SALUM RAMADHANI KIJAJI Versus REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA CRIMINAL APPEAL No 23490 OF 2024 [Appeal from the decision of the District Court of Dodoma at Dodoma in Criminal Case No 15 of 2023 before honourable Tungaraja Esquire Senior Resident Magistrate] BETWEEN SALUM RAMADHANI KIJAJI………………………………………….APPELLANT Versus THE REPUBLIC………………………………………………………..RESPONDENT JUDGMENT MRUMA J, Salum Ramadhani Kijaji the Appellant herein was charged and convicted of two sexual assault offences. In the first count the Appellant was charged with the offence of Rape Contrary to Section 131 (1) (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E. 2022] and in the second count the Appellant faced the charge of Impregnating a School Girl Contrary to section 60A (3) of the Education Act [Cap 353 R.E. 2019]. 1 The particulars of the first offence are that, on the 30th day of December2021 at Msalato area within Dodoma District in Region the Appellant did have carnal knowledge of One S.A. (name withheld). In the second count of Impregnating a school girl particulars thereof were that on the 30th day of December 2021 at Msalato area within Dodoma District in Dodoma Region did impregnate one S.A. (name withheld) a Form One Student at Chikoye Secondary School. Before the trial Court, the Appellant was found guilty of both counts and accordingly convicted. He was sentenced to thirty (30) years imprisonment on each count. Sentences were ordered to run concurrently. The Appellant was dissatisfied with the conviction and sentences and lodged an appeal. He preferred the following Grounds of Appeal:- 1. That the learned trial magistrate erred in both law and fact in convicting the Appellant while the prosecution failed to prove its case beyond reasonable doubt; 2. That the learned trial magistrate erred in both fact and in law by failing to asses the credibility of witnesses for the prosecution; 2 3. That the trial magistrate erred in law and in fact by convicting the Appellant based on the evidence which was at variance with the charge sheet; 4. That the learned trial magistrate grossly erred in law and in fact by convicting the Appellant on the evidence the chain of custody of which was not established; 5. That the trial magistrate erred in both law and in fact by convicting and sentencing the Appellant based on scientific evidence which was illegally obtained and improperly admitted in evidence and marked as Exhibit PE2; 6. That the learned trial magistrate grossly erred both in law and in fact by convicting the Appellant on un-procedurally conducted proceedings in that they offended section 10 (3) and 9(3) of the Criminal Procedure Act; 7. That the learned trial magistrate grossly erred both in law and in fact for failure to adhere to the provisions of section 192 (2) and (3) of the Criminal Procedure Act in the that the Memorandum of undisputed facts was not read over in court; 8. That the learned trial magistrate erred both in law and in fact in convicting the Appellant based on contradictory and discrepant evidence of PW1; 3 9. That the learned trial magistrate erred in law and in fact by convicting and sentencing the Appellant on the proceedings which were tainted with irregularities; 10. That the learned trial magistrate erred in law and in fact by failing to consider the Appellant’s defence. On those grounds the Appellant is asking the findings and decision of the trial court to be quashed and the sentence set aside with the consequence of him being set at liberty. The appeal was opposed. The Republic/Respondent challenged the appeal through Ms Prisca Kifagile learned State Attorney. It was her submissions that the Prosecution established all the ingredients for the offence of Rape. She urged the appeal to be dismissed and the conviction and sentence affirmed. Starting with the offence of rape, it was the submissions of the learned State Attorney that for prosecution to prove the offence of rape they are required to prove three elements namely:- i. Age of the victim; ii. Penetration and iii. That the Accused is the perpetrator. 4 On the first element, the learned State Attorney submitted that the victim gave undisputed evidence that at the time of commission of the alleged offence she was fifteen (15) years old. The learned State Attorney contended that the evidence of the victim regarding her age was corroborated by that Paulina Said Omar (PW3) her guardian who stated that the victim was born in 2007 thus at the time the alleged offence was committed fifteen years old. On the issue of penetration, the learned State Attorney submitted that there was evidence of the victim herself which was to the effect that on the material day the Appellant entered her bedroom pushed her onto her bed, closing her mouth and raped her as a result of which she get pregnant Submitting with respect to who was the perpetrator, the learned State Attorney submitted that there was evidence from the victim that the Appellant was the only person who had sexual intercourse with and she maintained that position even during an intensified cross-examination. The learned State Attorney cited the case of Selemani Makumba Vesrsus R Criminal Appeal No 94 of 1999 (CAT) where it was held that the best evidence of a rape case is that of the victim herself. 5 Submitting in support of conviction with respect to the second count, the learned State Attorney submitted that in order to prove the offence of impregnating a school girl contrary to section 60A (3) of the Education Act, the learned State Attorney submitted the prosecution is required to prove two elements; one that the victim was a student/pupil and two that the pregnancy belongs to the accused. She said that the prosecution was able to prove its case beyond reasonable doubt. She said that the victim (PW1), gave evidence to the effect that she was a form two student at Chikole Secondary School. According to the learned State Attorney the evidence of PW1 was corroborated by that of Faraja Semango (PW2) a teacher at Chikole Primary School who gave evidence to the effect that the victim was a form two student at Chikole Secondary School and tendered a school attendance register (Exhibit PE1) which shows that the victim was a form two student in that school. On the second element that it was the Appellant who impregnated the victim, the learned State Attorney submitted that there was evidence from the victim herself to the effect that it was the Appellant who impregnated her which is supported by that of Boniface Emanuel Majinyali (PW4), a Government Chemist analyst who conducted a DNA examination and 6 tendered his report (Exhibit PE), which shows that the victim’s child was fathered by the Appellant. This being a first appeal, it is the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial court with a view to arriving at its own independent conclusions and findings. This principle was established in the old case of Okono versus Republic [1972] EA 74. In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial court and, therefore, it ought to give due regard in that respect as so held in a Kenyan case of Ajode v. Republic [2004] KLR 81, which I find to be persuasive. This court is, therefore, supposed to determine whether the two offences were proved beyond reasonable doubt and, if so, whether they were committed by the Appellant. The starting point is how the offence of rape is described in law. There is no clear definition under the Penal Code of what the term rape entails. Section 130 (1) of the Penal Code Cap 16 R.E. 2019 (hereinafter referred to as ‘the Act’) simply describes how the offence of rape is committed. The law states as follows:- 7 “A male person commits the offence of rape if has sexual intercourse with a girl or a woman under circumstances falling under the following descriptions: (a) Not being his wife or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; (b) With her consent where the consent has been obtained by use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; (c) With her consent when her consent has been obtained at a time when she was of unsound mind or was in state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless it is proved that there was prior consent between the two; (d) With her consent when the man knows that he is not her husband and that her consent is given because she has been made to believe that he is another man to whom she is or believes herself to be lawful married; (e) With or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. 8 Again the law does not explain what constitutes sexual intercourse, but Black’s Law Dictionary defines it as a contact between a male and female’s organ which means that any other form of sex, for instance fingering or commonly finger sex is not sexual intercourse within the law. As rightly submitted by the learned State Attorney ingredients of the offence of rape, include proof of penetration, proof of the perpetrator and proof that the consent was not freely given and in the event the victim is under eighteen years of age, proof of her age. On looking at those aspects in this judgment, this Court shall consider each of them singly. I must however confirm that the evidence was well captured in the judgment under appeal and I hereby adopt the same as part of this decision by reference. In a snapshot, six witnesses testified before the trial Court. The victim testified as PW1, Faraja Semango who was PW1’s teacher at Chikola Secondary school testified as PW2, Filuna d/o Saidi Omari the victim’s step mother as PW3, Boniface Emanuel Majinyali a Government Chemist attached at Chief the Government’s Chemist Laboratory at Kigamboni DaR Es Salaam testified as PW4, WP 11270 D/CPL Rosada the Investigating Police Officer testified as PW5 and Janet Almasi PW6 an officer from the office of the Chief Government Chemist. 9 Upon close of the prosecution’s case, the Appellant was found to have a case to answer. He was placed on his defence. He gave his defence on affirmation and he was the sole Defence witness. The age of the complainant was not contested in this appeal. The complainant testified that she was aged 15 years old at the time she was testifying in court .That was confirmed by her guardian Failuna Said Omari who testified as PW3. The victim was, hence, a child in law. As regards penetration the victim’s testimony was compelling as to the occurrence of penetration. Being a child she narrated how an assailant found his way into her room and found her naked, he pushed and pinned her on the bed and inserted his penis in her vagina. She definitely knew what inserting penis in a vagina is all about. That was further corroborated by the evidence of Boniface Emanuel Mjinyali PW4, a Government Chemist at the Office of the Government Chemist Laboratory who conducted chemical analysis of DNA from the Appellant, the victim and the victim’s child. He produced in evidence the DNA report (Exhibit PE2), which was also a confirmation and sign of a penile entry and proof of paternity. This Court having keenly perused Exhibit PE 2 and the evidence of the victim finds that the totality of the foregoing is that there is no doubt that penetration was proved beyond reasonable doubt. 10 On the question whether the Appellant was the perpetrator, the victim testified that on the fateful night, the Appellant forcefully entered her bedroom and found her naked. She stated that the Appellant is her paternal uncle. She had lived with him for a considerable period of time therefore, she was able to identify and recognize him. She gave evidence that after the Appellant raped her, he warned her not to disclose the incident to anybody. At one point, the victim stated as follows:- ” Ba Mkubwa anaitwa Salum Ramadhani Kijaji, ananiambia siku zote nakwambia nakupenda unakataa, leo utaona. Akanisukumiza Kitandani akaniziba Mdomo na kuingiza uume wake kwenye Uke wangu. Baada ya hapo akanionya usimwambie mtu” The Appellant gave sworn testimony in his defence. He mainly testified on how he was living with his family in his own house. He told the court that the victim is his cousin’s daughter. He denied to have raped her. He said that the victim’s parents were not living together and he volunteered to live with the victim and take care of her as her own daughter. He processed the victim’s transfer from Mlimwa Secondary School to Chikole Secondary School which is near his home. He did not challenge his identification and recognition by the victim. 11 The trial Court believed prosecution’s witnesses as truthful. There is nothing on record for this Court to review that finding. In sum, the prosecution’s evidence affirms the position that the identification of the Appellant as the assailant was not in error. Next is the issue of the consent. Lack of consent is a crucial component in the offence of rape. However, under the provision of section 130 (2) (e) of the Penal Code, where the victim is under eighteen years of age consent is immaterial. Thus, in the case at hand in which the victim was 15 years old consent is not an essential element of the crime of rape. As stated above proof of mens rea in rape is also not a requirement under the law. The mental element to have intercourse with or without consent of a girl under the age of eighteen years old is immaterial. In the case at hand there was overwhelming evidence that the victim was under the age of eighteen years and was not married to the Appellant. There was also evidence to the effect the Appellant engaged in sex with the victim, whether he did it intentionally or with the victim’s consent it remains the case that the Appellant had carnal knowledge of the victim who was under the age of eighteen years, and had committed a grave offence under the law. Omission of mens rea which is a crucial element in criminal liability is in my view one of the indications that this is a bad law. 12 Notwithstanding my observations above bad as it is because it is still in our statutes the duty of courts is to interpret and apply it. Having comprehensively re-assessed the evidence, it is apparent that the ingredients for the offence of statutory rape were satisfactorily proved. The Appellant caused his penis to penetrate the genital organ of the complainant and caused her to get pregnant. That is evidence of commission of the offence of rape and also the offence of impregnating a school girl. The Appellant was hence, properly found culpable and rightly convicted. As such, the appeal on conviction fails. The Appellant was sentenced to 30 years imprisonment on each count. He did not complain about these sentences, however this being a court not only of law but also of justice it has a duty to see that justice prevails. The records does not indicate that the Appellant was given an opportunity to tender mitigations for consideration by the sentencing court before passing sentence. In my view this court has powers to interfere with the sentence imposed as I am satisfied that it was unreasonably excessive. The then Eastern Africa Court of Appeal in the case of Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on 13 sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion. There is no doubt the offences charged are serious and indeed inhumane and that they were committed against an innocent young lady. There is nothing placed before this Court to the effect that sentencing Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, it is undisputable fact that as regards the first count, the sentence meted is minimum sentence and mandatory under the law. A person guilty of an offence under section 130 and 131 of the Penal Code is upon conviction sentnced to imprisonment for a term which shall not be less than thirty (30) years but which in the event the victim is under the age of 12 years old or where the accused is convicted of a gang rape to imprisonment for life. 14 While there is no doubt that rape is a severe act of violence and grave violation of human rights inhumane and unacceptable but the draconian sanctions imposed by our laws against convicts of rape are equally excessively harsh, severe, cruel and are going beyond what is necessary or justified. The Parliament passed these draconian sentences in 1998 through Act No 4 of 1998 that amended several written laws by making special provisions in those laws with regard to sexual and other offences with the aim of safeguarding the personal integrity, dignity, liberty and security of women and children. Apparently, the amendment were haphazardly passed as a result of which the consequences of long and mandatory imprisonment sentences prescribed in the law did not consider the rights of the other gender and the society at large. Under the provisions of section 130 (2) (a) to (e) of the Penal Code, it is not a requirement under the law to prove an intention or knowledge of wrongdoing commonly known in latin as mens rea and/or even the unlawfulness of the act of having sexual intercourse with a woman or a girl under the listed descriptions. It follows therefore that a man can be convicted for committing an offence which he had no intention to commit or had knowledge that what he was doing was wrongful. The amended law did not consider the fact that in some cases victims (especially of 15 statutory rape) are active and necessary accomplices to the commission of the offence. The new law did not take into consideration that long and harsh sentences have disastrous effect both to the accused’s family and to the family of the victim and even a child born as a consequence of an act of rape. A child born as a result of statutory rape will not see his/her father until he himself/herself becomes a father /mother Coming to the sentence meted in respect of the second charge of Impregnating a School Girl Contrary to Section 60 A (3) of the Education Act, which in my was excessive and unreasonably harsh and there is a need to be interfered with by this court. I am unable to find any authority within our jurisdiction concerning principles guiding interference with sentencing by the appellate Court. In South Africa the Supreme Court of South African case of in S vs. Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that: “A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be 16 justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate” In Kenya the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:- "The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” To this, I would add a third criterion namely, ‘that the sentence is manifestly excessive’ in view of the circumstances of the case. I find these decisions persuasive and I will apply them in this case. In this case the Appellant was charged in second count under Section 60 A (3) of the Education Act which provides as follows:- 60 A (3) Any person who impregnates a primary School or Secondary School girl or a School boy to marry while pursuing primary or Secondary education commits an offence and shall on conviction, be liable to imprisonment for a term of thirty years. 17 The trial court sentenced the Appellant to thirty years imprisonment. The question is whether this was appropriate sentence in the circumstances of this case. In my conviction the difficulty arises from the interpretation of the phrase “shall be liable to”. Sir Henry Webb C.J. in Kichanjele S/O Ndamungu versus Republic (1941) 8 EACA 64 had this to say on the proper construction of the words “liable to”:- “The wording used throughout the code is “shall be liable to” but a consideration of the various sections shows in our judgment, that the use of the words “shall be liable to” does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated.” The predecessor of the court went further in Opoya versus Uganda [1967] EA 752 at page 754 where Sir Clement De-Lestang V.P. picked up the conversation inter alia thus: “It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not 18 mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.” It appears the learned trial Magistrate interpreted the words “shall be liable to” to mean imposition of the prescribed sentence. That was wrong interpretation. The words shall be liable provides for maximum sentence only but court was at liberty to impose any sentence which would have been fit in the circumstances of the case Our Sentencing guidelines set out the following among other criterion to be taken into consideration in sentencing: (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; 19 (h) any other factor that the Court considers relevant. In this case the record indicates that the Appellant was not given opportunity to offer his mitigations for consideration by the court, similarly it would appear also that the prosecution was not invited to give the Appellant’s antecedent or criminal history. An appeal court, which mine is, is only entitled to interfere with the exercise of discretion where it is shown that the court whose exercise of discretion is impugned, has either not taken into account a relevant factor, or taken into account an irrelevant factor or that short of these the exercise of the discretion is plainly wrong. As stated above, the learned trial magistrate appears not to have invited the prosecution to address him on the Appellant’s antecedent and the Appellant was not accorded right to offer his mitigations. I will step into the shoes of the trial court and invite the learned State Attorney to give the Appellant’s antecedent and thereafter I will invite the Appellant to offer his mitigation before I pass the sentence. The learned trial magistrate’s failure to take these factors into account gives me the right to interfere with the sentence he imposed on the appellant in respect of the second count. Having received the Appellant’s mitigations and considering his old age I set aside the sentence of thirty 20 (30) years imprisonment imposed on a man of 64 years old age for the offence of Impregnating a School Girl and substitute it with a sentence of five (5) years imprisonment to run from the date when the appellant was first sentenced by the trial court. As ordered by the trial court both sentences will run concurrently. Drawing from the above considerations, the appeal is partly dismissed and partly allowed as explained above. A. R. MRUMA, JUDGE, 24.3.2025 Delivered at Dodoma this 24th Day of March 2025. 21