4 December 2009

Tanzania: Nguza, Sons Were Framed, Says Lawyer

The case against Congolese musician Nguza Viking and his three sons could be a frame up by the ex-husband of his current lover, a lawyer defending the singers said yesterday.

Mr Mabere Marando asked the Court of Appeal in Dar es Salaam to consider the evidence by Nguza's fiancee that she suspected the arrest and subsequent charging of the musician was part of retaliation by the man she had lived with for seven years before being hooked by Nguza.

"According to the evidence of this woman, her former husband frequently threatened her on phone that he would teach her a lesson for parting ways with him," Mr Marando said.

The Congolese musician was jailed for life along with his three sons for sexually abusing schoolgirls.

Mr Marando told Judges Nathalia Kimaro, Salum Massati and Mbarouk Mbarouk: "I think this is a piece of evidence worth serious consideration by you.

"I say so because the prosecution has failed in any way to link my clients with the alleged offence to the required standard."

The Kisutu Resident Magistrate's Court in July 2004 sentenced Nguza Viking alias "Babu Seya", 55 and his three sons Papii Nguza, 27, Nguza Mbangu, 32 and Francis Nguza, to life imprisonment.

It had found them guilty of raping and sodomising ten Class One schoolgirls aged between six and eight years, all pupils of Mashujaa Primary School in Sinza, Dar es Salaam.

The Nguzas' initial appeal against both the conviction and sentence was dismissed by the High Court in January 2005.

During the trial at the resident magistrate's court, Farida Abdu, 40, (Nguza's wife) had said in her testimony that she left her former man in January 2001 before she started living with Babu Seya.

She is on record as testifying that soon after she departed from her man, he threatened her with the words: "Now you are proud because you have the musician, Nguza. I will teach you a lesson."

The woman who lived with 'Babu Seya' until his arrest, had also told the court that she was the one who left the man and he was not happy with the separation.

Ms Farida had also told the trial court in 2004 of her suspicion about the possibility of the Babu Seya trial being a plot by her former husband.

Mr Marando yesterday asked the court to dismiss the testimony of all the ten alleged victims because it was taken in total disregard of rules guiding the taking of evidence from children of a tender age.

Mr Marando submitted that the trial magistrate took the evidence of the children without first conducting a voire dire, the preliminary examination by a magistrate to establish whether or not children possess sufficient intelligence and understand the duty to tell the truth.

"Failing in this area is fatal," Mr Marando argued, saying: "It has clearly been established that the evidence of a child of tender years taken without voire dire must be discounted.

Mr Marando also invited the judge to consider his submission that it was impossible for the appellants to have committed the alleged offences without being seen by over 16 other people who lived in the house where the offences were allegedly committed.

Principal state attorney Justus Mulokozi conceded that the trial magistrate did not record the proceedings of voire dire. However, he asked the court to consider that it was on record that the magistrate made the conclusion that the children had sufficient intelligence to give evidence.

"The basis of the case for the Republic is that the children gave reliable and sufficient evidence to show that it was the appellants who sexually abused them. We submit that despite some minor technical errors, their evidence is watertight and will always remain reliable," he said.

The Court of Appeal will deliver its judgment on notice.

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