Ernest Francis Mkude Mawenge v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO CRIMINAL APPEAL NO. 26567 OF 2024 (Originated from Criminal Case No. 63 of 2020 in the District Court of Mvomero at Mvomero) ERNEST FRANCIS @ MKUDE MAWENGE ….……………..………. APPELLANT VERSUS THE REPUBLIC …………………………………………………….. RESPONDENT JUDGEMENT 13/03/2025 & 27/03/2025 KINYAKA, J.: In Criminal Case No. 63 of 2020 before the District Court of Mvomero at Mvomero hereinafter the “trial court”, the Appellant who was the accused person at the trial, was charged with the offence of Unnatural Offence contrary to section 154(1) of the Penal Code Cap. 16 R.E. 2022 hereinafter the “Penal Code”. As gleaned from the records, it was alleged that on 1st July 2020 at Melela Village, Mangae Ward, Mlali Division within Mvomero District in Morogoro Region, the appellant had carnal knowledge of HD, a male child of 11 years against the order of nature. 1 On completion of the hearing, the trial court found the appellant guilty as charged, convicted and sentenced him to serve thirty years imprisonment in jail. Dissatisfied with both the conviction and sentence, the Appellant preferred an appeal to this Court advancing six grounds of appeal which are reproduced herein below: 1. That the learned trial magistrate erred in law and fact to convict and sentence the appellant when relied on evidence of the victim (PW2) translated by his mother (PW1) while in law the mother of the victim was also a witness was not a proper person to stand as an independent translator; 2. That the learned trial magistrate erred in law and fact to believe what was translated by victim without considering that she was misdirecting the court and she was angry for what happened to her biological son; 3. That the learned trial magistrate erred in law to convict and sentence the appellant based on Exhibit P1 (PF3) when there was procedural irregularity in tendering the same as after being admitted it was not read out, hence Exhibit P1 should be expunged from the record (see page No. 28 of the trial court’s proceedings); 2 4. That the learned trial magistrate erred in law and in fact to believe that the appellant was properly identified without conduct of identification parade; 5. That the learned trial magistrate erred in law and fact to believe on the prosecution evidence without cogent proof that the appellant was found putting torch/on appearance as allegedly narrated by the vict5im when arrested; and 6. That the case was not proved beyond reasonable doubt. During hearing of the appeal, the appellant appeared in person and the respondent was duly represented by Mr. Shabani Kabelwa, learned State Attorney. On being availed with an opportunity to amplify his grounds of appeal, the appellant prayed to the Court to consider his grounds of appeal and do justice to him. Nonetheless he faulted the trial court for not considering his request for the witnesses who were at the playground where the offence was alleged to be committed and those who were present when he was arrested, to be brought to testify before the court. He complained further that he had no financial ability to call witnesses at his cost. 3 In his reply submissions, Mr. Kabelwa consolidated the first and second grounds and submitted on the remaining grounds separately. He conceded to the first and second grounds admitting that the procedure of taking the evidence of the child with speaking disabilities was not complied with as required under Rule 6(1) of the Judicature and Application of Laws (Practice and Procedure in cases involving Vulnerable Groups) Rules of 2019. Expounding on the point, he submitted that in such cases, an independent witness who had no interest to serve in the case was to be procured and the accused should have been given an opportunity to comment or object on the interpreter. He relied on the decision of the Court of Appeal in the case of Kalyehu Kadama Madaha Another v. Republic (Criminal Appeal No 403 of 2021) 2023 TZCA 17670 (29 September 2023). He added that the evidence of PW2 was taken without oath contrary to section 198 of Criminal Procedure Act Cap. 20 R.E. 2022 hereinafter the “CPA” and in contravention of section 127(2) of the Evidence Act Cap. 6 R.E. 2022 hereinafter the “Evidence Act” despite PW2 being a child of tender age. At the end, he prayed for the Court to find the evidence of PW2 to have no weight. Mr. Kabelwa also conceded to the 3rd ground of appeal drawing the attention of the Court on page 28 of the trial court proceedings where it reveals that 4 Exhibit P1 was not read out in court before its admission contrary to the requirement of the law. He relied on the decision of the Court of Appeal in the case of Mapinduzi Mgalla vs Republic (Criminal Appeal No 406 of 2020) 2024 TZCA 21 (6 February 2024) and prayed for expunction of Exhibit P1 from the records. However, he submitted that despite his prayer for expunction of Exhibit P1, the oral testimony of PW8 remains intact as she accounted for her examination of the victim. On emphasizing that PW8’s evidence still holds weight, he added that the oral evidence of PW8 was not challenged and the witness was not cross examined by the appellant relying on the decision of the Court of Appeal in the case of Christian Ugbechi v. Republic, Criminal Appeal 274 of 2019 [2021] TZCA 3539 (23 December 2021). He submitted that the fourth, fifth and sixth grounds relate to identification of the appellant which he opposed. He contended that the identification of the appellant was sufficient relying on the case of Alex Mwashilindi and Another v. Republic, Criminal Appeal No. 626 of 2020 [2023] TZCA 18008 (15 December 2023) where it was held that if the accused commits an offence and disappear but later on found, it constitutes sufficient evidence that the accused is responsible for the commission of the offence. He stated 5 further that the evidence of PW1, PW3 to PW6 is clear that the victim explained on the features of the person who sodomized him. He contended that the victim denied being sodomized by other two persons who were brought to him but pointed the appellant as the person who sodomized him. He relied on the decision in the case of Ibrahim Heston v. R (2024) TZCA 516. He added that the testified to have known well the victim and his mother. Mr. Kabelwa viewed the victim’s ability to explain the features of the assailant at the earliest opportunity, is a proof that the appellant was sufficiently identified. He was of the position that the offence against the appellant was proven. Based on his submissions, he prayed for the dismissal of the appeal. He also prayed for the sentence to be enhanced from the trial court’s thirty years’ imprisonment in jail to life imprisonment as provided for under section under section 154(2) of the Penal Code relying on the decision of the Court of Appeal in the case of Marwa Kikongo v. R, Criminal Appeal No. 316 of 2020. The appellant rejoined that he did not cross examine PW5 as he was a militia man who arrested him. He submitted that there was no identification parade 6 conducted to identify him. Distancing himself from the accusation, he lamented that the case was fixed against him as he could not rape the victim at the playground at the time the place was an open space where people would have noticed the incident. He added that the evidence of PW1 was based on narrations from people who took the victim to her. He prayed to be set free. I have considered submissions made by both parties, grounds of appeal and the trial court’s record. For purpose of convenience and easy determination of the instant appeal, I will begin by determining the first and second grounds of appeal as conceded by the respondent. In doing so, I will respond to the grounds jointly as consolidated by the learned state attorney and determine whether the trial court erred to receive evidence of the victim (PW2), a witness with speaking disabilities, whose testimony was interpreted by his mother (PW1) and whether the the victim’s mother misdirected the Court when interpreting the testimony of PW2. If need be, I will determine the remaining the grounds of appeal. On determining the above complaint, I find it pertinent to reproduce the proceedings of the trial court on page 9 through to 10 where the victim was about to give his testimony: 7 “Pros: We pray to proceed with PW2 who is the victim. We pray the victim’s mother (PW1) to be recorded as an interpreter as the victim cannot speak understandable words only his mother can understand. “Court: Truly the victim is in such a condition not to speak. It is not clear if he is dumb or he is faced with what problem. His evidence is taken in assistance of his mother who will be telling the court what is saying.” “PW2 HD HASSANI DANIEL aged 12 years resides at Melela Mlandizi Christian, a child with a problem of speaking clear words. His mother is taking an oath to translate what PW2 is telling this court” So Happiness Yovin Joseph sworn and states: I Happiness Yovin Joseph do hereby swear and states that I will lead the court to translate what PW2 will be telling the court exactly as he states not otherwise. So help me God. PW2 XD BY PROSECUTION …………….” From the above records, I do not agree with the appellant that PW2’s mother misled the trial court. The reason being that the appellant did not understand the victim’s sign language. Further, page 11 of the proceedings reveal that the appellant opted not to proceed cross examining PW2 as the witness was 8 unable to state clearly what happened and his mother could misdirect the court. At the trial, the appellant did not raise a complaint that PW2’s mother was misleading the court. However, I have noted that the excerpt of the proceedings reproduced above reveals several shortcomings in receiving the evidence of PW2 interpreted by PW1. To begin with, the interpreter lacked independence as she was the mother of the victim who had interest in the case as against the accused person, having testified as PW1 prior to interpreting PW2’s testimony. The trial court did not bother to satisfy or caution on the interest that PW2’s mother had to serve in the case. Under such circumstance, I find no doubt to hold that PW2’s mother who testified for the prosecution as PW1 had interest to serve in the case, hence was not a proper person to serve as an interpreter. I say so because in the case of Kalyehu Kadama @ Madaha & Another v. Republic (supra), the Court of Appeal was faced with a situation where the prosecution witness (PW3) only spoke Sukuma language. The trial court allowed the interpreter procured by the prosecution to interpret the testimony of PW3. In holding that such course was improper, the Apex Court held on page 13 of the decision that: 9 “What we see on the record is that immediately after being informed of the unilateral arrangement by the prosecution, the trial court without further ado swore in the pre-arranged interpreter. In doing so, the trial court did not ascertain from the appellants if they had any comment or objection against such person serving as an interpreter. Likewise, the trial court did not on its part inquire into whether such person had no interest to serve against the appellants and was a proper person to serve as an interpreter. We are minded that it was not shown on the record that such person was a regular court interpreter in terms of section 30 of the Magistrates Courts Act, [Cap, 11 R.E. 2022]. The omission means that chances of potential conflicts, appearance of impropriety and the likes were not eliminated before Bazilo Lazaro Balola served as an interpreter.” Again, the record of the trial court reveal that the appellant was not accorded with the right to comment or object to PW2’s mother interpretation role in the proceedings. From the above observation, I agree with Mr. Kabelwa that the appellant was not accorded with the right to a fair hearing. The omission occasioned a miscarriage of justice as the appellant was not accorded a fair trial which is a fundamental right under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1997 as amended from time to time. 10 As for the fate of the proceedings in violation of such a fundamental right, the Court of Appeal in the case of Kalyehu Kadama @ Madaha & Another v. Republic (supra) categorically stated that: “It is now settled that omission to provide an interpreter when one needed is fatal irregularity which goes to the root of fair hearing. Similar consequences attach to failure to administer an oath to an interpreter before he assumes his responsibility. The omission may vitiate the entire proceedings or lead to expungement of the relevant evidence depending on the circumstances of each case” Fortified by the above authority, since the appellant was denied a fair trial, the proceedings of the trial court were vitiated. At this juncture, the question that arises is who was responsible to make available an independent interpreter for the victim who was a person with speaking disability? It was the duty of the trial court to arrange and make available an interpreter for PW2. This is provided by Rule 6 of the Judicature and Application of Laws (Practice and Procedure in cases involving Vulnerable Groups) Rules of 2019 hereinafter the “Rules” which provides: “6. -(1) Where, in criminal or civil proceedings the presiding judge or magistrate is assigned to hear and determine any case involving a deaf and dumb person either as an accused, witness 11 or victim, such person shall be entitled to be availed with sign language interpretation services to enable such person to follow up the proceedings. (2) The court shall have the power to order the sign interpreter to be hired by the Judiciary or recruited from existing institutions. (3) The costs of hiring an interpreter shall be paid by the Judiciary.” Since the trial court abdicated its duty to make available an interpreter for the victim, the trial cannot be held to be fair to both the prosecution and the defence. On the way forward, and for interest of justice, I nullify the proceedings and judgment of the trial court and set aside the sentence imposed by the trial court on the appellant. As to whether I should order retrial or not, it is a long established principle articulated in the case of Fatehali Manji v. R. (1966) E.A. 343 that a retrial will be ordered only where the original trial was illegal or defective, but not in the cases where it will afford the prosecution an opportunity to fill up gaps in its weak evidence at the first trial. I took time to read the evidence on record and I am of the considered opinion that the prosecution proved the case against the appellant beyond reasonable doubt. My through scrutiny of the trial court’s proceedings and resultant judgement reveals that PW2, the victim testified through PW1 that 12 the appellant sodomised him on the material date. Her testimony was corroborated by PW8 who testified that upon examining the victim, he found bruises on his neck and his anus was open with bruises to the extent his finger could penetrate easily. The testimonies of PW1, PW3, PW4, PW5, and PW6 established that the victim described and identified the appellant as the perpetrator of the crime immediately after the incident, PW1, the victim’s mother testified as reflected on page 8 of the proceedings that when she asked the victim, the victim made signs that the perpetrator had beards with a torch and a knife and had threatened to cut his throat if he tells anyone about the incident. She stated that the victim’s description of the assailant matched the appellant. PW1 testified that the victim immediately pointed to the appellant while frightened, in the presence of the Village Executive Officer. PW3 who found the victim walking sideways when coming from the toilet, found some blood in the victim who was coming from the toilet. She testified that when she and PW1 asked the victim about the person who sodomized him, the victim made a sign language that the perpetrator wore a torch on his head, had a bag and knife on his wrist. With that description, PW3 recalled to have met the appellant shortly before and suspected that he was 13 the one who sodomized the victim. She also testified that when they were at the Village Executive Officer, and when the appellant was taken there, the victim started to cry pointing to the appellant as his assailant. PW3 further informed the trial court that to prove that it was the assailant who sodomized him, the victim ate sand from the ground as sign of swearing, as reflected on page 14 of the proceedings. Similar description of the appellant by the victim was witnessed by PW4 and PW6, the Village Executive Officer and Village Chairman, according to their testimonies on pages 16 and 18 through to 19, respectively. They testified that through body language, the victim demonstrated that the assailant had a beard, wore a torch on his forehead and had a knife on his wrist. They both testified that when the victim saw the appellant, he started crying pointing to the appellant. PW5 informed the trial court as reflected on page 17 of the proceedings that he apprehended the appellant and took him before the Village Executive Officer and the Village Chairman. He stated that the victim started crying pointing to the appellant immediately upon seeing the appellant. Similar description of the appellant was given by the victim at the police station, according to the testimony of PW7 reflected on page 24 of the 14 proceedings. PW7 testified further that the victim showed him the place where he was sodomized. To ascertain if the victim would confuse the person who sodomized him, two boys including PW5 were shown to him but he denied to have been sodomized by them. This is according to the testimonies of PW3 on page 14 of the proceedings, PW4 on page 16 of the proceedings, and PW6 on page 19 of the proceedings. As such, I find that the prosecution established all the ingredients of Unnatural Offence. I find no gaps that could be filled by the prosecution in case I order retrial. It is in the circumstances, I find that determining the remaining grounds of appeal will be tantamount to an academic exercise. From the foregoing, I allow the appeal. I quash the conviction and set aside the sentence imposed on the appellant by the District Court of Mvomero in Criminal Case No. 63 of 2020. I further direct retrial of the appellant herein as early as possible before a different magistrate who shall comply with the dictates of Rule 6(1) of the Rules. The matter shall be heard within six months after the file is returned to the trial court pursuant to Rule 4 of the Rules. Meanwhile, the appellant, Ernest Francis @ Mkude Mawenge shall remain in custody awaiting his trial. 15 It is so ordered. Right of appeal to the Court of Appeal fully explained to the parties. DATED at MOROGORO this 27th day of March 2025. H. A. KINYAKA JUDGE 27/03/2025 16