Juvenile Justice: Elizabeth Michael Kimemeta @ Lulu v. Republic, Ruling by Dr. Twaib

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

MISC. CRIMINAL APPLICATION NO. 46 OF 2012

(Original Kisutu RM's Court P.I. No. 1 of 2012)

ELIZABETH MICHAEL KIMEMETA@ LULU ......................... APPLICANT

VERSUS

REPUBLIC ....................................…………...........…….... RESPONDENT

Date of submissions: 28/05/2012

Date of Ruling: 11/06/2012

THE RULING

Fauz Twaib, J:

The principal purpose of the application currently before me relates to the ascertainment of the correct age of the applicant, Elizabeth Michael, also known as Lulu. Both parties agree that the ascertainment is both pertinent and urgent. Its resolution would assist the Courts and all concerned in determining whether the applicant is entitled to be treated as a child and therefore to the protections afforded by the Law of the Child Act, No. 21 of 2009.

The background of the matter is that on 10th April, 2012, the applicant was arraigned at the Kisutu RM's Court in PI No. 1 of 2012 for the murder of one Steven Charles Kanumba. Committal proceedings have since been going on in the RM's Court. On 7th May, 2012, the applicant's counsels applied to the Court for an order staying the proceedings and committing the applicant to the Juvenile Court, in terms of section 100 (2) and section 113 (1) of the Act. The RM's Court presided over by Mmbando, RM, refused the prayer. It held, inter alia, that the RM's Court has no jurisdiction to entertain the application and that "If the accused has any application to make, the same be made to the High Court of Tanzania".

The applicant's counsels were not satisfied by that decision. They thus filed the present application. Their chamber summons contains three main prayers, which run as follows:

1. This Honourable Court be pleased to order the Resident Magistrates' Court of Dar es Salaam at Kisutu to stay all committal proceedings currently pending before it and ascertain the age of the accused.

2. In the alternative and on a strictly without prejudice basis, this Honourable Court be pleased to stay all committal proceedings currently pending before the Resident Magistrates' Court of Dar es Salaam at Kisutu and ascertain the age of the accused.

3. Upon such ascertainment, all committal proceedings with respect to the accused be conducted under the auspices of the spirit and provisions of the Law of the Child Act, 2009.

Before me, the matter was called on for hearing on 28th May 2012. The applicant's team of learned counsel is led by Mr. Kennedy Fungamtama, who is assisted by Mr. Fulgence Massawe and Mr. Peter Kibatala. The Respondent Republic is represented by Ms Elizabeth Kaganda, assisted by Mr. Shadrack Kimaro, learned State Attorneys. Ms Joacquine De Mello, Commissioner for Human Rights (as she then was), appeared as an Observer. With the consent of counsel for the applicant and upon leave of the Court, the learned State Attorneys addressed the Court on two points of preliminary objection. The points are:

1. That the application is misconceived.

2. That there is no provision that empowers this Court to grant the prayers being prayed for in these proceedings.

Even though counsels have argued the two points of preliminary objection separately, I find them intertwined. I have thus decided to combine them in the course of composing this ruling.

Submitting in support of the two points of preliminary objection, State Attorney Kimaro began by stating that despite the pertinence and urgency of the matter, it is necessary that the correct procedure provided by law is applied in respect of the application. Mr. Kimaro pointed out that in paragraph 9 of the affidavit in support of this application, the applicant's counsels expressed the view that the Court had Jurisdiction—which meant that they found the lower Court's finding to the contrary erroneous. In such circumstances, the learned State Attorney argued, the proper course to take was not to re-apply in this Court, as they are doing herein. Rather, it was to prefer an appeal or revision.

Perhaps in anticipation of the argument that the lower Court's ruling was an interlocutory matter and thus non-appealable because it was interlocutory, Mr. Kimaro argued that the ruling finalized the issue of ascertaining the age of the applicant at Kisutu Court. By so doing, the decision was no longer interlocutory and was thus appealable. Counsel thus opines that the proper course for the applicant's legal team to take would have been to appeal against the decision. He also suggested the alternative procedure of revision.

In support of the second point of preliminary objection, Mr. Kimaro contended that there is no provision of the law that empowers this Court to grant any of the prayers sought in the chamber summons. The application is made under section 102 (2) and section 113 (1) and (2) of the Law of the Child Act, No. 21 of 2009 (hereinafter referred to as "the Act").

At this juncture, I find it in order to state that Mr. Kimaro's submission is not premised on the contention that the application is brought under wrong provisions of the law, but rather, that there is simply no such provision in law that may cover the circumstances of this case. For that reason, it is not necessary for to discuss Mr. Fungamtama's proposition which, though I find to be correct, is not directly relevant to the present case, to the effect that wrong citation of enabling provisions of the law is no longer fatal where justice so requires, and that the Courts should endeavour to do justice rather than allow themselves to be bogged down by technicalities of procedure.

Mr. Kimaro pointed out that the first prayer seeks for an order directing the RM's Court to stay committal proceedings and ascertain the age of the applicant. Section 113 (1) and (2) does not deal with the issue of stay of proceedings. Counsel nonetheless admits that section 100 (2) of the Act does deal with such a situation. He however maintains that the section places conditions before a Court can make an order for stay of proceedings.

According to counsel Kimaro, the wording in the phrase "When in the course of any proceedings…" in section 100 (2) is significant. He thus poses the question whether there are any proceedings in this Court to enable the Court to order stay under section 100 (2)? If I understood him well, Mr. Kimaro's argument is that the relevant proceedings which are envisaged by subsection (2) of section 100 are the committal proceedings currently before the RM's Court at Kisutu. There are no "proceedings" in this Court that fall within the meaning of the term as used in subsection (2) of section 100 of the Act.

Referring the Court to the second prayer in this application, Mr. Kimaro noted that the prayer is in the alternative to the first prayer. It seeks this Court's indulgence to stay proceedings in the RM's Court and proceed to enquire about the age of the applicant. It is the learned State Attorney's contention that the two provisions cited have nothing to do with the second (alternative prayer), which requests this Court's indulgence to take it upon itself and determine the applicant's age.

On the strength of these submissions, the Republic beseeched the Court to hold that it is "not enabled and has not been properly moved" to exercise its jurisdiction. While conceding that this Court has jurisdiction, in appropriate circumstances, to conduct an enquiry into the age of a person under section 113 (1), Mr. Kimaro said that in the circumstances of this case, the applicant has come to this Court through the wrong procedure. He thus prayed that the application be dismissed and the applicant be advised to take the proper course of action, meaning to either prefer an appeal or revision against the lower Court's decision.

I wish to make it clear from the outset, without determining the preliminary objection, that I think that the avenue for appeal is not available to the applicant because the decision of the RM's Court's order does not finally determine the criminal charge against her: See section 359 (3) of the Criminal Procedure Act and the case of John Hilarius Nyakibari v R. (Crim. Appeal No. 149 of 2007, Court of Appeal of Tanzania, Dar es Salaam, unreported). Hence, the only way of challenging the order is through an application for revision.

Arguing against the preliminary objections, counsel Fungamtama submitted that Mr. Kimaro has failed to assist this Court because he has not cited what he considered to be the proper provisions of the law under which the application should have been pursued, other than the ones cited by counsels for the applicant. He said that Annexure "EML 4" to the supporting affidavit is not a ruling as claimed by Mr. Kimaro.

Rather, it is a Court order. He referred to the last sentence, which reads: "If the accused has any application to make, the same be made to the High Court of Tanzania", and said that it was an order to his client to make the present application, with which order they strictly complied. Counsel maintained that by so doing, they have not committed any wrong. This assertion was also made by another counsel for the applicant, Mr. Kibatala.

I think this argument needs to be disposed of at this moment. Reading the learned RM's order in its proper context gives the unmistakable impression that the last sentence was not an order. Rather, it was given in the nature of an advice. And, having found fault in the Court's reasoning, it is surprising that counsels could still have decided to follow that erroneous advice. As Mr. Kimaro opines, being learned in the law, they should have followed the law by applying for revision. Making a new application as they have done herein, with due respect to learned counsel, was not the proper way to call for this Court's aid in the circumstances of this case.

Counsel Fungamtama criticized Mr. Kimaro for reading the provisions of section 100 (2) "upside down" and for suggesting that the said provisions are inapplicable. He further contended that before me are proceedings that stand on their own in relation to the applicant. Citing section 113 (1) of the Act, he submitted:

"The applicant is before you today, not for the purpose of giving evidence. It's for purposes of determination of her age with this provision in mind, I submit that this is a proper enabling provision capable of moving the Court to entertain the application before you and grant the orders sought."

At this point, the provisions of the law, the interpretation and application of which is the bone of contention between the parties herein, need to be examined. Section 100 (2) of the Act stipulates as follows:

"Where in the course of any proceedings in a Court it appears that the person charged or to whom the proceedings relate is a child, the Court shall stay the proceedings and commit the child to the Juvenile Court."

Section 113 (1) of the Act provides as follows:

"Where a person, whether charged with an offence or not, is brought before any Court otherwise than for the purposes of giving evidence, and it appears to the Court that he is a child, the Court shall make due enquiry as to the age of that person."

It is true, as Mr. Fungamtama submitted that the word "Court" is defined under section 3 of the Act to include the High Court. For that reason, I agree with counsel Fungamtama that by virtue of the definition of the word "Court" in section 3 of the Act, this Court has concurrent jurisdiction with the other Courts mentioned therein to determine the age of a person in trouble with the law. Furthermore, as counsel suggests, the term "proceedings", which is not defined in the Act or the Interpretation of Laws Act, should be given its ordinary meaning, to denote any court proceedings.

However, with due respect to learned counsel, I do not think that the term can be stretched to include a situation, as is the case herein, where a decision has been made by a lower Court and the aggrieved party files the same application in this Court, seeking a second bite at the cherry, as it were. The provision has to be read in the context of Mr. Kimaro's contention that even though this Court has powers, under section 100 (2), to determine the age of a person in certain proceedings, the Court can only do that in the course of such proceedings, which must be pending in this Court. However, the Court cannot do that where it is necessary to commence other proceedings separate from the main proceedings that are sought to be stayed as has been done herein, where a separate application has been preferred.

In the same vein, I am also of the opinion that where an application has been made at the lower Court and a party is aggrieved by the decision of the said Court, and then he can only come to this Court by way of revision. There is one distinct difference between the two provisions. Whereas under section 100 (2) the determination as to the age of the person before the Court is to be made "in the course of proceedings", under section 113 (1) the person whose age is to be determined would simply have been "brought before any Court". It seems to me that section 113 (1) is wider than section 100 (2). The former can also stand on its own, and would apply wherever a person is brought before a Court for any purpose except as a witness. Section 113 (1) does not make its application conditional upon there being any pending proceedings before the said Court. And the advantage of section 113 is that under subsection (2) to subsection (5), it provides for the procedure to be applied in determining the age of the person brought before it. However, section 113 does not say under what circumstances it is to be applied. I am of the view, however, that it does not deviate from the requirement that there must be a legally acceptable purpose for which that person is brought to Court (other than for giving of evidence). There must be a reason as to why a person is brought before a Court of law in order for the Court to exercise its powers and determine the age of that person. Otherwise, one could invoke the provision and present a person in any Court, at any time, so long as the Court is one of those envisaged by the Act, and request that an enquiry be made on the age of that person. The legislature could not have intended it to be so wide.

Consequently, I hold the view that section 113 (1) may apply even where there are no proceedings pending in a particular Court. However, a person seeking such determination must satisfy the Court that he is not a mere busy body and that the application is made for good purpose. For instance, a social welfare officer who is faced with such a question in the discharge of his functions under the Act, may wish to call upon the aid of a Court of law in order to find out whether a particular person is a child or not. In such a situation, the matter will proceed in accordance with the procedure set out in subsections (2), (3), (4) and (5) of section 113.

On the other hand, a casual reading would at first sight suggest that the procedures set out in the said subsections do not apply in a case falling under section 100 (2). Indeed, the Court's only duty prescribed under section 100 (2) (the word used is "shall"), once it appears to the Court that the person before it is a child, to stay proceedings and commit the child to a juvenile Court. There is no indication as to how would the Court reach that conclusion. This provision cannot stand on its own in the face of this obvious lacuna. I am thus of the considered view that whenever a situation envisaged by section 100 (2) arises, the Court is enjoined to apply the procedure laid down in subsections (2) to (5) of section 113 of the Act. Only then can the lacuna be filled and a proper determination of the age of the person concerned be determined.

Under section 100 (2), the Court can only act where a child is brought before it in proceedings that are on-going before it. In the instant case, the only proceedings that are currently pending in respect of the applicant are the committal proceedings at the RM's Court, Kisutu. There are no pending proceedings in this Court. It is thus clear to me that this application cannot fall under section 100 (2), as correctly argued by Mr. Kimaro. Neither can section 113 apply in the absence of revisional proceedings. In the final result, given these conclusions, I agree with counsel for the respondent that this application is not properly before me. But that alone is not the end of the matter.

Let me now turn to the issue as to whether the RM's Court was right in holding that it has no jurisdiction to entertain an application made under sections 100 (2) and 113 (1) of the Act where the person concerned is charged with an offence triable by the High Court. It is to be noted that both counsel hold the view that the RM's Court was wrong in holding that it had no jurisdiction to entertain the application. Counsels for the applicant said so in paragraph 9 of their affidavit. Fungamtama and Massawe reiterated that belief in their submissions before me. Through Ms Kaganda, the Republic expressed the view that the RM's Court had jurisdiction to entertain the application, but should first have left the investigators to complete their work, which would also include an investigation as to the correct age of the applicant. With all due respect, I do not agree with the latter proposition. The provisions of section 100 (2), read together with section 113 (1), clearly vest in the Court not only the powers, but also the duty, to determine the age of the person before it, if it has reason to believe that the person is a child. To leave that role to be performed by the prosecution or investigators would amount to abandoning of the statutory duty of the Court. It is also clear to me that the phrase "Where in the course of any proceedings in a Court…" would mean exactly what it says: It would apply whenever there are proceedings of whatever nature before a Court, when the age of an accused is at issue. That obviously includes committal proceedings.

A similar situation arose in the case of in Brown Joseph Undule & 5 Others v. Rep. (Misc. Crim. Application No. 34 of 2008 (HC, DSM unreported) in which Mihayo, J. held that subordinate Courts have powers to grant bail during committal proceedings, even though they do not have powers to try the offences charged. (Cf. Ayub Huberth & 6 Others v. R., (Misc. Crim. Appl. No. 22 and 23 of 2006), also per Mihayo, J). Indeed, even before Brown Undule's Case, the Court of Appeal (Othman, J.A., as he then was) in R v. Dodoli Kapufi & Another (Crim. Rev. Nos. 1 & 2 of 2008, Mbeya Registry, unreported) had ruled that subordinate Courts have such powers. His Lordship Othman held: "It would appear that on a true and contextual reading of sections 148 (1) and (5) (a) of the CPA, which are the principal provisions governing bail, subordinate courts are empowered to admit accused persons before them to bail for all bailable offences, including those triable by the High Court, save for those specifically enumerated under section 148 (5) (a) thereof, for which no bail is grantable by any court."

With these binding decisions of the higher Courts, it is surprising that subordinate Courts are still hesitant, to say the least, to exercise powers in committal proceedings that the law so clearly vests in them. Consequently, I hold that the lower Court was wrong to refuse to entertain the applicant's application, thinking that such an enquiry could only be done by this Court. I accordingly quash and set aside the decision of the RM's Court, Kisutu, dated 7th May 2012. Having said that, what would be the proper course for this Court to take in the circumstances of the case? That question prompted me to consider the entirety of circumstances surrounding the applicant's case.

The applicant is facing a charge of murder, contrary to sections 196 and 197 of the Penal Code, Cap 16 (R.E. 2002). Murder is the most serious charge of all known to our criminal law. It is defined as the killing of a human being with malice aforethought, and is punishable by a mandatory sentence of death. So long as the charge is maintained against her, the applicant is by law not entitled to bail and will have to remain in custody. Without in any way prejudging the determination of the contentious issue regarding the applicant's age, it would be fair to assume that "the best interests of the child" principle, enacted through section 4 (2) of the Act, is to be applied presumptively to any person whose age is to be determined, the applicant being no exception. With this principle in mind, and considering the situation the applicant is faced with, I have carefully weighed the options available. There are only three: One, the matter can be returned to the RM's Court with directions for that Court to determine the age of the applicant; two, the applicant would have to start afresh by filing an application for revision in this Court against the impugned decision of the Kisutu RM's Court; and three, as Mr. Massawe suggested, this Court may exercise its supervisory powers under section 44 of the Magistrates Courts Act and examine the record of the RM's Court for purposes of satisfying itself as to the correctness or otherwise of the decision of the RM's Court. In doing so, it may also proceed to determine the applicant's age.

I think the nature and seriousness of the charge facing the applicant, the lack of any possibility for securing bail during the pendency of the charge and the undisputed urgency of the matter, require that the controversy about her age be determined, and be determined sooner rather than later. For those reasons, I am inclined to invoke the supervisory powers of this Court under section 44 (1) of the Magistrates' Courts Act, to remove to this Court the proceedings in PI No. 1 of 2012 for purposes of revising the same. Since the said record is already before me, all that remains for me to do is to proceed with the revisional proceedings.

As I move to conclude this ruling, I desire to state that I find the interpretation and application of the provisions of section 100 (2) and section 113 (1) of the Act in the context of this case to be not entirely free of ambiguity. Unless read together, each of the sections leaves one with some unanswered questions: Section 100 (2) does not assist the Court on how the conclusion that the person standing before it is a child can be reached.

On the other hand, while the generality of section 113 (1) may be attractive, it is, in a sense, too general. It is of course open to a Court to read a cross-reference into the two provisions as I have done herein, but the legislature in its wisdom would have made matters much easier if it provided a cross-reference, even if the section may stand on its own in some instances. That would not take away the useful generality of the section.

Having said that, I am alive to the possibility that the rather convoluted discussion that has been necessary in resolving the novel issues arising in this case may render this decision difficult to fully comprehend. Hence, to simplify the decision, I would summarise my most relevant findings and orders, as appears below:

1. The applicant could not invoke section 100 (2) of the Law of the Child Act as she has done herein because the committal proceedings facing her are not in this Court;

2. The applicant could only have invoked the provisions of section 113 (1) of the Law of the Child Act as part of revisional proceedings under section 44 of the Magistrates' Courts Act in order to quash the RM's Court's decision and order the lower Court to determine her age in terms of section 100 (2), read together with section 113 of the Act or to ask this Court to proceed to determine the said age itself in terms of section 113 of the Act. But since the applicant did not file an application for revision, she has come to this Court through the wrong procedure.

3. The decision of the RM's Court to refuse to entertain the applicant's application was an error of law and an abdication of the Court's duty. The same is quashed and set aside.

4. Considering the seriousness of the charge facing the applicant and the urgency of determining whether or not the applicant is entitled to the benefits of the Law of the Child Act, and in the interests of justice, this Court, invoking its supervisory powers under section 44 of the Magistrates' Court Act, shall proceed to determine the correct age of the applicant now before it, in terms of section 113 of the Law of the Child Act.

5. In the meantime, again pursuant to this Court's supervisory powers, the committal proceedings in the Kisutu RM's Court in PI No. 1 of 2012 are hereby stayed pending determination of the applicant's age by this Court. 

Consequently, I order the applicant's counsel to present or cause to be presented, by way of affidavits and supporting documents, evidence as to their client's age, and the Respondent Republic to present or cause to be presented, any evidence it may have to support its position. The dates for compliance with these orders shall be fixed by the Court.

It is so ordered.

DATED at DAR ES SALAAM this 11th day of June 2012.

Fauz Twaib

JUDGE

11th June 2012

Delivered in Court this 11th day of June 2012.

Fauz Twaib

JUDGE

11th June 2012