halidi hussein lwambano vs republic 2016 tzhc 2050 14 september 2016

IN THE HIGH COURT OF TANZANIA AT IRINGA j i! DC CRIMINAL APPEAL NO. 54 OF 2016 (Originating from Iringa District Court in Criminal Case No. 264 of 2015 before Hon. J.M. Mpitanjia, RM) I i i HALIDI HUSSEIN LWAMBANO.....1. APPELLANT t i ] VERSUS { THE REPUBLIC......................... RESPONDENT JUDGEMENT 14™ SEPTEMBER 2016 & 7th OCTOBER 2016 SAMEJI, K. R. J The appellant, Halidi Hussein Lwambano, was charged with unnatural \ offence contrary to Sections 154(1) of the Penal Code, [Cap 16 R.E. 2002] and then convicted and sentenced to life imprisonment. The appellant * being aggrieved by both conviction and sentence he lodged this appeal. In his Petition of Appeal the appellant has filed a total of ten (10) grounds. For ease of reference, the same are condensed into a single ground that the prosecution side failed to prove the case against the appellant beyoind reasonable doubt. ‘ i Briefly, the evidence, which the trial Magistrate relied upon in • i convicting and sentencing the appellant shows that, on 19th August 2015, PW1, Elina Mgeni (the mother of the victim) left home and went to attend the funeral ceremony of her late father in law. When came back home she received information from her mother in law that, PW2, (her daughter f Veronica Mgeni the victim) is sick. That they sent PW2 to the hospital for • > I- treatmerit, however, two weeks later they decided to take PW2 to the ii ■ church for prayers as her condition was worsened that could not walk and sit properly. PW1 and PW5, (the pastor) calmly interrogated PW2 and she informed them that, she had been sodomized several times by her step father and she failed to disclose it as she was threatened to be killed if she I tells the story to anyone. They, PW1 & PW5 took PW2 to the hospital and the doctor confirmed that PW2 had been carnally known for several times. PW2 after voire dire test testified that, the first time when the appellant had carnal knowledge against her, was in the afternoon, when her mother PW1 was not at home. That, the appellant solicited her and promised to give her, Two Hundred Tanzanian Shillings, (Tshs.200/=), if 2 she agrees to have carnal knowledge with him, against the order of nature. That, she refused but the appellant pulled her inside by force and sodomized her and threatened her not to tell anyone and if she does, he will kill her. T hat, thereafter the appellant continued to perform the same act on several days and several times, as at that time, they were living together and sharing the same bed. (Appellant, PW1, (mother of the PW2) and PW2, the victim). In his defence before the trial court, the appellant, DW1, denied to have committed the offence. DW2 (the mother of the victim and wife of the appellant, testified that she was living with the appellant and her daughter since 2011 when PW2 was of seven (7) years • old and when she separated with .her husband the biological father of •PVV2. That, though she was living with the appellant her mother was not %happy with the appellant, as he had not paid the bride, price. PW2 had been sick for several times. That on 19/9/2015, PW2 was under the custody of her mother in-law. During the hearing of the appeal, which was conducted orally, the appellant fended for himself while Mr. Felix Chakila, the learned State Attorney, represented the Respondent, the Republic. In his submission, the appellant didn't have much to- say, but only i requested the Court to adopt the grounds of appeal as they appear in th^ Petition of Appeal. I i In response, Mr. Chakila, while supporting both the conviction ancj t the sentence, stated that, it was correct for the trial court to base itj- conviction on the evidence of the PW2, which was very clear ancj *' i corroborated by the evidence of PW3. However, even if the same could have not been corroborated, the same is enough to convict the appellant under Section 127(7)-of The Tanzania Evidence Act, [Cap. 6 RfE 2002]., The evidence of PW2 was credible enough, because the same was testified after the Voire Dire Test and in accor dance with Section 127 (1) (2) of The,. i Evidence Act, (supra). To substantiate his position Chakila referred the Court to page 9 -10 of the trial court'proceedings and the case of Omary Kijuu V Republic, Criminal Case No.39 of 2005 (CA), at page 10 & 11. j Submitting.on the 2nd and 3rd grounds of the appeal, Chakila stated that, in their testimonies, PW2 and PW3 confirmed that, the victim was sodomized. However, the evidence of defence was supposed to adduce evidence against these facts but the appellant didn't dispute the same during the trial. At page 1.4 of the proceedings PW3 ably testified1his findings. Therefore the two grounds 2 & 3 should be dismissed. On the 4th and 5th grounds, Chakiia argued that, the claim that the i case was framed against the appellant due to the enemity among .the i i parties and that the evidence of the prosecution witnesses is contradictory is not true, unfounded and afterthought. The appellant had never ra sed those concerns during the trial and specifically at the cross-examination. | As regards 6th ground of the appeal, Chakiia submitted that, it is Llso i an afterthought, because at-page 14 of the proceedings the PW3 testified how he managed to find that PW2 was sodomized after he examined ner.. i The PF3 was tendered properly, in accordance with Section 240 of the Criminal Procedure Act. ; On the issue of the-excessive sentence, Mr. Chakiia contended that the sentence pronounced by the trial court is appropriate and it was issued Ii in accordance with the law. That, the appellant is charged under Section 154 (1) (a) of the Penal Code, which was amended by Section 185 of the Child Act No. 21 of 2009. The said amendment provides that, if the offence of this nature is committed to a child below 18 years, the accused must face a penalty of life imprisonment. In the case at hand the offence was committed to a child of ten (10) years old, therefore the sentence given by i the trial Court is appropriate. Oh the claim that the defence evidence was not considered, Chakila referred the Court to page 4 and 5 of the typed Judgement and stated that, it is obvious that, the evidence of the defence was properly considered, but I I < the trial court observed that the prosecution side had proved the case beyond reasonable doubt. Chakila concluded by stating that, the i I prosecution side had proved the case beyond all reasonable doubts by summoning five (5) witnesses and prayed the Court;to dismiss the entire .j ti appeal for lack of merit. • i In rejoinder, the appellant stated that, RW2 was not living with him, i but was living with her grandmother. The said grandmother had been j claiming for the bride price from the appellant as he started living-with her daughter before payment of the same. The entire evidence was cooked against the appellant due to that misunderstanding. He thus prayed the % Court to grant his appeal. I have careful considered the submissions advanced by both parties, the record of proceedings at the trial court and the entire appeal together with the trial court Judgment, which is subject matter of this appeal, the following are the deliberations of this Court in disposing the issue whether the prosecution established its case against the appellant beyond reasonable doubt In deciding this appeal, I am very much aware with the set principle *Il that, this Court being the. first appellate court-, enjoys great liberty in re­ evaluating the evidence and the law. Further that, this Court can interfere- •• i with findings of facts by the lower court if the said court completely | i misapprehended the substance, nature and quality of the evidence, i resulting in an unfair conviction. See for example the cases of Yohana i Dionizi and Shija Simon Versus The Republic, Criminal Appeal No, I t 114 and 115 of 2009, Court of Appeal of Tanzania at Mwanza, (Unreported) and Kisernbo V. Uganda [1999] 1 EA. In his 1st ground of .the appeal the. appellant is challenging the decision of the trial court for convicting and sentencing him based solely on thej i evidence of PW2 (victim). I wish to start by reminding the appellant that the offence he was charged with is on unnatural offence contrary to section 154(l)(a) of the Penal Code, (supra), which falls in the category of sexual offences. 7 As clearly submitted by Mr. Chakila, it is trite law in Tanzania that, the true and best evidence in sexual offences is the one, which comes from the mouth of the victim herself or himself. The said position of the iawi is found in Section 127 (7) of the Evidence Act [Cap 33 R.E 2002], which provides that, in criminal proceedings involving' sexual offences the ; i ! : evidence of the victim is the. best evidence and it does not require any further corroboration for it to be relied upon. The said section provides * I clearly that.:- ;. ! . " Notwithstanding the preceding provisions o f this section, where in i criminal proceedings •involving sexual offence the only independent evidence is that o f a child o f tender years or o f a victim o f the. * sexual offencethe court shall receive the evidence, and may, after assessing the credibility o f the evidence o f the child \of I tender years o f as the case may be the victim o f sexual offence on its own merits, notwithstanding that\ such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child o f a tender years of the victim o f sexual offence is telling nothing but the truth . (Emphasis is added). In accordance with the above section, the evidence of the victim, though uncorroborated, may be sufficient to sustain a conviction. A conviction can be grounded on the sole uncorroborated evidence ofj the victim provided the court warns itself of the danger of convicting on such evidence. . , ! It is equally important to emphasize that, there are multitudes of i authorities, which had since enunciated this particular principle. Seej for instance the case of Seleman Makumba v. Republic, (2006) TLR 379- i and Wile Silas v. The Republic, Criminal Appeal No. 26 of 2011, Cout of Appeal of Tanzania at Irmga, (unreported). , In the case at hand there is no. dispute that. PW2 was sodomized, jthis is in accordance with the testimony of'PW2 herself,/PW1, PW3, PW4jand PW5. Then, the trial court'by applying the above principle, based on the testimony of PW2, the victim, convicted and sentenced the appellant on * 1 I the offence charged. *For more clarity,- I deem it necessary to reproduce the testimony of PW2 adduced before the trial court. PW2, a girl and child of ten (10) years old after a voire dire test, testified that:- " Before going to ieave with my grandmother, I was living with my mother and my stepfather called Halidi Hussein. We were sleeping in one room and on the same bed. At night my father was putting his penis into my anus when my mother was asleep. I was not making noise because my father told me that; if I make noise ,he wouid kiil me with a knife. For the first time, he did it in the afternoon, .when my mother was not at home, i she went to wash her clothes. My stepfather told me that if he puts his penis' Ckidudu chake) into my anus, he will give me Two Hundred Tanzanian Shillings, (Tshs200/=). i I denied, he * I called two times, I denied again, he catcfred (sic) me by force and when I wanted to make noise he. told me, I will kill you ‘ with knife 'l He continued doing so for several times. Initially I i- i feared to tell my mother but later I decided to tell her and my mother toid me that I am telling lies against my father. When I went to live with my grandmother my aunt asked me 'why are you walking in such a way? I toid her that father inserted his penis into my anus. I was unable to sit and walk properly. My father started to do that act since I was in STD 1. Based on the above principle and in connection with the testimonies adduced by.PW2 and of course together with testimonies of PW1, PW3, PW4 and PW5 the trial court convicted and sentenced the appellant. It is also the finding of this court that the trial court well applied the above principle by relying on the testimony of PW2, which was also corroborated by testimonies of PW1, PW3, PW4 and PW5. It has to. be noted further that PW2 was not able to sit and walk properly and her • » sphenter muscies were unable to control anything, because something was forced into her anus, to the extent of having a discharge of faeces in her- *, " ' * * anus due to the dilated anus after being medically examined by PW3, Gathering all these evidence, it is without any flicker of doubt that, PW2- was sodomized. I thus find grounds 1, 2, 3, 4 and 9 of the appeal to have no merits. I am aware that in his defence and even under grounds 4 and 5 of the appeal, the appellant is claiming that, the evidence of prosecution side was cooked and fabricated against him due to the bad relationship between him and the family of his wife. That, his mother in-law, is not appreciating him, as he had not paid the bride price. This fact was as well a supported and explained by DW2 his wife. I have however observed that, the problem of PW2 to be carnally known by her stepfather was not first observed or reported by the said mother in-law, but the same started to foe noticed and detected due to a strange walking style of PW2. That PWg's health was not okay and they started treating her in a normal way. i i Initially, PW2. was discovered to have malaria and provided with medication. Though her condition continued to deteriorate. However ho i one detected anything, but only after noticing that PW2 cannot walk and sit properly, PW1, PW4 and PW5.politely asked her and she then revealed, that she had been sodomized several times by her-step father. With this background, I join hands with Mr. Chakiia that, the claim that the whole case was framed against the appellant.is not true, it is only an afterthought to exonerate himseif from this crime. . ? - Coming to the issue on the contradictions of prosecution witnesses the appellant for instance under 5rh ground of appeal, had raised a concerns that evidence of prosecution was not only hearsay but also contradictory. As clearly indicated above, the trial court based its conviction and sentence on the testimony of PW2 the victim and also PW3 the doctor 12 who examined PW2. All these are not hearsay evidence and not contradictory. As such even this ground lacks merit. i In the circumstance and taking into account that the conviction of the appellant was as well based on the credibility of PW2, (the victim), it is the trial court that was better placed in assessing the credibility of PW2 i and was convinced of-what she was telling during her testimony, which I also believe to be the true narration of what exactly happened to her due I to the fact that PW2 was notable to sit and walk properly and there was a i discharge of faeces in her anus due to dilated anus after being medically examined by PW3. It is therefore my considered view that the prosecution, i side had managed to,prove its’ case to the required standard and as per •i section 127 (7) of the Evidence Act (supra). <-h > As regards the 7 ground of the appeal on excessive sentence of life imprisonment pronounced by the trial court against the appellant, I do agree with the learned state attorney Mr. Chakila that, the appellant is charged with Section 154 (!) .(a) of the Penal Code and the same was amended by Section 185 the Child Act No. 21 of 2009. In accordance with that.amendment, the accused person, if commit this kind of offence, to a child below 18 years must face a penalty of life imprisonment. I While I am aware and live to the above provisions of the law, I still see merit on the appellant's concerns. There is no dispute that life imprisonment is a sentence, which has an indefinite duration, no specific I details on pardon and does not come with compulsory accessory penalties] Life imprisonment means a lifelong incarceration that a convicted persorj has to remain in prison for the rest of his. life or until paroled. I therefore find this type of punishment to be odds and irreducible sentence that i amount to inhuman treatment against all principles of international law anc , t human rights treaties, which Tanzania is a party. j • Life imprisonment denies any-possibility, for the accused person stc ■reform and redeem from the previous befraviorand become a good citizen j i It departs from the essential meaning of punishment, which is reformation and social rehabilitation as enshrined in Article 10 (3) of the International Covenant on Civil and Political Rights, which Tanzania is also a signatory. 1 The said Article provides that:- 1 G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc A/6316 (1966), 999 U.V.T.S 171, ervtered into force March. 23,1976. Available at http://wwwl.urim.edu/humarirts/inst ree/b3ccpr.htm (last Visited in September 23rd, 2016). 14 the penitentiary system shall comprise treatment of prisoners I the esfentia! aim of which shall be their reformation and | social rehabilitation" j i ! Though I support the above principle and position my hands are'tied i as I have to apply the existing laws, until such time when the Tanzania ; ' 1 i Legislature will deem it necessary to change this position. In (the ■ * . i i circumstance, I hereby dismiss the appeal in its entirety and I upholdjthe decision of the District Court. It is so ordered. ■ ’• DATED- at 1RINGA this 7th day of October 2016. R. K. Sameji. JUDGE 7/10/2016 Judgement delivered in Court Chambers in the presence of Ms. Magreth Mahundi the learned State Attorney for the Respondent, the Republic and the Appellant. A riant of Appeal explained. R. K. Sarneji JUDGE 07/10/2016 i Certified as a true copy of the Original Judgement for the Dc Criminal Appeal No. 54 o f 2*0J 6. R. K. Sarneji JUDGE 07/10/2016