20121105 TZHC Mbeya1

,. IN THE HIGH COURT OF TANZANIA tJ tq AT MBEYA DC CRIMINAL APPEAL NO. 57 OF 2011 (From the decision of the District Court of Kyela District at Kyela Criminal Case No. 18 of 2010 Before: D. S. Nyakunga, DRM) KENEDY ELIEZA ............................APPELLANT VERSUS THE REPUBLIC ........................... RESpONDENT JUDGMENT Date of last Order: 1/07/20 13 Date of Judgment: 20/08/2013 KARUA, J. The District Court of Kyela convicted the appellant, Kenedy Elieza, of unnatural offence contrary to section 154 (1)(a) and (2) of the Penal Code, Cap 16, [R.E. 2002] and handed down a sentence of life imprisonment. The appellant felt aggrieved, hence this appeal which was resisted by the Republic. The evidence that led to the appellant's conviction was this On 21s' February 2010, at Kipera Konjura village within Kyela District someone had passed away. Mage Kanyenda, PW4 at around 12 noon prepared herself to go to the funeral ceremony. She decided to pass by her mother's house. When she opened the door of her mother's room, she saw the appellant on her mother's bed. He was having sex by anus with Mage's grandson, Naziri Nassor. The said Naziri was hardly two years old. Mage raised an alarm, while grabbing the child off from the appellant. Joshua, PW2, was grazing cattle nearby. She heard Mages hue and cry. He rushed in the house and found Mage holding the young child. Mage directed him to apprehend the appellant which he did. Blood oozed from the child's anus. The matter was reported to the child's father PW1 Nassoro Abrahamu and later to the village office. The child was examined and the witnesses including John David Mtafya, PW3, the village Chairman, saw blood and sperms from the boy's anus. Upon interrogation the appellant admitted committing crime after he was advised to do so by a witchdoctor. The matter was reported to the police and the victim was later sent to Ipinda heath centre where Dr. Hauta Mwakifuna PW5, examined the child and noted bruises on the child anus as well as blood and 2 sperms. The doctor concluded that the child was sodomissed. Consequently, the appellant was charged. The appellant denied committing the offence. He denied that he was arrested red handed. Presenting his appeal the appellant stood by his ground that he did not perpetrate the offence. He dismissed the evidence of the prosecution witnesses as the evidence of siblings, hence, they could fabricate the case against him. Mr. Namkambe, learned State Attorney strongly, supported the conviction. However, having gone through the record, I will allow this appeal on the following technical grounds, which occasioned a failure of justice. In the first place these proceedings were conducted in defiance of the provisions of section 186 (3) of the Criminal Procedure Act, Cap 20 R.E. 2002 in that these sexual proceedings were not conducted in CAMERA. The section is couched in these words: "186. (3) Notwithstanding the provisions of any other law, the evidence of all persons in all trial involving sexual offences shall be received by the court in 3 Id camera, and the evidence and witnesses involved in ) these proceedings shall not be published by or in any newspaper or other media, but this subsection shall not prohibit the printing or publishing of any such matter in a bona fide series of law reports or in a newspaper or periodical of a technical character bona fide intended for circulation among members of the legal or medical professions." In Eliud Samson V R DC Criminal Appeal No. 19 of 2012 (unreported) I observed:- "These are quite appropriate provisions. They are not meant to decorate the statute but rather they are meant to be implemented. The rationale behind their promulgation is not far to seek. The law require that the entire sexual offence proceedings be conducted in private chambers of the judges or magistrates or when the public is excluded from court room; often to protect victims and witnesses from public exposures and to allow the victims and witnesses to speak freely of the occurrences and what is in their mind without fear of being dishonoured. Such hearing would also shield delicate evidential matters and as demonstrated, would protect the privacy of the people involved. These offences involve moral turpitude and both the appellant and the victim and their witnesses might refrain from the duty of telling the truth and spilling all the beans, if the trial is being conducted in the public eye. Moreover, when narrating their cases the victims and probably the accused would be uncomfortable with the obscene language spoken that accompanies these offences. Such ribald expressions most of the time demean our women and at times impute bad picture on the person of the accused and indeed, insult our culture and are without any social redeeming value. This is why they must be spoken in closed doors and not in public. In point of principle, the subsection prohibits the publication of such proceedings in newspapers and other media, apart from law reporting. The provision sinned against by the trial court, is in mandatory terms. I take the view that the imperfection cannot be cured. As demonstrated, the non-compliance has occasioned fai lure ofjustice." There was another errors as well. The trial magistrate did not comply with the provisions of subsection (3) of section 210 of the Criminal Procedure Act. In Yohane Francis Bahazee V R. Criminal Appeal No.. 14 of 2009 (unreported) I observed: "My understand of law is that the magistrate having recorded the statement of witness, shall inform each witness that he is entitled to have his evidence read over to him or her and if the witness asks that his evidence be read over to him, the magistrate shall record any comments which the witness may make concerning his evidence. Therefore the account the witness gives in court, must be verified by the witness making the testimony. It is so imperative. The non compliance with the provisions of subsection (3) of Section 210 of the Criminal Procedure Act, makes these proceedings a nullity. I take the view that the non-compliance with subsection (3) of Section 210 of the Criminal Procedure Act, vitiates the proceedings and that the proceedings cannot be cured by the provisions of subsection (2) of Section 37 of the Magistrate's court Act, because in my views, the non compliance occasions a failure of justice. It is very important that the testimony be verified by the maker, to root out misstatement. This is why the provisions of Section 210 (3) of the Criminal Procedure Act, are made in mandatory terms. The non-compliance therefore sins against the Section. The proceedings can therefore not be allowed to stand. In consequence they are quashed." ON There was yet another critical issue. The victim child did not testify. Indeed, she was child of tender years. It was said he was aged 2 years. Be that as it may be, it was very important for the court to have seen the child and conduct the necessary voire dire. It is the court which must rule that the child is incapable of making a statement; does not understand the nature of an Oath, or is possessed or not of sufficient intelligence and understands the duly of speaking the truth. All these flaws cannot be cured. I take the view that they have occasioned a failure of Justice. Consequently, I will allow the appeal, set aside the sentence of imprisonment for life imposed. This case has public interest. I direct that the same commence a fresh, before another magistrate of competent jurisdiction. S. V. G. HARUA JUDGE DATED AT MBEYA 5th November, 2012 Appearance: For the appellant: Present in person Forrespondent: Ms Juliana assisted by Ms Minja, State Attorneys. I Certny that i4fld Ojrr4 of the orzginy