twalie shabani kimarungu vs republic 2007 tzhc 473 25 june 2007

IN THE HIGH COURT OF TANZANIA AT_, .^Bp.IlA APPELLATE JURISDICTION (Tabora Registry) (HC) CRIMINAL AK73AL NO* 53 OF 2003 (Original Criminal Case No* 34-6 of 2000 of the District Court of Tabore, District at Tabora Before: Mlacha, Esq,, Resident Magistrate) TWALIB SHABANI K X Z A i U E G U .................. - APPELLANT V E H G U S THE REPUBLIC .. . . ........... .. - RESPONDENT £ J L IL JL1L Jg JSJE MWITAt J.i 13*11.2006. 1*06*2007. 2 5 «0642007 * Twalib Shabani Kimarungu was convicted upon bis own plea of guilty to the charge of rape contrary to sections 130 and 131 of the penal Core and sentenced to 30 years imprisonment by the district Court of Tabora. Aggrieved by both conviction and sentence, Twalib Shabani @ Kimarungu has appealed to this Court. At the hearing of the appeal, the appellant argued the appeal in persen. The Republic had the services of Mr. Mkoba, learned State Attorney. In his plea, the appellant said: "It is true. I had sex with her but I never raped her. I never forced her© We sgreed and I can explain. I came at their home place to drinlr beer. She was the seller. She sold beer to me. I called her. She said that her name was Vale. I demarcled to lcnow whether she was a student* 3be scid thnt she had finished school. She said that she was not intending to go for further studies. I told her that I demanded to marry her* I sent her a letter on the other day to the effect, 8he replied that she .had. agreed. I wrote her parentsw It was received through r. certain womano She came to me 4- days later to my plaoe of work before the reply of the parent!s letter, I am a local medicine man (mganga wa kienyeji). She came at 1.00 p.m. We discussed up to 5*00 p.m. She stayed there up to 9*00 p.m. She slept with me on my bed. We slept in that w a y rt. This was entered as a plea of guilty to the charge# The prosecution gave facts as follows: nThe accused is a resident of ICasulu, Kigoma* He was li ing at Mihogoni* Tabora* On 16/8/2000 at day ti^e, the accused took a girl by the name of Violet Fius aged 15 years to his home place. He played sex with her for six days. Mr. Pius saw his daughter missing for six days and reported to the Polioe* The accused was arrested on 22/8/2000 and charged. He agreed to have stayed with the girl. The appellant said: nShe ?ame to me and refused to go for all the six days saying she could be beaten, I played sex waiting to pay bride price. I do treat stomach pains, chest problems etc. I conduct f,r?mlit: end give people "mvuto wa biashara" medicines. I do not have sexual medicines* X however con treat someone to prevent cuts of upangas,r. No one canc cut him thereafter.” On the above facts the trial Magistrate made a ruling as follows: ”1 have seen the girl. I have also perused the lav;. I have considered the physical appearance of the victim, her age (15 )i the provisions of s. 130(2)(e) of the penal Code as omeilded by section 5 of Act No® 4* of 1998 as well as the facts nnc' words of the accused. The girl appears young and doubtless her age is around 15 years as alleged. The provisions of s. 130 (2 )(e) supra, are clear to the effect that where the victim ir. u/! vietim is under 18 years, consent is immaterial* The accused says that the victim consented. That is no defence under the law given her age. He also says that he had plans to marry her. That can be the case but she was not yet legally married to ^ 4^.. What appears obvious is an illegal brutal act of abducting the girl for six days. The six days sexual marathon amounts to rape and the plea is unequivocal* I find the accused guilty os charged and convict accordingly*1. In his petition of appeal, one of the grounds of appeal is to the effect that no evidence was adduced as to the victim*s age* Mr* Mkoba’s contention is to the effect that there is n o T dispute that the appellant had sexual intercourse with the victim. The allegation that she consented is no defenoe in view of section 130(2)(e) of the penal Code as the victim was under 18 years old. There are two issues for consideration in this appeal: First, whether the plea of guilty was unequivocal; and second9 r e a s o iia D iK L ; o r:: M - * whether it was proved bey ond^doubt, .''that the victim was under 18 years of age. Before conviction on a plea of guilty it is highly y7_s:...:: ..-1j « desir§ble not only that every constituent of the tharge should be explained to the accused but that he should be required to admit or deny every such constirfcuenfct HANDO S/0 AKUNAAY Vo R. (1951) 18 EACA 507; and that what he says should be recorded in a form which will satisfy an appellate Court that he fully understood the charge and i:>leaded guilty to every element of it unequivocally: R. V. Yonasani EGALO and OTHERS (1942) 9 EACA 65, Where every ingredient hod not been explained to the accused * the plea of • MIt is true” was not sufficient to -amount to j.pJLdo of guilty: KATO V. REIUBLIC (1971) E.A. 542 • In DESAI V. R* (1971) H.C.D* n. 297 it was held by the Court of Appeal for East Africa that every constitutent of the charge should be explained to the accused and the accused should admit every such constituent. Failure to explain every constituent of the charge is an irregularity which is curable if the statement of facts is accepted by the accused* In the insternt case all the ingredients of the offence of rape do not appear to haveb "been explained to the appellant. The record does not indicate that he was required to admit or deny every constituent of the charge* The appellant did not fully accept the statement of facts* All that the appellant admitted is that the victim went to his home and stayed there for six days and the appellant had sexual intercourse with her oanscnt while waiting to pay bribe price* In such oircumstances the a p p e l l a n t s plea was equivocal* He was under the impression that he committed no offence because the Victim consented to sexual intercourse* The point that whether the victim consented or not it wss rope because the victim was alleged to be below 18 years old does not appear to have been explained to him* The appellant does not appear to have fully undeiv stood the charge and to have pleaded guilty to every element o f it unequivocally* No evidence W8S adduced to prove that the victim was below 18 years of age* In such circumstances- the appellant should have been given the benefit of the doubt and should not have been convicted of rape as the victim should have been presumed to have been 18 or more years old and had consented to sexual intercourse. The conviction is accordingly quashed and sentence set aside. I must now consider whether it would be in the interest of justice to ordej? a retrial* In Fatehali Manji V. Republic (1966) e.a. 34-3 it was held by the Court of Appeal for Eastern Africa that in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial Court for which the prosecution is not to blame, it does not necessarily follow that a retrial should "je ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it# Whether an order for retrial should be made depends on the particular facts and circumstances of each case but should only be m3de where the interests of justice require it and where it is not likely to cause an injustice to an accused person? SUKAR V. EEHJBLIC (1964) E.A. 481. 5 Where an accused has spent sometime in prison retrial Should not be ordered; IUV. BALUTUNIKA S/0 MHOZI (1968) H#C.D, n# 392. In the instant case the trial was defective because conviction was based on an equivocal plc-a of guilt. The appellant has already spent about #even years in prison# In case retrial is ordered crd he is convicted of the offence charged the Court will have no discretion* In terms of s. 131 of the Penal Code the minimum sentence for the offence is 30 years. The Court will have no discretion to take into account the period already spent in prison* In such circumstances retrial is likely to cause in justice to the appellant. For the above reasons retrial will not be ordered. The appellant is to be released uni ss he is otherwise lav/fully held in custody# ~ V / 'r D. M# MWITA, JUDGE. OHDm: CDhe District Registrar to read this judgment to the parties* - ;• i' . .. V //.,.« ‘ " '■•-VP’ H - • % D. Me MWITA, 1st JUne, 2007 » Date: 25.6.2007. Coram* Hon* S* B* Bongole, District Registrar. Appellant: Present under custody. Respondent, the Republic represented by Mr* Mkoba, State Attorney* Court Cler: Dotto Kwilabya, R.M.A. COURT: Judgment delivered. S„ B.HSCflfGOLE, DISTRICT REGISTRAR* 25.6.2007* /AHM*