ANNA HAMIS KAOKO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 105 OF 2023 THE REPUBLIC VERSUS ANNA HAMIS KAO KO JUDGMENT MASABO J.:- Anna Hamis Kaoko, the accused herein, has been arraigned in this court charged with the offence of infanticide contrary to sections 199 and 198 of the Penal Code [Cap 16 RE 2022]. The particulars of the offence are that on 2nd May 2023 at Mkutani village within Kongwa District in Dodoma Region, the accused, by her willful act caused the death of her own daughter, OLIPA STEVEN, aged 9 months only by assaulting her with a stone on the head. It was asserted further that, at the time she committed the offence she had not recovered from the effect of giving birth to the child and the balance of her mind was thus still disturbed. On the first date of her arraignment in this court for plea taking and preliminary hearing on 19th October 2023, her learned counsel, Mr. Majaliwa Wiga, notified the court that the accused intended to rely on the defence of insanity and prayed the court to invoke the provisions of section 220(1) of the Criminal Procedure Act [Cap 20 RE 2022] and commit the accused person Page 1 of 6 to Isanga Mental Institution so that she can be medically examined to determine the status of her mental health at the commission of the offence. There being no objection from the prosecution, this court invoked its powers and ordered that the accused person be detained at Isanga Mental Institution and a medical examination to ascertain the state of her mental health at the commission of the offence be performed. A report from Isanga Mental Institution filed in this court shows that in compliance with the court order the accused person was transmitted and committed at the institution on 8th November 2023. While at the Institution, a medical examination was performed on her to ascertain whether at the time she committed the offence was of unsound mind. The finding thereto was that the accused Anna Hamis Kaoko had features pointing to epilepsy that led her to commit the offence she is charged with. Hence, she was insane because it seemed that she was not aware of what she was doing. Also, she seemed to have cognitive decline due to the chronicity of the illness. The procedure to be followed after receipt of the medical report is as stipulated under section 220(3) which provides that: Where the court admits a medical report signed by the medical officer in charge of the mental hospital where the accused was detained, the accused and the prosecution shall be entitled to adduce such evidence relevant to the issue of insanity as they may consider fit. In line with this procedure, upon the receipt of the medical report duly signed by Dr. Sadick Mrisho Mandari, a Physiatrist at Isanga National Mental Health Page 2 of 6 Institution, this court invited the prosecution and defence to adduce such evidence relevant to the issue of insanity. The prosecution paraded four witnesses. Steven Mathias Lenjima, the accused's husband and father of the deceased was the first to testify. He told the court that, he and his wife were blessed by two children, the deceased being the youngest, aged 9 months at her death and the first is a boy who was then 4 years. On the date of the incident, they had a normal day and after they had supper they went to sleep. As they were sleeping, the accused took both children and disappeared unnoticed. When PW1 woke up at about 3 am they were all gone. He notified his mother who reported the incident to the village authorities and thereafter, a search for the accused and her two children started. They found her on the next day. She was wandering around without the children and when interrogated, she led them to a bush where they found the younger child Olipa, dead and his brother Mathias, injured on the head and on the neck. Police were notified and when they arrived, they took the deceased and her brother to hospital. Mathias was treated and recovered but Olipa was declared dead. He also told the court that, the accused had no better explanation of what happened to the children and that, there was a record that she had a mental illness. PW2, Moshi Rashid Muhumba, is a village chairman for Mkutani village. He corroborated PWl's account of the disappearance of the accused and her two children, the search and her being found the next day without the children and that after she was interrogated, she took them to the bush at Sabasaba hill where they found both children with injuries on the head and neck. The girl, Olipa was declared dead and the boy, Mathias was treated and recovered. That, when they asked the deceased what had happened to Page 3 of 6 her children, she said she did not know but according to her siblings, she had a record of a mental illness. PW3, Petro Richard Malendeja, a medical officer at Sejeli Health Centre conducted a postmortem examination at Mkutani Dispensary to ascertain the cause of death of the deceased, Olipa Steven. He recalled that the body had multiple wounds on the head and clotted blood. They appeared to have been inflicted by a blunt object. From his examination, he established that the death occurred as a result of cardiopulmonary arrest secondary to multiple head injuries. His postmortem report was admitted as exhibit Pl. G 3738 D/CPL Hassan, a police officer at Mkoka Police Station was the last witness. Testifying as PW4, he told the court that, on the fateful day he went to the scene of the crime after it was reported. On arrival he found the deceased's body and next to her was Mathias Steven, her brother. The deceased was already dead. Mathias was alive but had wounds on his head. They took both, the deceased and his brother to the hospital. After they interviewed the villagers they were told that the accused killed her child but also, they were given a medical sheet showing that the accused had previously been treated of a mental illness. The defence did not parade any witness. The defence counsel Ms. Joanitha Paul, told the court that they will only rely on the medical report and the evidence rendered by the prosecution. Page 4 of 6 The law requires that, after the court has received the evidence, it must make a special finding whether in the light of the report submitted and the evidence rendered, the accused person committed the offence when he was insane so as not to be responsible for his action. The requirement is stipulated under section 220(4) and 219(2) of the Criminal Procedure Act, which states that: 220(4) Where on the evidence on record, it appears to the court that the accused did the act or made the omission charged but was insane so as not to be responsible for his action at the time when the act was done or omission made, the court shall make a special finding in accordance with the provisions of subsection (2) of section 219 and all the provisions of section 219 shall apply to every such case. 219(2) Where on the evidence on record, it appears to the court that the accused did the act or made the Commission charged but was insane so as not to be responsible for his action at the time when the act was done or the omission was made, the court shall make a special finding to the effect that the accused did the act or made the omission charged but by reason of his insanity, is not guilty of the offence. Thus guided, I have carefully considered the medical report and the evidence from PW1, PW2, and PW3 and PW4. From the testimony of the witnesses, it has been well demonstrated that the accused committed the offence she is charged with and that, she was mentally ill. In my firm view, their testimony has ably corroborated the medical report that the accused person was insane at the time he committed the offence. Therefore, I am of the finding that when committing the offence of infanticide against which she now stands charged, the accused person Anna Hamis Kaoko, was insane and by the Page 5 of 6 reason of her insanity she is not guilty of the offence. Pursuant to the provision of section 219 (3) of the Criminal Procedure Act, I subsequently order that she be transferred and kept in a Mental Hospital as a criminal lunatic and that she be dealt with according to the law. DATED and DELIVERED at DODOMA this 11th day of October 2024. J. L. MASABO JUDGE 11/10/2024 Page 6 of 6