The appellant was charged and convicted of rape. He was sentenced to 30 years imprisonment and ordered to pay compensation to the victim of shillings 300,000 upon completion of his sentence. His first appeal was unsuccessful, so he appealed a second time, claiming that he was not properly identified, breach of criminal procedure and the fact that the court did not allow him to call a defence witness. The Court found no merit in the appeal and upheld the conviction. It applied and followed the case of Selemani Makumba versus R Criminal Appeal, Court of Appeal of Tanzania at Mbeya 1999 (unreported). The Appellate Court considered whether or not the complainant had been raped by the appellant and concludes that “True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in the case of any other woman where consent is irrelevant, that there was penetration...”
Tanzania
Domestic Case Law
Furaha Michael v. The Republic Court of Appeal of Tanzania at Mwanza (2010)
Onesphory Materu v. The Republic Court of Appeal of Tanzania at Tanga (2009)
Seif Mohamed El-Abadan V. The Republic Court of Appeal of Tanzania at Tanga (2009)
The victim was raped by a doctor on 14 November 2006 at Magunga Hospital in Korogwe District. The appeal asserted that the witness in the trail was not credible. The appellate Court concluded that it was unable to “find a ground for denting the credibility of the complainant” and “not having found any contradictions in the evidence of PW1, the victim of the sexual assault by her doctor, the appellant” . The Court recognises sextortion and goes on to say: “We agree with the learned judge that ‘ it is treacherous for one to stray away from a professional calling and turn against one amongst the very lot who bestowed their trust unto the person.’ In this case, it was treacherous for the appellant doctor to rape his patient, PW1.”
Kalulu v. Mahirima High Court of Tanzania (2011)
The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.
Republic v. Elvan S/O Cyprian Luvindu High Court of Tanzania (2005)
The accused physically assaulted his romantic partner, with whom he lived, and drunkenly hit and kicked her to death. He pleaded guilty to manslaughter, but asked for sentencing leniency on the grounds that he was in remand for four years, served part of his sentence, and had dependents. The Court emphasized that this offence was committed “in the course of domestic violence” and made note of the Republic’s commitment to CEDAW and the eradication of violence against women. The accused was sentenced to 20 years imprisonment.
Mohamed v. Seifu Court of Appeal of Tanzania (1983)
The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.
Marwa v. Republic Court of Appeal of Tanzania (2008)
A secondary school teacher, convicted of raping a student and sentenced to thirty years imprisonment, appealed for the second time on the grounds that he had been framed. The Court found no justification for doubting the evidence of the witness, especially as the results from the medical examination corroborated her testimony. The Court also noted that his claim of being framed was insupportable, as there was no justification for the other witnesses to lie against him. Finally, the Court pointed out that the lack of an order for compensation offended the mandatory provisions of Section 13(1) of the Penal Code. The appeal was dismissed and the teacher ordered to pay shs. 500 000 in compensation to the student.
Achiula v. Republic Court of Appeal of Tanzania (2012)
The appellant’s conviction of rape and subsequent sentence of thirty years imprisonment was upheld by the High Court. He had allegedly raped an underage girl on several occasions, manipulating her with monetary bribes and threats. The appellant appealed this decision, claiming that the voire dire examination of the underage victim had been insufficient to ensure that she understood the meaning and duty to tell the truth, and that her evidence was thus not credible. He also argued that because there was no proof to corroborate the age of the victim, the charge of rape was not established. The Court dismissed the appeal, finding that the victim had demonstrated sufficient intelligence and understanding to justify the reception of her evidence. The Court also dismissed the appellant’s citation of the lack of proof of the victim’s age, pointing out that the victim’s age had been accepted as a matter of course during the trial. Finally, the Court decided that there was sufficient evidence of penetration, pointing out that “True evidence of rape has to come from the victim, if an adult, that there was no penetration and no consent, and in case of any other woman where consent is irrelevant that there was penetration."
Ally Hussein Katua v. The Republic Court of Appeal of Tanzania at Tanga (2010)
The appellant claimed that the charge of sexual exploitation was defective and that the evidence of the complainant Rehema Athumani should not have been believed and acted upon (allegedly because of a “history of mental illness and confusion”). The Court determined that although normally the element of lack of consent ought to be reflected in a charge of rape, but with the inclusion of section 130 (2) (e) of the Penal Code, consent is no longer relevant where the victim is under eighteen years of age and in this case, there was no dispute that the victim was aged 17 at the time of the crime (and therefore covered by the law). The Court noted that “Paragraph (d) above would particularly be important in highlighting the fact that the appellant being a traditional healer took advantage of his position and committed rape on PW1 as we shall demonstrate hereunder.” Furthermore, the Court recognised that an aggrieved party may appeal on a matter of law (not including severity of sentence) but not on a matter of fact, and “strictly speaking, in our reading and appreciation of the evidence on record there is no serious point of law involved in this appeal”, only matters of fact.
Mtefu v. Mtefu High Court of Tanzania (1995)
The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.
Mtawa v. Risasi High Court of Tanzania (2001)
The appellant had lived with the deceased as husband and wife for nine years and given birth to two of his children. At his death, she asked that the estate not be distributed in accordance with Islamic law, which would have prevented her from receiving a share of the estate. The brother of the deceased challenged this, contending that she was a concubine who had no right to a share of the estate she had contributed nothing to amassing. The trial court registered a decision in favor of the appellant. It found that her relationship was the deceased fell under the presumption of marriage, and accordingly awarded her the house until either her death or marriage to another man. The brother appealed this decision and the District Court reversed the ruling of the trial court. The High Court found that the appellant and the deceased had achieved the status of a customary marriage. It also ruled that the deceased’s actions showed that he did not profess the Islamic faith and that Islamic law should thus not apply. It registered a decision that the appellant, through her contribution to the welfare of the household and family, was entitled to a share of the estate. The appellant received a half share of the house, while the other half was awarded to her children.
Ephrahim v. Pastory and Kaizingele High Court of Tanzania (1990)
The respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to a man who was not a member of her clan. The next day, the appellant, Mr. Ephrahim, filed suit seeking a declaration that the sale of land by Ms. Pastory was void under the customary law that a woman has no power to sell clan land. The Court held that the customary law regarding women's property rights discriminated on the ground of sex in violation of CEDAW, the African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania Constitution.
Memoranda
Anti-Human Trafficking Legislation in Tanzania and 6 Countries Around the World (2013)
In 2008, Tanzania adopted the Anti-Trafficking in Persons Act (ATPA) to combat human trafficking, mandate stricter investigation and prosecution, and afford protection to victims of trafficking. This report: explains and evaluates the ATPA, including the effectiveness of its implementation since its enactment in 2008; describes similar acts around the world, including an evaluation of those laws’ implementation and effectiveness; offers specific recommendations for Tanzania to enhance the effectiveness of its anti-trafficking law.
Assessing the Impact of Mandatory Minimum Sentences on Sexual Offences in Tanzania (2013)
With the goal of assessing the impact of mandatory minimum sentences for sexual offences in Tanzania, this memorandum provides a comparative study with a small sample of jurisdictions – including Canada, Kenya, Lesotho, Zambia, South Africa and Tanzania - to showcase how different countries have utilized mandatory minimum sentences to address sexual offences. It also explores whether imposing mandatory minimums has resulted in a reduction of the commission of the sexual offences they target.
Problems in Prosecuting or Adjudicating Corruption Cases in Tanzania (2012)
This memorandum provides a brief overview of corruption in Tanzania and efforts taken by the government to address the problem. The memorandum also examines the problems that emerge in prosecuting or adjudicating corruption cases in Tanzania and the reasons corruption cases fail.
This memorandum examines the rules governing forfeiture of proceeds of crime in Tanzania.
Problems Women and Child Victims and Witnesses Encounter in Sexual Offenses Cases in Tanzania (2012)
This memorandum examines the particular problems that women and children confront as vulnerable victims and witnesses in sexual offenses cases in Tanzania.