CRIMINAL APPEAL 837 OF 2023 JUMA SAIDI DARAJA VS THE REPUBLIC

AT PAR ES SALAAM ( CORAM: GALEBA. J.A, FIKIRINI. J.A. And ISMAIL. 3.A/> CRIMINAL APPEAL NO. 837 OF 2023 JUMA SAIDI DARAJA........... ...... ......... ...............................APPELLANT VERSUS THE REPUBLIC........ ......................................... ............ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania (District Registry of Dar es Salaam) at Dar es Salaam) fKulita,J/> dated the 2nd day of May, 2022 in Criminal Appeal No. 236 of 2020 JUDGMENT OF THE COURT 19th & 26th March, 2025 FIKIRINI. J.A.: Juma Saidi Daraja was arraigned before the District Court of Mkuranga at Mkuranga, charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap. 16 Revised Laws. The allegation was that on 9th August, 2018 at Kisemvule Village within the Mkuranga District, he had carnal knowledge of a boy of eleven (11) years whose name is concealed and shail thus be referred to as FM or the victim, to protect his identity. The appellant refuting the charges, pleaded not guilty. He was tried convicted and sentenced to life imprisonment and ordered to compensate the victim TZS 1,000,000.00. Dissatisfied with the conviction, sentence, and order for compensation, he unsuccessfully appealed to the High Court. Still protesting his innocence, he preferred an appeal to this Court. A snap short of details, leading to this appeal is crucial before we get on to its determination. It was the prosecution case through its six (6) witnesses, particularly PW1 and PW4 (victim's parents) that on the 8th August, 2018 the victim went missing. While loitering around in the Kisermvule area, the victim met PW3, his friend with whom he shared his predicament. PW3 could not bail out his friend, but concerned, he introduced the victim to the appellant and asked him to accommodate him for a night as he had fled from home and had nowhere to go. It was during his one-night stay at the appellant's place that the appellant is alleged to have taken advantage of the situation and sodomized the victim. On his return home the next day, he was confronted by his parents and taken to Vikindu Police station, where he was reported missing, from the previous night. At the Police station, the victim was issued with a PF3 (Medical Examination Report) and taken to Mkuranga District hospital where PW6, a medical doctor examined him and filled the PF3. Meanwhile, Police traced and arrested the appellant. PW5 a Police investigator investigated the complaint and finally charged the appellant with charges as seen in the charge sheet. As alluded to above, the trial court found him guilty, convicted, and sentenced him to life imprisonment. In addition, ordered to compensate the victim. His appeal to the High Court was, on the one hand, unsuccessful, but on the other, benefitted the appellant, as the High Court Judge, faulted the trial magistrate's life imprisonment sentence imposed and reduced it to thirty (30) years. Undeterred and trying his luck, he appealed to the Court. His memorandum of appeal, consisting of seven (7) grounds, shall not be reproduced and discussed in this appeal for the reasons we are about to explain. The proceedings before us revealed, with examples on pages 12, 22, 36, 41, 43, and 46 of the record of appeal, the participation of a person listed in the Coram as a Social Welfare Officer (SWO). We therefore asked parties to address us on the propriety, or lack thereof, of the proceedings involving the SWO. The appellant was present in Court representing himself, while Ms. Elizabeth Olomi, learned Senior State Attorney, led a team of three, including Messrs. Daudi Basaya and Ditrick Mapunda, both learned State Attorneys, the trio representing the respondent Republic. In response to the probe, Ms. Olomi right away admitted that the proceedings were irregular, as the SWO had no mandate to participate in the conduct of the case as exhibited in the proceedings. Considering the seriousness of the irregularity, she requested that we nullify the proceedings, quash the judgment, and set aside the sentence. Pondering on the next step we should consider, she implored for the return of the record to the High Court, onward to the trial court for a retrial, this time without the participation of the SWO. The basis of her request for a retrial was that there was substantial evidence against the appellant, warranting conviction, waiving aside the presumption that this exercise would allow the prosecution to address any gaps in their evidence. The appellant, a layperson, essentially did not oppose the submissions by the learned Senior State Attorney, placing his trust in the Court and urging us to decide following the law. We wish to begin our deliberation by briefly explaining the prosecution of criminal cases in our jurisdiction. The office of the Director of Public Prosecutions (DPP) is the sole institution vested with the authority under Article 59B of the Constitution of the United Republic of Tanzania, 1977, to conduct, control, and prosecute criminal cases on behalf of the Republic. Article 59B (2) of the Constitution states that:- "(2) The Director of Public Prosecutions shall have the power to institute, prosecute, and supervise all criminal prosecutions in the country," The functions of the DPP's office related to prosecution of cases are daily carried out by the National Prosecutions Service (the NPS) as stipulated under section 9 (1) of the National Prosecutions Service Act, Cap. 430, Revised Laws (the NPS Act). Section 9 (1) states thus:- n9.-(l) Notwithstanding the provisions o f any other written law, the powers and functions o f the National Prosecutions Service shall be to: (a) decide whether or not to prosecute in relation to any offence; (b) take and conduct criminal cases on behalf o f the sovereign o f the United Republic,..." With exception of the Court Martial, or as otherwise stated, the duty and obligation to prosecute cases before courts of law rests solely with the NPS and its public prosecutors. A SWO, as defined under Section 3 of the Law of the Child Act, Cap. 13, Revised Laws (the Child Act), refers to a SWO in the service of the Government. The SWO's primary responsibility is overseeing the well-being of the community. Therefore, they are neither, under the DPP's office nor within the NPS. Their other roles are as outlined in the Child Act, specifically in Part IX, titled "Child in Conflict with the Law." This is when a child has committed an offence and is facing prosecution. Although the SWO is not a prosecutor, their participation is, nevertheless, required to a certain extent. We shall explain. To protect children from harmful and unsafe environments, mainly involving the commission of crimes, the Government has set up a different process for handling children in conflict with the law. This is the rationale behind the establishment of the Juvenile Court (JC). In carrying out its obligations, the participation of SWO is required hence their presence in JC, as stated under section 99 (l)(d) of the Child Act, that:- "99. (1) The procedure for conducting proceedings in the Juvenile Court in all matters shall be in accordance with rules made by the Chief Justice for that purpose, but shall, in any case, be subject to the following conditions— (d) a social welfare officer shall be present;..." While their role is mostly that of giving assistance, as specified in several provisions of the Child Act, their involvement is, however, not mandatory but at the discretion of the JC's magistrate, as outlined in section 112 of the Child Act, which states:- " Where a child is charged with any offence\ the Juvenile Court may, in its discretion, require the attendance of their parent, guardian, relative, or social welfare officer and may make such orders as necessary to procure their attendance." Once the SWO is present before the JC, his or her participation becomes necessary in certain situations. For example under section 108 (2) of the Child Act, the SWO can assist a child facing charges and prosecution before the JC. The provision states:- "(2) In all proceedings against a child, where the parents, guardian, relatives, or social welfare officer attend, any one o f them may, with the prior consent o f the court, assist the accused child in the conduct of their case, including the examination and cross-examination of witnesses. "[Emphasis added] After laying a foundation on the roles of the NPS and SWO, we now revert to the appeal before us. What we gathered from the current appeal under scrutiny is that the questionable proceedings in this case were before the District Court of Mkuranga rather than the JC, where the assistance of the SWO might have been required. As alluded to above, the responsibility for conducting the prosecution rested with none other than the prosecutor. In this instance, the victim was not the one prosecuted, but called as a witness. Luckily, this is not the first time we are facing a kindred scenario. In the Alex Ndendya v. R, (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6th May, 2020; TANZLII), which was referred in Issa Reji Mafita v, R, (Criminal Appeal No. 337 of 2020) [2021] TZCA 404 (24th August, 2021; TANZLII) stressing on the role of SWO, we had this to say: "The presence o f the social welfare officer does not envisage situations where the chiid is a witness; it envisages situations when the child is in conflict with the taw; that is, when the child is an accused person." In the present appeal, the SWO had no role whatsoever of giving assistance, such as cross-examining witnesses as reflected in the pages of the record of appeal we referred to in this judgment, since she had no mandate to conduct prosecution on behalf of the Republic. Her participation had, consequently, affected and marred the proceedings, rendering them irregular. We, therefore, concur with the learned Senior State Attorney's submissions and prayer that the appropriate remedy is to nullify the proceedings, quash the conviction, and set aside the sentence. Invoking our revisional powers under Section 4 (2) of the Appellate jurisdiction Act, Cap. 141, Revised Laws, we thus nullify the proceedings, quash the judgment and set aside the sentence of the trial court in Criminal Case No. 162 of 2018 and those of the High Court in Criminal Appeal No. 236 of 2020. In the interest of justice, we order the return of the record to the trial court for retrial. In the meantime, the appellant will be remanded in custody awaiting his trial. As an old case and in the interest of justice, its hearing be expedited. DATED at DAR ES SALAAM this 25th of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2025 in the presence of the Appellant in person via video from District Court of Mafia and Ms. Gladness Mchami, learned Senior State Attorney via video, NPS Office Kibaha for the Respondent/Republic, is hereby certified as a true copy of the original. r* R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL