High Court can determine actress Lulu’s age — panel

By Rosina John, The Citizen Correspondent

Dar es Salaam. 

The Court of Appeal yesterday said the High Court had the jurisdiction to determine the murder case facing an actress, Elizabeth Michael, who is charged with killing a film star, Steven Kanumba, regardless of her age.

A panel of three Court of Appeal judges who were handling the appeal that had sought to bar the High Court from determining the age of Ms Michael, also known as Lulu, wondered why the two parties in the case engaged in a legal battle over the age of the respondent, who would be charged by the High Court, anyway.   

Judges January Msofe, Benard Luanda and Edward Rutakangwa said the age of the accused whether 18 years old or below did not prevent her from being charged with murder. Lulu is charged at the Kisutu Resident Magistrate’s Court with killing a local movie star on April 7 this year in Sinza, Dar es Salaam.

In June this year, the prosecution filed an application to the Court of Appeal seeking the court to review proceedings and the ruling by High Court judge Fauz Twaibu who had decided to continue determine Lulu’s age. He ordered the two parties to present evidence that would enable him to rule whether Lulu was underage or not.

Judge Twaib had made a ruling after an application by Lulu’s counsel Peter Kibatara, who wanted the court to determine the accused’s age. According to Mr Kibatara, his client has not attained 18 years and so she is too young to be charged with murder in ordinary courts.

He, therefore, wants the case to be transferred to the Juvenile Court, which has the jurisdiction to deal with cases like hers and in consideration of section 4(2) of the Child Act, 2009.

However, the Court of Appeal judges yesterday, wondered why the two parties battled over the age of the accused because finally she would be charged at the High Court, which had the jurisdiction to hear her murder case.

“Whether a child commits murder or not, the case will be heard by the High Court and not the Juvenile Court because the latter has no jurisdiction to hear murder cases,” the panel of judges said.

In his ruling judge Twaibu said that, considering the seriousness of the charge facing the applicant and the urgency of determining whether or not the applicant was entitled to the benefits of the law of the Child Act, 2009 and in the interest of justice, the court invoking its supervisory powers under section 44 of the Magistrate’s Court Act shall proceed to determine the correct age of the applicant in terms of section 113 of the Law of the Child Act, 2009. Section 113(1).

says: “Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due inquiry as to the age of that person.”

Submitting, senior state attorney Faraja Nchimbi said the High Court erred in law for deciding to determine Lulu’s age while knowing that the application by the defence counsel was wrongly filed.

According to Ms Nchimbi, the High Court was supposed to strike out the application, instead, it ordered the parties to produce evidence concerning Lulu’s age.

After passing through submissions from both parties, the Court of Appeal said that, it would give the ruling on notes.

Kanumba died after he fell down in his bedroom on April 7, 2012. He was taken unconscious to Muhimbili National Referral Hospital where it was confirmed he was dead. His funeral at the Kinondoni cemetery was attended by about 30,000 people including the First Lady, Ms Salma Kikwete, the Vice President, Dr Mohamed Gharib Bilal, and the then minister for Information, Youth, Culture and Sports, Dr Emmanuel Nchimbi.

Source: The Citizen (18/09/2012): http://www.thecitizen.co.tz/news/-/25812-high-court-can-determine-actress-lulus-age--panel