Automated Summary
Key Facts
Criminal Appeal No. 300 of 2011 involves the Court of Appeal of Tanzania considering conflicting decisions on the legal and evidential consequences of non-compliance with section 127(2) of the Evidence Act regarding the unsworn evidence of an 11-year-old child. The court must determine whether such evidence requires corroboration for a conviction or is rendered invalid and must be discarded. Additionally, the court needs to interpret section 127(7) of the Evidence Act in conjunction with section 115(3) of the Law of the Child Act, No 21 of 2009. The appeal was adjourned on 25th November 2013 to a full bench for further consideration.
Issues
- The Court is addressing conflicting decisions on the legal and evidential consequences of non-compliance by a trial court in conducting a voire dire examination under section 127(2) of the Evidence Act. The key question is whether such evidence should be treated as unsworn and require corroboration (as in Hamisi Shabani, Herman Henjewele, etc.) or rendered no good and discarded (as in Mohamed Sainyeye, Godi Kasenegala, etc.).
- The Court must interpret and determine the import of section 127(7) of the Evidence Act, which is in pari materia with section 115(3) of the Law of the Child Act (No. 21 of 2009) read together with section 127(2) of the former Act, to resolve the legal issues arising from the case.
Legal Principles
The Court addresses conflicting decisions regarding the legal and evidential consequences of non-compliance with section 127(2) of the Evidence Act when examining child witnesses. It considers whether such evidence should be treated as unsworn requiring corroboration or rendered inadmissible. The matter also involves interpreting section 127(7) of the Evidence Act in conjunction with section 115(3) of the Law of the Child Act.
Precedent Name
- Godi Kasenegala V.R.
- Wilbard Kimangano V. R.
- Deema Daati and Two others V.R.
- Hamisi Shabani V.R.
- Leonard s/o Ndemu V.R.
- Nguz Vikings @Babu Seya and Four others V. R.
- Herman Henjewele V.R.
- Mohamed Sainyeye V.R.
Cited Statute
- Evidence Act
- Law of the Child Act
Judge Name
- B.M.K. MMILLA
- M. C. OTHMAN
- B. M. LUANDA
Passage Text
- In the course of hearing and determining this appeal involving the evidence of a child of tender age (11 years) the Court has before it, its own decisions, which conflict with each other on the legal and evidential consequences that arise following non-compliance by a trial Court in the conduct of a voire dire examination under section 127(2) of the Evidence Act, Cap 6 R.E. 2002. Namely, whether as a consequence thereof, it should be treated as unsworn evidence of a child, which requires corroboration to sustain a conviction (Hamisi Shabani V.R., Criminal Appeal No. 452 of 2007; See also Herman Henjewele V.R., Criminal Appeal No. 164 of 2005; Deema Daati and Two others V.R., Criminal Appeal No. 80 of 1994; Nguza Vikings @Babu Seya and Four others V. R., Criminal Appeal No. 56 of 2005 (All CAT, unreported) or in the inverse, it is rendered no good as evidence and has to be discarded or discounted or expunged from the record (Mohamed Sainyeye V.R., Criminal Appeal No. 57 of 2010; See also, Godi Kasenegala V.R., Criminal Appeal No. 10 of 2008; Leonard s/o Ndemu V.R., Criminal Appeal No 81 of 2008; Wilbard Kimangano V. R., Criminal Appeal No. 235 of 2007).
- Given the conflicting decisions of the Court on the issue and one that is of significant legal importance, we are of the considered view that this is a fit and proper case to be resolved by a full bench of the Court, which we propose be convened according to the law.
- Moreover and related to the legal issue to be resolved, the full bench of the Court would also need to interpret and determine the import of section 127(7) of the Evidence Act, which is in pari materia with section 115(3) of the Law of the Child Act, No 21 of 2009 read together with section 127(2) of the former Act.