Susana d/o Surutua vs Republic (Criminal Appeal No. 69 of 1977) [1978] TZHC 23 (1 January 1978)

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLAT.§___d_URISDICTION CRIMINAL APPEAL NO.ooooooooooooeo69 OF 1977 (ORIGIN!\L CRIMIN,1.L CASE No. 738 OF 1976 OF THE DISTRICT COURT OF DODOMA --AT DODOMA BEFORE: S .. R. K/\HANGWJ\ •••••••••••• RESIDENT MAGISTRl,TE SUSANA SURUTUA ••••••••••• .'.... Appellant (Original Accused) versus THE REPUBLIC.o••••••••••••••o• Respondent (Original Prosecutor) CHARGE: 1st to 4th counts:-Grievious harm c/s 225 of the Penal Code. J U D G M E N T CHIPETA 2 J. The appellant, Susana d/o Surutua, was jointly charged with four others of causing grievious harm c/s 225 of the Penal Code. She and her co-accused persons were convicted on what/p~;~dr):ed I\ to be pleas of guilty, and each of them was sentenced 'to twelve (12) months imprisonment on each count, which sentences were ordered to run concurrently. She now appeals. Before the trial court the prosecution adduced-the following facts: On or about 25th October,1976, at the request and express permission of the parents of the complainants, and in accordance with Gogo customs, the appellant circumcised the co[llplainants - who were four young girls. The circumcision involved the removal of the clitoris of each of the young girls. Subsequent to that operation, the wounds caused thereby became septic, and so the girls had to be admitted in a hospital for treatrnent of those wounds. It would appear that thepppellant is regarded in the area as an expert in the circumcision of girls. The appellant and her co-accused persons admitted these facts to be true, and thereupon she and the others (who were parents of the complainants) were convicted as charged. During the hearing of this appeal, it was conceded by the £~public that circumcision of girls is a deep-rooted custom among the Wa Gogo. Indeed, as conceded by the Republic, this custom, however repugnant it may appear to other communities, has not been proscribed. A fortiori, the circumcision here was done with the full 2/ooooooooooooOG

• 2 - consent and at the express request of the parents of the complainants, in good faith, without malice or an evil mind on the part of the appellant or the parents and in accordance with the customs of the Wa Gago~ a tribe to which all the parties belong. Section 225 of the Penal Code provides: "225: /my person who unlawfully_.does grievious harm to another is guilty of a felony, and is liable to imprisonment, for" seven years"o .. Now, it is true that circumcision( be it of boys or girls, results in grievous harm to the victimso But that does not, per se, mean that such an act amounts to an offence under the provisions of section 225 of the Penal Codeo To prove the offence, it would have to be further shown that the act of causing such harm was unlawful. That being so, where it is shown that the circumcision was done with the full consent of the victim or the par2nts or guardian and in accordance with established tribal customs which have not been proscribed, and in the absence of any malice or evil mind on the part of any of the parties then, in my view, a conviction for unlawfully causing grievous harm cannot be supportedo It is for these reasons that the convictions, which the Republic, wisely, declined to support, cannot be uphelo The same are hereby quashed, and the sentences are set asideo It is pertinent to add that the result of this appeal does not in any way amount to an approval of this prmi tiv.·e and medically dangerous custom of circum•cising girlso The custom is to be condemned not only because it is primitive but also, and more so, because it can be medically dangerous to the victimo Customs do indeed die .h~d, but that is no reason for encouraging those customs which can be medically detrimental to the victims of themo It is sad that as a result ofthe appellant's own dilatoriness and indecision, the result of this appeal will most probably have no tangible benefits for her as it is now more than twelve months since she was incarceratedo She will most prob?bly have served the, whole of the substantive sentence by nowo Delivered in open court at Dodoma 19780 / I :. , .." ' • 4 , I: ,: ; : I i J I // / f·') '.,' /'.' \· ; ii 11 i I • / ' . ' : Bo oCHIPETA JUDGE · ffay of