Lawyers have backed up the advice of the Court of Appeal for the lawmakers to amend or enact a new law, reducing the 30 years imprisonment sentence imposed on persons who are found guilty of the offence of attempted rape.
They have concurred with the observation of Justices Sauda Mjasiri, Batuel Mmilla and Jacobs Mwambege that the minimum sentence imposed to convicts of attempted rape was in the high side and, thus, such punishment deserved due reconsideration.
The justices had noted such position when determining an appeal by a Lindi Region resident, Edwin Paul, who was charged with attempted rape of a miner and jailed for life. Such sentence was reduced to 30 years imprisonment on appeal before the High Court, which he also found to be excessive.
Giving his own views on the advice, Principal State Attorney Paul Kadushi is happy with the observation of the Court of Appeal, the highest temple of justice in Tanzania, a situation which appears to be a replica of what was also detected or decided in some previous cases. He was referring to Criminal Appeal No.
118 of 2003 between Goodluck Kyando, as appellant and the Republic, therespondent and Criminal Appeal No 355 of 2014 between the Republic, as the appellant and Mwesige Bushau, who was the respondent.
According to him, in the Kyando case the Court discussed in detail the sentences of rape and attempted rape offences, while that of Bashau dealt extensively on issues of purposive approach where literal interpretation of the law leads to absurdity.
During his trial, Kyando was 16 years old and having been convicted of attempted rape was sentenced to 30 years imprisonment.
As was in the appeal of Edwin Paul, Kyando too had complained that the sentence imposed on him was so excessive.
Before introduction of Sexual Offences Special Provision Act (SOSPA) No 4 of 1998, to amend several written laws, sections 131 and 132 of Penal Code stated that any person who commits the offence of rape or attempted rape is liable to imprisonment for life with or without corporal punishment.
This means that the punishment for both rape and attempted rape was the same for all men and boys under the age of 18 years.
Mr Kadushi recalls, therefore, that when the Court determining Kyando appeal revisited the two provisions after the amendments of Act No 4, 1998, he noted that while a boy who commits rape under section 131(1), but under the age of 18 years is given a sentence of corporal punishment only.
He further explains that while a counterpart who attempts to commit rape under section 132 (1) and (2) (a) is condemned to a custodian minimum sentenced of 30 years with or without corporal punishment. Under such anomaly, he said, the court questioned whether that was really the legislators' intention.
Since section 131 (2) of the Penal Code as amended by Act No 4 of 1998 introduced a distinction between boys and men, the Court was of the view that the same concept should be reflected in section 132 of the Penal Code.
To cure the anomaly, the youthful trial attorney said, the Court adopted a purposive approach in interpreting section 132 (1) by inserting immediately section 131 (2) (a);(b) and (c) below section 132 (1) so that they are equally applicable to boys of the age of 18 years or less who attempt to commit rape.
In this decision, he said, the Court took such steps to arrest the situation while awaiting Parliament to amend the Act in question, as appropriate in view of the glaringly unjust situation as many boys may be suffering from such inadvertent anomaly.
Therefore, Mr Kadushi was of the view that the advice of the Court for the laws to distinct the sentence on rape and attempted rape was justifiable and, thus needed to be acted upon by the relevant authorities.
Seasoned advocate, Captain Ibrahim Bendera, was also in favour of the Court of Appeal advice, pointing out that the purpose of punishment is fourfold, that is deterrent, preventive, reformative and restrictive.
He said that the 30 years imprisonment sentence for attempted rape offence was beyond punishment that goes beyond the said criteria.
Advocate Hudson Ndusyepo said that what the court has done was to remind the legislators to take into consideration other foreseeable factors when enacting a law and not later to force the judiciary to divert from the enactment,