Tanzania: Court of Appeal Approves 30-Year Jail Term On Rapist

THE Court of Appeal has confirmed the 30-year-imprisonment sentence imposed on resident of Kisarawe district in Coast region, Siaba Mswaki, for having carnal knowledge with a boy, who is insane, against the order of nature.

Justices Jacobs Mwambegele, Mary Levira and Issa Maige arrived at such a conclusion after dismissing the appeal under which Mswaki, the appellant, had lodged to fault findings of the High Court and that of the District Court.

During hearing of the appeal, the appellant had contended that the first appellate judge erred in dismissing his appeal as the prosecution failed to call material witnesses, notably the victim, the police officer who issued PF3 and village leader, thus failed to prove the case against him to the required standard.

In the judgment, the justices pointed out that two prosecution witnesses who witnessed commission of the offence were reliable and their credible evidence justified the appellant's conviction and sentence.

They noted that it was undisputed fact that the victim was not called to testify and the reason as stated was that he was prevented by his mental illness and they could not find anywhere the appellant cross-examining prosecution witnesses over such mental condition.

"Being guided by the above established position, we entertain no doubt that the appellant accepted the fact that the victim is mentally ill and, in that status, he could not be called as a witness to testify before the court," they said.

The justices could not also fault the evidence given by other prosecution witnesses who caught the appellant sodomizing the victim and was found naked at the scene of the crime and that the victim was insane, a fact that impaired his ability to testify.

"Therefore, we entertain no doubt that the prosecution witnesses were credible, reliable and they managed to prove to the required standard that indeed, it was the appellant who sodomised the victim," they said.

As regarding to other witnesses, including the police officer and village leaders not being called to testify, the justices were satisfied that the prosecution witnesses summoned were well versed with necessary information connected to the commission of the offence and their evidence was not shaken.

"As such, we are settled in our minds that failure to call those people as witnesses does not have any negative connotation justifying the Court to draw negative inference on the prosecution," they said.

The justices also noted that some of the grounds of appeal raised by the appellant were new, which are not points of law and were not argued and determined by the first appellate court - the High Court.

"It is a settled law that grounds of appeal which were not brought into the attention of the first appellate court for determination cannot be raised in the second appeal," they said.

The prosecution had alleged at the trial that on November 21, 2015 at about 07:30 hours at Mafumbi village within Kisarawe district, Coast region, the appellant had carnal knowledge against the order of nature of the victim, who by then was aged 25 years.

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