Babu Seya, Papii Kocha lose appeal, life sentence remains

Famous Congolese musicians Nguza Viking alias Babu Seya and his son, Johnson Nguza Papii Kocha, yesterday lost their last defense option after the Court of Appeal dismissed their appeal for the Court to review of their life imprisonment sentence for sodomising minors.

Speaking to journalists out of the court room, Sada Omary, a relative of Viking said they had nothing to do but ask President Kikwete to forgive their relatives.

On his part, defence advocate Gabriel Monyele said there is a need to have a Supreme Court which will be the last organ to grant justice in the country.

Reading the ruling, Registrar of the court Zahara Maluma said that, the court has dismissed the application because the judgment given by the Kisutu Resident Magistrate’s Court was right and the convicts will continue with their sentence.

According to a panel of three judges led by Nathalia Kimaro, Mbarouk Mbarouk and Salum Massati who heard the revision of the application, the decision by the High Court who also rejected an earlier appeal was also right.

The High Court dismissed Babu Seya and Papii Kocha’s appeal in 2010 but set free two of Viking’s sons, Nguza Mbangu and Francis Nguza who were also serving life imprisonment.

Court Registrar Maluma said that regarding the nature of the present appeal, the applicants have not satisfied the threshold required for review on the ground that the matters rose fall within the confines of a manifest error apparent on the face of the record. 

“The applicants have not established that there was such an error in the judgment thus it is misconceived and untenable,’ Maluma read.

She said based on those grounds, the court holds the punishment because in order to have another option of the first judgment the applicant had to establish that there was an error.

She added that all the arguments raised were not taken up in the appeal so introducing them now would just be undergoing the appeal in disguise litigation. 

Maluma added that there was a clear distinction between an error of the laws and a decision that is erroneous in law adding that the latter is good ground for appeal but not review.

She further said that if there are conflicting decision of the court the applicant should have sought the convention of a full bench of the court to resolve the conflicts.

Maluma said that the applicants have not shown how, if there were any errors, they resulted in the mis-courage of justice.

Appeal Court said regarding the failure by the prosecution to summon important witnesses to corroborate the evidence of the merit, the question of which witness should be summoned to prove the prosecution case rests on the prosecution. 

Moreover it is not the number of witnesses which matters but rather it is the credibility of witnesses.

“Neither an erroneous decision in law and or a different view on a question of law is manifest error apparent on the face of the record,” Maluma went on to say.

Court records show that the applicants and the other two, who were freed, were arraigned at the Kisutu Court in 2003 charged with ten counts of raping minors.

The four were convicted of the offences on June 25, 2004 and sentenced to life imprisonment and each ordered to pay 2m/- compensation to each victim.  

SOURCE: THE GUARDIAN