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AT DAR ES SALAAM
VERSUS
REPUBLIC ................................................... RESPONDENT
11/08/2014
27/10/2014
JUDGMENT
F. Twaib, J:
The appellant, Mawazo Makiwa, is appealing against the decision and
orders of the Kilosa District Court at Kilosa, which convicted him of rape
and sentenced him to 30 years imprisonment.
The appellant had pleaded guilty to a charge of rape, and admitted to
the facts as read out to him by the prosecution. A second chargethat
of impregnating a school girlwas dropped.
The material facts of the case as presented by the prosecution were that
sometime in January 2012, the appellant, aged 21, was employed as a
casual labourer at the residence of one GERAD in a village called Unoni.
The appellant used to sleep at GERADs residence. He began a sexual
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relationship with GERADs niece, one MARY, who was a Standard VII pupil
at a local primary school.
Sometime in February 2012, all the pupils at the school were tested for
pregnancy. Marys results came back positive. On 20th February, 2012,
she informed the appellant about it. On 13th March 2012, at about 22
Hrs, the appellant took Mary away to a village called Gongwe. He
continued to have sexual intercourse with her, until 3rd April 2012 when
GERAD went to Gongwe and, with the help of Sungusungu militia, they
arrested the appellant, together with Mary.
The appellant was taken to a Police Station, where he made a statement,
apparently confessing to the crime. He was charged at the District Court.
His response to the charge was: it is true. Then the facts were also
read out to him. The learned Resident Magistrate presiding recorded his
response to the facts thus: All facts are ok, hence are admitted. The
Magistrate proceeded to convict him as charged. This being a minimum
sentence offence, the appellant was sentenced to serve the mandatory
minimum of 30 years imprisonment.
Despite it being a conviction on a plea of guilty, and the sentence being
the minimum one provided by law, the appellant decided to appeal.
Learned State Attorney Sharifa Karanda who appeared before me for the
Republic resisted the appeal. She contended that section 160 of the
Criminal Procedure Act does not allow an appeal where the accused has
pleaded guilty. That is correct. It also follows that since the sentence
imposed is the minimum one, no appeal can normally lie against it. Those
are the general rules.
But there are exceptions to these general rules. In Laurence Mpinga v R
[1983] TLR 166, this Court (Samatta, J, as he then was) held:
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(i)
(ii)
is further elaborated by section 130 (2) (e) of the Penal Code, which is
relevant to this case. It states that a person would be guilty of rape if he
carnally knows a girl, with or without her consent when she is under
eighteen years of age [emphasis mine].
Hence, given the offence as charged, the unlawfulness relates to the age
of the alleged victim. The prosecutions case was that Mary was 17 years
of age at the material time. Ms. Karanda insists that all the ingredients of
the offence were present. She relied heavily on the appellants statement
in response to the charge, where he is recorded by the trial court as
saying: Its true on 13/3/2012 at about 22:00hrs, at Unone I carnal
knowledge MARY NICOLAUS a girl of 17 years. [sic]. But this statement
was a response to the charge, not the facts. The appellant also faults the
facts as not constituting the offence. And here is where the omission is
more critical.
The offence with which the appellant was charged is statutory rape. The
age of the victim is an essential element in that offence. The facts must
have said so. They did not. The admission, therefore, and the plea of
guilty, cannot be said to have been unequivocal, with the full knowledge
of the facts on the appellants part. The facts show that no force
whatsoever was used in the commission of the alleged rape. The
prosecutions case was based primarily on the age of the alleged victim.
It is a matter of crucial significance that the facts as admitted by the
appellant must have included the girls age. Without it, the plea as
entered by the lower court was equivocal. The court should have entered
a plea of not guilty and proceeded to hold a trial.
The legal position in such situations has been settled by a long line of
decisions of this court. In Kenneth Manda v R. [1993] TLR 107, Mroso, J
(as he then was) held:
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(i)
(ii)
See also Munisi Marko Nkya v R [1989] TLR 59 and Buhimila Mapembe v
R [1988] 174. In allowing the appeal in the latter case, Chipeta J. (as he
then was) held, inter alia:
(i)
(ii)
The words "it is true" when used by an accused person may not
necessarily amount to a plea of guilty, particularly where the offence is
a technical one;
(iii)
In the present case, the facts given by the public prosecutor cannot be
reasonably said to have amounted to full disclosure of the ingredients or
elements of the offence, rather they appear to be more of an allegation
that the appellant had possession of the lion skin;
Coming back to the case at hand, as we have seen, two crucial omissions
have been committed by the prosecution which, taken together, render
the appellants plea unequivocal and, therefore, his conviction
unsustainable. These are: the failure to state, in the particulars of
offence, that the accuseds carnal knowledge of the girl was unlawful;
and secondly, that the girl was below the age of 18 years.
In the upshot, therefore, I quash the accuseds conviction and set aside
the sentence. In the normal cause of things, I would have to order that
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the matter be returned to the lower court so that a plea of not guilty may
be entered and the case proceed to trial.
However, the appellant has until now spent two and a half years in prison.
Taking this into account, the nature of the offence charged and, perhaps
more significantly, the fact that the trial would necessarily involve the
trauma of having to give evidence on the part of the alleged victim, Mary,
who would now be about 20 years of age, and has presumably settled
down in her life, with a small child to take care of (as she was pregnant
at the material time), I am of the considered opinion that such a process
would do more harm than good to everyone concerned.
I would thus discharge the appellant and order that, unless he is being
held for some other lawful cause, he be released from prison forthwith.
DATED and DELIVERED at DAR ES SALAAM this 27th October 2014.
F. Twaib
JUDGE
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