22 March 2018

Tanzania: Nguza, Son Absent, Verdict Tomorrow

Arusha — THE non-appearance of the father-and-son Nguza Viking (Babu Seya) and Johnson (Papii Nguza) yesterday compelled the African Court on Human and Peoples' Rights to postpone to tomorrow, delivery of its judgment in the application they filed against conviction of rape and sodomy.

The Court's President, Justice Sylvain Ore, told the audience in a fully packed open court room here that the postponement of the session was due to lack of correspondence to the parties involved in the matter.

No further details were given. In the application No. 006/2015, Babu Seya and his son, who were released from prison following an amnesty granted to them by President John Magufuli in December 2017 for the life sentences they were serving for abusing minors, are alleging violation of human rights by the Tanzania's respondent state.

The duo was sentenced to life imprisonment on June 25, 2004 by the Kisutu Resident Magistrate's Court in Dar es Salaam, after they were found guilty of raping and defiling some Mashujaa Primary School pupils aged between six and ten years in Sinza area, in Dar es Salaam Region's Kinondoni District.

They were arrested on October 12, 2003 in connection with the charges before their arraignment alongside a teacher at the school on October 16, 2003, facing 10 counts of rape and 11 counts of sodomy. The accused persons pleaded not guilty to all charges.

After a full trial, the trial court ruled against the musicians, but the teacher was acquitted. Babu Seya and his three sons convicted of the offences appealed to the High Court, but they were unsuccessful. They took the matter to the Court of Appeal where two of his other sons were acquitted. The appellate court sustained the conviction of Babu Seya and Papii Nguza.

After the appeal process, the duo filed an application for review of the judgment, which was also dismissed. Having exhausted all local remedies, the two decided to knock doors of the African Court. They are asking the Court to rule that their rights were violated.

They request the Court to facilitate them with free legal representation or legal assistance and request the Court to appoint experts to provide clarification of the facts of the case and assist the Court in carrying out its task. The applicants request an order compelling the Respondent state to release the applicants from custody and request reparation and any order or remedy that the Court may deem fit to grant.

In their application, the two allege that the Respondent state violated Article 1, 2, 3, 5, 7(1)b), 13 and 18(1) of the African Charter on Human and Peoples' Rights. They submit that after arrest, they were not promptly informed of what charges they were being arrested for. They claim to have been under restraint for four days incommunicado without access to a lawyer or anyone else.

Furthermore, that while they were in custody, the applicants claim to have been mistreated by police officers who insulted them. They were subsequently charged with rape. According to the applicants, the trial was unjustified for various reasons: the Court repeatedly dismissed requests to submit evidence, the results of the blood and urine test underwent by the applicants were not presented as evidence in the trial court.

Court records show that even while the alleged victims claimed to be infected with HIV/AIDS and gonorrhea, Babu Seya's request to test his impotence and therefore his material impossibility to participate in the commission of the alleged crimes, was also rejected.

They state that the court used statements of alleged victims as evidence, where they described from their memory the room where the rape took place, but did not give consideration that the children and their parents visited the applicants' house before the hearing and studied the room several times.

It is alleged further that the applicants' charges were fabricated in revenge by the former partner of the first applicant, who was envious of his new engagement. According to the applicants, the judgment was not based on strong evidence.

The Court deliberately did not call material witnesses in the scene of the crime, the medical report tendered in Court by the prosecution contradicted the evidence adduced by the alleged victims of rape and sodomy. During the trial, the defence called 31 witnesses, but their testimonies were not given enough consideration by the Court.

Further, in the appeal, six counts of rape and the charges of sodomy were dismissed, even though the remaining counts of rape were alleged to have been committed at the same material time and place, and the evidence brought by the prosecution was similar to the other charges. Babu Seya and his son further allege violation of their right to a fair trial.

They claim the charges lacked the dates on which the alleged offences were committed, therefore disabling the applicants to prepare for their defense, while the relied on uncorroborated and inconsistencies" prosecution evidence.

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