unplanned pregnancy, thus mitigating circumstances should be much more considered as it is the first time for her to be sued by the court and when she appeared before the court she accepted all charges against her and asked for remittances , thus the punishment of 20 years that she was sentenced by the High Court, appellate court of Rusizi seating at Karongi should be changed by the one of 5 years basing on the articles 82 and 83 of Decree Law no 21/77 of 18/08/1977 instituting the penal code that was in use at the time of the crime. [21] The Court, furthermore, finds that the fact that Tuyambaze Emérance was detained since 08/11/2010, means that she has already served the sentence of 5 years as it is decided by the court; hence she is worth to be released. III. DECISION OF THE COURT [22] Decides that the appeal of Tuyambaze Emérance is with merit; [23] Punishes Tuyambaze Emérance with the imprisonment of five (5) years; [24] Declares that the hearing of the case no RP 0004/10/HC/RSZ that was tried by the High Court, appellate court of Rusizi on 28/11/2011 is amended regarding the punishment; [25] Orders that Tuyambaze Emérance be released after this case is tried as she already served the sentence; [26] Orders that the court fees are charged to the public treasury