Tuti Jackson vs Republic (HC Criminal Appeal No 48 of 1998) [1998] TZHC 2323 (8 September 1998)

·~ IN THE HIGH COURT OF TANZANIA , AT MBEYA • ...,.....,.,_,,.,.... ........ ~~ . HIGH COURT CRIMINAL APPEAL NO., 48 OF 1998 ORIGINAL·CRIMINAL CASE NO., 523 OF 19980F THE DISTRICT COURT OF MBEYA AT 1''IB.lA • TUTi JACKSON • 0 • O-. 0 e o • o e e • Cl O o •• 0 0 0 0 -~ • 0 0 0 .APPELLANT

• VERSUS THE REPUBLIC .i JUD'.IElv"iENT . !:lli.,_to, ·J. Tuti d/o Jackson is a slender pretty girl of 18 years scho.l.i.n.g in Form IV at Sangu Secondary School, Mbeya Municipality who has already register·ed to do her final' Form IV examination this coming next month ..-f Oct<,ber/.November 1998 and her aunt and guardian has already paid her school fees and 11 0 11 level examination fees., But, just 3,months prior- to her examination on about 5th 'lily, 1998 Tuti d/6 Jackson faced a serious stumbling problem which would block her entire academic dreams and make her lose face to·her aunt, fa.ily and the fellow school students. She got pregnantc- By the time the pregnancy was so weeks·old (about 5 months) she couid not withstand the problem and the shame any longer. She decided to solve the problem by herself by terminating her pregnancy secretly by drinking n,--xious medicine and . crudely pulling out the f Perus from her W')mb by ber own bare hands in ' . order to pr,,eure abortion which she succecc20 wi t.1:> r1.;_.0 r.c:Dsea1.1ences,, ,·. He gt great pains obviously and resked her lif0, she got arrested by th police and ... charged in e,yurt for eommitting the offen.:-e of a½ortion , c/·157 of the ·Penal Code and lastly she got convicted as charged on her ovm plea of ~.ilty and sentenced tn. 3 years imprisor ... '!lent., She nw has appealed conviction and sentence through her advocate the learned V1r., Mwakolo who has challenged the convicti•-:n as being wrongful due to the appellant's plea of guilt being unoq·.;.:i""r;al,,

2 ,He argued that what was thought to be a pregnancy of 20 week was not so '7_ ' ' ' • ' ,:;. •• • ' '+ proved by a doctor and was actually merely a protrusion of.her stomach which 'l ;., ·,. • , ... • ..... she had a right to remove; The learned advocate also argued that since the noxious medicine the appellant drank was not medically or chemically proved to have been poisonous or noxious and capable of inducing a miscarriage of a pregnancy the necessary ingredients.of te offence of abortion c/s 157 of the FoCo ,had not been prvede · The learned Mr. Mwakolo (Advocate)' also_ ch_allenged part of the proceedings which~ were _in kis1,1abili as being Hlegal~ The imprisonment term for 3 years whtch has shattered the academiccdreams of doing her Form IV Examination. This'October was also opposed as being too were to be sustained.' He al-so argued that th8 appellant was_mentally unbalanced in occasions and could not have appreciated all of vn1at she was doing so as to warrant a guilty mind worth of a conviction and such a heavy penalty of 3 years imprisonment., The learned Mr. Nangela (SA) has opposed the- appeal against the conviction since, he argued, the plea of guilty was unoqu.ivical for the _ appellant agreed in her own words that she indeed procured her own al5ortion · and that the facts were all correct which constituted at the ingredients of 1 ' ~ the offence of abortion as charged~ The portion of the proceedings which was in kiswahili the learned Mr-~ Nangela (SA) argued was properly but in ; .. the proceedings so as to expose the exact· words uttered by the appellant while in court.<_The learned Mr. Nangela (SA) on the pther hand conceded that the although the conviction Wa.$ proper tl}e _sentence was too severe to be supported by the Republic. He supported its reduction to~ ponditional f discharge as to give her a chance to do ¾er ;;o;; level examination this October/November, 1998e Some factual notions have to be put right by this courto The argument of the learned Mr. Mwakolo Aclvocate by th~ appellant that some of the . .... ~ proceedings were in kiswahili is particula:rlly correct.- _ But,, all the Swahili portions in the proceedings were not part ·of the a~essment of tbe t'

3 case by the trial Magistrate the learned Mr. Mtiginjora (LM) but mere '. ,(' 4uotatiot-..s ·or .t:::J;- -•.C:CU-r-'·:O.ts o-wn wore;;,'., ir- V-ttc.{! cmmas. This is allowed for such qu_otations help to show the exaq:j:; words of the accused which have assisted even this court to see whether the plea was equivocal or not as challenged by the advocate for the appellant. There is the allegation that the appellant was not prgnant•·d· tht ·"' .. she only had a protrusion in her ston1ach which she had a legal 'right to· remove it,by pulling out.of her stomach by, her.hands.· It is biologically impossible to pull out a protrusion from the stomach thro;gh the female organ (vagina) of by pulling out possibly it can be done through the anus or . . mouth only for the itomach forms part of the alimentary canal which starts with the mouth and ends up with the anus. But due :to th~ great narrowness and length of the alimentary canal with the stomach being positioned deep do11m the abdominal cavity far away from mouth or axi.y it is not practically possible to pull out such an internal protrusion successly by hand but through an incission and medical operation only • .Since the facts of this case showed clearly that the appellant applied her hand into he;·vagirial canal and that why induced the miscarriege of her pregnancy it shows •learly that such protrusion was in her reproductive canal which must have been a foetus in.her womb eavity which is positioned just above and in between the vaginal channel and bellow the ova.rial ducts~ These presented facts were found correct by the appellant and they are the truth which can't be twisted . \ . otherwise at this·stage. Certainly the appellruit was.examined.by-the ·ctoctors at Meta Maternity Hospi tel for the facts found correct by the appellant stated that being arrest by the police when the appellant was sent there by her unnamed aunt the P"lice took her to the said hospital for ~edical examination. ... • , .• t .i· ' .. The fact of the pregnancy having been 20 week's therefore must ~ have come other from the appellants 011m mouth ~r from the Maternity Doctor's reports after exa.-nining her. The conviction was quite unequival and pr•per ,• for the courts are not there to charge the truth but to abide by the truth. C • - • . ; If the appellant was prove to mental unbalance it must have been in -otner •••o•e/4.

• . ,.. 4 .. · -~~·..;,:"' - situations not thisone. In thfo incident the appellant suretly and i , ' ~ , .,, I • •; • · inteligntJly.1. executed-' the' ·r-6. of" hr -;:;_,elncy. with ·aca'.nY and t precisien on her arm as if she were a reasoned doctor or midwife for it . . ' . . . .. turned out to be quite successful and safeo y less intelligent girls who have attempted· .to procure· them oi.m abortions of 5 months have ended up terminating them own lives together with their pregnanciesc. The appeal against the conviction is baseless. It is disissedo As far sentence, the are;ument that it is the imprisonment term will occasio~ her to doing her examination is factually true but not logically or reasonably true for eve~ without the imprisonment had she remained with . her. pregnancJ with. altercation which was eminant she still would have been expelled from school thereby being ended incapable of doing her examination Even if she had not been detected up to end-since my 5/7/98 her pregria:ncy was 20 weeks old she would reached full pregnancy period and given birth everything be_ing named in around the one month of October/November, 98,during the ,examination period which certainly sh~ would have been pre-or-P,rostrate"ily unlike_ly capable of going through the · tense fatigue of doing a minimum of 8 0 level examination papers? At any rate missing O level examinatiori'is not in -~ end of the world for she is just 18 years .and has many ther years which she ,f would have been able to do it as a private candidate .. Any way_, I share both learned counsels from both sides as presented ,.. .. by the l:earned Hr. Mwaklo Advocate and the learned Mr. Nangela (SA) ... That there was a mere helpful sentence to the appellant than along custodial sentence of 3 years imprisonmento She is indeed an about of 18 years ola but Vias-~ student. The custodial sentence of 2 months she has been serving in imprison so far i~ sufficient punishment for hero I quash the remainder 2 years and 10 montb..s$ She has already served the 2 months :i.niprisonment terms. So far I hereby discharge her set her free on condition that and in (conditional discha.i:-ge) that she shall commit no other offence for a period of 1 year from today. JUIXIB.; 7/9/1998. q•ooeo./5e II

• 5 §L9.Ll9.2!1 Mwipopo, J. Appellant: Tuti d/o Jackson - Present in person Mr. Mwakolo (Adv.) for the Appellant - Absen-u. It is brief is held by the Mr. Boniface (SA) Rsp•hdent: DPP - Mr. Boniface (SA) - Present. C/C. Mrso Mwakajonga '. . ,<'_, ''.., . . . - 'c_J, .,,)•' .... ··,- ,M' ·",,,.. ,,,,. -/ . .-; : ;:,.-~ in the presence of both parties. JUL'GE 8/9/1998 •. I •erti _fy that this is the true and correct eopy of the original judgement. t ,/) .. . ... \ DISTRICT RfilISTRAR MBEYA. ,,---