THE DIRECTOR OF PUBLIC PROSECUTIONS VS ELIZABETH LAZARO MOLLEL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI CRIMINAL APPEAL NO. 2585 OF 2024 (Arising from Criminal Case No. 76 of 2023 of the District Court of Babati at Babati) THE DIRECTOR OF PUBLIC PROSECUTIONS......................... APPELLANT

VERSUS ELIZABETH LAZARO @ MOLLEL......................................... RESPONDENT

JUDGMENT 18th June & 26th July, 2024 Kahyoza, J.: Elizabeth Lazaro was charged with two counts; in the first count, she was charged with the attempt to commit an offence c/s 380 and 381 of the Penal Code, [Cap. 16 R.E 2022] (the Penal Code); and in the second count, she was charged with the offence of illegal practicing c/s 45(1)(2) & (3) of the Traditional and Alternative Medicines Act, No. 23/2002. She pleaded not guilty. The trial court heard the prosecution's case and held that the accused had no case to answer and acquitted her. i DPP appealed contending that the prosecution established a prima facie case, thus, the trial court erred to hold that the prosecution failed to establish the prima facie case by its failure to prove the victim's age to establish the offence of attempt to commit an offence and illegal practicing and that the trial court erred to hold that a Government Chemist report was required to prove the seized drugs were medicines. At the hearing Rwezahula appeared for DPP and the respondent appeared in person. Was a prima facie case established? Mr. Rwezahula submitted that the prosecution established a prima facie case. He contended that they summoned two eye witnesses Pwl and Pw2. He contended that they laid a trap and arrested the respondent. He contended that there was ample light and they were very close to the respondent. He contended that the

prosecution tendered traditional herbs found at the respondent's home place and a seizure certificate. He cited the case of Emannuel Lyabonga V. R, Criminal Appeal No. 257 of 2019 Tanzilii neutral citation [2021] TZCA 152. 2 In support of the second ground of appeal, he argued that the trial court misdirected itself as age of the victim was not one of the elements of the offence of attempt to commit the offence of genital mutilation. As to the third ground, the State Attorney submitted that the trial court misdirected itself to hold that the prosecution did not prove the offence as there was no Government Chemist Report. He contended that there was no need of the Government chemist report as it was not a requirement or an ingredient of the offence in the second count. The respondent, a lay person had nothing to counter the submission. I will commence to find out whether the prosecution established a prima face regarding the offence of attempt contrary to section 380 and 381 of the Penal Code. Prima facie was defined in R. V. Makuzi Zaidi and another (1969) LRT 249 as follows- ”77?e case to be called prima facie case must be such that a reasonable tribunal properly directing its mind to the law and evidence can convict if no explanation is offered by the accused" Given the above definition, the prosecution is said to have established prima facie if the court can convict the

accused in the absence of the defence. I read section 380 of the Penal Code and the evidence on record it 3 is my opinion without discussing the evidence in detail, that the prosecution proved the prima facie case. The prosecution summoned witnesses who visited the respondent's premises and told her, that they were praying for services and the summoned one independent witness Godfery (Pw4) at the search. It was vital to hear the accused explanation on the evidence. As to the offence in the second count, I considered the evidence on record and read section 45 of the Traditional and Alternative Medicines Act, No. 23/2002. The law prohibits a person to practice as traditional health practitioner or aide without being registered. The prosecution was required to bring evidence to proof that the respondent was practicing as a traditional health practitioner or aide. There was no evidence to prove that, she was a traditional health practitioner or aide. To find person with herbs in her or his home is not a poof that, that person is a traditional health practitioner. Traditional health practitioner or aide is a person who is recognized by the community in which he lives as competent to provide health care by using plants, animal, minerals substances and other methods based on social cultural and religious background as well as on the knowledge, activities and beliefs that are prevalent

in the community regarding physical, mental, and social wellbeing and the cause of disease 4 and disability. (See section 3 of the Traditional and Alternative Medicines Act). The prosecution did not prove that the respondent was recognized by her community where she lived as a competent provider of health care by using plants, animals, etc. It cannot be said that the prosecution did establish a prima facie case for the offence in the second count as no tribunal would convict the accused person on such evidence. Like the trial court, I find that the prosecution did not establish a prima facie case against the accused person for the offence of illegal practice C/S 45 of the Traditional and Alternative Medicines Act. In the end, I allow the appeal partly, by setting aside the holding that the respondent has no case to answer in the first count and order that she has a case to answer. I uphold the finding that the respondent has no case to answer for the offence of illegal practicing C/s 45 of the Traditional and Alternative Medicines Act. Consequently, I dismiss the appeal to that extent. The respondent will be called upon to defend herself against the offence in the first count and the court shall proceed to write the judgment. This matter shall proceed before another magistrate. 5 ared accordingly. 26th day of July, 2024. J. R. Kahyoza Judge Court: Judgment delivered in the presence of Mr. Rwezahula State Attorney for the appellant and the respondent in person. The respondent is ordered to appear before the district court on 12.8.2024. B/C Ms. Fatina (RMA) present. J. R. Kahyoza Judge 26.7.2024 6