Kimbute Otiniel vs Republic (Criminal Appeal No. 300 of 2011) [2014] TZCA 2409 (17 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CRIMINAL APPEAL NO. 300 OF 2011 fCORAM: OTHMAN.C.J.. KILEO, J.A.. BWANA. J.A.. MUSSA, J.A.. And JUMAJ.A.) KIMBUTE OTINIEL .................................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Conviction and Sentence of the High Court of Tanzania atArusha) (Sambo. J.^ dated 3rd day of November, 2010 in Criminal Appeal No. 24 of 2010 JUDGMENT OF THE COURT 25th March, 2014 & 17thJune, 2014 OTHMAN. C.J. The crucial issue for resolution by the full Bench of the Court involves the construction and application of section 127(1) and (2) of the Evidence Act, Cap 6 R.E. 2002 (hereinafter referred to as the Act) and the balancing of the fundamental right of the accused to a fair trial and its fairness; the right of a child of tender years, defined in section 127(5) of the Act to mean a child of or below the apparent age of fourteen years to be heard in a criminal proceeding and in this instance, in a case involving l

an alleged act of sexual violence and the principal duty of the court to seek the truth, to guard against wrongful convictions, and to render justice according to the law. In summary, the appeal arises this way. The appellant was charged with and convicted by the Resident Magistrate's Court at Arusha of the offence of rape c/ss 130(2)(e) and 131 of the Penal Code, Cap 16 R.E. 2002. He was sentenced to the mandatory term of life imprisonment, the victim, Y d/o S(PW1) having been at the material time, eleven years of age. The prosecution case was that on 23/8/2008, PW1 was on her way home after buying tomatoes from a tomato vendor. She encountered the appellant who called and took her to his house. There, he undressed and raped her. He had also threatened to cut PW1 with a knife, if she screamed. Immediately after the incident, PW1 reported the matter to PW3 (NeemaSanare). The medical examination conductedby PW5 (Elizabeth Hiza) the same day revealed that a blunt object had inflicted pain on PWl's vagina. The appellant in his sworn evidence denied any involvement. The learned trial Magistrate conducted a voire dire of PW1 under section 127(2) of the Act and opined that she did not know the meaning of an oath, but knew the duty of speaking the truth. PW1 gave evidence, was examined by the prosecution and was cross-examined by the 2

accused. Despite the misdirection committed by the trial court in complying with section 127(1) and (2),it relied on her evidence and that of other prosecution witnesses to convict the appellant. On first appeal, the High Court (Sambo, J.) detected no errors and was satisfied that PW1 spoke the truth and nothing but the truth. It dismissed the appeal. Aggrieved, the appellant preferred a second appeal. In the course of hearing and determining the appeal, it surfacedto the Court that there were a series of conflicting decisions by the Court on the legal and evidential consequences of the partialcompliance or omission by a trial court in conductinga voire dire of a child of tender years under section 127(2) that required prior resolution by the full Bench of the Court, before the appeal could be disposed of on its merit. On one side, inDeemayDaati and Two Others v.R., Criminal Appeal No. 80 of 1994; SelemaniMwituv.R, Criminal Appeal No. 90 of 2000; Alfeo Valentinov.R, Criminal Appeal No. 92 of 2006; Vernard Costa @ Nsuri v. R, Criminal Appeal No. 56 of 2005; JafasonSamwelv.R, Criminal Appeal No. 105 of 2006; SokoineCheleav.R, Criminal Appeal No. 253 of 2008; Herman Henjewelev.R., Criminal Appeal No. 164 of 2005; Nguza Vikings @ Babu Seya and Four Others v.R., Criminal Appeal No. 56 of 2005; 3

MahonaSelev.R, Criminal Appeal No. 188 of 2008; HamisiShabaniv.R., Criminal Appeal No. 452 of 2007;and DaudiSamwelv.R., Criminal Appeal No. 209 of 2009, (CAT, all unreported) the Court took the position that the misapplication of or non- compliance with section 127(2) of the Act in conducting a voire dire brought the child's evidence to the level of unsworn evidence, which required corroboration to sustain a conviction. On the other hand, in Mohamed Sainyenyev.R., Criminal Appeal No. 57 of 2010; GodiKasenegalav.R., Criminal Appeal No 1 0 of 2008;Simon Mwakalingav.R, Criminal Appeal No. 139 of 2010;Leonard s/o Ndemuv.R., Criminal Appeal No. 81 of 2008; William Kimanganov.R., Criminal Appeal No. 235 of 2007; Justine Sawakiv.R, Criminal Appeal No. 103 of 2004 and the dissentingopinion in David Samwel's case (supra ),(All CAT, unreported) the Court was of the opposite stand that misapplication ofor non-compliance with section 127(2) rendered the child's evidence no good as evidence and it must be discarded, discounted or expunged from the record. Hence, the imperative of convening a full Bench of the Court to resolve the significant legal and testimonial issue at stake. Before usMr. MajuraMagafu, learned Advocate represented the appellant. Mr. Bernard Kongola, learned Principal State Attorney, 4

MrJosephPande, learned Senior State Attorney and Mr. HashimNgole, learned Senior State Attorney represented the respondent Republic. Professor Bonaventura Rutinwa appeared as amicus curiae. The Court framed the following principal issues for its determination: I. Whether or not non-compliance by a court with Section 127(2) o f the Evidence Act, Cap. 6 R. E 2002, on the one hand, renders the evidence o f a child o f tender years to the level o f unsworn evidence, which requires corroboration to be acted upon or on the other hand, renders the witness incompetent, the testimony purportedly taken no good as evidence and obliges the court to discard or expunge it from the record? II. What options are open to an Appellate Court in rectifying the trial Court's error in non-compliance with Section 127(2) o f the Evidence Act? III. What is the proper interpretation o f Section 127(7) o f the Evidence Act which is in parimateria with Section 115 (3) o f the Law o f the Child Act, No. 21 o f 2009 read together with Section 127(2) o f the former Act. IV. Any other related issue. 5

Central to our determination is section 127 of the Evidence Act, whose relevant parts provide: 127(1) Every person shall be competent to testify unless the court considers that he is incapable o f understanding the questions put to him or o f giving rational answers to those questions by reason o f tenderage, extreme old age, disease (whether o f body or mind) or any other similar cause. (2) Where in any criminal cause or matter a child o f tender age called as a witness does not, in the opinion o f the court, understand the nature o f an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion o f the court, which opinion shall be recorded in the proceedings, he is possessed o f sufficient intelligence to justify the reception o f his evidence, and understands the duty o f speaking the truth. (3) Notwithstanding any rule o f law or practice to the contrary, but subject to the provisions o f subsection (7), where evidence received by virtue o f subsection (2) is given on behalf o f the prosecution and is not corroborated by any

other material evidence in support o f it implicating the accused the court may, after warning itself o f the danger o f doing so, act on that evidence to convict the accused if it is fully satisfied that the child is telling the truth. (4) Notwithstanding any rule o f law or practice to the contrary, but subject to the provisions o f subsection (7), the evidence o f a child o f tender age received under subsection(2) may be acted upon by the court as material evidence corroborating the evidence o f another child o f tender age previously given or the evidence given by an adult which is required by law or practice to be corroborated. (5) For the purposes o f subsections (2), (3) and (4), the expression "child o f tender age" means a child whose apparent age is not more than fourteen years. ( 6 ) .............................................................. (7) Notwithstanding the preceding provisions o f this section, where in criminal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or o f a victim o f the sexual offence, the court shall receive the evidence, and may, after assessing the credibility o f the evidence

o f the child o f tender years o f as the case maybe the victim o f sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth" (Emphasisi added) It is worth underlining that sections 115(1), 115(2) and 115(3) of the Law of the Child Act, (No 21 of 2009) is in parimateriasespe&wety, with sections 127(2), 127(3) and 127(7) of the Evidence Act. Mr. Magafu submitted that it was the duty of the court to determine competency. He forcefully contended that non-compliance with section 127(2) cannot result in the Court expunging the evidence of a child witness from the record or to giving it no value at all, as the Court has erroneously been doing. Moreover, it cannot result in the nullification of the trial proceedings or to the ordering of a retrial by the Court as it had done in ShabaniMadebe V.R, Criminal Appeal No. 72 of 2002 (CAT, unreported). The Court could not have decided so, if it had properly directed itself on section 127(7). Moreover, it was not the proper reading of section 127(1) read together with sub-sections (2) and

(7). Those provisions were to be construed liberally. That the word "shall" in section 127(2) was not couched in mandatory terms. That apart, Mr. Magafu relying on the right of all persons to equality before the law and to the prohibition against discrimination encapsulate, respectively, in Article 13(1) and (4) of the Constitution of the United Republic of Tanzania, 1977; Article 107 A(2)(e) thereof which enjoins the court to dispense justice without being tied up with technicalities which may obstruct the dispensation of justice and the right of the child to be heard in judicial proceedings under the Law of the Child Act, No 2 of 2009, submitted that these were more fundamental rights than the procedural requirements of section 127(2). Non- compliance with that provision does not waive or take away the right of the child to give evidence. That whether or not the child was regularly or irregularly sworn or unsworn, it was the duty of the court to receive and evaluate the whole evidence and come to its own conclusion on it. For the respondent Republic, Mr. Kongola also agreed that non- compliance with section 127(2) does not lead to expunging or throwing away the evidence of a child of tender years, but calls for an appellate Court to re-examine the reliability of the child's testimony and to accord it the weight it deserved. If anything, irregular or non-compliance with section 127(2) brings the evidence of the child to the level of unsworn 9

evidence as held in Nyasanis/o Bichana v.R. (1958) EA 190 and KibangenyArapKolilv.R. [1959] EA 92, which did not misconstrue the law. Lending support, Mr. Pande submitted that section 127(1) and section 127(2) should be read together contextually and purposely. He relied on LausaAthumani V Attorney General, Criminal Appeal No 83 of 2010 (CAT, unreported) and Joseph Warioba V. Stephen Wassiraand Another [1977] TLR 272. That serious injustice would result if the Legislative purpose behind those provisions was ignored by the Court. Construed that way, Section 127(2) cannot be read in isolation of section 127(1). The former subsidized the latter, which governs the competency of a child witness. The Court is therefore required to take into account the evidence of a child witness, whether properly or improperly sworn or unsworn under section 127(2). He contended that it is the duty of the court to conduct a proper voire dire and any non-compliance causes no injustice to an accused. Moreover, any omission in complying with section 127(2) does not affect the competency of the child witness under section 127(1). The evidence ought to be treated as unsworn evidence as the Court correctly did in MohanaSele's case. 10

Mr. Pande seeking guidance for the previous state of the law, vainly contended that the word "shall" in section 127(2) was a printing error in The Laws of Tanzania, 2002 Edition and had not been inserted therein by the Legislature. On the options open to an appellate Court, Mr. Pande submitted that its duty was to re-examine the evidence as a whole and accord it the weight it merited. Depending on the circumstances of each case, a retrial could also be ordered. Reinforcing the same views, but for different reasons, Professor Rutinwa cogently submitted that an irregularity in the conduct of a voire dira jnder section 127(2) does not wash away the evidence of a child of tender years from the record or render it of no value. It only affects its credibility and weight. He deployed five reasons in support of that proposition. The first, historical. That the law of evidence had evolved from a religious (primitive) state, through a formal stage when the oath was decisive and up to a rational stage where the overall direction is towards abolishing or diminishing the exclusionary rules of evidence, such as those on child competency. The emphasis now is on the admissibility of evidence. He referred to William Twining, Rethinking Evidence, Exploratory Essays, 1990, p.37 and PJ. Schwikkard and S.E. Vander Menue, Principles of Evidence, 3rd Ed. pp. 3-6. l i

Professor Rutinwa also submitted that section 127(1) was introduced to abolish the old common law rule that a child was not a competent witness. That section 127(2) came in to allow a child to give evidence on oath, a position that early common law did not permit. That section 127(3) and (4) dealt away with the requirement of corroboration of the evidence of a child witness before a conviction could be sustained, a position that common law and precedent had earlier established as a matter of abundant caution for the court in cases involving sexual offences. Section 127 must therefore be read as a whole. Section 127(2) cannot be read to overrule section 127(1). Second, he submitted that jurisprudence and scholarly comment on the subject reinforceshis views. Relying on Sarkar's Law of Evidence, 13 Ed. p. 1198 he submitted that under the Indian Law of Evidence Act, 1872, the objective of a voire dire as derived from the Indian Oaths Act, 1873 is not to legalise the evidence or regulate the competency of a child witness, which is exclusively determined under section 118 of the Indian Evidence Act. Tracing the origin of section 127(1) and (2), Professor Rutinwa submitted that section 127(1) is in parimateria with section 118 of the Indian Evidence Act. Furthermore, section 127(2) has its roots in the proviso to section 5 of the Indian Oaths Act, 1873, which reads: 12

"5.(a) .............................................................. (b). ............................................................... provided that where the witness is under twelve years o f age, and the court or person having authority to examine such witness is o f the opinion that, though he understands the duty o f speaking the truth; he does not understand the nature o f an oath or affirmation, the foregoing provisions o f this section and the provisions o f section 6 shall not apply to such witness, but in any case the absence o f an oath or affirmation shall not render inadmissible any evidence given by such witness nor the obligation o f the witness to state the truth". It was Professor Rutinwa's submission that section 127(2) is more informed by the Indian Oaths Act than by the Indian Evidence Act. Relying on Sarkar's Law of Evidence, 13th Ed, p. 1197; C.D. Field's Law of Evidence in India and Pakistan, 10th Ed, pp. 5235, 5238 and Sarkar and Ahmad's Law of Evidence, 4th Ed, pp. 1332-1333 he contended that there is consistent judicial interpretation, that a voire dire of a child of tender years is desirable and its omission is not fatal to the evidence. Citing the leading case on the subject in India, Rameshwar V The State of Rajastan 1951 S.C.I. 54, a decision of the Supreme Court 13

of India, Professor Rutinwa submitted that it is section 127(1), which is identical to section 118 of the Indian Evidence Act which governs competence to all witnesses, including a child witness, a grant that cannot be taken away by section 127(2). In that case, the Supreme Court of India stated: "Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity o f the occasion and to impress upon him the duty o f speaking the truth, but in view o f section 118 these matters only touch credibility and not admissibility. In my opinion, section 13 o f the Oaths Act places this beyond doubt. It states-"No omission to take any oath or make any affirmation ...... and no irregularity whatever, in the form in which any one o f them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever... Professor Rutinwasubmitted that section 127(2) does not deal with competency; it only deals with the reliability and probative force of the evidence.Thus the non-conduct of a voire dire under s. 127(2) attaches to the reliability and weight of the evidence; not to the child witness's competency. Considered that way, a different approach to non- 14

compliance with section 127(2) is required by the Court. That while a trial court must conduct a voire dire, failure to do so is a mere irregularly. It does not invalidate the proceedings or render the evidence, inadmissible or unreliable. Referring to Nyasanis/o Bichanaand KibangenyArapKolil, Professor Rutinwa submitted that these were "battleground" cases on the key issue now raised. That nowhere in those cases was the word "expunge" or "discard" used, as the Court had erroneously ordered in GodiKasenegala. That the most material part of the findings in those two cases was to the effect thatwhere a voire dire has not been properly conducted, it "might" result in the conviction being quashed if there was no other evidence or other corroborating evidence to support the evidence of a child witness. Those cases had also found out that such a situation"/77^/"lead to the quashing of a conviction; but not "always". Third, Professor Rutinwa's textual argument was that the decisions of the Court, such as Leonard Ndemu that ordered the expunging of the evidence of a child witness were influenced by the words " which opinion shall be recorded in the proceeding, 5 " in section 127(2) in determining that a voire dire was mandatory. Those words were not contained in the original Evidence Act, 1967, but were only introduced in section 127(7)by the Sexual Offences Special Provisions Act, (SOSPA) 15

1998. The authentic text did not contain the word "shall" a word used by the Court to reinforce its opinion that a voire dire is a mandatory pre condition before taking the evidence of a child witness. He submitted that section 127(2) did not more than put on a statutory footing the state of the law in 1967, the time when the Evidence Act was enacted. That a voire dire is highly desirable and not mandatory and its omission does not render the evidence valueless. Professor Rutinwa'sfourth point was contextual. He submittedthat the current trend in the law of evidence is to abolish the rule of competency and expand the admissibility of the evidence. The law is now also infavour of granting a discretion to the court. Fifth, Professor Rutinwa submitted that judicial policy and justice requires the court to look at the interests not only of the accused, but also of the victims of child sexual abuse, often committed in privacy and in the presence of the victim as the only witness. There is a need to relax the rules of evidence and to take into account the right of the child to be heard in a court of law. With regard to the options available to an appellate Court in the event of amisapplication of or non-compliance with S. 127(2), Professor Rutinwa submitted that it is called upon to reconsider the totality of the 16

evidence on the record, including whether the child witness spoke the truth or not. Next, we advert to the merit of the first and second issues. In our view, it is important, that we preface our consideration of thematter by emphasizing that section 127(1) and (2) of the Evidence Act dealing with child competency requires full compliance by courts. Itis the law and the norm. Our law of evidence is still premised and structured on the competency of a child of tender years to testify in a court, whether or not that requirement of the law is today antiquated or not. We are constrained to address the consequences of the misapplication or non-compliance of section 127(1) and (2) in the conduct of a voire dire of a child of tender years as it continues to reappear in trial courts as it did over fifty years ago in Nyasani s/o Bichana. The reasons are not far fetched. Much of the content of section 127(2) developed out of common law, judicial opinion or precedent. The Evidence Act does not contain any formula or template forconducting a proper examination. As correctly stated by the Court in Jafason Samuel, how one is conducted is a matter of style. The law has left it to the good sense and discretion of the learned Magistrate or Judge propounding the questions (Rex v Pawlyna [1948] O.R. 226 17

234).Concepts of 'oath' and 'truth' are also abstract notions and the questions posedto a child witness are often hypothetical. Answers by a child witness also critically depend on the line of questioning posed by the trial court. They must also depend on each individual case, the child witness undergoing the test, his or her ability to communicateand the cognitive skills; a witness'semotional coping capacity and the trial Magistrate.A child, it can still be said is and remains an alien in the courtroom (See, S.v. Mokoena 2008 (5) S.A. 578, 593). The overwhelming formality and solemnity of the courtroom and the imposing and stern adult authority figure presidingtherein may affect a child's response (See, R.V.F. (W.J.) 1993 3 S.C.R. 569 para 43; Lawrie Shanks, Evaluating Children Competency to Testify: Developing a Rational Method to Assess a Young Child's Capacity To Offer Reliable Testimony in Cases Alleging Child Sex Abuse, Albany Law School, 2009). The fact that the voire dire takes place in the presence of the accused is equally a stressful and traumatizing experience, and this particularly so where the child witness has already been subjected to physical or other forms of violence or threat of injury by the former. The harm borne is always psychological. Deeply so.Moreover, our judicial officers have no professional skills or experience in the art of interviewing a child witness, let alone one who was a victim of sexual 18

abuse or violence. As observed by the Constitutional Court of South Africa in Director of Public Prosecutions, Transvaal v. Minister of Justice and Constitutional Developments and Others 2009(2) SACR 130, p. 170: "The questioning o f a child requires special skills, similar to those required to run day-care centres or to teach younger children. Questioning a child in court is an exception. It requires a skill". It added (p. 186) "with skillful questioning, that child may be able to convey in his or her own child language, to the presiding officer that he or she understands what it means to speak the truth". This precise point is underlinedthis way by Michael Lamb, David J. Laroy, Lindsay c. Malloy and Carmit Katz, in Children's Testimony: A HandBookof Psychological Research and Forensic Practice, p.4: "we know that children even very young children provide reliable and accurate testimony about experiences or witnessed events. We also know that children (like adults) are suggestible, and that we must be aware o f ways in which suggestibility can be

minimized. We further know that the level o f accuracy and the amount o f details provided by young witnesses depends on the ways in which children are interviewed and the role o f the intervier is thus important". It is noteworthy and we say so distinctly,that this aspectof the misapplicationof or non-direction on section 127(2) startingly stands out: namely, that it is solely the duty of the court; not that of the child witness. In determining the matter and coming from a common law heritage, we think that it would be of assistance that we be briefly informed of the historicaldevelopments of the English Law on the competency of a child witness to testify in court. Under early common law, no person was allowed to give evidence except under the sanctity of an oath and on the Gospel (See, R.v.B. (G)1990) 2 S.C.R.3; Rex v. Pawlyna, supra). Children under fourteen years of age were automatically disqualified from giving evidence as it was then strongly assumed that they were mentally immature or lacked sufficient moral responsibility or religious instruction to understand the solemnity of the occasion involved in the swearing of an oath (See, Jonathan Doak and Claire McGourlay, Crim inal Evidence in Context, 2n d Ed, 2009, p 27; J. Henderson,Cross on Evidence, 7th Ed 132,75,Cheers v. Porter (1931) 20

HCA 51). This class of prospective witnesses wereall incompetent at common law as it then prevailed. Towards the late eighteenth century, this requirement of the common law was relaxed in R. v. Brasier[1779] I Leach 199 at 200; 168 ER 202 at 203 and a child witness was allowed to give evidence on oath (i.e. sworn evidence) provided he or she on a strict examination by the court demonstrate possession of a sufficient knowledge of the nature and consequence of an oath. In 1885, statute law,namely,Section 4 of the Criminal Law Amendment Act, 1885 (48 & 49 Vict.C. 69 s.4), allowed the reception of unsworn evidence of children in trials involving unlawful sexual intercourse and other offences. A "huge improvement"(Murphy on Evidence, p.496) over the common law rule of incompetencyin the reception of the evidence of a child of tender years was made by the enactment of the Children and Young Persons Act, 1933 which applied to all criminal trials. The relevant part of section 38(1), which is in para materawithsection 127(2) of our Evidence Act, provided: "38. (1) Where, in any proceedings against any person for any offence, any child o f tender years called as a witness does not in the opinion o f the court understand the nature o f an oath, his evidence may be received, though not given upon oath, if, in the opinion o f the court, he is possessed o f sufficient 21

intelligence to justify the reception o f the evidence, and understands the duty o f speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing..." ............................................... shall be deemed to be a deposition. .................. " Thereunder, the determination whether or nota child is to give sworn or unsworn evidence proceeded by a voire dire. As succinctly explained in Andrews andHirst on Criminal Evidence, 2n d Ed, para. 8.05: "under this provision, if a child did not, in the opinion o f the court, understand the nature o f an oath, his evidence could still be received, albeit unsworn, if in the opinion o f the court he was possessed o f sufficient intelligence to justify the reception o f his evidence and understood the duty o f speaking the truth". For convenience, we shall label the competency determination process under that provision as well as that under section 127(2) of our Evidence Act as that involving (i) the "oath test" and (ii) the "intelligibility and truth test". In William John Surgenor (1940) 27 Cr. App. R. 175, the evidence of a child aged nine was received unsworn without a voire dire 22

having been conducted by the Recorder (Judge) who tried the case to determine her competency under section 38(1) of the Children and Young Persons Act, 1933. On appeal, the Court of Criminal Appeal after an examination of the record, opined that she was evidently very intelligent, was cross-examined and when her evidence was tested, it appeared quite clearly that she was right in her testimony. The Court was of the view that her evidence was only a makeweight to prove what two other prosecution witness had alreadyestablished. It held that the irregularity in not conducting a voire dire had caused no harm to the appellant. The court reasoned: "The child appeared to the Recorder to be a thoroughly intelligent child, and she might have been, and ought to have been sworn. The jury evidently accepted her evidence, and if they accepted it when she was unsworn, it is not likely that they would have rejected it if she had been sworn ". The court was satisfied that no miscarriage of justice had occurred and the omission was held nothing more than an irregularity. It dismissed the appeal. The expression a child of tender years was not defined in the Children Young Persons Act. The "rule of the thumb" as endorsed by the 23

higher courts, was that no child could testify by either method who was under the age of eight years (See, Professor J. R. Spanser, " Child witnesses and Cross-examination at Trial: Must it Continuel", Archbold Review,Issue 3, April2, 2010, p.7). Lord Goddard's remarks in R.v. W allwork (1958) 42 Cr. App. R. 153 on the attitude of the court in receiving the evidence of children of tender years is most telling of the judicial attitude then prevailing: "The court deprecates the calling o f a child o f this age as a witness. ............ it seems to us to be unfortunate that she was called and with respect to the learned judge, I am surprised that he allowed her to be called. The jury could not attach any value to the evidence o f a child o f five. It is ridiculous to suppose that they could....." The assumption then was that children had no conscienceand were "dangerous" witnesses (See, S.K. Sarkar and E. Ahmed, The Law of Evidence, Vol. II, 1995, p. 1334). Section 38(1) of the Children and Young Persons Act was repealed by section 52(l)of the Criminal Justice Act, 1991, which provided that children under the age of fourteen years could only give unsworn evidence.Underthat Act, no real guidance on the test which was to be 24

applied for determining the competence of a child witness was postulated (See, Andrew and Hirst on Criminal Evidence, {supra), para 806). Other notable legislative developments in this area of the law that followed, include the Criminal Evidence Act, 1984; the Criminal Justice Acts, of 1988 and 1991and the Criminal Justice and Public Order Act, 1994. For our purposes, the statutory law in England and Wales on the competence of a child of tender years to give evidence is now set out in section 53 (competence of witness) of the Youth Justice and Criminal Evidence Act, 1999. It provides: "53. Competence o f witness to give evidence. (1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. Furthermore, Section 53(3) reads: (3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to- (a) understand questions put to him as a witness, and (b) give answers to them which can be understood". 25

Scholarly commenting on this provision, Professor Spenseropines: "The provision was enacted in response to arguments that modern psychological research (as well as common sense) showed that little children are capable o f giving truthful evidence, even if they may not be capable o f explaining what is meant by "truth", or why it is important to tell the truth in court; and that their youth and immaturity should go to the weight o f their evidence rather than its admissibility. Furthermore, unless the evidence o f little children about what has been done to them can be put before the courts, adults are free to abuse them with impunity". In R.v.Barker (2010) EWCA Crim 4,para 36, the Court of Appeal of England and Wales pertinently stated: (para.38): "The question in each case is whether the individual witness, or, as in this case, the individual child, is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions. The witness need not understand the special importance that the truth should be told in court, and the witness need not understand every single question or give a readily understood answer to every question. Many competent adult witnesses would fail such a competency test. Dealing with it broadly and fairly, provided the witness

can understand the questions put to him and can also provide understandable answers, he or she is competent I f the witness cannot understand the questions or his answers to questions which he understands cannot themselves be understood he is n o t ......................................... The provisions o f the statute are dear and unequivocal, and do not require reinterpretation (R. v MacPherson [2006] 1 CAR. 30: R v Powell [2006] 1 CAR. 31: R v M [2008] EWCA Crim275 and R / Malicki [2009] EWCA Crim 365). That said, it has been put forward that in consequences of section 53 of the Youth and Criminal Evidence Act and case law, a child can, in principle, give evidence as soon as he or she can talk (See, Spencer, J.R.(s£/yCV3,p.8). An infact who could only communicate in baby language with his mother could not ordinarily be competent, but a young child who spoke and understood basic English with strangers would be competent (R.V. Macpherson [2006] 1 CR. APP. R.30 at p. 460). The position of the law on the competence of children of tender years to give evidence in other commonwealth jurisdictionswith provisions that are in parimateriaw\th section 127 (1) and (2) may also be helpful in determining the issuesraised. 27

In Ireland, the competency of a child witness was governed by section 30 of the Children Act, 1908, as amended by section 28(2) of the Criminal Justice Act, 1914 which too is in parimateriaw\th section 127(2). A number of decisions have dealt with section 30 of the Children Act. In Ernest Lyons (1921)15 Cr. App. R. 144 no voire dire was conducted by the learned Judge in respect of two children who were both eight years of age to ascertain whether or not they possessed sufficient intelligence to justify the reception of their evidence and that they understood the duty of speaking the truth (i.e. intelligibility and oath test). The Court of Criminal Appeal held that there had been a miscarriage of justice and that the omissions were fatal to the conviction being allowed to stand. In TheAttorney General v.W.M. O'Sullivan [1930] 1 I.R. 552, a case involving a charge of attempted sodomy, a boy of 10 years gave evidence on oath without the court having conducted a preliminary examination to determine his competence to give evidence on oath. On appeal, the appellant contended that the child under the age of 14 years, should not have been allowed to give evidence without a voire dire to determine his competence to give evidence on oath under section 30 of the Children Act (i.e. oath test). The complaint was rejected by the 28

Supreme Court. It relied on the record of the boy's evidence, which it found to be intelligent, coherent and credible. The court also considered itmaterial that he had not broken down upon his story by severe cross- examination by the accused's solicitor at both the District and Circuit Courts, as well as to the questioning by the Judge. It opined that there was also cogent corroborative evidence supporting the boy's story and implicating the appellant sufficient to even answer the requirements of the statute if the boy had not given his evidence on oath. It further held that the reception of the evidence of children given on oath was a question of the child's intelligence, mental capacity, sense and reason of the danger and impiety of falsehood. Canada, which earlier on followed some of the early English enactments, allowed the unsworn evidence of children to be admitted in evidence on condition that the child possessed sufficient intelligence to justify the reception of the evidence and understood the duty to speak the truth (See, Canada Evidence Act, S.C. 1893, c.31, s.25). Under the original Criminal Code of 1892, (S.C. 1892, c. 29, s. 685),the unsworn evidence of a child was only allowed for offences of carnal knowledge and indecentassault (See R.V.B. (G) {supra)). A significant step in the reception of evidence of a child of tender years was attained first by section 25 of the Canada Evidence Act, 1893 29

and later by section 16(1) of the Canada Evidence Act, (R.S.C. 1952 c. 59) which is also a replica of section 127(2) of our Evidence Act. Following the Report of the Committee on Sexual Offences Against Children and Youth (Ministry of Justice and Attorney General of Canada, 1984),and the Department of Justice's Consultation paper, Child Victims and the Criminal Justice System (November, 1999) a major, if not paradigm shift on the testimonial competence of a child witness took place with the enactment of the Act to amend the Criminal Code (Protection of Children and other Vulnerable Persons)and the Canada Evidence Act, S.C. 2005, c 32. Section 27 provided: "27. The Act is amended by adding the following after section 16: 16.1(1)A person under fourteen years o f age is presumed to have the capacity to testify. (2) A proposed witness under fourteen years o f age shall not take an oath or make a solemn affirmation despite a provision o f any Act that requires an oath ora solemn affirmation. (3) The evidence o f a proposed witness under fourteen years o f age shall be received if they are able to understand and respond to questions. ( 4 ) ................................................................ 30

(5) I f the court is satisfied that there is an issue as to the capacity o f a proposed witness under fourteen years o f age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions. (6) The court shall, before permitting a proposed witness under fourteen years o f age to give evidence, require them to promise to tell the truth. (7) No proposed witness under fourteen years o f age shall be asked any questions regarding their understanding o f the nature o f the promise to tell the truth for the purpose o f determining whether evidence shall be received by the court. (8) For greater certainty, if the evidence o f a witness under fourteen years o f age is received by the court, it shall have the same effect as if it were taken under oath". We look at other jurisdictions. We readily agree with Professor Rutinwa that our Evidence Act is largely an import of the Indian Evidence Act, 1872 (Act No 1 of 1872). Section 127(1) of the former is in parimateria with section 118 of the latter. We therefore, examine the interpretation of section 118 by the Supreme Court of India and 31

comments by learned authors to see whether they may offer any assistance. In Ram eshwar v. The State o f Rajasthan, AIR 1952 SC 54,the S.C.I. held: (a) "The question o f competency is dealt with in section 118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reasons o f tender years, extreme old age, disease whether o f body or mind, or any other cause o f the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground o f incompetency is given, therefore unless the Oaths Act adds additional grounds o f incompetency it is evident that section 118 must prevair.(Emphasis added). In DattuDattuRamraoSakhere v. State o f Maharashtra (1997) (5) SCC 341, the S.C.I. held: "A child witness if found competent to depose to the facts and reliance on such evidence could be the basis o f conviction. In other words even in the absence o f oath the evidence o f a child witness can be considered under Section 118 o f the Evidence Act provided that 32

such witness is able to understand the answers thereof". In RatansinhDolsukhbaiNayek v State o f Gujarat [2003] INSC 538, that court stated: "Section 118 o f the Evidence Act envisages that aii persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because o f tender years, extreme old age, disease-whether o f mind, or any other cause o f the same kind. A child o f tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer in Wheeler k United States (1895) USSC 220; (159 U.S. 523). The evidence o f a child witness is not required to be rejected per se; but the Court as a rule o f prudence considers such evidence with dose scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (State o f Karnataka (2001(1) Supreme 1)". (Emphasis added). 33

Reinforcing the position the S.C.I inAcharaparam bathPradeepan&Anr v State of Kerala (2006) INSC 988 held: "Section 118 o f the Indian Evidence Act seeks to exclude evidence o f those who may suffer from intellectual weaknesses. In terms o f the said provision, therefore, all persons shall be competent to testify unless by reason o f tender years, the court considers that they are incapable o f understanding the questions put to them and o f giving rational answers. It is for the Judge to satisfy himself as regards fulfillment o f the requirements o f the said provision".(Emphasis added). Furthermore, in NivruthPandurangKokate and Ors v State of Maharashtra; AIR 2008 SC 1460, the same court observed: "The decision o f question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack o f intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding o f the obligation o f an oath. The decision o f the trial court may, however, be disturbed by the higher court if from 34

what is preserved in the records, it is dear that his conclusion was erroneous" (Emphasis added). In C.D. Field's Law o f Evidence in India and Pakistan,10th Ed,p. the same position is articulated this way: "the competency o f a person to testify as a witness is a condition precedent to the administration to him o f an oath or affirmation and is distinct from his credibility when he had been sworn or affirmed. The Court is at liberty to test the capacity o f a witness to depose by putting proper questions.lt has to ascertain in the best way it can whether from the extent o f his intellectual capacity and understanding, he is able to give rational account o f what he has seen or heard on a particular occasion. I f a person o f tender years can satisfy those requirements his competency as a witness is established. The question whether a witness has intelligence enough to understand the import and significance o f questions or to give rational answers is not the same as the competency to testify. The Court has discretion to form its own opinion whether a child-witness has sufficient understanding to be qualified as a witness". (See also, Sarkar's Law o f Evidence, 13t h Ed.p. 1197). (Emphasis added). 35

As lucidly submitted by Professor Rutinwa, the jurisprudence of the Supreme Court of India and scholarly authority on the India Evidence Act is consistent that section 118 of the Indian Evidence Act which is in parimateria with section 127 (1) of our Evidence Act is the one and only source governing the competency of a child of tender years. Furthermore, the position in India is that even in the absence of an oath, the evidence of a child witness can be considered under section 118 provided that such a witness is able to understand the questions put to him or her by the Court and to give rational answers to them(Fauran Singh v State o f Ultar Pradesh, 2003 (47) ACC 950 (ACC); Sarkar's Law o f Evidence, 17th Ed, pp.2127, 2136-2137); C.F. Field's Law of Evidence, supra, pp. 4496-4497). In addition, the failure to hold a voire dire or to incorporate it in the record neither introduces an infirmity in the evidence nor renders the witness's evidence inadmissible or unreliable (Sarkar's Law o f Evidence, supra, pp.2132-2136).In other words, "as a matter of law" the resulting evidence, cannot be treated as "washed off the record altogether" (Sarkar's Law o f Evidence, supra, p.2133). Professor Rutinwa was critical of the religious roots of an oath and the test for its determination under section 127(2). He submitted that the taking of an oath was a question of conscience. It was neither one of competency nor intelligence. That in the current secular world, the 36

obligation to tell the truth is more important that an understanding of the nature of an oath required by section 127(2). That much as the truth is an abstract concept, the moral obligation to tell the truth is important even to a non-believer in God. For our part, without entering in this case into the propriety or otherwise of the voire dire of PW1, and having examined the record, we could not have failed to notice that in the midst of that examination,the learned trial Magistrate questioned PW1 on her religious denominationin order to determine her competency under section 127(2), which she responded was Christian. In Dotto s/o IkongoV.R. Criminal Appeal No. 6 of 2006 (CAT, unreported), the learned trial Magistrate too had embarked on a religious inquiry to determine a child witness's competency. He found out and recorded that PW1, who was of the apparent age of 12 years was a "Christian of enough intelligence". (See also, SelemaniMwita's case, supra). Considering the issue raised, we disapprove the practice of trial courtswhen inquiring under section 127(2),whether or not a child witness understands the nature of an oath or an affirmation or the duty of speaking the truth to testthe witness's religious belief or knowledge, or understanding of the religious implications of an oath or affirmation or 37

whether the child does or does not attend Sunday School or the Madrasa. We are well aware that at one time in the history of the common law, belief in God or the Superior Being or relationship with the Deity or in a future state of rewards and punishmentswas essential in order to invoke an oath. (See, Attorney General v Bradlaugh (1885) 14 Q.B.D. 667; Samuel M. Phillips, A Treatise of the Law of Evidence, 8 th Ed, pp.7-11, 1838; Thomas Peake, A Compendium on the Law of Evidence, 5t h Ed, p. 128 1822;Andrews and Hirston Criminal Evidence, 4t h Ed, para 8.04). This however, cannot be the approach to be subscribed to today and under section 127(2). In considering among other matters, section 38(1) of the Children and Young Persons Act, which is in parimateriaw\th section 127(2), the Court of Appeal of England and Wales in R v.Hayes (1977)2 All ER 288, p.291, opined: "it is unrealistic not to recognize, that, in the present state o f society, amongst the adult population the divine sanction o f an oath is probably not generally recognized. The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation o f the 38

solemnity o f the occasion and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty o f normal social conduct". Commenting on Hayes, Caroline Fennels,inThe Law of Evidence in Ireland, p.82 1992, writes: "particularly in modern society, it may well be thought and the oath and the religious connotations inevitably attaching thereto, do not prove a useful yardstick for assessment o f child competence". ... "This decision illustrates a more secular approach in terms o f assessment o f a child's competence, and a recognition o f changes in society which require such change in approach and criteria". In its Report on Oaths and Affirm ations, Dec 1990, the Irish Law Reform Commission, para. 4.2 put it this way: "In requiring witness, deponents and juries to reveal the nature o f their religious beliefs or the fact that they hold no religious belief before being sworn, the law introduces an irrelevant consideration into determining the competency and improperly excludes those person who object on other grounds". ..... It added: "Insisting on the religious significance o f an oath would result in the evidence o f a young, ignorant unbelieving

but competent witness to have less weight than the evidence o f a young, believing and competent witness", (para 5.32). The problem emerging out of the examination of a child witness'sreligious faith in determining competencyis further compounded, as found out in The Report of the Queensland Law Reform Commission, Report No. 55, Part 2, Chapter 7 para 4, December, 2000 by this: "The necessity for a child to satisfactorily answer questions about divine retribution, putting aside the practical difficulties in implementing such a test, inevitably results in some children who have sufficient intelligence to give coherent evidence being declared incompetent to give sworn evidence because they lack awareness o f the implications o f the oath. This may be particularly significant if the child is the only witness". The New Zealand Law Commission, in its Preliminary Paper No 26, 'The Evidence of Children and Other Vulnerable Witnesses' October 1966 pertinently remarked: "25. Historically the religious significance o f swearing an oath was viewed as a disincentive to lying under oath. While it was assumed that adults ordinarily knew and believed in the consequences o f lying under oath,

some witnessessuch as children , were tested for their appreciation o f the consequences". 26. Today the religious consequences o f lying under oath do not provide a significant disincentive for most people. The fact that a witness may make an affirmation , and the fact that the validity o f the oath is not affected if the witness has no religious belief, is legal recognition o f this social reality". Similarly, on the court's assessment of a child's understanding of the nature of an oath, N. Bala, K. Lee, R. Lindsay and V. Talwar in A Legal and Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses, Osgoode Hall Law Journal, (Vol. 38, No 3 (2000): 409-451, 477), observe: "This is often interpreted as requiring a child to answer questions that would found religious scholars. By delving into a child's religious understanding and beliefs, the inquiry has lost its true focus, which is not to determine whether a child is religiously trained, but whether the child is committed to telling the truth as a witness". (Emphasis added)

The growing religious insignificance of an oath is further demonstrated in R.v. Kemble [1990] I WLR llll( C A ) where the court observed: "The question whether the administration o f an oath is lawful does not depend upon considerable intricacies o f what may be the particular religion which is adhered to by the witness. It concerns two matters and two matters only in ourjudgment. First o f all is the oath an oath, which appears to the court to be binding on the conscious o f the witness. And if so, secondly, and most importantly, is it an oath which the witness himself considers to be binding on his conscious". (Emphasis added). In that case, a muslim had taken an oath using the New Testament (Bible). The court found out that it did not constitute a material irregularity in the trial even though this was contrary to the Islamic rules on oath taking. It held that the witness had been properly sworn. On ourpart, we fully endorse the secular approach and succinct holding in Hayes. That settled view that we take is fully reinforced when account is taken of the secular character of Tanzania by virtue of Article 3(1) of the Constitution and the guarantee of freedom of religion and 42

consciencethat each and every individual is accorded under Article 19(1) thereof. The profession of a religionis a free and private affair of an individual (Article 19(2)). Those are added reasons in our view, to discourage in a voire dira jnder section 127(2) any test or questioning of a child witness that insists on his or her individual religious belief or practice as a qualification for competency. The position articulated in Hayes is also found in Australia (See, Sourcer v BRR (2009) QCA 178)and in Canada where the Courts have moved away from an inquiry involving a child witness's religious belief or a postthumoustheological consequences of lying (See,R.v. Bannerman (1966) 55 W.W.R. 257). InR. v.Fernandes, 1977 Alta SCAD34, para 15), the court held that: "The crucial question upon which the judge must be satisfied is that the child understands the nature o f an oath in that she understands the moral obligation to tell the truth".(See, Reference Re: Steven Murray Truscott (1967) SCR. 309), (Emphasis added). Similarly inHorsburgh v The Queen, (1966) 10.R. 739, 47 C.R. 151 at 166 the Ontario Court of Appeal stated thus: "I remark only at distance o f some 200 years after Omychund v Barker (1744), IAtk. 21,. 26 E R. 15, and Rex v white (1786), I Lead 430, 168 E.R. 317 the 43

contention that competency o f a witness depends on demonstration that he or she is fear o f divine retribution (as an exclusive test) rather than earthy justice as the consequences o f false testimony-f is highly talismatic. The common law deserves better than that at the hands o f the judiciary in the twentieth century". In India too,a witness's religious belief or his knowledge of the consequences of falsehood in this world or the next is not a necessary requirement for determining child competency(See, Sarkar's Law of Evidence, 17th Ed, p.2131). The law is well-settled that a competent witnessis one that may legally testify in a judicial proceeding and the competency requirement generally operates as an exclusionary rule of evidence. In R vD.A.I. (2012).I S.C.R 149, paras. 16, 19, the Supreme Court ofCanada succinctly explained the principle of competency to testify thus: "competency addresses the question o f whether a proposed witness has the capacity to provide evidence in a court o f law. The purpose o f this principle is to exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court. Competence is a threshold requirement. As a 44

matter o f course ; witnesses are presumed to possess the basic "capacity" to testify. ............................ "....the requirement o f competency is only the first step in the evidentially process. It is the initial threshold o f receiving evidence. It seeks a minimum requirement — a basic ability to provide truthful evidence. A finding o f competence is not a guarantee that the witness's evidence will be admissible or accepted by the trier o f fact" (Emphasis added). A re-examination of the cases decided by the Court reveal that Alfeo Valentino, Dotto s/o Ikongo, Selem aniMwita, DeemayDaati, HamisiShabani and Leonard Ndemu involved a complete omission or misdirection on section 127(2). Mohamed Sainyenye; GodiKasenegala, Simon Mwakalinga;JafasonSam wel;SokoineChelea; Herman Henjewele andNguzaVikings@ Babu Seya involved a misapplication of section 127(2). None was preoccupied with section 127(1). One of the first reported cases by the Court of Appeal for East Africa, the predecessor of this Court to deal with the issue before us is Nyasani s/o Bichana. There, a six years old child had given unsworn evidence without the record showing that the trial court had conducted 45

the " intelligibility and truth test under section 19(1) of the Oaths and Statutory Declarations Ordinance, Cap. 20 of the Laws of Kenya which is coached in similar language as Section 127(2) of the Evidence Act. The Court stated: "Non-compliance might result in the quashing o f a conviction in a case where the evidence before the Court was insufficient in itself to sustain the conviction". (Emphasis added). The Court dismissed the appeal after finding out that there was ample corroborative evidence sufficient in itself to establish the guilt of the appellant. Then followed KibangenyArapKolil. Therein the evidence of two children, respectively,situated to be between nine to ten years of age and fourteen years and who were eye witnesses to the murder of their cousin was taken without the trial court having conducted the " oathtesfd\so under section 19(1) of the Oaths and Statutory Declaration Ordinance. The Court held that as the evidence of the two boys was of a vital nature, the failure to comply with section 19(1) occasioned a miscarriage of justice. It quashed the appellant's conviction and sentence. In ErukanaKyakulagira V. The Attorney General of Uganda [1959] I EA 152, the trial courtalso did not conduct any voire dire of two 46

children, respectively, nine and seven years of age, much as there was no statutory provision in Uganda corresponding to section 19(1) of the Oaths and Statutory Declaration Ordinance of Kenya. Then Uganda only had section 116 of the Evidence Ordinance which is identical to section 125(1) of our Evidence Act. Given a number of unsatisfactory features in the conduct of the trial, the Court ordered a retrial. Gabriel s/o Maholi V.R. [1960] I EA 159 involved the evidence of a child about nine years of age which was received by the trial court without ascertaining whether the witness understood the difference between truth and falsehood. At that time there was also no statutory provision in Tanganyika similar to section 19(1) of the Kenya Oaths and Statutory Declarations Ordinance or section 118 of the Indian Evidence Act. The Court concluded that: "The omission could be fatal to a conviction in a case where the child's evidence was vital".(Emphasis added). It held that as the appellant's conviction did not entirely depend on the evidence of the child as there was an adult eye witness to the murder, the omission to ascertain whether the child understood the duty to speak the truth did not invalidate the conviction. 47

In Oloo s/o Gai V.R. [1960] EA 86 the evidence of a child aged about twelve years was received on oath under section 19 of the Oaths and Statutory Declarations Ordinance without the trial court satisfying itself and making a finding that she knew the nature of an oath {i.e. oath test). Given the trial court's non-direction as to the desirability of corroboration to support the child's evidence, the Court held that the appellant's conviction cannot stand. In FransisioMatovu V.R. [1961] EA 260 the unsworn evidence of an eight years old boy was received without the trial court making a finding on the " intelligibilityand truthtesf required under section 149(3) of the Uganda Criminal Procedure Code as amended by section 5 of the Criminal Procedure Code (Amendment) Ordinance, 1959 which is almostidentical to section 127(2) of our Evidence Act. The Court held that: "This is not o f great importance in the present case, the assault onNampindi being admitted;but in another case failure to observe the provisions o f s. 149 and to record compliance with them might result in the conviction being unsustainable". (Emphasis added). In Muhidini s/o Asumaniv.R. (1962) I EA 383 the evidence of a child aged fourteen years was received by the trial court without a voire 48

tf/rehaving been conducted as was required under section lb2(3j of the Criminal Procedure Code of Tanganyika, which was identical to section 127(2). Despite the omission, the Court went on to consider the child's evidence in its consideration of the whole evidence in the case. Four decisions of the Court of Appeal of Kenya are of interest. In Kinyuav.R. [2002] I KLR 256, a murder case, the evidence of PW4, and PW5,respectively, fifteen and fourteen years of age on which the main plank of the prosecution case rested was received and acted upon by the trial court without any investigation or finding that they knew the nature of an oath as required under section 19(1) of the Oaths and Statutory Declarations Act. It was the Court's holding thatfailure to strictly comply with the requirement to conduct a voiredire\ "mayvery well, in appropriate circumstances, vitiate conviction and result in allowing the appeal". (Emphasis added). Despite the non-direction, the Court went on to consider their evidence, together with other corroborative evidence, which was held sufficient to prove beyond all reasonable doubt that the appellant had committed the offencehe was charged with. In Mutungav.R. [2005] 1 EA 325, another case involving murder, the evidence of two boys was erroneously received by the trial court 49

following a feeble attempt to comply with section 19(1) of the Oaths and Statutory Declarations Act, Cap 15(K). The Court went on to evaluate the evidence before the trial court and having done so held: "that as the version by the appellant was not given due consideration the same ought to have been considered as against the only eye witness account o f the young boys" (Emphasis added). It gave consideration to the childrens' evidence in its reassemantof the whole evidence and quashed the appellant's conviction for murder and substituted it with manslaughter c/s 202 read together with section 205 of the Penal Code of Kenya. In Yusuf SabwaniOpicho V.R., [2009] eKLR, Criminal Appeal No 208 of 208 (CAK) in a case concerning the offence of grevious harm the trial court received the evidence of a four years old child in flagrant breach of section 19 of the Oaths and Statutory Declarations Act. The Court held that as the child was a vital witness in the trial, its failure to comply with the procedure in the reception of his evidence, vitiated that evidence. It ordered a retrial. In Samuel WahiniNgugiv.R., Criminal Appeal No 218 of 2007 (CAK, unreported), 28/3/2012 the trial court received the evidence of a child, twelve years of age without satisfying itself that he knew the 50

nature of an oath under section 19(1) of the Oath and Statutory Declarations Act. The court observed: "The effect o f the failure to strictly comply with those requirements on the trial will depend on the circumstances o f each case" (Emphasis added). In that case, the Court of Appeal ordered a retrial. Next, we closely examine the content of sections 127(1) and (2). A convenient starting point is section 198(1) of the Evidence Act, which provides: "198(1). Every witness in a criminal case or matter shall subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations Act". That sub-section is not without a history. It reflects a basic principle of common law that viva voce evidence must be given on oath or affirmation in either criminal or civil cases (See, Mapp V Gilhooley, [1991] 2 I.R. 253.As stated by the Privy Council in Grant v The Queen (Jamaica) [2006] UKPC 2, para. 14. "The evidence o f a witness given orally in person in court, on oath or affirmation, so that he may be 51

cross-examined and his demeanor under interrogation by the trier o f fact, has always been recognized as the best evidence and should continue to be so regarded....Any departure from that practice must be justified". In this context therefore, section 198(1) should be read together with Section 127 of the Evidence Act and the Oaths and Statutory Declarations Act, Cap. 34, R.E. 2002and the true legislative purposes behind those provisions and the respective Acts. Mr. Pandestrenuously submitted that the word "shall" in the expression " which opinion shall be recorded in the proceeding, s" in section 127(2) was a printing error when the Laws of Tanzania, Revised Edition, 2002 was officially published. That as it had not been inserted in the Evidence Act, 1967 by the Legislature, it was not intended to be mandatory. Agreeing, Professor Rutinwa submitted that the authentic text in the Evidence Act, 1967 did not contain the word "shall", which was used by the Court to reinforce its opinion that the conduct of a voire dire was mandatory under section 127(2). That, he submitted, was not the state of the law when the Evidence Act was enacted. Based on our research, we have reason to agree with Professor Rutinwa that section 127(2) of the Evidence Act, 1967 (No.6of 1967) 52

contained the words " if in the opinion o f the court, to be recorded in the proceeding^'. We find support in that view as itwas also the expression repeated inKisiriMwita V.R. [1981] T.L.R. 218 at 219. The prime question that arises is what is the correct and current state of the lawin so far as section 127(2) is concerned. In this regard, it may be helpful by way of cross-reference to start with Nyasani s/o Bichana. There, the court in dealing with section 19(1) of the Oaths and Statutory Declarations Ordinance as amended, and where the word "shall" also does not appear and instead the expression "reduced into writing" is used, the Court emphasized theneed for strict compliance with the provisions of that sub-section. In our situation and based on section 127(2) as contained in the Evidence Act, 1967 and even before the publication of the Law of Tanzania, 2002 Ed. the Court in AugustinoLyanga V.R., Criminal Appeal No 105 of 1991, a case decided as early as 17/12/1991 was already of the view that section 127(2) "appeared to be mandatory". We are aware that in BahatiMakeja V.R. Criminal Appeal NO. 118 of 2006 (CAT, unreported) we held that the word "s/7a//Tn section 388 of the Criminal Procedure Act, Cap 20 is not imperative.That said, with respect, the contention by Mr. Pande and Professor Rutinwasignificantly loses its force when consideration is given that the word "shall" has now 53

been expressly and independently incorporated in section 115(1) of the Law of the Child Act. Moreover, the legal effect of section 12(2) of the Law Revision Act, Cap 4, R.E. 2002 that once a part or section of the Laws of Tanzania, Revised Edition 2002 has been promulgated in the Gazette as is the case with section 127(2) of the Law of Evidence Act, Cap 6 it is to be deemed the proper law in all courts in Tanzania also puts the issue to rest. We have no reason to doubt otherwise and MrPande did not hint at any attempts by the Chief Parliamentary Draftsman to correct anyalteration of the law, under the powers expressly confirmed upon him under sections 8 and 9 of the Law Revision Act. All in all, we are of the considered view that under section 127(2) read together with section 53(2) of the Interpretation of Laws Act, Cap 1 R.E. 2002,it is mandatory to both conduct the voire dire and to record the same in the proceedings as correctly held by the Court in Leonard Mdemu. A proper construction of section 127(1) and (2) of the Act and the consequence of its misapplicationor non-directionrequires a deeper appreciation of the tests provided therein for ascertaining of the competency of a child witness. It is trite law that the competency of a person to testify as a witness is a condition precedent to the 54

administration upon him or her of an oath or affirmation or the receiving of a child's unsworn evidence. We commence with section 127(1). It provides that every person shall be competent to testify unless the court considers that in the case of a child witness by reason of tender age, he or she is incapable of understanding the questions put across or of giving rational answers tothem. Given that section 127(1) is in parimateria with section 118 of the Indian Evidence Act, we think that Sarkar's Law of Evidence, 17th Ed. p. 2131best summarises the position: "The Court is at liberty to test the capacity o f a witness to depose by putting proper questions. It has to ascertain , in the best way it can , whether from the extent, o f his intellectual capacity and understanding, he is able to give rational account o f what he has seen or heard or done on a particular occasion Intellectual capacity being the only test, ignorance o f child on religious beliefs is not necessary equivalent to an inability to understand ordinary questions and give rational answers. ....... The only test o f competency is capacity to understand questions and to give rational answers" (Emphasis added). Next is section 127(2). We need not reinvent the wheel. In Nyasani s/o Bichana, the court stated: 55

"It is clearly the duty o f the court under that sectiori.e . section 19(1) of the Oaths and Statutory Declaration Ordinance which is in parimateriaw\th section 127(2)] to ascertain, first, whether a child tendered as a witness understands the nature o f an oath, and if in the finding on this question is in the negative, to satisfy itself that the child "is possessed o f sought intelligent to justify the reception o f the evidence and understands the duty o f speaking the truth". At the of risk repetition, the Court has consistently stated that the mode of ascertaining the competency of a child of tender years under section 127(2) involves a process and "two steps"; the first requires the court to ascertain whether the child understands the nature of an oath. If it finds that he or she does, it should proceed to swear or affirm the child and take the evidence on oath or affirmation. On the other hand, however, if the court finds out that the child does not understand the nature of an oath or affirmation, it must proceed to the next and second step and continue with the voire dire by ascertaining from the child whether he or she is possessed of sufficient intelligence and understands the duty of speaking the truth. To emphasize, two joined issues are pertinent at the second stage, namely examining the child whether he or she is possessed of sufficient intelligence and understands the duty of 56

speaking the truth. While this requirement of the law has been reiterated in numerous decisions of the Court, its proper application as we have observed earlier continues to elude learned trial Magistrates. Commenting on this, John Spenser and Rhone H. Flin,in The Evidence of Children {supra), p. 52 observes: "where the child is under the age o f 14, the judge, according to the decided cases, must hold a kind o f \Dutch auction': first he must find out if the child understands the nature o f an oath, and swear him if he does, and he should consider the question o f unsworn evidence only if the child does not" (Emphasis added). The other development of the law on the content of section 127(2) that ought to have a bearing on the issues for determination is that borne out by judicial decisions following Hayes (See, R.V. Bellamy (1986)82 Cr App R.222) of a fusion of the " oath test" for sworn evidence and the" intelligibility and truth test ' for unsworn testimony. This is well explained bySpenser and Flin, in The Evidence of Children, {supra) p.50: After this decision there is little real difference between the standard o f competency for giving sworn and unsworn evidence. To give unsworn evidence a child must show that he has 57

'sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth which differs little in any meaningful sense from\appreciating the solemnity o f the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which an ordinary duty o f social conduct'. In theory a child need only approach the general importance o f telling the truth in order to give unsworn evidence but must also understand the particular importance o f telling the truth to a court o f law before he gives evidence on oath. But as a practical matter this isa/most a distinction without a difference, and no doubt this partly explains why in s.34 o f the Criminal Justice Act 1988 Parliament was minded to abolish the only consequence that flowed from it namely that on unsworn evidence there could be no conviction without corroboration". (Emphasis added). On that very subject, the Ontario Law Reform Commission in its Report On The Law of Evidence, Ministrv of the Attorney General, 1976 explained it this way: "The interpretation which the courts have placed on the words "understand the nature o f an oath" appears to produce a perplexing result. Where a child

under 14 is called as a witness, three inquiries by the presiding officer may be necessary: (l)Does the child" understand the moral obligation o f telling the truth"? if he does, no further inquiry is necessary, and he may give evidence under oath. I f he does not, two further inquiries are required under the statute to determine if he may give evidence not under oath: (2)Is the child possessed o f sufficient intelligence to justify the reception o f his evidence, and (3) Does he understand the duty o f speaking the truth? Rarely would a child who does not qualify under (2) qualify under (1). I f the child does qualify under (2), the court must go on to determine if he "understands the duty o f speak the truth". But it would appear from the interpretation placed by the courts on the words "understand the nature o f an oath", that is, "the moral obligation o f telling the truth", that the matter has already been decided. One o f the accepted meanings o f "duty", as set out in the Oxford English Dictionary, is 'moral obligation". Understanding the moral obligation to tell the truth is the test required under (1). I f this interpretation is correct, it follows that a child tendered as a witness who is "possessed o f 59

sufficient intelligence to justify the reception o f his evidence"and who "understands the duty of speaking the truth" must qualify as a witness who may give evidence under oath. On this reasoning, there is now no authority for receiving the unsworn evidence o f a child".(Emphasis added). (See, also Eric Gertner, The Unsworn Evidence o f Children and Mutual Corroboration, Osgoode Hall Law School Journal, Vol 16, No 2, 1978p.495, at p.500). Examined in our context, the import of Afeyesand the other judicial decisions in interpreting the words "understand the nature o f an oaththaX. also appearsin section 127(2) as synonymous with the words "understand a moral obligation to tell the truth"have the practical effect of watering down the bifurcation of competency tests for receiving the sworn or unsworn evidence of a child of tender years. Moreover, a child's intelligibility is involved in ascertaining competency under both section 127(1) and (2). This, in our respectful view, should have a significant influence on the treatment by the Court of the consequences to be attached tothe misapplication or non-direction of section 127(1) and (2). Addressing the matter further, we would agree with Mr. Pande that a purposive approach to the interpretation of statutes that was adopted 60

by the Court in Joseph Warioba v Stephen Wasira's case ( supra ) iswarranted in the construction of section 127. That section must be read as an intergral whole and as being inter-dependent (See, G.P. Singh, Principles of Statutory Interpretation, 10th Ed. p.39). Moreover, we also subscribe to the principle eloquently spelt out inBindra's Interpretation of Statutes, 10Ed., pp.545, 547-548 that: "A section o f a statute should if possible be construed so that there may be no repugnancy or inconsistency between its different portions or members. ............. The sub sections o f a section o f the Act must be read as part o f an integral whole and as being inter dependent so that an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and avoid repugnancy. .............. That interpretation should be avoided which makes one provision o f an enactment inconsistent with another. A ll different provisions o f the statute should be consistent as to make it consistent. .................. Inconsistency should not be attributable to the legislature unless it is inevitable". We also bear in mind that section 127 must be read in its context, which according to G.P. Singh's Principles of Statutory Interpretation, 9th Ed. p.3, means: 61

"the statute as a whole, the previous state o f the law, others statutes in parimateria, general scope o f the statute and the mischief that it was intended to remedy". (Emphasis added). To begin with, in Herman Henjewele we stated: "the provisions o f the Law o f Evidence, 1967 are intended to provide guidance on how and what evidence can be taken in judicial proceedings in order to prevent, or at least to minimize, the chances o f a miscarriage o fjustice or the conviction o f an innocent person. Without the basic safeguards in the law o f evidence a trial tribunal can easily deteriorate into a kangaroo court". Having deeply reflected on the matter, with respect, in our opinion the approach to have been taken by the Court was not as we had proceeded in some of the cases cited earlier, to expunge or summarily wipe off the record the evidence of a child of tender years in each and every instance of misapplication or non-direction of section 127(2).To that extent we proceed to hold that much as those decisions were valid

to tne individual cases tnat concerned tnem, tney snouid no longer be followed from the date of this decision. We say so for these reasons. First, the Evidence Act does not expressly specify in section 127(1) or 127(2) that any misapplication or non-direction in the conduct of a voire dire under any of those sub-sections shall automatically lead to the outright rejection of the evidence as it expressly does in respect of receipt of certain other pieces of evidence (e.g. section 29 and 101). We think that if the legislature had intended that, it could have clearly provided for that stern measure as a statutory consequence. Second, if any guidance is to be sought from the decisions of the defund Court of Appeal for East Africa in Nyasani s/o Bichana {supra) and others that complimented and followed it, the misapplication of or non-compliance with section 19(1) of the Oaths and Statutory Declarations Ordinance or section 149(3) of the Criminal Procedure Ordinance of Uganda as amended by the Criminal Procedure (Amendment) Order, 1959 which are in parimateria with section 127(2), did not always lead to the summary rejection of the child's evidence or it being expunged. Much depended on whether or not the appellant's conviction entirely depended on the child's evidence or its vitality to the prosecution case; if its admission would occasion a miscarriage of justice or the availability of corroboration or whether or not there was other 63

reliable and sufficient independent evidence on which the appellant's conviction could be safely sustained. Each case was considered on its own set of circumstances and facts. The approach of the Court of Appeal of Kenya in the caseswe have referred to,has also followed that path. On this, it is also worth observing that section 127(1) of the Evidence Act is not contained in the Oaths and Statutory Declarations Ordinance of Kenya and our predecessor Court did not make any reference or consider in its decisions any sub-section of the law that was in parimateria with it. Similarly, the approach of the Court of Criminal Appeal of England and Wales in William John Surgenor {supra) and of the Supreme Court of Ireland in Attorney General v. W.M. O'SuWiyanfsupraJave comparable to that taken by our predecessors. We are of the considered view that their approach should offer a useful guide on the consequences we now address. No doubt, the imperatives of a criminal trial must be taken into account, most important however, is the true legislative purposes of those provisions, the Evidence Act and the Oaths and Statutory Declarations Act read together. For the avoidance of doubt, Nyasani s/o Bichana, Muhidini s/o Athumani and the decisions of the Court of Appeal for East 64

Africarefered to earlier did not create a new class of unsworn evidence of a child of tender years originating from the misapplication of or omission to conduct a voire dire under the applicable laws. Neither did the above English or Irish court decisions. We too do not attempt to do so now. In the occasions where the record of the evidence of a child of tender years was factored in the court's consideration of the whole evidence, it was only treatedds any other unsworn evidence. It was left to the court's discretion to decide if any weight or nothing at all was to be attached to the evidence. The court too went on to examine theexistence of any sufficient independent evidence to connect the accused withthe commission of the alleged crime and/or corroboration. With respect, none of those cases expressly held as we had appeared to read them as proclaiming in DeemayDaati and Herman Henjewe/eand specially the cases relied therein (i.e. KisiriMwita,f5^7/H^ndDahiri Ally v. R. (1989) TLR 27) that notwithstandingthe non-direction on section 127(2), the evidence was proper unsworn evidenceunder that very provision. No fear should therefore arise of the invention by the Courtof another category of unsworn evidence under section 127(2). Third, we agree with Mr. Pande and Prof. Rutinwa that section 127(2) should be read together with section 127(1) and in their proper 65

context. In our respectful view, section 127(1) is also at the root of child competency. There is nothing in section 127(2) which makes it a master sub-section on child competency or that the legislature had intended it to override the clear terms of section 127(1). Nothing therein says that section 127(1) is subject to or submissive to section 127(2). Much as in practice section 127(1) is often and we must admit, seriously if not completely overlooked by trial courts, section 127(2) cannot be read to render the former inoperative or dead wood. If anything, section 127(1) and (2) stand together and should be read harmoniously. This with an eye to their cohesive application and to avoid "a head on clash" (N.S. Bindra'slnterpretation of Statutes, {supra) pp.548, 551).Due regard must be paid to theirlegislative intent. We re-emphasize, as we must, that as "intelligibility" is involved in the conduct of a voire dire undersection 127(1) and (2), the misapplication or non-direction on section 127(1) may be attonedor fully remedied by the proper application of section 127(2).Surely, a child witness who can satisfy a court on a voire dire that he or she understands the nature of an oath or the duty of speaking the truth, would also obviously be one capable of understanding questions and providing rational answers to them and thus possessed of sufficient 66

intelligence. By construing and applying those provisions that way, repugnancy is avoided and section 127(1) and (2) isbest reconciled. With great respect to learned counsel, in our considered view, unlike under the Indian Evidence Act where section 118 therein which is in parimateria with section 127(1) is the sole provision governing a child's competency, in our Evidence Act it is section 127(1) and (2) which regulates child competency. Furthermore, The Indian Evidence Act does not have a provision that matches section 127(2) and neither Children and Young Persons Act, 1933 (England and Wales) nor the Children Act, 1908 (Ireland) contain a provision identical to section 127(1). In this respect, our law governing child competency is both similar and dissimilar. Fourth, in addressing the consequences of the misapplication or non-direction flowing from a voire dire ,jnder section 127(2),we are of the considered opinion that thetrue purposes of the Oaths and Statutory Declarations Act ought to be counted. Professor Rutinwa submitted that section 127(2) had its origin in the proviso to section 5 of the Indian Oaths Act, 1873 and that that Act informed the Indian Evidence Act, including section 118 as held in Rameshwar's case, a view unanimously held by learned authors in India. 67

In our view, the exact terms of the proviso to section 5 of the Indian Oaths Act are neither contained in our Evidence Act nor in the Oaths and Statutory Declarations Act. That said, considering sections 198(1) and 127(2) of the Evidence Act, it would be useful in determining the issue before us also to have regard to section 178 (admission and rejection of evidence) thereof and in particular section 9 of the Oaths and Statutory Decleration Act, which provides: "Where in any judicial proceedings an oath or affirmation has been administered and taken , such oath or affirmation shall be deemed to have been properly administered or taken , notwithstanding any irregularity in the administration or the taking thereof, or any substitution o f an oath for an affirmation, or of an affirmation for an oath, or o f one form o f affirmation for another". That sub-section is almostidentical to section 13 of the Indian Oaths Act, 1873. In our respectful view, the legislative intent therein was not to attach any consequence, let alone a serious one to the evidence resulting from an irregularly administered oath or affirmation. Much as the actual administration of an oathor affirmation to a child witness proceeds after a proper voire dire under section 127(2), when the whole scheme and context of the Oaths and Statutory Declarations Act is appraised, it is less 68

severe or stern on the consequences of an irregularity in the administration of an oath or affirmation. This too ought to influence the approach that ought to be taken on section 127(2). Fifth, Mr. Magafu submitted that section 127(2) was intended to assist the court in getting the child witness to speak the truth. Professor Rutinwa relying on Sarkar's Law of Evidence, 13t h Ed.p. 1197 contended that the objective of a voire dire was to save the court's time should the child witness at a later stage in the proceedings be found not intelligent enough to give evidence. It is trite law that an oath or affirmation carrys with it a binding responsibility to speak the truth in a court or tribunal and renders the witness liable to prosecution for perjuryshould he or she lie in the stand (James E. Tyler, Oaths: their origin, nature and history, p.6). The administration of an oath to a witness is one of the securities devised for ensuring their truthworthyness (Report on the Indian Oaths Act, 1873, The Law Commission of India, May 1965) As observed in Regina v Bannerman(1966) 55 W.W.R. 257, 48 CR. 110 p. 284): "The object o f the iaw in requiring an oath is to get to the truth relative to the matters in dispute by getting a hold on the conscience o f the witness". 69

In a much earlier decision by the Ontario Court of Appeal, R.V, P a w ly n a (s£ / y C > / 3 ) the court said this: "An oath is a solemn• , sacred vow to speak the truth, the whole truth and nothing but the truth: The person who takes the oath impliedly professes that he or she has a consciousness o f the duty to speak the truth and has a realization o f the consequences o f and punishment if willfully making a false assertion". Equally, in our respectful view, the competency test for receiving unsworn evidence of a child of tender years goes to added commitment by a witness that he or she understands the duty of speaking the truth and thus whose evidence may be relied upon. The eventual evidence of a witness, adult or child, sworn or unsworn is not and cannot be a full guarantee that the witness is telling the truth and nothing but the truth. An adult witness may lie on oath or affirmation and some witnesseschoose to do that.(In, ProsperBaltazarKileo and Huruma John V. R., Criminal Appeal No. 150 of 2011 (CAT, unreported) as case involving the murder of a Taxi Driver, three of the key prosecution witnesses (i.e. PW2, PW5 and PW7)did exactly that. In its Preliminary Paper No 26, on the Evidence of 70

Children and Other Vulnerable Witnesses,the New Zealand Law Reform Commission {supra) also observed: "30. "...not everyone who takes an oath or affirmation teiis the truth, even when aware that lying on oath is an offence, understanding the importance o f telling the truth cannot guarantee the truth will be told" Studies indicate that there is no correlation between understanding the meaning o f the oath and speaking the truth in court." On this very point, the Criminal Law Revision Committee of England and Wales opined: "In evaluating evidence, little attention is paid to the mere fact that it had been given on oath. In any case it is probable that many witnesses who in fact have no religious belief take the oaths because they do not wish to call attention to themselves or because they fear that the impact o f their evidence will be weakened if they depart from the customary oath". (11th Report, 1972, para 280 (iv)).

It should also be appreciated that whether a witness is or will be telling the truth or is giving accurate evidence is not decided at the stage when the competency question is being determined on a voire dire (R.v Barker, supra, para. 41). The evidence of a witness isto be assessed by the trial court on evaluation of the whole evidence, bearing in mind the witness's demeanour, the inconsistency or cogency of the evidence, itscredibility and reliability and the probable force of the testimony. To the extent that the truth generatingpurpose of section 127(2) is not seriously compromised and remainscontinuous throughout the trial process, a balance therefore needs to be struck between this intendment and the consequences of a trial court'smisapplication of or non-direction on thatsub-section. Provided always, a miscarriage of justice does not result and the court is alive in its duty to guardagainst any serious prejudice that may be occasioned to the accused and in preventing the wrongful conviction of the innocent. Sixth, section 127(2) of the Evidence Act, 1967 is also in parimateriaw\th section 115(1) of the Law of the Child Act. The Law of the Child Act was enacted following the adoption of the UN Convention on the Rights of the Child(UNGA Res. 44/25, 20 November, 1989) of 72

which Tanzania is a signatory State. Article 12 which embodies the right of the child to be heard provides: " 12 . 1.State Parties shall assure to the child who is capable o f forming his or her own views the right to express those views freely in all matters affecting the child, the views o f the child being given weight in accordance with the age and maturity o f the child. 2. For this purpose,the child shall in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child\ either directly or through a representative or an appropriate body, in a matter consistent with the procedural rules of national laws".(Emphasis added). Professor Rutinwa, submitted that the Court ought to take into account the United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses, 2005 (ECOSOC Res. 2005/20). Commenting on Article 12(2) of the UN Committee on the Rights of the Child opined that it should be broadly interpreted, applied without limitation and resorted to in proceedings initiated by the child as well as those initiated by others 73

(General Comment No. 12, UN Doc. No. CRC/C/GC/12 paras 19,50,52, 20 July, 2009). As its preamble states, the Law of the Child Act was enacted to give effect to international and regional conventions on the rights of the child ratified by Tanzania and to promote and protect children. The right of the child to freely express an opinion and to give an account in court is recognized therein (sections 11, 99(1)). The best interest principle set out in section 4(2) of the Law of the Child Act requires the paramount interests of the child to be the primary consideration in all actions concerning a child by courts or other administrative bodies. The child'sright to be heard in judicial proceedings and in the particular circumstances of this case, one involving a child victim of sexual violence and the right of the accused to a fair trial are all entrenched in our law. To summarily reject the child's evidence at the threshold level, on a slip for which he or she bears no responsibility under section 127(2), would deny the court a source of crucialevidence, and at times the only spring, in cases in which the child victim is perhaps in a position to offer a coherent,intelligible and reliable account of victimization. It would work serious injustice to a child who has absolutely no control over the matter. It is also neither in the interest of justice nor public interest that a sexual predator of a child victim/witness should have a free reign in society 74

because of a technical blunder by the court (See, Reid v.The Queen (1980) A.C. 343).If outright or total rejection was the intended consequence under section 115(1) of the Law of the Child Act, Parliament would have expressly legislateda statutory penalty as a result thereofas it had occasion to do so at the time of its enactment in 2009, fifty two years after the passing of the Evidence Act in 1967. Seventh, as we have endeavoured to demonstrate, the tests in sections 127(1) and (2) have also been extensively narrowed down by judicial decisions and other developments almost to the extent of being inter-twined or even fused. This is one reason why the child competency tests as originally conceived over a century ago and reflected in sections 127(1) and (2) have been the subject of major reform in other Commonwealth jurisdictions. As we have underscored earlier, given that section 127(1) and (2) state the law, they must be strictly complied with. However, a court's treatment of the extent of any misapplication or non- directionoccasioned in a voire tf/rethereunder ought to bear in mind the merged make-up of the contents of the modes of ascertaining competency under section 127(1) and (2) that have emerged overtime,and the departure from their original purposes. The commulative effect of our analysis and for the reasons afforded, we are of the considered view that the conflicting decisions of 75

the Court on the consequences of the misapplication of or non direction in the conduct of a voire dirdoy a trial court under sections 127(1) and/or 127(2) should henceforth be resolved in the following manner:

1. Each case is to be determined on its own set of circumstances and facts.
2. Where there is acomplete omission by the trial court to correctly and properlyaddress itself on sections 127(1) and 127(2) governing the competency of a child of tender years, the resulting testimony is to be discounted.
3. Where there is a misapplication by a trial court of section 127(1) and/or 127(2) the resulting evidence is to retained on the record. Whether or not any credibility,reliability,weight or probative force is to be accorded to the testimonyin whole, in part or not at all is at the discretion of the trial court. The law and practice governing the admissibility of evidence; cross-examination of the child witness, critical analysis of the evidence by the court and the burden of proofbeyond reasonable doubt, continue to apply.
4. In these same facts and circumstances (i.e. No.2) where there is other independent evidence sufficient in itself to sustain and guarantee the safe and sound conviction of an accused, the court may proceed to determine the case on its merit, alwaysbearing in mind the basic duties 76

incumbent upon itin a criminal trial and the fundamental rights of the accused. 5. However, in these same facts and circumstances (i.e. No. 2), where the evidence of the child witness is the only, decisive or vital evidence for the prosecution and its consideration would seriously prejudice the accused and his or her basic rights oroccasion a miscarriage of justice or would result in an unsafe conviction, the evidence should be discounted and cannot form the basis of a conviction. 6. A first appellate court has a prompt and prime duty to ascertain compliance by a trial court with the strictrequirements of sections 127(1) and 127(2). It is suitably posed to re-evaluate the matter, including the whole evidence and come to its own conclusion. Where appropriate, it may also order a retrial according to the law and/or make any other lawful order or decision. The third and final issue for determination concerns the proper interpretation of section 127(2) which is in parimateria with section 115(3) of the Law of the Child Act on corroboration, where the only independent evidence is that of a child of tender years or a victim of a sexual offence. Mr. Magafu submitted that the requirement of independent corroboration of the unsworn evidence of a child witness irregularly 77

taken under section 127(2), that was found necessary by the Court in SelemaniMwita v. Criminal Appeal No. 90 of 2000 (CAT, unreported) was now no longer the law in view of section 127(7). On his part, Mr. Pande submitted that the import of section 127(7) was not to override section 127(2) as was the parliamentary intention. That, Herman HenjeweleandNguzaVicking @Babu Seya had been correctly decided on that point. Professor Rutinwa submitted that section 127(2) and section 115(3) are concerned with the cautionary rule of practice relating to child witnesses at common law. That section 127(2) is not intended to allow the admission of uncorroborated evidence taken without complying with section 127(2). Rather, as rightly found by the Court in NguzaVikings@Babu Seya, that sub-section comes into play only if the evidence has been lawfully admitted under section 127(2). Where the court does not conduct a voire dire then the evidence of a child witness must be corroborated for the purposes of determining whether he or she is telling nothing but truth. That section 127(7) is not intended to serve as an alternative legal basis for admitting or acting upon evidence, which would otherwise not be admissible under section 127(2). That sub-section7 is only intended to abolish, in all trials involving sexual offences, the requirement under the common law rule of practice that 78

the evidence of a child witness, a victim of sexual offence or a sole witness, must, whether given by a sworn witness or an unsworn child witness in fully compliance with section 127(2), must be corroborated to sustain a conviction. The third issue should raise little debate. In Nguza Vikings@ Babu Seya, we held the view that section 127(2) was not intended to override section 127(2). We reasoned and found: "From the wording o f the section , before the court relies on the evidence o f the independent child witness to enter a conviction ; it must be satisfied that the child witness told nothing but the truth. This means that, there must first be compliance with section 127(2) before involving section 127(7) o f the Evidence Act; "Voire dire" examination must be conducted to ascertain whether the child possesses sufficient intelligence and understands the duty to speak the truth. I f the child witness understands the duty to speak the truth, it is only then its evidence can be relied on for conviction without any corroboration otherwise the position o f the law remains the same,

that is to say that unsworn evidence o f a child witness requires corroboration". We fully re-endorse that view. The word " Notwithstandingf in section 127(7) should not be read too legalistically, but more contextually and purposely. In enacting section 127(7) Parliament could not have intended to ratify an irregularity. We readily agree with Mr. Pande and Professor Rutinwa that section 127(7) only obviates the need for corroboration, direct or circumstantial where the evidence taken under section 127(2) emanates from a properly conducted voire dire thereunder; however it does not dispense with or remove the requirement of corroboration where the evidence taken originates from a misapplication or non-direction of section 127(2). Given that section 127(7) neither details the mode of assessing the credibility of the only independent child witness nor that of establishing that the witness is telling the court nothing but the truth, in our opinion the necessity for corroboration we have just stressed becomes an even more essential and pressing requirement for evaluating the credibility of a witness and allocating it the weight it deserves. Moreover, in the absence of confirmation from other supporting evidence, it would be too over- confidential, if not risky for the court to be fully satisfied that a child witness is telling nothing but the truth, without having positively found 80

out earlier that he or she even knows the duty of telling the truth. The above considered, settles the third issue. In conclusion, we are constrained to say these parting words. By now it should be obvious to the eye that section 127(1) and (2) may have outlivedtheir original purposes. Rules of evidence, as much as the law itself are not cast into stone and evolve over time [R.V.L. (D.O.) 1993 SCR 419. The traditional and ingrained negative assumptions and doubts on child witnesses that led to the exclusionary competency rules and the enactment of section 118 of the Indian Evidence Act, which section 127(1) borrowed and those behind sections 38(1) of the Children and Young Persons Act,1933 (England and Wales) and section 30 of the Children Act, 1908 (Ireland), which must have inspired section 127(2), have since completely shifted goal posts. Under section 127(1) the intellectual capacity of a child of tender years for the purpose of determining competency, is equated to that of a lunatic. We know that in Africa societies, including ours that some children at the legally permissive age of light workare bread winners. Some are even heads of households. Many of the old assumptions that the evidence of children is inherentlydangerous and should always be approached with a pinch of salt have been disproved by empirical 81

research pointing theycan provide a rational, truthful and reliable account of events they have experienced. The remarks by the Supreme Court of Canada in R.V. F. (W J.) [1993J3 SCR 569, para. 42 are pertinent: "The law once refused to take cognizance o f the special problems young witnesses face when testifying and the corresponding difficulties those who seek to prosecute crimes against young children consequently encounter. Child witnesses were treated like adults — indeed even more seriously. Not only did they have to take the oath, but also, unlike adults, they were subjected to grilling on whether they understood its religious implications. I f they failed this hurdle or the others that might appear down the road, like corroboration, their evidence was completely lostThe Law in recent decades, has come to realize that approach was wrong". ( Emphasis added). In R. v Barker {supra, para 33) the court stated:

"manyaccreted suspicious and misunderstandings about children, and their capacity to understand the nature and purpose o f an oath to give truthful and accurate evidence at the trial have been swept away".Emphasis added). It emphasized (para 40): "in our collective experience the age o f a witness is not determinative on his or her ability to give truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony-r and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none o f the characteristics o f childhood, and none o f the special measures which apply to the evidence o f children carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose o f the trial process is to identify the evidence which is reliable and that which is criteria, in the context o f credibility in the forensic process, the

child witness starts off on the basis o f equality with every other witness". (Emphasis added) The modern law of evidence is also migrating from its traditional exclusionary foundationto a more inclusionary base by which all relevant, reliableand probative evidence is admissible and discretion is afforded to the court (See,R v L (D.O ,){supra). The emphasis too is on the reliability of the evidence and efficiency in the administration of justice. In R.v.D.A.1., para. 71 {supra) the Supreme Court of Canada reasoned: 'Generally speaking, this threshold o f reliability is met by establishing that the witness has the capacity to understand and answer the questions put to her, and by bringing home to the witness the need to tell the truth by securing an oath, affirmation or promise. There is no guarantee that any witness even those of normal intelligence who can take the oath or affirmation will in fact tell the truth, all the truth and nothing but the truth, what the trial process seeks is merely a basic indication o f reliability'.

In this regard, lessons from other jurisdictions, including the Commonwealth offer a leaf that may be borrowed. In England and Wales, under section 53(1) of the Youth Justice and Criminal Evidence Act, 1999 all persons of whatever age are competent to give evidence in criminal proceedings and under section 53(3)(a) and (b) very young children may only be rejected as incompetent if it appears to the court that they are unable to understand the questions put to them and to give answers which can be understood. The standard required is the ability to give intelligible testimony (See, also section 55(8), Andrews and Hirst on Criminal Evidence, 4th Ed, supra, para 8.07- 8.08). Children under fourteen years are precluded from taking an oath; they can only give unsworn evidence. In Canada, under section 16.1(1) of the Canada Evidence Act, S.C. 2005 c 32, a child under fourteen years has the capacity to testify; and under section 16.1(3) can give evidence if he or she is able to understand and respond to questions. Before permitting such a witness to testify, the court is required to obtain from him or her a promise to tell the truth (section 16.1(6)). Requiring a child witness to a promise to tell the truth increases the likelihood that they will tell the truth and enhances the truth seeking function of the legal promise (N. Bala, K.Lee, R.C.L. Lindsay and V. Talwar, The Competency o f Children To 85

Testify: Psychological Research Informing Canadian Law Reform ; International Journal o f Children's Rightsl%(2QlQ) 55-73,74).The court is not allowed to ask the child any questions regarding their understanding of the nature of the promise to the truth for the purpose of determing whether evidence shall be received by the court (section 16.1(8)). In Ireland, under section 27(1) and (3) of the Criminal Evidence Act, 1992 in any criminal proceeding the evidence of a child under 14 years of age may be received otherwise than on oath or affirmation, if the court is satisfied that he or she is capable of giving an intelligible account of events which are relevant to those proceedings. In New South Wales (Australia), under section 12 of the Evidence Act, 1995 all persons are competent to give evidence. However, this presumption is displaced where a person does not have the capacity to give an answer that can be understood to a question about a fact and where such incapacity cannot be overcome (section 13(1). A person can give unsworn evidence if the court tells him or her, among other things, that it is important to tell the truth (section 13(5). In South Africa, under section 164(1) of the Criminal Procedure Act a child who is competent may testify an oath, provided that the court is of the opinion that he or she understands the nature or importance of the oath. A child may give unsworn evidence if he is unable to 86

understand the above, but in that event, the court is required to admonish him or her to speak the truth (section 164(1) CPA) (See, TrynieBoezaart (ed),Child Evidence in South Africa, p.578-579). These are but a few valuableexamples. From our consideration of the issue raised, we are of the respectful view that reform in this area of the law of evidence is urgently called for, and for which we hereby draw the attention of the Hon. Attorney General and concerned authorities. In the final analysis, that domain is the responsibility of the Legislature. The matter is hereby remitted for continuation of the hearing of the appeal against the decision of the High Court (Sambo, J.) before a panel of the Court. Ordered accordingly. DATED at DAR ES SALAAM this 6th day of June, 2014 M.C.OTHMAN CHIEF JUSTICE E. A. KILEO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL K. M. MUSSA 87

JUSTICE OF APPEAL I. H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. M. KENTE REGIST RAR COURT OF APPEAL 88

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