Justine Thobias Gisiri

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000034321 OF 2024 REFERENCE NO. 202412062000034321 (Original Criminal Case No. 56 of2023 of the District Court of Tarime at Tarime) JUSTINE THOBIAS GISIRI.............................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 03* & March, 2025 M, L, KOMBA, J,: This appeal arises from the decision of the District Court of Tarime at Tarime (the trial court) in Criminal Case No. 56 of 2023. In the core, the appellant was convicted and sentenced thirty years imprisonment for the offence of impregnating a secondary school girl contrary to section 60A of the Education Act Cap 353 R.E 2002 as amended by Act Number No. 2 of 2016, (Cap 353). Page 1 of 15 Brief facts of the case go like this, in December 2022 the victim and appellant started sexual intercourse, they practice that game till 30th day of June, 2023 when victim decided to shift her residency to appellant. One day appellant was from his daily engagement he found victim at home playing with his siblings. At night victim did not go back to their home. When asked by appellant to go back to their home she replied that she will remain at that house so that she can be married. They continue to share a room with appellant till 9th July, 2023 when they were arrested at 05:00 hours. Victim who was a student at Tarime Secondary as per exhibit PE3 was taken to Tarime hospital where she was attended by PW2 who confirmed that victim was two months pregnant and tendered exhibit PEI. It was Further in record that prosecution record caution statement of the appellant which was admitted without objection and recorded as Exhibit P2. The trial Magistrate was convinced that prosecution managed to prove their case to the required standard and proceed to convict the appellant as indicated in previous paragraph. Appellant was dissatisfied by the conviction hence this appeal with three grounds of appeal which may be summarized as one, there was no DPP consent as per section 60 (2) of Cap Page 2 of 15 353 R.E 2002, there was no DNA test taken to confirm the prosecution testimony and that the appellant was minor at the time of commission of the offence and therefore the Law of the Child, Cap 13 was not considered. During hearing of this appeal, the appellant was represented by Mr. Cosmas Tuthuru advocate while respondent, the Republic was represented by Mr. Lusako Mwaiseke, State Attorney. In support of the appeal, Mr. Tuthuru decided to argue only one point and left the other to this court. It was his submission that the trial court errored to entertain the matter without the consent of the Director of Public Prosecution (DPP) contrary to section 60 (2) of Cap 353. He clarified that the amendment done in years 2016 deleted paragraph (k) in section 60 and introduce new section 60A by adding various offences with regard to students. He went that Appellant was charged by impregnating secondary school girl contrary to contrary to section 60A (3) while section 60(2) of the same Act insist that no proceedings shall be taken without prior consent of DPP. Looking at proceedings and judgment, he complained, there is no consent of the DPP for the appellant to be charged for that offence. It was his position that Section 60(2) is still in force and was to be adhered and cemented that the trial court had no jurisdiction. Basing on the nature of Page 3 of 15 the case, he was of the submission that the remedy is for this court to order re trial after the consent of the DPP was sought and obtained. In response Mr. Mwaiseke was of the submission that the offence did not require consent of the DPP as amendment which was done by Act No 2 of 2016 deleted paragraph (k) and make addition of section 60 A (1) (2) (3) and (4). That means in principle act there is section 60 and 60A which are two different sections. He went on submitting that it is true that S.60(2) of Cap 353 need consent of the DPP however, he insisted that offences under section 60A does not require such consent and therefore the trial court had jurisdiction to entertain the matter. During rejoinder Mr. Tuthuru insisted this court has to interpret section 60 and 60A and the effect of the amendment because this is a court of record. I have read the cited sections which are 60 and 60A. I agree with both counsel submission that section 60(2) of Cap 353 is about DPP consent. Where is that consent is required is point of departure on two learned lawyers. This reminds me of lectures on legislative drafting and interpretation of law. Section 21 of Act No. 2 of 2016 reads as follows; Page 4 of 15 '21. The principal Act is amended in section 60(1) by deleting paragraph (k). Section 60(2) of the principal Act, Cap 353 as of now reads 'No proceedings shall be taken against any person in respect of any of the offences specified in subsection (1) without the prior consent of the Director of Public Prosecutions' After amendment of section 60(1) where the paragraph (k) was deleted, the remaining paragraphs has nothing to do with impregnanting school girls neither restriction of love affairs to them. The wordings of section 60(2) are clear that all offences under section 60(1) need consent of the DPP. What does that mean, it means all offences listed under 60(1) need consent of the DPP and paragraph (k) is not among the offences under section 60 (1) after the amendment. Act No. 2 of 2016 introduced a new section under section 22, this is 60A of Cap 353 in which subsection 3 prohibits any person to impregnate a school going girl. The section reads; 22. The principal Act is amended by adding immediately after section 60 the following new section: '60A. -(1) It shall be unlawful under any circumstance for: Page 5 of 15 (a) Any person to marry a primary or secondary school gid or a school boy; or (b) A primary or secondary school boy to marry any person. (2) Any person who contravenes any provision of subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term of thirty years. (3) Any person who impregnates a primary school or a secondary school girl commits an offence and shall, on conviction, be liable to imprisonment for a term of thirty years'. (4)-.................. (5).................. (6).................. This is a new and independent section which deal with school going pupils. The new section 60A has six sub sections and none of them introduce the issue of consent. Am certain that, offences under section 60A does not require consent of the DPP rather, section 60(1). From those analysis, the trial court had jurisdiction to entertain the matter and therefore the ground is less merit. State Attorney decided to submit on the rest two grounds as filed in petition of appeal. Arguing for the second ground of appeal he said Page 6 of 15 ingredients of offences of this nature is to prove that the victim is or was student, that the student is pregnant and it is the accused person (in this case appellant) who is responsible for that pregnancy as was in Mawazo Kutamka vs Republic Crim Appel No 64 of 2020. Testing ingredients, he submitted that the victim proved she was impregnated by appellant while she was a student of Sirari Secondary School however the appellant did not cross examine the victim that means he admitted the testimony. Further, he said the appellant admitted to live together with the victim when record exhibit PE2 which collaborated with evidence of PW3 at page 14 and 15 of proceedings when appellant confirm to be responsible of the pregnancy. He refers this court to the decision in Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 that failure to cross examine witness means admission. The victim was active student as testified by PW5 mentioned admission number of the victim was 4904. Still on the second ground about DNA test, State Attorney acknowledged that the world is in the era of science and technology, however, he submitted that DNA is not among the ingredient of the offence which appellant was charged and refer this court to Hango Omary Hango vs Republic, Crim Appeal No 445 of 2022. On ingredients he insisted that it Page 7 of 15 was proved by PW2 that victim was pregnant and he prayed the second ground to be found with less merit. On last ground State Attorney submitted that, the appellant introduced himself that he was 20 years further in matter which was not disputed during plea taking as seen at page 4-5 appellant did not dispute that he was 20 years when committing the crime. He found the ground is after thought. Furthermore, he submitted that he is aware that the section used the word 'shall be liable', that means it was discretion of the Magistrate to determine punishment. He went on that Magistrate convict the appellant to 30 years imprisonment due to the seriousness of the offence and after considering mitigation factors. The same was explained in the case of Mawazo (Supra). He prayed the appeal to be found with less merit. On the issue of proving offence which appellant was charged, the standard ingredients have been listed by the Court of Appeal in Hango Omary Hango vs Republic (supra) that; 'The ingredients of the offence of impregnating a school girl, require the prosecution to prove beyond reasonable doubt, one, that the gid was impregnated when she was attending school and two, the school gid was impregnated by the accused'. Page 8 of 15 This is the first appeal and I will preface my analysis with the position of the law as to the duty of the first appellate court as held in The Registered Trustees of Joy in The Harvest vs Hamza K. Sungura, Civil Appeal No. 149 Of 2017 that a first appellate court is entitled to re­ evaluate the entire evidence adduced at the trial court and subject it to critical scrutiny and arrive at its independent decision. The evidence of PW5 prove that victim was attending school and was in form three who was admitted via by number 4904 and the same was testified in exhibit PE2 that appellant was aware of the status of the victim, that she was student at Sirari Secondary. Further it was testified by PW2 that victim was two months pregnant and that was collaborated by exhibit PEl.That is the first thing, the second is whose pregnancy was that. Victim who testified as PW1 mentioned the appellant to be responsible and even appellant in exhibit PE2 confirmed that he lived with victim as man and wife. I find prosecution managed to prove the offence beyond reasonable doubt that it was appellant who impregnated the victim. The issue of DNA as submitted by State Attorney is not the requirement, however, circumstance of this case does not demand too much to prove Page 9 of 15 that it was the appellant who impregnate the victim. The second ground also flop. About the age, appellant when in court on 15/11/2023 informed the trial court that he was 20 years. From the charge sheet, the crime took place between March 2023 and July 2023, that means at the time of committing the offence appellant was of the age of majority and therefore Law of the Child cannot be applicable to him. Appellant was sentenced to 30 years imprisonment and was ordered to compensate victim TZS 5,000,000/. On punishment, State Attorney submitted that the punishment was uttered after considering seriousness of the offence and mitigation while noting the use of words 'shall be liable' to mean not mandatory punishment. It is the position of the law that when legislature use words 'shall be liable', it is certain that it gave the trial court discretion to determine the befitting sentence as the circumstances may demand. There is no doubt that at page 11 trial Magistrate show he considered seriousness of the offence, conduct of accused and mitigation. Other circumstance of this case was not considered. Page 10 of 15 In Silvanus Leonard Nguruwe vs Republic [1981] T.L.R 66, the Court of Appeal succinctly stated what to be considered before it could interfere with the sentencing court's discretion: '.....it must be satisfied either that the sentence imposed was manifestly excessive, or that the trial judge in passing the sentence ignored to consider an important matter or circumstances which he ought to have considered or that the sentence imposed was wrong in principle.' Selemani Makumba vs Republic, Criminal Appeal No. 94 of 1999 at page 10 the court observed thus; 'With respect, we agree with Mr. Boniface that although the High Court in an appeal is empowered under Section 366 (1) (a) (ii) and (b) to alter the sentence by enhancing it, it does not normally interfere with the discretion of the trial court unless the sentence was illegal or was manifestly inadequate or excessive or the trial court acted on a wrong principle or took into account irrelevant matters.' In the case at hand, before sentencing the appellant, State Attorney submitted that they did not have criminal record of appellant but she prayed trial court to award sentence as required by law. On the other hand, mitigation by the appellant was that, he has dependent who is his Page 11 of 15 mother. I find mitigation was considered by the trial court, however, there are factors which were not fronted by the parties which the learned trial Magistrate had a duty to consider. It is noteworthy to share what happened before appellant was apprehended. The story is found in exhibit PE2 as narrated by the appellant; ...tarehe 30/6/2023 nilitoka kazini na kumkuta LK (Madhura) na wadogo zangu kwa mama yangu niiimkaribisha tukapika tukala na kwenda kulala kuanzia hapo hakurudi nyumbani kwao na niiipomwambia aende yeye a/isema harudi tena kwao amekuja kuoiewa. Tarehe 9/7/2023 majira ya 05:00 hours asubuhi nikiwa nimaiaia na LK mlango uligongwa na nilitoka na kufungua niiikutana na mwenyekiti wa bondeni aitwaye Mwita Sebere aiikuwa na baba yake LK aitwaye KC niiikamatwa pamoja na LK. Tuiikuwa tukiishi na LK kama mume na Mke. Unofficial translation may be like ... on 30/6/2023 when appellant was from his daily engagement, he found victim at home playing with appellant siblings. At night victim did not go back to their home. When asked by appellant to go back to their home victim replied that she will remains at that house so that she be married. The two continue to share a bed till 9th July, 2023 when they were arrested. Page 12 of 15 In this case, it was a victim who shifted from their home and follow appellant to their house. Being alert, appellant reminded her to go to her parents but victim refused as she was in need of marriage. These facts were not part of mitigation but trial Magistrate had a duty to consider them as unique circumstance in that case and it portrayed who the victim was. Court of Appeal when faced with a kin situation ruled the same in Mathias s/o Masaka vs Republic (Criminal Appeal No. 274 of 2009) [2014] TZCA 272 (11 December 2014). In view of the circumstances of this case, bearing in mind that the victim was warned by the appellant, the term of imprisonment and compensation imposed was not only excessive but also inappropriate, ought to be interfered by this Court as some circumstances were not considered, the appellant was entitled to punishment not severe punishment. See. Mathias s/o Masaka vs Republic (supra). In that case, the Court observed that the sentencing powers by any court must therefore be exercised judicially and not arbitrarily. Sentencing is not a mechanical process but a balancing act, taking into account the needs of the community and that of the accused. While dealing with this appeal, I am aware that sentencing is a judicial process. Page 13 of 15 On different angle, I find necessary facts of this case to be considered as an alarm to legislatures and other authorities to find a need of providing a definition of school going girl for the purpose of section 60A (3) of Cap 353 because there some circumstances, where school going girls are engaged in what were not supposed to be done by students. I know having canal knowledge to a girl of under age and impregnating a school going girl is an offence, however, due to technological advancement and dynamics in culture, the other party to offences of this nature, depending on circumstances, need to be punished. All being said, the appeal on conviction is of no merit but on sentence. Under section 366 of the Criminal Procedure Act, Cap 20 R. E 2022 I hereby reduce the sentence uttered by the trial court to five years imprisonment from the date of conviction and set aside compensation order. Dated in MUSOMA this 07th Day of March, 2025 M. L. KOMBA Judge Page 14 of 15 Judgement delivered in chamber before Mr. Lusako Mwaiseke, State Attorney for the Republic and in the presence of Mr. Tuthuru advocate for k M. L. KOMBA Judge 07 March, 2025 Page 15 of 15