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IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CRIMINAL APPEAL NO. 45 OF 2013

(Appeal from conviction and sentence of the District Court of Kilosa at Kilosa (T.

Swai, RM) in Criminal Case No. 116 of 2012 dated 10th April 2012)

MAWAZO MAKIWA ............................... APPELLANT

VERSUS

REPUBLIC ................................................... RESPONDENT

Date of last order: 11/08/2014

Date of judgment: 27/10/2014

J U D G M E N T

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) An appeal against a conviction based on an unequivocal plea of guilty

generally cannot be sustained, although an appeal against sentence

may stand;

(ii) An accused person who has been convicted by any court of an offence

"on his own plea of guilty" may appeal against the conviction to a

higher court on any of the following grounds:.that upon the

admitted facts he could not in law have been convicted of the offence

charged.

In the first ground of appeal, the appellant complains that he was

convicted on a defective charge as the particulars/facts do or does not

constitute the alleged offence of rape While the appellants explanation

of this ground is confined to the assertion that the particulars on the

charge did not include an allegation that he had unlawful carnal

knowledge of the victim (the word unlawful was missing in the

particulars), that omission alone could have been cured by section 388

of the Criminal Procedure Act, Cap 20 (R.E. 2002). However, there is a

more serious omission: the age of the girl Mary was not mentioned in the

facts as read out to the accused, and to which he responded: All facts

are ok, hence are admitted. Was the conviction proper in light of these

two omissions?

At the hearing, the appellant had nothing to add to his petition of appeal,

but reserved his right to respond after submissions by the respondent.

When he did, he simply said that he had admitted the charge because he

was drunk at the time. Ms Karanda, the learned State Attorney,

contended that there was no need for the charge sheet to contain the

word unlawful. She however cited the provisions of section 130 of the

Penal Code, which defines rape as unlawful carnal knowledge of a

woman or a girl.

With due respect to the learned State Attorney, the unlawfulness of the

act is an essential element in the offence of rape. Having carnal

knowledge of a woman or girl, by itself, is no offence known to law. This

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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) An accused person can only be convicted on his own plea of guilty if it

is ascertained that he has accepted as correct facts which constitute the

ingredients of the offence charged;

(ii) As no particulars or facts constituting reckless driving were put to the

appellant, his plea of guilty was equivocal and should have been entered

as a plea of `not guilty'.

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) In any case in which a conviction is likely to proceed on a plea of guilty,

it is most desirable not only that every constituent of the charge should

be explained to the accused but that he should be required to admit or

deny every element of it unequivocally;

(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