sharifu mamboleo vs republic 2007 tzhc 108 30 july 2007

IN THE HIGH COURT OF TANZANIA

AT MTWARA CRIMINAL APPEAL N0.26 OF 2007 ORIGINAL CRIMINAL CASE N0.230 OF 2006

THE DISTRICT COURT OF MASASI

AT MASASI SHARIFU MAMBOLEO................... APPELLANT

VERSUS THE REPUBLIC............................ RESPONDENT DATE OF LAST ORDER - 16/7/2007 DATE OF GIVING REASONS FOR JUDGMENT - 30/7/2007

REASONS FOR JUDGMENT MJEMMAS. J. After hearing this appeal on 16/7/2007 I quashed the conviction, set aside the sentence of thirty years imprisonment imposed on the appellant and ordered his immediate release from prison unless otherwise lawfully held for some other cause. I reserved my reasons for the judgment and now I proceed to give the same. The appellant was charged for committing a “statutory rape” on the first count and impregnating a school girl on the second count in the alternative. He was found guilty and convicted on the first count of rape and sentenced to the statutory minimum sentence of thirty years imprisonment. The trial court erroneously entered a verdict of not guilty on the alternative count and acquitted him/appellant. Most of the facts in this case are not in dispute. It was alleged by the prosecution side that on 27th May, 2006 at or about 11.00 hours at Nakopi village within Nanyumbu District in Mtwara Region the appellant had carnal knowledge of one Asina d/o Thabit a girl of sixteen years old. In the alternative it was alleged that on the same date and time the appellant did impregnate one Asina d/o Thabit a school girl of Nakopi Primary School. PW.1 testified that on 27/5/2006 at around 15.00 hrs she met the appellant who seduced her to have sexual intercourse with him. He promised to buy her some exercise books and bodylotion. She agreed and they

had sexual intercourse. She was later discovered to be pregnant and expelled from school. PW.3, a Headteacher of Nakopi Primary School confirmed that PW.1 was expelled from school due to pregnancy. PW.5, Hamida Hashimu testified that she saw the accused while sleeping with the appellant at the house of her brother. The appellant/accused denied both charges. At the hearing of this appeal the appellant relied on his petition of appeal. He was unrepresented. Mr. Luena, learned State Attorney who appeared for the Respondent- Republic did not support the conviction and sentence imposed on the appellant. In his submission, Mr. Luena pointed out that the appellant was charged and convicted of the offence of having sexual intercourse with a girl under the age of eighteen (18) years old. He said that one of the ingredients or elements of the offence which has to be proved is the age of the victim. From the available evidence, he argued, there is no proof of the age of the victim apart from the charge sheet which indicated that she was sixteen years old. He said that that was not enough, there was need to adduce evidence to show the exact age of the victim. The parents of the girl were not called to testify and even the Headteacher of the victim’s school could not show or assist on the question of age. Mr. Luena invited this court to give the appellant the benefit of doubt because the

girl could be even above eighteen years old. He referred this court to the cases of EMMANUEL KIBONA AND OTHERS V. REPUBLIC [1995] TLR 241 and that of HAJI DADI V. REPUBLIC, Criminal Appeal No.111 of 2006, Mtwara High Court Registry (unreported). In the alternative, Mr. Luena argued that if the court is satisfied that the case against the appellant was proved, the sentence imposed is illegal. It was his view that, since the charge sheet indicated that the appellant was eighteen (18) years old and the record shows that he had no previous criminal record the appropriate sentence was corporal punishment in accordance with section 131(2)(a) of the Penal Code. He also asked this court to take into account that the appellant has stayed in prison for about four months and two weeks. Without mincing words, I entirely agree with the submission made by the learned State Attorney. I am highly encouraged with the way he looked and analysed the case objectively. As pointed earlier in this matter, the facts of this case are straight forward except the question of age of the victim. Section 130(1) of the Penal as amended by Act No.4 of 1998 provides that; “It is an offence for a male person to rape a girl or a woman.” And section 130(2)(e) of the same Penal Code provides: “A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstance following

under any of the following descriptions: (a) .................... (b) ....................................... (c) .............................................................. (d) ...................................... (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.” From the above provisions of the law, the age of the woman/victim is one of the ingredients or elements of the offence of rape or “statutory rape” which has to be proved beyond reasonable doubt. The legislature in its wisdom enacted this provision to protect a certain category of young women who by virtue of their young age the question of consent or no consent is held to be immaterial. The seriousness of this matter is reflected in section 131(1) of the Penal Code whereby the offender is liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment. In view of that it is important that where a person is prosecuted under the said section 130(2)(e) of the Penal Code, the age of the victim is ascertained or proved to ensure that she falls within the category of young women who are protected by that provision. In HAJI DADI V. REPUBLIC, Criminal Appeal No.111 of 2006, Mtwara Registry (unreported) this court pointed

out that; “The offence of rape is a serious one which attracts a heavy sentence of life imprisonment or a minimum of thirty years imprisonment so to convict a person with such offence the evidence must be watertight.” As noted before, proof of age of the victim is crucial particularly where the age mentioned in the charge sheet is close to or borders eighteen years. In my opinion it is important for the trial court to address its mind to this fact and satisfy itself as regards the age of the victim rather than taking for granted what is written on the charge sheet. Age may be proved by direct evidence as to the date of birth, by the testimony of relatives, through medical examination or by appearance. In some cases even the victims statement may be sufficient. However it has been held by the courts i.e EMMANUEL KIBONA AND OTHERS V. REPUBLIC that the evidence of a parent as regards that parent’s child’s age is the best. In the present case the only evidence available about the age of the victim is what is written on the charge sheet and the statement of the victim that she was sixteen years. She did not say when exactly she was born. It has happened in some cases where a person says he/she is of a certain age because he/she was born in a certain year but when you make calculations you find that there is a difference between what he/she said and his/her actual age. I therefore

agree with the learned State Attorney that under the circumstances of this case the appellant should be given the benefit of doubt. On the question of sentence, I don’t need to comment on it in detail because of what I have already said about the conviction of the appellant. Let me, however, take this opportunity to remind the trial Magistrate and the like that just as the Parliament in its wisdom intended to protect a certain category of young women in issues of sexual intercourse the same Parliament also intended to protect young males who are eighteen years and below and are first offenders from serving prison sentences. That intention is reflected in section 131(2)(a) of the Penal Code as amended by Act No.4 of 1998 which provides: “Notwithstanding the provisions of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall - (a) If a first offender, be sentenced to corporal punishment only: (Emphasis mine) In the present case/appeal, the trial Magistrate sentenced the appellant/accused person, a youth of eighteen years and a first offender to thirty years imprisonment. That sentence is illegal and in breach of the Parliament’s intention to protect young males who are first offenders from going to prison. It is therefore, important for a trial magistrate to ascertain the age of the accused where he appears to be a young person

before sentencing him. The principle is the same like what I explained before. Where the parents are available then they are the best witnesses. If they are not available, other sources of evidence must be used to ascertain the age of the accused before imposition of a sentence. I noted earlier that it was wrong for the trial Magistrate to enter a verdict on the second alternative count. It is now settled principle that where there are alternative counts and conviction is entered on one of them no finding should be made on the other - refer to KISALU MTAKI v.R [1982] TLR.195 and R.v. JOHN KATUA [1981] TLR.257. It is for those reasons that on 16/7/2007 I quashed the conviction of rape, set aside the sentence of thirty years imprisonment imposed upon the appellant and ordered his immediate release from prison unless otherwise lawfully held for some other cause. GIVEN AT MTWARA this 30th day of July, 2007. Date: 30/7/2007 Coram: Hon. G.J.K. Mjemmas, J. Mr. M. Luena, State Attorney for the Republic Appellant: Absent B/Clerk: Mr. V.L. Mineche Mr. Luena: This matter comes for giving reasons of judgment. Order: Reasons for judgment given today 30/7/2007 in the presence of Mr. Luena learned State Attorney for the Republic and in the absence of the appellant.