KASIMU HAMADI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB- REGISTRY] AT ARUSHA CRIMINAL APPEAL No. 24001 OF 2024 (Original in criminal case No. 104 o f2023 o f the District Court o f Karatu at Karatu before Hon. Y.O. Kiseng'erian, SRMdated29/02/2024) KASSIM HAMADI..................................................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT JUDGMENT 25* & 2EP November, 2024 I.C. MUGETA, J. The appellant was arraigned before the District Court of Karatu at Karatu charged with unnatural offence contrary to section 154 (1) (a) of the Penal Code. It was alleged that on 25th day of May, 2023 at Chemchem Village within Karatu District in Arusha Region, the appellant had had carnal knowledge of a boy aged fifteen (15) years against the order of nature. The appellant denied the charge, therefore, the case proceeded to a full trial. In proving the charge, the prosecution relied on the evidence of six witnesses and one documentary evidence. This is the PF3 which was tendered and admitted as exhibits PI. The appellant relied on his own evidence as he did not summon any witness. Upon conviction, the appellant preferred this appeal. The petition of appeal has 6 grounds of appeal. I shall deal with the first ground only which states that the trial court erred in law and facts in not finding that the victim's evidence was procured in contravention of section 198(1) of the CPA. I have decided to limit the decision to that ground because on the hearing date the appellant said he has nothing to add on the grounds of appeal. Amanda Lushakuzi, learned State Attorney supported the appeal on said ground without addressing the rest of the grounds of appeal. She argued further that as the evidence of the victim was, indeed, taken without oath or affirmation, it has no probative value. That without that evidence the evidence of the other witnesses is mere hearsay. She argued further, that the PF3 tendered by PW5 which confirmed the victim was, indeed, sodomized does not stated who did the sodomy. Section 198 (1) of the Criminal Procedure Act (the CPA) requires every witness in a criminal case to give evidence upon oath or affirmation. The said provision states thus: "Every witness in a criminal cause or matter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations Act” One of the exceptions to this provision relates to witnesses of tender age. Under 127 (2) of the Evidence Act [Cap 6 R.E. 2022] a child of tender age can give evidence without oath or affirmation upon complying with conditions stipulated therein. The said section states that: "A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell lies" In the instant appeal, at the time of giving his evidence, PW1 said is aged fifteen (15) years, therefore, he was not a child of tender age who under section 127 (4) of the Evidence Act is defined as a child aged not above 14 years. Hence, he ought to have testified under oath. The trial court record shows that the trial magistrate took the evidence of PW1 without taking oath or affirmation. For clarity, I wish to reproduce what transpired on 21st September, 2023 when PW1 testified as reflected at page 8 of the typed proceedings: "DA TE - 21/09/2023 CORAM: Hon. Y.O. Kiseng'erian - SRM Prosecution: Janeth Accused: Present CC: Mkiramweni SWO - Jackline Pros: For Hg, I have three witness and one child, we are ready. Accused: I am ready PROSECUTION CASE BEGINS PW1 (name withheld), Mwiraq, pupil, chemchem, 15 yrs, Christian XD - CHIEF EXAM - PROS "My name is XY (name withheld). la m a pup/I at Kibaoni Primary school, standard Four. My friends are Agnes and Irene who are standard five." This part of the record is a living testimony that the victim was not sworn before he testified. Even if it is assumed that the learned trial magistrate regarded the victim as a child of tender age, he failed to comply with section 127 (2) of the Evidence Act. However, even if he complied, that would not have saved the proceedings from illegality. For purposes of evidence, PW1 is not a child of tender age. It is settled that, evidence received without oath or affirmation, amounts to no evidence in law. This is the holding in the decision in Shabani Said Likubu v. Republic, (Criminal Appeal No. 228 of 2020) [2021] TZCA 251 (11 June 2021, TANZLII. I, therefore, hold that the evidence of PW1 has no probative value for being received without oath. I also agree with the learned state attorney that without it, there is no other evidence upon which a conviction can be grounded. Having discounted the evidence of PW1, I find that the remaining evidence of PW2, PW3, PW4, and PW5 is insufficient to prove that the appellant had committed the offence charged. Their evidence is based on what PW1 told them. Further, the evidence of PW6 in the PF3 just proves anal penetration not who penetrated the victim's anus. Accordingly, I quash the appellant's conviction and substitute it with an acquittal resulting into setting aside the sentence imposed. I order that he be released from custody forthwith unless he is otherwise lawfully held. Finally, a word on the manner of recording the evidence of victims in sexual offence cases. In this case the learned trial magistrate hid the Page 5 o f 7 name of the victim in the proceedings. I have seen this practice of withholding the victim's name being done even in some charge sheets contents which is not right. In case of charge sheets, an accused person cannot enter a plea of committing an offence against undisclosed person. That practice which is unfounded in law ought to stop. Regarding recording of the proceedings, the name of the victim ought to be disclosed to establish, among other things, if the victim is the one named in the charge sheet and for scrutiny by the higher courts in case of appeal. It is my settled view that the need to disclose names in the charge sheet and the proceedings is the reasons the hearing of sexual offence cases are held in camera. In terms of paragraph 2.0 of the Chief Justice Direction No. 2 of 2018 on the Protection of Identities of Children in any Matter Before the Court; of Parent and Guardian of the Child in the Adoption Proceedings; and of Victim of Sexual Offences of Whatever Age, what is barred is disclosure of names in judgments and decisions which go in public circles. 26/ 11/2024 Page 6 o f 7 Court: Judgment delivered in chamber in the presence of the appellant and Amanda Lushakuzi, learned State Attorney for the respondent. Sgd: I.C. MUGETA JUDGE 26/ 11/2024 Page 7 of 7