Alistid Kamsini vs Republic (Criminal Appeal No. 362 of 2015) [2017] TZCA 971 (12 October 2017)

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: . .. M_USSA, J.A., MWANGESI, J.A., And NDIKA, J.A.) CRIMINAL APPEAL NO. 362 OF 2015 ALISTID KAMSINI .......... · ......... · ........................... ~ ... ,. 1 ■•.•·~············· APPELLANT· VERSUS THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the judgment of t:he High Court of Tanzania .at Sumbawanga) 10 th & 13 th October 2017 . NDIKA, J.A.: (Khaday,-J.) datec:I the 19 th day of February, :2010 . in . DC Criminal ·Appeal No. 11 09 . . . ' --------·-------------- · JUDGMENT OF THE COURT .:::.>: .,: .•·.,:· Before the District Court of Mpanda at Mpanda, the appellant was . . .. : .•, .. ··. ;-· . . . . tried for the offence of rap shown in -the statement of offence on the charge sheet as follows:· "rape c/s 130 and 131- (3)- of the Pena/: Code/ Cap. ·. 16 Vol. 1 of the_ La_ws as amendeQ _by sections 5 and . ' . . . . . . . . . . . . . . . 6 of the Sexual Offences (Special Provisions) Act No. '4/98. // 1

He was convicted of the aforesaid offence and· sentenced to life imprisonment. His first appeal against botli ·conviction and sentence was dismissed · by the· High Court sitting · at Sunibawanga (Khaday, J.). Discontented, he ha,s lodged the present appeal ra•ising a series of grounds . of complaint. The evidence adduced at the trial, as· succinctly summarised by the _ first'. appellate court, was as follows: in her sworn evidence, PW1 Clemencia d/~ Peter, aged seven years, adduced that on 16 th April 2008 · she was ' I - . . - ,· .=· .: ... -.. . . playing with her peers at the ho"r'ne of PW3 Marietha·d/o Kimbala when the ! . l . . . appllant, who happened to be her tmcle, surfaced and asked her to follow j .• : • ,' .... _ :.'. " . :: . . ' ,· ! . . him! to the shores of the· Lake· Tanganyika where her step-mother (PW2 ; _j . . Kan'blina d/o Khamsini) was at the time. However, contrary to his word, the I . . appllant too~ her to an ·. abandoned _structure that housed a milling i . .madhine where he forcibly removed -her clothes including the -underwear ~ . .· . . - . .l . . .. - . - . - - ..... andj raped her. She tried to shout for -hI but the appellant grabbed her by I . .. the !neck and bit her mouth. After the ordeal, PWl returned to her home f I we11j past midnight and was met by PW2 who ·immediately sensed that I • . , I I som:ething was amiss with· her. At that time PWl was bleeding from her ! . . I I · priv~te parts. Upon being interrogated. by PW2, PWl disclosed the details j . I . . . · abo 1 t the rape and mentioned the appel_lant as her ravisher. PW2 took 2

· · PWl to Karema .Health Centre for treatmnt after obtaining a medical examination form (PF 3) ·from the. police. · PW3 cofirmed.,that'she· saw the appella.nt taking the victim from her home· .on .. the p·retext that he ·was taking her to P'vV2 at the lake shores. Both PW2 and PW3 detailed that they saw PW1 's private parts after she returned home arid found them bleeding and severely injured. PW4 Peter Kiola, the victim's father, told the trial court that he came back home in the . midnight only to" find his daughter in distress with her gown and underwear

• smeared with lood. As PWl mentioned to him that her assailant was the · ._ appellant, he. assembled_ a smali grou"p of people-.:whom. he led to the. appellant that very. night They found .-him there· whereupon they arrested him and took him to the police. . . PWS Florence Rwehumbiza, a Clinical Officer, adduced that she examied the· victim at Karema _Health Cen.tre that fatefui · night. She . . . . . tendered a medical examination report (PF.3) (Exhibit P.2) indicating that . • . . . ~
• :: PW.1 had· been. sexually :abused. The investigator (PW6 D4073 Sergeant .. Julia) gave a~ account on how she visited and inspected the scene of the crime. She then tender.ed a sketch plan of that place that she drew at the scene (Exhibit P.3). 3

In his. lengthy sworn testimony, the appellant denied all the .allegations against· him. He claimed. that the charges were franied up by .. PW,2 who bore grudges against him. He contended that it was highly likely _ that PW1 was not actually raped and that the bleeding in her private parts:· . might have been due to" a ·wound that resulted from causes other than a ' ' sexual assault.·· Attacking the credibility of · prosecution witnesses, he asserted they were all not believable . . :': In thend, the trial court believed the prosecution witnesses, found -..., - - . . the prosecution case proven_ beyond reasonable· doubt,: convicted the · appellant of statutory rape and se'nten~~d him to life imprisonment As indicated earlier, the High Court di•smissed the appellant's.-first·appeal for · ' ; . . ' . lacking merit as it upheld the trial court's fin.dings .. · At the hearing of this appeal, the appellant appeared in person while · · Mr.. Francis Rogers, learned State _. Attorney, represented the .. respondent/Republic. The ~ppellant, being _a layperson, justifiably opted to ·· •. hear the responde.nt's address 6n the ·appeai first ahd reserved his right to · rejoin, should need arise. At the outset, Mr .. Rogers did. not support the appellant's conviction and sentence. He reasoned that the charge sheet was incurably defective 4

in that its statement of offence laid the charge under "section 130" of the . . Penal. Code, which,. by itse_lf, creates no offence. He submitted that the absence of the particularity of the offence charged prejudiced the appellant as h.e could not sufficiently prepare to defend himself and that his trial . . . . . . . could not be said to have been fair. To support his view, the learned State Attorney made reference to three unreported decisions of the Court: Abdallah Mohamed @ Killo and Other v Republic,. Criminal Appeal . . . No. 9 of 20:1--z-;-David Halinga v Repuolic, Criminal Appeql:-Nc>. 12 of . lfi•l-. r:.! 2015; and 'K-astoty Lugongo v Republ-ic, Criminal Appeal :ifxJ8 251 of . ' ' . . . . 2014. On the basis of his view that the. defect .in the -charge rendered the trial unfair, Mr. Rogers_ prayed that the proceedings before the lower courts be nullified ~an0 that the appellant's conviction -and sentence be· quashed . ' . and set aside pursuant to this Curt's revisional pO'\fe.rs under section 4 (2) : of the Appellate Jurisdiction Act, Cap. 141 RE 2002 (AJA). As to whether a . . . . . retrial should be ordered, Mr. Rogers argued against that course. He . . . : . . . . . elaborated that a retrial would not be in the interests of justice especially .because it would work against the appellant whose trial, he said, was beset .: ... '. . . by_ a further indiscretion in that PWl, then a child of tender years, gave · evidence after a voir dire examination that was conducted irregularly as 5

shown on page 7 of the record of appeal. He also noted that the appellant . . has been in prison for a fairly long period ·of time (i.e., nine years). The appellant, ·on his part, had nothing useful to say other than · supporting Mr. Rogers' jJosi~ion. Before determining the validity or propriety of the charge against the . appellant, we wish·to refer to section 135 (a) (i) and (ii) of the Criminal Pledure ct, Cap. 20 RE 2002 (CPA), which prescribes the mode in which o#nces are to be charged: ·. ·· · · · ·. i I i l i i l I l i i i . I i i I I i j I I i 1 ! I ! i j 1 . . . . . . . . . "135. The following provisions of this· section· shall apply -'to . all · charge and.· informtions· anit notwithstanding .any rule of law or practice,·. a · · charge or · an information shall subject to the provisions of this Act not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this section:- (a) (i) A count of a charge or information shall . . . . . commence with a state1J7ent of the offence charged, called the statement of the offence/ .. (ii) the statement of Offence shall de~cribe the offence shortly in ordinary languaye avoiding as far as possible the use of .technical terms and without necessarily stating · all the 6

. esse11tii!l elements of· the offence an<t if the offence charged is one created by enactment S ,.,, cont··~,-- a -c.&'-/i--c- t- ,6.,__ ---£:,.. -s: ... 1._ II_Oll I u II I ta-IC::: C::11 C:: V LIIC:: ~Cl.,L/UII VI L/IC. ena.ctment crei!ting the offence;" The above provisions indicate in clear and mandatory terms that a charge sheet, must in its statement of offence, describe the offence in ordinary language and should contain a reference to the section of the enactment creating the offence. A description of the particulars of the J j . offfnce charged must then be given after the statement of the offence. I . I ! :! We agree with Mr. Rogers that the charge sheet in this matter is ! .. evi4ently defident in that its statement of offence refers to ~'section 130" of ! . I . . . . ·. ' . . • , ·.. • . .. :: :-thej Penal Code which, ·by· itself, cre·ates ·n6 :offence·. ·As we held in David · i -. .·,._ ' . ·-, .. _; - . .. . . · · Halinga (supra) and Kastory Lugongo '(supra), ·"section 130" in the I . . i ! code does not, strictly speaking,·· exist.· It should ·. be noted that while I . I I . se,cbon 130 (1) of the Penal Code makes a general 'stipulation that "It is an I I ··offence for a male person to rape a girl or woman", the categories of rape i I I • . ·. ari;,lcreated or ·enumerated by section 130.(2) (a) to (e) of the Penal Code, 1 • • . I I whikh state as follows: ! ! l i . j ·i -·! ! i I ! "(2) A male person commits the offence of rape if he has sexual intercourse with a girl · or a 7

woman under circu.mstances falling under a_ny of the following descriptions: .(a) not being his wife/· or bei17g his wife who is separated from him without her consenting to it at the- time of the sexual intercourse;• (b) with her consent where the . consent has been ·· obtained by the use of force/ thrf;ats or . . intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; • (c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs/. matter or thing/ administered to . . . her by the ·man or by some other person unless proved hat there was prior consent between the two;· ( d) with her consent when the man knows that he · is no( her husban and that her consent is · given because she has been made to believe that he is another man to· whom/ she is/ or· (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 separc1ted from the man. // 8

It appears to. us that th~ appellant did not know which category of · ·. rape he faced because the reference to "section 130" of the Penal Code in the charge sheef was of ·no use as it disclosed. no ·offence known to the . . . • law. Although the particulars of the offence and the evidence tendered at .. the. trial alleged that the prosecutrix was aged seven years at the time of · the alleged incident, the omission to lay the charge under description ( e) of sction 130 above denied the appellant the inform.ation that he was facing .!:=>·, a •grave charge of statutory rape. Vl/e are especially wary' that in Mussa I . . . I . iMwaikunda v Republic [2006] TLR 387 at 392, where the aspect of threate6ing was not disclosed ·in th~ ·cha(ge, \he Courtheld that: "The principle has always been . that an accused . : . . . . person must know the nature of the case facing him. This can only · be achieved If a charge discloses the essential elements of an ' . O &&.enre Bearz·n,,i this in minrl rha rh::::,rna in t,h,p :/C fwl • /~ :::, L // 11_1 I 1_11.,1 C..~ ~ t...,,J_IUl!::J'-- .' I - instant case .ought to have disclosed the aspect of threatening which· is an esentla/ element: ... In the . absence of disclosure it occurs ,to us that the nature of the case facing the appellant was not adequately dislosed to h/m. The charge was/ therefore/ defective/ in our view.// [Emphasis supplie.d.] 0 " . 9

We also find it fitting. to recall what we stated in Abdallah Ally v Republic, Criminal Appeal No. 253 of 2013 (unreported) that: '.' ... being fouhd guilty on a defective charge/ based on wrong and/or non-existent provisions of the la~ . . . . . . . it cannot be said that the appellant was fairly tried · in the courts below . . . . In view of. the foregoing shortcomings, it is evident that the appellant did not receive a fair trial in court. The wrong and/or non-citation of the appropriate provisions of '. the Penal Code under which . the charge was . ' ' . - •· preferre left the appeJJant unaware that he was facing a . serious charge of rape. 11 . . ' . . -·· .. : . . [Emphasis supplied.] . " Undeniably, in all the decisions· cited to us by.:M·r. Rogers the Court held that the defective charge sheet unduly prejudiced the appellant in· his defence and that it rendered his trial unfair. In the circumstances of this matter, we find no reason· to take a different course as the charge laid · aga.inst the appellant cannot be said to have created any offence under the . ' . . . law. The appellant cannot be said to have. known that he was facing a .. gr:ave offence of statutory rape attracting a long-term custodial sentence. Certainly, that defect is incurable and cannot be salvaged· under section 388 of the CPA: (see the following unreported decisions of the Court: 10

Simon Mwakalinga v Republic, Criminal Appeal No. 52 of 2011; Riziki Damas v Republic, Criminal Appeal No. 75 of 2011; and Kashima Mnadi v Repub.lic,. Crimina_l Appal o. 75 of 2,011). . . . . Ordinarily, we would have nullified the lower courts' proceedings and then ordered a retrial of the appellant following ur finding that the charge sheet was defective.· However, we agree, with .respect, with Mr. Rogers . . . that a retrial in this case wouid not be in th·e ·interests of justice. Indeed, a I i .. :, ' rettial will most pro.bctbly give the prosecution an und~e advantage of filling in ~he gaps in their case to the prejudice of the app.ellarit. In this regard, I . . i . ..·. . . .::' ... ,. ,' .· .·,.: ,.· . . we-1have in mind the indiscretion pointed out by Mr.· Rogers that PW1, then i ' I . . a child of tender years, gave evidence after the trial court had conducted . ! . . . . . l I on \her an irregular voir dire examination. ·what we see on page 7 of the i i .·. . rechrd of appeal is not a voir dire examination of any sort but the trial I . , . . . . . ! . cou!rt's conclusion on PWl's comprehension·of the nature of an oath. What . j • . is .cbnspicuousiy misihg is a recording of the questions that the trial court I I ·j ought to have put to PWl to examine her as well as her answers thereto I . I • , i • . . witin the terms of section 127 of the Evidence Act, Cap. 6 RE 2002 as it i ' ' • l I • . was, at the time.· We also find it significant, as submitted by Mr. Rogers, . i I . . tha the appellant has been in prison for nine years, which, by any I •. i" ~ yardstick, is a fairly long period of time. 11

In conclusion, we nullify the proceedings and judgments of the two . · 1ower courts pursuant to our revisional powers under se·ction 4 '(2) of the · Appella_te Jurisdiction Act, Cap. 141 RE 2002. Accordingly, _we quash the .·.< · appellant's conviction and set aside his sentence. We order .. that he be released from prison forthwith, unless he is otherwise lawfully held. DATED at MBEYA this 12 th day of October, 2017. K: M. MUSSA. JUSTICE OF APPEAL 12