20030210 TZHC Iringa

.. , 'j\T .IRINGA'. . ORIGINAL JURISDICTION · (Mbeya Registry) CRIMINAL SESSIONS CASE NO. 65 OF 2000 THE REPUBLIC _._i_ -~-VERSUS __ .~~="· ' ... ··- - ...... •··- ··-- ZABERA,D/0 l\IK,OTI ,, '!') 6/7/2oot Coram: J. Mo Mackanja, J. Mr. Manyanda ... State Attorrley for Reptib],ic Mr. Mwakingwe - Defence Counsel for Accused., i Accused person: Zabe~a Kikoti is present'.'1:mder custody and .:t represented by Mr. v. Mw{.:lkingwe ·:.; . - Advocate •. ', • . .. a Interprete~:-- _Mrso::V.i.w~enj_a, .E~l:i,sh into Kiswahili and vice ver_sa•· , . Notice of trial ~n information\if infanticide c/s 199 of the Penal Code was duly -serv.ed. _1J.pori a:ccused person ~ 22/5/2000• ·1nf6rmatitn·-read ove;· ~d--~iplained to accused in ·Kiswahili, -who is -· ···--·-··· required to plead thereto:-·· Plea of Accused: - It was bad· iuck. The child d.ied soon after birth. - Court: Entered as a P~ .DI! not guilty to the charge., Sgd. j ~- ~ .'-· Mackanja/~ J" 6/7/2000 PRELIMINARY-HEARING ~ ~: The accused killed per infant child on 15/4/98 after dumping,,her in a · latrine soon after birth at Kihesa, Iringa township. . The accused. was living with her parents. . She became. pregnant·: fefr nine 1 •. months •.. On 14/4/98. accused gave birth to a heal thy baby girl. Her .. ..... . . ,, : . ~- .... .. . parents pJ.annegfto go to hospital on the morrow for medical check up of the accuseq, and~her_ba~y •. In the night of 15/4/98 secretly threw the infai-it in the pit lati'lne whfoh th~ family was using. Early in the morning accused's father heard the ,accus~d•s ipfapt crying from the pit latrine •. He sent a report to the Police but the child died before it was extra~ted from the '.1J r latrine. .. , ; c.., . • • • • • , • Accuae,d waa ~ t e a a.pd, Pii\st Mort~. Examin,3.tion· ·maae O'n~·17.4.98 shows that dffi!~ was· &re• to '"heaJnrVagio ~emia~ (H-fER J.. Exh. P~ . 1·<: . ,. """\< . ...., .. - ........ ~-<:" ; ••• /2 : ·., -~ ;!;: ,; ~- ... 2 - On 20.4.98 accused was examined and she was found to have given birth (Examination Report of accused - Exh. Po2). The accused was accordingly charged. MEMORANDUM OF MATTERS AGREED TO BE NOT IN DISPUTE 1. that accused gave birth to a child who is now dead; · ''••· .·. . . -.0 . 1: 2i that she was arrested. and was charged in connection with the death of the child; 3~ that ~he finding of _t?.,e' Doc~or in Exh. P.1 and Exh. P~2 are correct; Court: Memorandum read out. to acP,used., . Sgd.. J • M. P:ackanja, J. '6/7/2000 ti Sgd. Mr. Manyanda Sgd. Mwakingwe STATE A'ITORNEY DEFENCE COUN.S'EL ..:-··,·.. ;·.: --~- . :..•.•.• : { ... ~ __•. , :.c.:,. ........_ ~ .... Sgdo Zabela Kikoti Accused LIST OF PROS. WITNESSES: {i.-'.: ,, . 1. WP. 1392 D/Sgt. Evena, Police Lines, Jrjngao .,·· 2. N::i;c.o Mausa, Kihes;i, Iringa. 3~ Letecia Kivenule, Kihesa~ 4. Flora Kihwele. -Order: The case is adjourhed to the ·next session,of the: H~gh'Court~ In the meantime the accused shall he · in remand:. custody for ·safe keeping. .. Date: 10/2/2003 .. 6/7/200©· • • • Coram: MackanJa, J • Mr. Mbago, Principal State Attorney & Mis,:; sam·~mlc.,. Stat~ Attorney 1 for Rep,:iblic. Mr. Mushokorwa - Defence Counsel for Accused,.· Accused person: Zabera Kikoti ;~ presfsl!'J't under custody and represented by Mr. Mushokorwa, Advocateo • oo/3 Interpreter; Mrs. Ndolezi English into Kiswahili and vice versa. Notice of trial on information of infanticide c/s 199 of the Penal Code was duly served on 27/1/20030 Information is read over and explained to accused in Kiswahili who is required. ' to plead thereto:- Plea of Accused:= Accused; It is true I killed my infant daughter. Court: Entered as a plea of guiityo. .Sgd~ J.M. Mackanja 1 J. 10/2/2003 FACTS The accused was living ,.,; th ,,,,.,., sister Flora Kiwele at _Kihesa village, Iri:n.ga Dis.1:i:rict._ . (· . ,. The 'accused was then 21 when-she-killed her ~hildo ~ome time in April, 1998, she was pregnant, six months,, OD '! 1:;/+/?9. 7 .:'J.t L.J_Gh·~. ?,.::..-1:,"•,,·, fel-t- labour pains. She called her sister, Flora.. When .he_r siGte~· :1:'e-,1)~~1: tr.i;_,,,; accused was, she sent for a neighbour of hers known as Marna Yr·-) _ T!';)ml her return home Flora found accused had given birth tc,_ a baL · g: _-._ ' .. Thereafter '.they retired for the nighto .1-t0::,usE:.<i c:: -"T't ::,. '.OP-- .. ··. 1. · ·: :;h;i.ld., On 15/4/98 Flora woke up early to pr'°'rc..,,. · · ,- J.:- n; · :.c-.c~L :J r.~d her child. When she went. to se<> "'"cused in t:i1e room she haG. ,:,lup, ~ a~~J.<;;ed _a~d her child were nowhere to be seeno They looked fore A neighbour.went into a toilet to attend to a call of nature; he heard a child crying in the pit latrine. They extracted the child from the pit latrineo The chil.d ciied shortly after she was extracted fr8m)the latrine¢ A medical doctor, Dr. Lindi of the,Iringa.Region Hospital,' examined the body of the child on 17a4o98 and op:l.ned that death was,due tohaemmorrhage and anemia.(PMER - Exho Pe1)o The accused was finally fo'..l.nd and was arrested. Accused was examined and was found to have given birth short .while prior to the examination. The accused was consequently charged with infanticide .. '.]:hose are the.facts. Accused: It is true I threw the child in a pit latri~e ,,,hile was a state of confusiono .,.,./4 4 - ------- Court: The accused is convicted on her own plea of guilty~ ··; Egd. J• M. i1ackanj~\-1Ji 10/2/2603 ·-.,; ·_ ~. Antecedents: (Mro Mbago, PoS.A.) We do not have a record of previous convictions. She is.a.first-offender. Mitigation: Vir. Mushokorwa, Advocate: Accused is now 25 years old; she has not been married. She has/lived a lonely life because she lost both parents while she was between 6 and 7 years old. She was being assisted by her uncle, Luka Mkemango, who died while accused waq _.;i.n·-custodya Accused could not go further. than Std. IV resulting from the death of her parents. •Accused engaged iti petty busine1oi=:- e 0 lling green vegitabfe'to'raise money ·.r- . for herself and her younger sister and brotherQ Accused was impregnated·by one Ally Mshana who duped her·tnat he was going to assist her. Ally Mshana parted wayi::l witn accused when l,.e vi1as told •' that accused was pregnant by him" What Ally M.:-.1.:am, d~,d. ·; ·i_k" c:- i ric.:.-· · c :;1;::nen 1 . t do, is a vice that has dOgged our society .. Flora is not born of the same mother with accused~ 'J'he 'titJ r.::.:' - 1' r ·:·nal cousins. Flora is also of no means. Accused wai:; 11H::;11.c1.i.: y C:.:.Lc ·;..... :-::Jct 1d.><c: ,• she dumped the child in the latrine o ii. cc used was paying school '.:fees f C5r her·. younger sister and brother. The two discontinued primary education ~ecause the one who paid fees was in custody,. Accused is contrite over the loss of her child. ·This is'the first conviction against accused,, Bcc~ucc she has dependants we plead for a lenient Eentence. Sgd. J.M. ~ackanja, _J. ·' 10/2/2003 .SENTENCE The cirCJimstance in which the,.·accused·· found herself 'and which led :to an unwanted pregnancy are, to say the list, very tragic. She was led into helie- ving her paramour, the ,said Ally Mshana who, as it now appears, exploited accused's . '· woes to get what he wanted~ Because he had no good intentions he abandoned by the accused when he came to learn that she was pregnantL.him. We have been told by Mr. Mushokorwa, learned defence counsel, that the accused lost her parents when she was only between 6 and 7 years old. She ,, had to leave school by reasoh of the loss of her parents. That loss le~ her to take the duty to pay fees for her younger brother and sister, 1r}le two young people, like herself, had to leave school because the accused, who paid the fees, was locked up in prison. It was in those circumstances, in spell of desperation and mental di$turba- nce that accused who gave birth to a healty child rolled the child in a piece of cloth and dumped it in a pit latrine. The statement in mitigation is touching alright; but the accused should have known that she had no right to terminate the life of her infant child 0 Upon 6~nsidering the statement in mitigation I sentence the accused to six months imprisonment the wMle c.f which shall be suspended for six mhnths on condition that she be of good conduct• Sge.. J • M. M,\CKANJA JUDGE , 10/2/2003 . .... ,. ., ' ... Certified.. true· copy of the ori_gi~. . ·1-.':. , HIGH COURT OF TANZANIA IRINGA