THE PROSECUTION v. BAZIGA

# THE PROSECUTION v. BAZIGA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-07-22 - Case/document no.: RPAA 0163/12/CS - Collection: Supreme Court

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THE PROSECUTION v. BAZIGA [Rwanda SUURUKIKO RW’IKIRENGA – RPAA 0163/12/CS (Nyirinkwaya, Kayitesi na Mukandamage, J.) 22/7/2016] Criminal Procedure – Testimonies by a child – It is valid only when corroborated with other evidence – Decree - Law nº 21/77 of 18/08/1977 instituting the penal code, article 70. Criminal Law – Child defilement – Transmitting HIV to the victim – It is not obvious that each time the HIV positive make sexual intercourse with a non - infected person immediately transmit it to that person Facts: The accused was brought before the Intermediate Court of Muhanga, accused for having defiled a child aged of three years and seven months of age, when she came to his home, he served her alcohol drink, removed her underwear and touch her sex. The court convicted him to the child defilement committed against a four year old child and sentenced him to twenty (20) years of imprisonment with the fine of one hundred (100.000). He appealed against the decision in the High Court, the chamber of Nyanza, requesting to be acquitted because the medical physician that consulted U.J did not prove that his sex penetrated the child’s and that she was not transmitted of HIV SIDA while he is HIV positive. The court sustained the appealed judgment. He appealed to the Supreme Court, stating that the High Court ignored evidences proving that he had some conflicts with Nishimwe Vérène , the mother to the child that provided in support of his defence, the fact that the expert who tested the child failed to prove that his sex penetrated in to the sex of the child or found his sperms, the fact that during the investigation as conducted by the Intermediate Court of Muhanga all witnesses who were interviewed stated that he had no addiction to sexual acts, and the fact that the Intermediate Court of Muhanga did not value the report of expert proving that he is HIV positive while the child was not. The Prosecution states that the court explained that there was no conflict between the accused and the victim’s mother because he himself declared that the child used to visit his him, implying that her mother would not permitted her to visit him in case of conflicts. Furthermore, he failed to prove it. Held:1. Testimonies made by a child are valid, when corroborated with other evidence 2. The accused cannot allege that the victim was not infected of HIV while he is HIV positive, because it is not obvious that each time the HIV positive make sexual intercourse with a non - infected person immediately transmit it to that person, as proved by researches conducted on the matter. Appeal dismissed. Appealed judgment sustained. Court fees charged to the public treasury. Statutes and statutory instruments referred to: Law n⁰ 13/2004 of 17/05/2004 relating to the code of criminal procedure, article 60.

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Law n⁰ 27/2001 of 28/04/2001 relating to the rights and protection of the child against violence, article 33. No case law referred to. Doctrines: Htpp:// www.catie.ca/en/pif/summer Judgment I. BRIEF BACKGROUND OF THE CASE [1] In the Intermediate Court of Muhanga, Baziga Hassan was accused for having defiled a child aged of of three years and seven months of age on 16 April 2010 named U. J, when she came to his home, he served her alcohol drink, removed her underwear and touch her sex. The court convicted him to the child defilement committed against a four year old child and sentenced him to twenty (20) years of imprisonment with the fine of one hundred (100.000). [2] Baziga Hassan appealed against the decision in the High Court, the chamber of Nyanza, requesting to be acquitted because the medical physician that consulted U.J did not prove that his sex penetrated the child’s and that she was not transmitted of VIH SIDA while he is a sero - positive. The court rendered the verdict on 27 April 2012, dismissing the appeal lodged by Baziga Hassan and sustaining the appealed judgment. [3] Baziga Hassan appealed for the Supreme Court on 3 May 2011, stating that the High Court ignored evidences proving that he had some conflicts with Nishimwe Vérène , the mother to the child that provided in support of his defence, the fact that the expert who tested the child failed to prove that his sex penetrated in to the sex of the child or found his sperms, the fact that during the investigation as conducted by the Intermediate Court of Muhanga all witnesses who were interviewed stated that he had no addiction to sexual acts, and the fact that the Intermediate Court of Muhanga did not value the report of expert proving that he is HIV positive while the child was not. [4] The hearing was held public on 6 June 2016, Baziga Hassan was assisted by Counsel Furaha Amida, while the Prosecution was represented by Higaniro Hermogène, a National Prosecutor. ANALYSIS OF LEGAL ISSUES Whether there are strong evidence convicting Baziga Hassan the offence he is charged with. [5] Baziga Hassan states that the expert who tested U.J, the victim, failed to prove that his sex penetrated in to the sex of the child or found his sperms on or in her sex, that s/he found some infections on the sex of the child though s/he proved that the child was not infected HIV/AIDS mu while Baziga Hassan has been HIV positive for a long time, it is absolutely understandable that he should have infected her if he had defiled her.

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[6] He further states that though he is HIVAIDS positive he does not know where he got the virus since he never had action to sexual acts, and that the statements of the Prosecution that he sexually violated the child using his finger is not true, it is rather her mother who did it so as to make him a scapegoat, and that during the investigation as conducted by the Court, the child revealed that her mother told her to state that he is the one who did it. [7] He continued stating that Nishimwe Vérène forged the case due to the fields he bought from her father in law called Ngendahayo Stanislas, and that Nishimwe asked him many times to have sexual intercourse with her, with target to make her his partner yet he refused since he knew he was HIV/AIDS positive while she, on the other hand, thought that the refusal to make sexual intercourse with her was due to the fact that he did not love her, which made her to hate him intensely to the extent that she revealed to him that he will die miserable, due to which he returned to his parents’, and that it is not understandable how the child was defiled on 12/06/2010 where Nishimwe did not sue the case to neither local leaders nor neighbours, and rather took the child to hospital on 19 April 2010. [8] Furaha Amida, the Counsel, assisting him states that Baziga Hassan proved that he had some land based conflicts with Nishimwe which were sued to first instance courts and that he refused her request to make her his partner, yet the Court did not value them and that during the investigation as conducted by the Court, the child revealed that her mother told her to state that he is the one who did it though the Judge stated that the statement of the child cannot be the sole evidence to be based on, rather other additional evidences were based on though the statement of the child was uniquely the basis to declare Baziga Hassan guilty. [9] She further states that in her interview, Nishimwe, stated that the child told her that Baziga put his fingers on her sex and she never gave a dumb, however it is not reasonable how can a parent hear that her daughter was violated and then does not take care of it, and then take her to hospital after three (3) days, and that even the expert found it very perplex to confirm that the child was sexually violated, and rather based on the fact that she probably might have based on the fact that the child bore some minor infections on her sex, on which Baziga bases stating that if he was the one who had violated the child he should have infected her, thus basing on the fact that the child lost her hymen does not necessarily mean that she lost it following the sexual violence, hence the testimony as provided by the child of four (4) years together with the report of expert should not be based on by the Court so as to declare him guilty, he concluded requesting the Court to declare him innocent. [10] The representative of the Prosecution states that the court explained that there was no conflict between Baziga and U.J’s mother because he himself declared that the child used to visit his him, implying that her mother would not permitted her to visit him in case of conflicts. Furthermore, he does not prove it. [11] He keeps on arguing that the medical report proves that the child had small wounds in the vagina and had lost her virginity. Furthermore, he states that the court explained that sperms could not be seen because Baziga Hassan used the finger and that it is not obvious for a HIV positive to transmit it every time he/she has sexual intercourse [12] He adds that the Court did not convict him basing only on the testimonie as provided by the victim, rather it was supported by additional evidence as it is shown in the case under the appeal in its paragraphs 2 and 4. However, regarding the fact that the defendant had no sexual addiction before being sued by the Court, the Court explained that reason why this report of expert cannot be based on declaring him innocent since the sexual act is not likely to

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be done in public, and more to that, one of the witnesses interviewed stated that s/he cannot defend or support him, rather she requested the Court to conclude that the appeal of Baziga remains without merit, and that the judgement of the case under the appeal should be maintained. THE VIEW OF THE COURT [13] Article 33 of the Law n⁰ 27/2001 of 28/04/2001 relating to the protection and right of the child against violence that was into force at the time the offence was committed states " In this law, any sexual relations with a child, whatever the means or methods used, are considered as rape". [14] During the interview Baziga Hassan made before the Judicial Police, though he pleaded not guilty, he states that he did neither give alcohol beer to U.J nor remover her underwear, but admitted that she reached to his mohe on 16 April 2010 and that he had got beer. [15] The case file further records that, Nishimwe Vérène, the victim’s mother, when she filed the case in the Judicial Police, she stated that on 16 April 2010 U. J went at Baziga Hassan’s when nobody else was there and that when she was back she told her mother that Baziga gave her beer then took off her underwear and then touched on her sex, yet she never gave a dumb, the next day when the child repeated it again, she asked her what kind of thing he used touching on her sex and the child replied that he used a finger, and then she immediately took her to hospital where the expert found that she was sexually violated, then she said that she is neighbour to Baziga and that they do not have any relationship. (Quote 3 and 4). [16] This statement as provided by Nishimwe Vérène corroborates with the one provided by the witness called Uwingeneye on 17/04/2010, who told them to come and listen to what the child was saying, where the child told them that Baziga took off her underwear and then touched on her sex, and that on 16/04/2010, Baziga had prepared beer and due to the fact that he was a good neighbour to Nishimwe her daughter used to come to his home to play with other fellow children ( Quote 7 and 8). Furthermore, testimony as provided by Mukagatabazi proved that Baziga violated a child, for that reason Nishimwe should not have faked a crime against him as they were good neigbhours. [17] The statement referred to above is corroborated with a medical certificate issued Masinda Maurice who consulted the victim on 19 April 2010, and who confirm that she had small wounds on her sex and lost her virginity (petites plaies traumatiques des petites lèvres et de la muqueuse vaginale, l’hymen est absent), and that she was infected with sexual illness, making him believe that she was defiled (Infection uro – génitale sur viol probable). Furthermore, he rprescribed some drugs to her. [18] The Court finds that the previously provided testimonies are supported by the report of expert and that the statement of the daughter herself make up sufficient evidence to prove that Baziga is to be declared guilty of the crime to sexually violate a child of four years by the High Court, the Chamber of Nyanza after viewing it; therefore Baziga’s defense stating that the report of expert did not show that his sex was inserted into daughter’s sex is without merit, basing to the fact that the crime termed sexually violating a child does not exists only when sex was used rather whichever thing which may have been used on the sex of the child

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as the article no 33 of the Law n⁰ 27/2001 stated above provides, this also entails that even coaxing the sex of the child by the use of fingers is an integral part of the crime. [19] Regarding the fact that the child stated that what he charged Baziga was based on what her mother told her though during the investigation as conducted by the Intermediate Court of Muhanga on 29 October 2010, U. J stated that it was her mother who told her to state that it is Baziga who violated her, the Court finds that it could not be taken as an evidence proving Baziga not guilty, due to the fact that in his statement, though he was younger, contain the truth as if she was interviewed whether there is someone who once hurt her and then replied that it is the doctor –on her sex, and then asked of what she was suffering from and replied that it was Baziga, furthermore he stated that Baziga touched on her sex with his fingers since she stole juice from him, hence defense of Baziga is without merit, thus the reason for his appeal is without merit. [20] With regard to the fact that the court should have not relied on the statements provided by a child to convict him, the court finds that as provided for by article1 60 of the Law n⁰ 13/2004 of 17/05/2004 mentioned above, the statements made by U.J, the victim, are not the sole evidence on which the High Court based to convict Baziga of the child defilement. Rather, her statement was corroborated with other evidence namely testimonies such as Mukagabatabazi Josephine and the medical report issued by a medical physician who attested that she was defiled. [21] With regard to the fact that the victim was not proved to be a HIV positive while the accused is affected since longtime, the Court finds that it is not a strong evidence discharging Baziga for having defiled U. J considering the offence that was committed, because he used the finger. However, it is not obvious that each time the HIV positive make sexual intercourse with a non - infected person immediately transmit it to that person as the research conducted on the matter proves it2. [22] However, regarding the fact that Baziga had no addiction to sexual acts, the Court finds that pretext on which it can base concluding that Baziga did not commit such a crime without merit as it concluded during the judgment of the case under the appeal since during the investigation as conducted by the Intermediate Court of Muhanga, witnesses interviewed including Nyirakimonyo Anastasie, Nyirakimonyo Floride, Hategekimana Sylvanie and Iryivuze Naason ( quote 40- 46) all stated that Baziga is a good neigbhour, there is no where they stated that they know that Baziga had no addition to sexual acts, moreover, it is not on the behaviour of any individual that the Court bases on declaring the accused the guilty of the crime s/he is accused of, rather the Court bases on tangible evidences. [23] Regarding the fact that Baziga had land related conflicts with Nishimwe Vérène, the Court finds it without merit as the it explained since it should analyse the provisional release 1Article 60 of the Law n⁰ 13/2004 of 17/05/2004 relating to the code of criminal procedure that was into force provides "………… Children under the age of 12 can also be heard but a court’s decision cannot be solely based on their testimony. In this respect, the evidence of a minor should be supported by other corroborative evidence. 2 Htpp:// www.catie.ca/en/pif/summer 2012 ( A meta- analysis of 10 studies exploring the risk of transmission through vaginal sex was published in 2009 it estimated the risk of HIV transmission through receptive vaginal sex ( receiving the penis in vaginal) to be 0.08% ( equivalent to 1 transmission per 1.250 exposures). A meta- analysis of three studies exploring the risk from insertive vaginal sex ( inserting the penis into vagina) was estimated to be 0.04%( equivalent to 1 transmission per 2.500 exposures).

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and imprisonment of Baziga as he himself stated that Uwingeneye Joselyne used to come to his house, more importantly they were good neighbours as the testimonies stated above summarise. [24] Considering the legal provisions and motives mentioned above, the court finds that the appeal lodged by Baziga Hassan lacks merit. THE DECISION OF THE COURT [25] Dismisses the appeal lodged by Baziga Hassan. [26] Decides that the judgments RPA 0009/11/HC/NYA, RPA 0043/11/HC/NYA and RPA 0074/11/HC/NYA rendered by the High Court, Nyanza chamber on 27 April 2012 is sustained. [27] Orders that the court fees are charged to the public treasury.