Bagilimana Method vs Republic (Criminal Appeal No. 172 of 2015) [2018] TZCA 595 (29 August 2018)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MUSSA. J.A., LILA, J.A. And MWAMBEGELE. 3. A . ) CRIMINAL APPEAL NO. 172 OF 2015 BAGILIMANA METHOD.............................................................APPELLANT VERSUS THE REPUBLIC ..................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Mwita, J.) dated the 11th day of January, 2002 in Criminal Appeal No. 10 of 2001 JUDGMENT OF THE COURT 21s t & 29th August, 2018 MUSSA. J.A.: In the District Court of Kibondo, the appellant was arraigned as hereunder:- "OFFENCE SECTION AND LAW: Rape c/s 5 and 6 o f the sexual offences special provisions Act No. 4 o f 1998. PARTICULARS OF OFFENCE: That Bagilimana Method is charged on the 4 h day of November, | 1999 at about 20.00 hrs at Kanembwa Ref. camp, within the District o f Kibondo in Kigoma Region, did have carnal knowledge o f one Nduwaye Ruhele without her consent" When the charge was read over and explained, the appellant gave the following response:- "It is (sic) I had sexual intercourse with the girl because we all agreed and love each other. The girl Nduwaye Ruhele came to me freely. I quite know that she is aged 17 seventeen while I am twenty (20) years." The learned trial District Magistrate then entered a plea of guilty to the charge, whereupon the prosecutor outlined the following facts "The accused Bigiiimana Method is Mhutu aged 20 a refugee at Kanembwa Block H. The victim Nduwaye Ruhele, aged 15 a pupil Standard V at Kanembwa Primary School\ living with her parent. AH are neighbors and refugees all from Burundi Republic. Between 4/11/1999 to 29/11/1999 the victim was not found at her home and her parents never know (sic) where she was. In the course o f investigation it was revealed that she was abducted by the accused person. Teachers also were hinting (sic) for her, until she was found with the accused person ; making her as his wife. On 29/11/1999 the accused person was arrested at mid night The victim was sent to Kanembwa Dispensary where she was examined and found pregnant\ consequences which were caused by the accused person. It was also detected that\ they had a long relationship. I produce the PF3 as exhibit in this case." The appellant admitted the foregoing facts following which the trial court convicted him and sentenced him to thirty years imprisonment. In addition, the trial court ordered the appellant to pay a sum of Shs 70,000/= as compensation to the victim's parents. Dissatisfied, the appellant preferred an appeal to the High Court against both the conviction and sentence but, having heard the parties from either side, the first appellate court (Kente, J.), found no cause to vary the verdict of the trial court; save for the compensatory order which was enhanced to a sum of Shs. 500,000/= with an order that the same be redressed upon the victim instead of her parents. Still discontented, the appellant presently seeks to impugn the decisions of the two courts below by way of a memorandum of appeal 3 which is comprised of four points of grievance. More pertinently, the appellant complains that his plea was equivocal and that the provisions of the law to offence. which he was arraigned and convicted did not create any When the appeal was placed before us for hearing, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Mr. Innocent Rweyemamu, learned State Attorney. The appellant fully adopted the memorandum of appeal but deferred its elaboration to a later stage after the submissions of the learned State Attorney. On his part, Mr. Rweyemamu fully supported the appeal, in the main, for two reasons: First, he said, the facts outlined by the prosecution fell short to an extent that, upon the admitted facts, the appellant could not have been convicted of the offence charged. To buttress his contention, the learned State Attorney referred us to the unreported Criminal Appeal No. 88 of 2014 - Ramji Mhapa Vs The Republic. Secondly, it was Mr. Rweyemamu's submission that section 5 and 6 of the Sexual Offences Special Provisions Act No. 4 of 1998 on which the appellant was arraigned and convicted of do not create the offence of rape. Thus, on account of the two shortcomings, the learned State Attorney advised us to allow the appeal, quash the conviction and set aside the sentence as well as the compensatory order. Having heard the learned State Attorney, as it were, speaking in support of his quest, the appellant fully supported him and refrained from making any rejoinder. On our part, we have dispassionately considered and weighed the contentious issues in this appeal. For a start, we are fully aware that, in terms of section 360 (1) of the Criminal Procedure Act, Chapter 20 of the laws (CPA) it is not open for a person who was convicted on his own plea to seek to impugn his own plea of guilty. Nonetheless, under certain conditions, an appeal may be entertained even where the convict pleaded guilty. In, for instance, the unreported Criminal Appeal No. 103 of 2005 - Khalid Athumani Vs The Republic, the court observed "A plea o f guilty having been recommended\ this Court can only entertain an appeal against conviction if it appears (1) that the appellant did 5 not intend to admit he was guiity o f it or (2) that upon the admitted facts he could not in law have been convicted of the offence charge." [Emphasis added]. In the matter under our consideration we entirely subscribe to Mr. Rweyemamu's contention to the effect that the outlined facts fell short of proof of the offence of rape with which the appellant was charged. It seems a lot was taken for granted and the offence of rape was deduced from the mere allegation that the alleged victim disappeared from home with effect from the 4th November, 1999 to the 29th November, 1999 when she was found at the residence of the appellant. It was otherwise not asserted, at all, that the appellant had penetrated or had sexual intercourse with the alleged victim. Furthermore and as, again, correctly submitted by the learned State Attorney, the provisions of the law under which the appellant was arraigned and convicted do not create the offence of rape. As it were, all what sections 5 and 6 of Act No. 4 of 1998 did was to repeal and replace the provisions of sections 130 and 131, respectively. Thus, for a charge of rape to stand, it must be predicated under the latter provisions. To say the least, on the basis of the foregoing two defects, the conviction and sentence against the appellant cannot be allowed to stand. As a consequence, this appeal is allowed with the result that the conviction and sentence are, respectively, quashed and set aside. Obviously, the compensatory order just as well crumbles with the quashing of the conviction. The appellant should be released from prison custody forthwith unless he is detained there for some other lawful cause. Order accordingly. DATED at TABORA this 27th day of August, 2018. K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a tr"^ rnnv nf i-h p original. A.H. MSUMI DEPUTY REGISTRAR COURT OF APPEAL 7