PROS vs HARELIMANA

# PROS vs HARELIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-07-15 - Case/document no.: RPAA 0046/12/CS - Collection: Supreme Court

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PROSECUTION v. HALERIMANA [Rwanda THE SUPREME COURT – RPAA 0046/12/CS (Mugenzi, PJ, Nyirandabaruta and Gakwaya, J.) July 15, 2016] Evidence Law – Value of the medical report when the expert did not take the oath – When that report was not proceeded by the oath as provided by the law, the later is an invalid evidence, which makes it to not be considered as a tangible evidence in the case trial – The Law nº 15/2004 of 12/06/2004 relating to evidence and its production, Article 93. Evidence Law – Testimony provided by a person under 14 years of age – Has to be supported by additional evidences – The Law nº 15/2004 of 12/06/2004 relating to evidence and its production, article no. 63 Facts: The offender was pursued in the appalate court of Musanze, following charges on defiling a child of eight (8) years of age. The Court declared him guilty and sentenced him with life imprisonment, he appealed for the High Court, Chamber of Musanze, and this Court sustained the judgment rendered by the High Court the Chamber of Musanze. He appealed in the Supreme Court stating that he was declared guilty by basing on fake evidence, and that witnesses accusing him have close relationship with the victim, and that the report of expert does not show that the expert has taken an oath, and that it does not prove that he transmited her HIV/AIDS. The Prosecutor states that the first Judge informed the Court why he/she cannot invalidate the report of expert, due to the fact that missing the oath attached to the report does not make the report invalid while there are other evidences containing statements of witnesses interviewed that match with the content of that report of expert. Background of the court decision: 1. The fact that the report of expert does not bear the oath of the expert who produced it makes it an evidence without merit, thus, the report should not be considered in trying this case. 2. There is no additional evidences provided by the Prosecution to support those provided by children of under fourteen (14) years of age, since it was proved that the report of expert which was likely to support them is invalid, thus the statement of the offender that testimonies of children interviewed should not be considered as the single evidence to prove her guilty is with merit, therefore, his appeal is with merit. The appeal with merit.

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The accused acquitted, and immediate release ordered. The court fees to be charged to the public treasury. Statutes and statutory instruments referred to : The Law Nº 15/2004 of 12/06/2004 relating to evidence and its production, articles 63 and 93 No cases referred to. Judgment I.BRIEF BACKGROUND OF THE CASE [1] This case was opened in the intermediate court of Musanze, the Prosecution sued Harelimana Fulgence for defiling a child called M. A of eight (8) years old, in the case No RP 0170/09/TGI/MUS, the court declared him guilty and sentenced him with life imprisonment, he appealed to the High Court, the Chamber of Musanze, and the later tried the case on 23/12/2011, and decided that the judgment No RP 0179/09/TGI/MUS as tried by the intermediate court of Musanze does not change [2] Harelimana lodged an appeal to the Supreme Court, stating that he was declared guilty by basing on invalid evidences, and that witnesses who accused him have close relationship with the victim, while the report of expert does not show that the expert who developed it has taken an oath, and does not prove that he transmitted HIV/AIDS to her. [3] The case was tried in public on 14/03/2016, Harelimana Fulgence being supported by both Kananiye Théoneste and Bikotwa Bruce, the Counsels, while the Prosecution was represented by Higaniro Hermogène, the National Prosecutor. The hearing was closed on that day and both parties were informed that they will be informed of the court decisions on 15/04/2016, when the case was tried in absentia the Court finds that it was necessary to first summon for Dr. Mukamana Anne Marie who diagnosed M.A so as to give some explanation regarding the report she prepared after taking an oath before the court, and the Court decided that the hearing will be opened once again on 13/06/2016, after she is summoned for. [4] On that day the hearing was re-opened, Harerimana Fulgence was represented by both Kananiye Théoneste and Bikotwa Bruce, the Counsels, while the Prosecution was represented

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by Uwombonye Hirwa Sudi, the National Prosecutor, while Dr. Mukamana Anne Marie was absent, as the Ministry of Health was her employer only when she diagnosed M.A and when she developed the report as an expert, she told the Court that she is no longer an employee of the same Ministry, and that she resigned from her duties in 2012 and went to Nairobi - Kenya, where she later on left for Belgium. II. ANALYSIS OF LEGAL ISSUES In this case it will be analysed whether the report of expert on which the case trial was based is without merit, and the value to be given to testimonies as provided by both Serugendo and Nsabagani. A. Knowing whether the report of expert that was based on trying the case N o RPA 0402/10/HC/MUS is without merit. [5] Kananiye Théoneste, the Counsel, states that the report of expert was developed in the violation of the provisions of the article 93 paragraph 2 of the Law no 15/2004 of 12/06/2004, relating to evidences and its production, which stipulates that when the expert did not take the oath the report he/she developed remains without merit, the first Judge violated this and based on that report while trying the case. [6] Both Kananiye Théoneste and Bikotwa Bruce, the Counsels, who support Harerimana Fulgence state that all evidences that the Judge based on remain without merit, and that the Prosecutor states that the testimony is supported by the report of expert, yet the later is without merit. They explained that the said report was prepared in ways violating the law, and that even though Dr. Mukamana Anne Marie would have been appeared before the court and taken oath could not have erased the fact that the report of expert was prepared through illegal ways, and that what they prove is that there are no convincing evidences proving that Harerimana Fulgence whom they support has defiled the child, they thus request the High Court that declared him guilty by simply basing on testimonies as provided by children and which were not supported by additional evidences, rather the Court should base on article 153 of the Law Nº 13/2004 of 17/5/2004 relating to criminal procedures and then declare him innocent as in the case RPAA 0133/10/CS of the Prosecution and Mvuyekure of which the Court decided that evidences accusing him were not convincing and then declared him innocent.

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[7] The representative of the Prosecution states that the first judge states the reason why he/she cannot take the report of expert as without merit, as the fact that it does not bear the oath cannot make it invalid while there are other evidences including statements of witnesses interviewed and the content of the report, and those are the additional evidences, and that there is no query while the Judge stated that there are some additional evidences. He concluded that the court will base on the statements provided in the case by both parties and then try the case as per the law. THE VIEW OF THE COURT [8] Article No. 93 of the law nº 15/2004 of 12/06/ relating to evidences and its production, stipulates that « The report shall be signed by all the experts. The signing of experts shall be invalid, if not preceded by the following declaration: I ……., swear that I have fulfilled my mission completely and conscientiously, with accuracy and honesty. May I face the law if I did not do it with the due accuracy ». [9] The case file shows on its "quote 21, that the report of expert as issued on 6 April 2009 does not show the oath of the expert who developed it. [10] The Court finds that the fact that the report does not carry the oath of Dr. Mukamana Anne Marie who developed it, makes it invalid, and thus, an invalid evidence in this case. B. To know whether testimonies provided by Nsabagasani and Serugendo should not have been considered [11] Harelimana Fulgence and his counsels Kananiye Théoneste and Bikotwa Bruce stated that witnesses interviewed have close relationship with the victim and that their statements are based on what they were told as they are children, though the law is not against it, yet their testimonies were influenced, thus he requested that testimonies as provided by Serugendo be not considered as he also states what he cannot prove, that the victim was eight years (8) old and due to the fact that she also can provide influenced statement. [12] The representative of the Prosecution states that testimonies provided by children though they are not eye witnesses should not be considered without merit since they are supported by additional evidences including the report of expert.

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THE VIEW OF THE COURT [13] Article no. 63 of the Law nº 15/2004 of 12/06/2004 relating to evidences and its production stipulates that: “Any person can be allowed to testify as a witness in court, with the exception of those people who have no capacity to be witness in court.[…] Children of 14 years and below as well as adults persons with incapacity are allowed to testify in court without being under oath and if give an account of the events but that their testimony must be corroborated by other evidence”. [14] The case file shows that on the quote number 11 the witness called Nsabagasani, born in 1996, was interviewed and stated that M.A came from Kidandi's saying that she met with troubles, while asking her the kind of troubles she met she replied that it was Kidandi that told her to go to bed by promising her to give her both twenty (20) Rwandan francs and sweet potato, and that M.A received that money and of which she bought cane sugar, and that both Alice and Nyiramwiza were there when he gave her such a promise and saw her buying that cane sugar, and that she was seen leaving his home at around 3 p.m, and she narrated her that Kidandi sat on her and that there was a child called Théobald. While on the quotes number 13-45 the witness called Serugendo, born in 1995, was interviewed and stated that he saw M. A coming from Kidandi's shaking and when she was asked what was going on she replied that it was due to Kidandi who lifted and put her on the bed before giving her twenty (20) Rwandan francs and then sat on her and that Jeanette, Alice and Bose were there watching, and that after leaving Kidandi's she immediately went to keep the goats and that none else was at Kidandi's home. [15] The case file also shows, on the quote number 16, that on 8 April 2009 Niyonzima Jean Claude who was born in 1993 was interviewed and then stated that when she was from school proclamation and went to keep animals together with Kidandi and Tuyisingize at around 2 p.m, sheeps were gathered at her home and went to keep them together and that they met a child called Théobald at Kidandi's home. On quote number 17 witness called Tuyisingize Jean who was born in 1995 was interviewed and stated that when they were coming from school proclamation they went to see Kidandi so as to go to keep animals as a team where they met a child named Théobald yet they did not enter the house. [16] The Court finds that Nsabagasani provided his testimony when he was thirteen (13) years of age while Serugendo was fourteen (14) years of age. The Court finds that following statements above, children of under fourteen (14) years of age are allowed to provide testimonies in the Court but their testimonies have to be supported by additional evidences.

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[17] The Court finds that, however, there are no convincing additional evidences that the Prosecution proved in the support of the statements as stated by the children, as it was proved that the report of expert likely to support them was without merit, hence the statement of Harelimana saying that only testimonies of children interviewed should not be the basis of the Court decision to declare him guilty is without merit, this entails, thus, that his appeal remains with merit. DECISION OF THE COURT [18] Finds Harelimana Fulgence's appeal with merit; [19] Declares that the judgment RPA 0402/10/HC/MUS as tried by the High Court, Chamber of Musanze overturns; [20] Acquits Harelimana Fulgence; [21] Orders that Harerimana Fulgence be released immediately after the pronouncement of the judgment; [22] Orders that the court fees are charged to the public treasury.