19890830 TZCA Dar es Salaam 1

IN TIID COURT OF li.PP:W.L OF T..JlZiJJL".. l~T 1i.RUSF,L. J .1•• CRIMINAL i...PP:1,L NO. Clli.U.JIICTJ D/ 0 Hi:..SS.,:•.No 0 • • v:IRSUS THE REPUBLIC. • • (l.ppoal fro □ t:10 conviction of ,,.10 High Court of Tanzania at l~rus a, (Mumm 2 J.,) ~\ d~tod tho 16th day of Dccorabor, 198T in Crirainal Sessions Case No. 8~ JUDGMENT OF TID COU3.T This appeal raises very little controversy if cny~ for thoro is not rauch that could be said in support of it. T'ue appellant C!L:~USIICU d/o IL:.ss:1N we,s conv ctod of the murder of her neighbour's son a five yca;r old boy rk"J:lod S.i~ID {Jlli,.R'JJ and was consoq_ucntly sentenced to death~ She ai)pec'..lod aga nst both her convictio:h and sentence stating in her long Petiti'n of ~ppeal n.nnoxod to tho Mooorandum filed by counsel assi010 to a;rguo her appeal that she wa.s innocent 1 that rho deceasod's 'odywas planted in her house during her absence e.nd that she had n reason to kill the child of her neighbour and friend~ However, tho ovidcnce thich we.s lod at tho trial in support of tho cha;r30 a:;einst tho appellant appoa;rod to be st ong and unassailable • . There was direct as well as cir:c~l-?-t~ti2.l cvidonc 1 the direct evidence being provided by no othur a, pcrs9,n. ~han Iler own s n IIDIICTR.'_ B:J0'JU l.YUB (P.W. 7) and his playmate J;.,F;.s,r ~~..liiJ•'LL.N (?. :-vQ6, • Before we embark on I. I 2 ... ovidonco led. at tI10 trial 9 wo wish to offer sone or.rr.1onts on tho procedure adopted by tho learned trial judt3D in fosting th two youn 0· wi tnossos with a view io deteroining whoiher their evidence sho ld or sho~d no-\ bo c;iven on oatho The le[:',I'ned judcc did not say presur:ie sher.rust have acted under tl1e provi:3ions of Section 127 of the :Jvid ce J,.ct. Both I', :-r. 6 and 1, o ~[. 7 a.re recorded e,s being 12 and. 13 years old respec i vely and by definition they were "children of tender years 11 a.s clofinod in Su 30ction (5) of the same section. Sub-section (1) defines a conpotont wi ness who cw testify in a court of law and provides that all persons s!.1a11 · bo conpo-.ont to tesiify ~ unless tho court consid0rs thet they arc prevent d froci undorstandinG the questions put to· t:10n or fro□ giving r2.tional an wors by reason of among other things tender years, When t:10roforo a co t is prosontod with a child of tender yoe-rs as a wi tness 9 tho first ta k that it r:rust face is . to resolve the question whether the child is coraotont to testify under tho condi t!ons laid down in that sub-soo.tion. I the court resolves that tho child is cowpctoni to tostify 9 t:10 next quGs ion which it I!'lust determine under sub-section (2) is uhother tho child unclor tands thG nature of an oat:1~ if ho doos 9 ho uill be allowed to givo ovidonco. iko any other witnoss 9 if ho docs not 9 tho court cr.n allow hir:1 to 1_;ive ovi' once ui thout taking tho oc3:i:h providod tho court is satisfied th2.t tho ch ld is poss0ssod of sufficient intelli 0once to justify tho roCGMIJtio of, his evidence, We think that the court will already have formed th· s opinion once it .~i- of t!'lo view th2.t tho child is a com}etont wi tnos • The couut will resolve these different quostions at th0 different stagd by asking tho child sioplo the. relevant questions inj_ forrJ of a 11 voir dire". 11.ll those questions and answers should bo fully recorded td enable a hi 10r court to detort1ino in case of a challont>-o whether· tho opinion of tl • lower court on th0sG mttors was properly grounded. In tho present so this is what happened in tho case of tho two young witnesses: .... \ eeooe/3 I. ~- ~ p' l·-,-. 3 .... P,W.6~ J~"Ji'lJ1I .":J3DUR:.IL ..N.i~H 9 12 Y.JLi:1S 9 EOSL::li T;JJz:.Nif.N t IIavinG s2-tisfiod tho court that he knows tho noanink of an oath and t~:i.o duty to say the truth sworn states~ Tllo· sarn l)rococluro w2,s adopted in tho case of his fribnd NDIKL1i. 1.YtIB (P,:1.7)~ In tho event of a serious ch2,llong0 to tho por.ipontency of those wi tnossos 9 i:iis procedure could not Jmvc stood ·be tclst for it is not clear on what basis tho wi tnesscs satisfied -Wl'ic courit that they know tho racaning of an oath cllld tho duty to say tho trut:1,j In e,ny case once tho court was sr,tisfiod tlmt tl:o wi tnossos know tho rloaninG of an oath~ there was no noocl fo:::- tho wi tnoss to c;o on an:::. satis1y tho court that ho und0rstood tho duty of spoakin0 the trut!1 - for tho 4inplo reason that knowing tho noaning of an oath includes an und.crstanfing of tho duty I to, svcnk -\ho truth. Tho latter roquircDOnt 2,,ris0s o:jlly when a wi tnoss doos not know tho meaning of an o.utll. Lastly wo wisli to point out that, as tho w:L tnosses c:.,ro indicatod to bo Muslit.1s 9 they srould )10,vo boon 1 affirDod not sworn. In tho prosont case however tl:;.o short cut procedure adopted by t:10 trial judeo did not do any har □ bocauJsc the co1,11Jctoncc of both these wi tncssos was not cl~allcngod 'Loth at tho trial and in this Court. Now to revert to tho ovidonco of thoso two .Yfouni;- wi tnosses. JAFlillI (I'. 'J,6) said. that as they wore playinG outsi1c 9 tllo doooascd Saidi i. Shaba.ni nnong then:, the accused calloc.l tho doccn.sod lin"o hor houso8 m.1on he went in 9 ho never c,,nc out. m.1on le,tcr ·tl:o,t aftdrnoon tho deccasod 1 s mother arrived lookina for hor son, ho told. l~or tl1i4e Ndikira (P. W. 7) tho a1)pellant 1 s son had a si □ilar story to toll. IT~ said that as they were playinEs, l1is nether camo out and C£~llod tho d0toc:.scd who apparently ·was unwilling to loavo h:.s playr.1ates 9 l:iut w:.:i.on his hother called him in the second tine i)roro.sing to 6-i vo :1i□ food 9 tho ~ocoesod ag:reod and wcr1t in. Ile never ce,r.10 out. Ile added l·wwevcr tha ti when tho docoasocl went into their :.1ouso, ho was curious to lmow what was hti,ppenin:;9 so ho wont and :pooped tbroug;_:;. a hole in tho mucl wall of thoirl house when he saw his □other . ·•· •.• /4 4 stranglinc-; tho c.locoasocl c;_1ild. Lftor fipisl1inc, sho iocl. his 100-s and put hir:i in an on::_,ty bc.,l,;· and wont out of .the houso. II then in his , ovm wo:fds, "sncukcd in" to. call his friend, but when he touched hin thoro was no roplye T!1is was t;-10 direct ovidonco locl a[,c',inst tho appoJlant.. T:.10 learned trial jud2;o and all tho asses ors accepted this evidence as truo and we sec no roe.son to forr.1 a diffo cnt view. The boy Ndikira coulcl :mvo no reason to fabrice,to such a sori us .allce,J'C. tion against his own r.iothor. Ho tolcl tho naked truth with tho inn ccnco of a child. In any cas0 :1is version of events was confirncd by su sequent events which forncd tho circumstaJ1.tial arn of tho ovi<.:'..onco a. inst tho appellant. 1lhon the docoasod's r.1othor 1,.raina Kaaya (:;:\rJ.1) arrive looking- for he~ son1 tho two boys told hor what liad ha1)pcnod. .-.nina ior.1od atcly resolved to ontor tho appellant's houso to verify tho account of he two boys. The ap:i;iollant would not lot :1cr, thorc was therefore a ph sical confrontation between tb.o two wor,1on. i.i.mina dcci.dcd to w:rostlo her ay into tho house. The w:rostling· u1c:-.,tch was sto:._,pod by noid1bours wh0 arr vod at the scone in answer to cries of alarn from tho 2,:-;,,pollant rs house o Those who arrived . 1u dcu.' th e· v·1 11ago 1r· inc ·, 1 11· t·1apan -'H' -n .,,, 1\T (-o T'7fTTl ~.i.i-'.,,.;,...L~ ,::> 1.£ • .ll.J...l.i'-I :v. 3 1 • •.r and tho co 11 load or T!10 appellant would not open th door to hor lJ.ouso voluntarily 11 pernission was tllorc.;,:t!oro souj:ij fror.1 Pol' co to open tho door without the ovmer I s perr:u.ssion. When this was clono, beG containing the borly of tho dead boy was found. Tho ap:pclln.nt dcniocl e,11 this sayinc that tho body was planted. by so □oono els..:, clminc her absence fror.1 tho house. But re ask oursclvcs 9 if tho dead body ,ms planted by sooc other porson 11 did tho appellant find it necessary to physically provont-~r.iU?, fro □ o oring tho house? Lnina ·who only wantoc! to verify the boy's story? Of course she denied any such :physical confrontation between hor and .l.nina 9 but we incl no reason why her noighboms ancl tho coll loe,dor should have lied on th· s poin'io Hor atto □pt to prevent li.:f.lina fron entering tho !1ouso cloe..rly indi e..ted the,t she know what was in tho house 9 and if s:1.le know t~1.r, t tho dead ody was in tho house~ 0 ,,/5 5 it could not havo boon plantocl by sbnoono olsoe tlo 2.ro t!1oroforo s2,tisfiod ·:i;i.12,t both tho diroc and circu.r:m"iantial ovidonco oste,blis!:.cd tho arpollarit is su.il t boyonc:. roes' n2,blo ~:-oubt. Sho was accordingly pro:,,Jorly convictod. and sont-,:mcod to do t:i. However in sentencing tho a;Jpollant 9 tho lo.:~rnod jucl(}J dicl not fo low tho text •inco this e,ppoal provided by lm·r in soc ti on 26 ( 1) of t:i.-.o ton8-l Coclo. is not t!J.o only ono in t!10 current sossion to contc;in suoll irroQ.llar ~ WO -;ro:;_)OSO pronouncononts? fo.o ;_)ractice n:Jpoc~rs to llo wiclosproad. tho l'onal th.oroforo to brine t:.10 :,rovisions of section 26 ( 1 ) o Codo to tho attention of all concornod. In tl1.o proso t c2,so tho learned jud.go passocl sontcnco in tho followinG w-,orcls g 33IlT:JNCJg Thero is only ono sontonc0 for r.1urd.oro C:iausiku cl/ o :::Iassan you arc sontcncocl to d- a th for r:rurdcring Saidi Slmbani. Section 26 (1) providosg "Whop MY person is sontc.mcod to do2-t:1 9 t_ o sontonc0 shall direct that ho shall suffer death by han,· 0 o"• Tl1is is tho sir:n?lo forr.rula and thoro is no nood to dd such colourful words as ''You e.ro sontoncod to hanc until you arc do d'' otc. Apart fron this variation in tho forn of tho sontonco~ tho a:ppeal against conviction and sontonco i:s clisr.1issodo . R. II. KIJ..:..HGl ' JUSTICD OF L..i.'l "''· •• • n;J:u..:m11n JUqTIC3 OF i..:i.T 'i.L L. J,1. NFi~LI ti. JUSTICE OF i· ip:!]f..1 0 0 • 0 6 . 1' ,, ' 4:.:',. 6 - ' I certify that this is a truq copy of tho prig:i.n~l~ PJ,f1l1J ( S. S. 'Ki.IJI~Gii ) ,D:r;.'UTY RJGIS'l\l,;.R. ,..,,..,-·.,..,"":~· -< •, . ·J: ', r ,< ------------·