The Court of Appeal to look at child testimony

THE Chief Justice Chande Othman has composed a Full Court of five justices of the Court of Appeal to determine the controversy on laws relating to testimony of children of tender age during hearing of rape cases.

This follows contradictions of decisions given by the Court on what magistrates are required to do when receiving the evidence of a child of tender age. 

During deliberation of the matter, several cases, including that of Nguza Vicking, alias Babu Seya and his sons, which is Criminal Appeal Number 56 of 2005, will be taken into consideration.

Apart from the Chief Justice, who will lead the Full Court, other members are Justices Engela Kileo, Kipenka Mussa, Batuel Mmila and Ibrahim Juma. The hearing session, according to the course list made available yesterday, would be held on February 12, this year.

The determination of the said controversy will go hand in hand with hearing of an appeal lodged by a resident of Arusha, Kibute Otienyeri, to oppose a life imprisonment sentence imposed on him by a lower court for raping a girl of tender age.

It is alleged that the appellant raped the girl aged 11 years on August 23, 2008 in Manyiri Village in Arumeru District. The trial court was told that on the material day, the girl (name withheld) was directed by her sister to go to a shop to buy tomatoes.

While on the way, the appellant called her to a nearby hut in a tomato field where he was working. It is alleged that after entering the area, the appellant  pulled the girl down and raped her. The matter was reported to police, leading to the arrest of the appellant.

During hearing of the case in the instance trial, the prosecution called five witnesses to prove the charge. The trial magistrate, after weighing the evidence from both the prosecution and the defence, convicted the appellant of the offence and sentenced him to remain behind bars for the rest of his life.

The appellant was aggrieved by the verdict and took the matter to the High Court in Arusha. After going through the evidence tendered during the trial, Judge Kakusulo Sambo dismissed the appeal in its entirety and upheld both conviction and the sentences passed against the appellant.

Judge Sambo agreed with the findings of the trial magistrate who had believed the testimony of the girl that was true and that he was right to convict the appellant in terms of Section 127 (7) of the Evidence Act. Still protesting his innocence, the appellant crossed over to the Court of Appeal.

But when hearing the appeal in question, a panel comprising Chief Justice Chande Othman, Bernard Luanda and Batuel Mmila observed that there was need for the matter to be referred to the Full Court for proper interpretations of provisions of laws relating to testimony of children of tender age.

The panel further directed that by doing so, the court should also take into consideration of other cases that have already been decided, including that of Babu Seya, Hamis Shaban, which is Criminal Appeal No. 452 of 2007 and that of Helman Henjewele, Criminal Appeal No. 164 of 2005, among others.

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