To be uploaded Faustino Katemi Juvenile word

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IRINGA SUB-REGISTRY AT IRINGA CRIMINAL SESSION CASE NO 42 OF 2023 (Original PI Case No 01 of 2023 in the District Court of Mufindi at Mafinga) THE REPUBLIC……………………………………PROSECUTION VERSUS ZZY…………………………………………JUVENILE OFFENDER RULING ON SENTENCE Date of last Order: 29/05/2024 Date of Ruling: 29/05/2024 LALTAIKA, J. ZZY [Name withheld] is a juvenile offender. He was 15 years old when he was arrested in connection with the homicide at hand against his grandfather [Name concealed] herein after the deceased. While being assisted by Mr. Raymond Byombalirwa, learned Defence Counsel under state docket, the Juvenile Offender (herein after JO) has pleaded guilty to Manslaughter contrary to section 195 and 198 of the Penal Code Cap 16 RE 2022. Page 1 of 8 The Republic appeared through Mr. Sauli Makori, learned State Attorney. Ms. Rose Wanda, Social Welfare Officer for Iringa Municipality also attended the proceedings. I take this opportunity to register my application to the learned Counsel and Ms. Wanda for properly guiding this court in this important but rare proceeding involving a JO. A brief factual background is considered imperative. It is alleged that on the 31st day of March 2023, at Mtambula Village in Mufindi District, Iringa, the JO came from herding goats. He met the deceased, who greeted the JO, but the latter kept quiet. The deceased was angered and asked the JO why he was not responding to the greeting. The deceased proceeded to tell him that if he was that cruel, he would follow his deceased father [ who had died a few days prior] within one hour. The JO left his grandfather but, after 20 meters, he turned back and hit the deceased on the head with an axe. The deceased fell down, and the JO fled. While lying down, the deceased raised an alarm, groaning with pain, and Braison Kikalao and others responded to the groaning and took the victim to Nyakipambo Health Center. He was later transferred to St. Page 2 of 8 Joseph Hospital in Ikelu, Makambako. On the 1st of April 2023, the JO was arrested by a militia and taken to the village office. He was interrogated about injuring his grandfather but initially denied it. He was caned (beaten up) and then confessed that he was the one who injured the deceased. He proceeded to show the axe he had used to the village leaders. The JO was then taken to Igowole police station, where he was interrogated through a cautioned statement. He confessed to having committed the offence, explaining that he did so because the deceased was suspected of having killed his father by witchcraft. After this confession, he was taken to the justice of peace, where he also confessed. He insisted that he was threatened with death by the statement that he would follow his father to the grave within one hour. Thereafter, a sketch map of the area was drawn by F4838 Sgt. Yetus, assisted by Emilio Tefu, the Village Chairman. The victim passed away while receiving treatment at St. Joseph Hospital on April 4, 2023. A postmortem examination was conducted on the body of the deceased by Dr. Yusta Nziku, Page 3 of 8 which revealed that the cause of death was a head injury and severe bleeding (hypovolemic shock). Upon completion of the investigation, the JO was arraigned in this court. He has just entered a plea of guilty, convicted on his own plea for the offence of manslaughter hence this sentence. No sooner had the court entered conviction than Messrs Sauli Makori and Raymond Byombalirwa learned State Attorney and learned Defence Counsel submitted on aggravating and mitigating factors respectively. The importance of such an exercise for sentencing purposes cannot be overemphasized. In Bernard Kapojosye v. R. Criminal Appeal No. 411 of 2013 (unreported) the Court of Appeal of Tanzania had this to say: “In sentencing, the court has to balance between aggravating factors, which tend towards increasing the sentence awardable, and mitigating factors, which tend towards exercising leniency. The sentencing court should also balance the particular circumstances of the accused person before it and the society in which the law operates.” (Emphasis Mine) Page 4 of 8 It was Mr. Makori’s submission that the right to life is a constitutional right of every Tanzanian and that no one is permitted to curtail that right. He asserted that the Juvenile Offender’s (JO’s) action of taking the law into his own hands was improper and emphasized that the JO needed to understand that what he did was not permitted and was not the appropriate course of action. Mr. Makori further suggested that the JO should be able to educate others on this matter. He concluded by praying that the court implements the law. Mr. Byombalirwa, the learned Defence Counsel, presented several mitigating factors on behalf of the JO. He began by acknowledging that the JO is a first offender, a fact already noted by the learned State Attorney. Mr. Byombalirwa stressed the importance of recognizing the JO's genuine remorse for his actions, highlighting that the JO had confessed not only at the village office and the police station but also in court. Moreover, Mr. Byombalirwa reasoned, the JO had confessed before the Justice of Peace, which Mr. Byombalirwa suggested was a sign of his wisdom and willingness to take responsibility for his actions. He argued that Page 5 of 8 these confessions had significantly benefitted the court by saving both time and costs that would have otherwise been expended on a protracted trial. He pointed out the JO’s difficult personal circumstances, noting that he has no father, which may have contributed to his actions. Furthermore, he explained that the situation leading to the incident was one of provocation, implying that the JO was not entirely at fault. Another important factor Mr. Byombalirwa asserted, was the JO’s age, emphasizing that he is only 16 years old. He argued that as a young person, the JO has the potential for rehabilitation and should be given a chance to reform. Additionally, he mentioned the JO's good behavior since his arrest, noting that he had been cooperative and well-behaved throughout the legal process up to his arraignment in court. Mr. Byombalirwa also underscored the JO’s status as a student, specifically a Form Five HKL student at XXD Secondary School. He suggested that the JO’s educational pursuits indicate a desire to better himself and contribute positively to society in the future. Given these factors, Mr. Byombalirwa concluded his submission by praying for the Page 6 of 8 court’s mercy, arguing that the JO deserves leniency. He then welcomed the Social Welfare Officer to make any additional points to the mitigation. I have taken into consideration both aggravating and mitigating factors submitted by the learned State Attorney and the learned Defence Counsel respectively. Noteworthy, the JO was charged for manslaughter. I subscribe to Mr. Makori’s submission that what the JO done was wrong. It cannot be sugarcoated. Killing of a human being for whatever reason is presumed to be unlawful unless proved to be either legal or justifiable. The erstwhile Eastern Africa Court of Appeal put it distinctly in Gusambi Wasonga v. Republic [1948] 15 EACA 65 thus: “Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law.” Although the homicide at hand falls under excusable manslaughter caused by provocation, I am inclined to state that the JO may need to be trained in anger management. The teacher responsible for students’ welfare may need to device a specific methodology for counselling to prevent the JO from drifting further into negative repercussions of uncontrolled anger. Page 7 of 8 The JO may also be advised, without affecting specific regulations governing the school as prescribed by the relevant ministries, take the leads in establishing a human rights club to educate other young people on the importance of protecting human right not only in school but also at home. All said and done, the Juvenile Offender ZZY is hereby DISCHARGED. It is so ordered. E.I. LALTAIKA JUDGE 03/06/2024 Court: This ruling is delivered under my hand and the seal of this court on this 3rd day of June 2024 in the presence of Mr. Sauli Makori, learned State Attorney, Mr. Raymond Byombalirwa, learned Defence Counsel and ZZK the Juvenile Offenders. E.I. LALTAIKA JUDGE 03/06/2024 Page 8 of 8