20141027 TZHC Dar es Salaam

. IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) ·AT DAR ES SALAAM CRIMINAL APPEAL NO. 45 OF 2013 (Appeal from conviction and ,sentence of the District Court of Kilosa at Kilosa (T. Swai, RM) in Criminal.Case No. 116 of 2012 dated 10 th April 2012) . MAWAZO.MAKIWA ....................................•..................... APPELLANT VERSUS REPUBLIC .................... e . . . . . . . . . . . . . . . . . . . . 11 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • RESPONDENT Date of last order: 11/08/2014 Date ofJudgment: 27/10/2014 JUDGMENT F. Twaib, J: The appellant, Mawazo Makiwa, is appealing against the decision and orders of the -Kilosa District Court at Kilosa, which convicted him of rape and sentenced him to 30 years imprisonment. The appellant had pleaded guilty to a charge of rape, and admitted to the facts as read out to him by the prosecution. A second charge-that of impregnating a school girl-was dropped. The material facts of the case as presen_ted by the prosecution were that sometime in January 2012, the appellant, aged 21, was employed as a casual labourer at the residence of one GERAD in a village called Unoni. The appellant used to sleep at GERAD's residence. He began a sexual Page 1 of 6 relationship with GERAD's niece, one MARY, who was a Standard VII pupil at a local primary school. Sometime in February 2012, all the pupils at the school were tested for pregnancy. Mary's results came back positive. On 20 th February, 2012, she informed the appellant about it. On 13th March 2012, at about 22 Hrs, the appellant took Mary away to a village called Gongwe. He continued to have sexual intercourse with her, until 3rd April 2012 when GERAD went to Gongwe and, with the help of Sungusungu militia, they arrested the ap~ellant, together with Mary. The appellant was taken to a Police Station, where h~ made a statement, apparently confessing to the crime. He was charged at the District_ Court. His response to the charge was: "it is true". Then the facts were also read out to him. The learned Resident Magistrate presiding recorded his response to the facts thus: "All facts are ok, hence are admitted." The Magistrate pro.ceeded to convict him as charged. This being a minimum sentence offence, the appellant was sentenced to serve the. mandatory minimum of 30 years imprisonment~ •Despite it being a conviction on a plea of guilty, and the 'sentence being ; the minimum one provided by law, . the appellant- decided . to appeal. Learned State Attorney Sharifa Karanda who appeared before me for the . Republic resisted the appeal. She contended that section 160 of the Criminal Procedure Act does not allow an appeal where the accused has pleaded guilty. That is correct. It also follows that since the sentence imposed is the minimum one, no appeal can normally lie against it. Those ~re the general rules. But there are exceptions to these genera'! rules. In Laurence Mpinga v R [1983] TLR l66, this Court (Samatta, J, as he then was) held: Page 2 of 6 (i)· '.An appeal.'against a convicti_o.n based_ on an unequivocal plea of guilty generally ·cannot ~e ,sustaine_d, although an appeal against sentence may stand; (ii) : An accused person who has been convictea-tJrany-court--of-an-0f.fer-ic;;;G-_ _ __:__ __ • • ' I • • • • '.~on his own plea of guilty" may appeal against the conviction to a higher court on any of the· following grounds: .... that upon the admitted facts he could not in law have been convicted of the offence charged. In the first ·ground of appeal, th~ appellant complains that he was _convict~d on a dE:fective charge "as _the particulars/facts do or does not constitute the alleged offence of rape ... " While the appellant's explanation of this grouncris c:Onfinea to the--assertion-that-the- particulars on the_ charge ·did not include an allegation that he had "·unlawful" carnal . ~ . knowledge of the victim (the word "unlawful" was missing in the particulars), that omission alone could have been cu~ed by section 388 of the Criminal Procedure Act, Cap 20 (R.E. 2002). However, there is a - ~--more serious omission: the a.ge of the g_irl Mary was not mentioned in the facts as read out to the accused, and to which he responded: "All facts - - -- ::, are ok, hence are admitted." Was the convictfon proper in light of these two omissions? · . . . At the hearing, the appellant had nothing to add to his petition of appeal, but reserved his right to respond after submissions by the_ respondent. When he did, he simply said that he had admitted the charge because he was drunk at. the time. Ms Karanda,- the learned ·-state Attorney, . . . . . . . . contended that there was no need for the charge sheet to contain the · word "unlawful". She however cited the prnvisions of section 130 of the Penal Code, which defines rape as "unlawful carnal knowledge of a woman or a girl". With due respect to the learned State Attorney, the unlawfulness of the act is an essential element i~ the offence of rape. Having carnal knowledge of a wof}lan or girl, by itself, is no offence known to law. This ,. Page·3 of 6 is further elaborated by section 13.0 (2) (e) of the Penal Code, which is relevant to this case. It states that a person would be guilty of rape if he carnally knows a girl, "with or witho.ut her consent when she is under eighteen years ofage ... " [emphasis mine]. Hence, giventhe offence as Charged, the unlawfulness relates tq the c;1ge ···1 •· of the alleged victim. The prosecution's case was that Mary was 17 years ,., of age at the material time. Ms. Karailda insists that all the. ingredients of the offence we.re present. She relied heavily on the appellant's statement in response to the charge, where he is recorded by the trial court as saying: "Its true on 13/3/2012 at about 22:00hrs, at Unone I carnal knowledge MARY NICOLAUS a girl of 17 years." [sic]. But this statement was a response to the charge, not the facts. The appellant also faults the I, facts as not constituting the offence. And here is where the omission is more critical. The offence with which the appellant was charged is statutory rape. The age of the victim is an essential element in that offence. The facts must have said so. They did not. The admission, therefore, and the plea of guilty, cannot be said to have been unequivocal, with the full knowledge of the facts on the appellant's part. The facts show that no force whatsoever was used in the commission of the alleged rape. The pros~cution's case was based primarily on the age of the alleged victim. It is a matter of crucial significance that the facts as admitted by the appellant must have included the girl's age. Without it, the plea· as entered by the lower court was equivocal. The court should have entered a plea of not guilty and proceeded to hold a trial. The legal position, in such situations has been settled by a long line of decisions of this court. In Kenneth Manda v R. (1993] TLR 107, Mroso, J ( as he then was) held:- · Page 4 of 6 :, . . . (i) An accused person can· only be convicted on his own plea of guilty if it . is ascertained that he ·has accepted as correct facts which constitute the . ingredients . of the ~ . offence , ·charged; -ii7-As-no-pa1tie1:1lafs-0r.-f.acts-E0nstitl:lting-r-eGk~ess-dr-i~i.r:1g-wer:e-put-to-tbe-----~~ appellant, his plea·of guilty was equivocal and should have been. entered as a plea of ~ nofguilty'. See also Munisi Marko Nkya v R [1989] TLR 59 and Buhimila Mapembe v · R [1988] 174. In allowing the appeal in the latter case, Chipeta J. (as he then was) held, interalia: (i) In _any case in which a _conviction is likely to proceed on a plea of guilty, .... - .-it is .most .desirable not only_tbat eyer:y_coo.stituent _of.the cb,arge_$_D.O!Jld · be explained to the accused but that he should be required to admit or deny every element of itunequivocally; (ii) The words "it is true" when used by an accused person may not necessarily amount to a plea_ of guilty, particular.ly where the 9ffence is ,. . a technical one; (iii) In the present case, the. facts given by the public prosecutor cannot be · reasonably said to have amounted to full disclosure of the ingredients or elements of the offence, rather they appear to be more of an allegation that the appellant had possession of the lion -skin; · Coming ba_ck to the case at hand, as we have seen, two crucial omissiqns ha\le been committed by the prosecution which, taken together, render the appellant's plea unequivocal and, therefore, his conyi,ction unsustainable. These are: the failure to state, .in the particulars of · offence, that the accus·ed's carnal knowledge of the girl was unlawful; and secondly, that the girl was below the age of 18 years. In the upshot, therefore, I quash the accused's conyiction and set aside the sentence. In the normal cause of things, I would have to order that Page 5 of 6 the matter be returned to the lower court so that a plea of not guilty may be entered and th.e case pro~eed to trial. However, the appellant.has until now spent two and a half years in prison. · Taking this into account, , the nature of the offence charged and,·perhaps more significantly, the fact that the trial would necessarily involve the trauma of having to give evidence on the part of the alleged victim, Mary, who would now be about 20 years of age, and has presumably settled down in her life, with a small child to take care of (as she was pregnant at the material time), I am of the considered opinion that such a process would do more harm tha~ good_to'everyone _con_cerned. I would thus discharge the appellant and order that, unless he is being held for some other lawful cause, he be released from prison forthwith. DATED and DELIVERED at DAR ES SALAAM this 27th October 2014. _F_. Twaib. JUDGE Page 6 of 6