TANZANIA WOMEN JUDGES ASSOCIATION

Case Law Manual

SPONSORED BY

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 TANZANIA WOMEN JUDGES ASSOCIATION

Case Law Manual

SPONSORED BY
CASE LAW MANUAL COMPILED BY THE TANZANIA
WOMEN JUDGES ASSOCIATION (TAWJA)

COLLECTION AND COMPILATION COMMITTEE:

Eusebia Munuo
Engera Kileo
Sauda Mjasiri
Katherine Oriyo
Imani Aboud
Sophia Wambura
Katarina Revokati

Research Assistants:
Kifungu Mrisho
Judith Lyimo
INDEX
A NOTE FROM THE CHAIRPERSON...........................................1

CHILD RIGHTS..................................................................................2
Rosaria Mashita Katakwe versus Edward Hakasenke And Others.....2
Nguza Vikings @ Babu Seya And Others versus Republic................13
Dr. Moses Norbert Achiula versus Republic.....................................39
Ally Hussein Katua versus Republic..................................................46

DISCRIMINATION...........................................................................53
Odafe and others versus Attorney General and Others (Nigeria).....53
Rono v. Rono and Onother (Kenya)..................................................62
Attorney General v. Dow (Botswana)................................................78
Ndewawiosia d/o Ndeamtzo v. Imanuel s/o Malasi
(1968) HCD NO. 127.....................................................................131
Sara H. Longwe versus Intercontinental Hotels..............................132
In the Matter of the Estate of King’ara Kimeria – Succession
Cause 1763 of 2008.........................................................................150

FAIR TRIAL......................................................................................154
Alex John versus The Republic........................................................154

GENDER BASED VIOLENCE......................................................170

Onesphory Materu versus The Republic..........................................175
Leonard Jonathan versus The Republic...........................................175
John Martin Marwa v. Republic......................................................182

PROPERTY RIGHTS & INHERITANCE....................................186

Bi Hawa Mohamed v. Ally Seifu.....................................................186
Midwa versus Midwa......................................................................202
Lawrence Mtefu v. Germana Mtefu................................................206
Elizabeth Mtawa v. Hassan Mfaume Risasi....................................211
Ephraim v Pastory...........................................................................221
Naftal Joseph Kalalu v. Angela Mashirima......................................237

SENTENCING.................................................................................245
Republic versus Elvan S/O Cyprian Luvindu.................................245
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A NOTE FROM THE CHAIRPERSON
Tanzania Women Judges Association (TAWJA) is a professional
association of women judges and magistrates of all levels in the Judiciary
of Tanzania. It was formed in 2000.

I am humbled to introduce to you the first publication of a Case Law

Manual compiled by the Tanzania Women Judges Association (TAWJA).
It is a collection of cases from Tanzania and other jurisdictions on
contemporary issues. We have clustered them into: -

Cases on Children’s Rights,

Cases on Discrimination,
Cases on Fair Trial
Cases on Gender Based Violence,
Cases on Property Rights including Inheritance and
Sentencing.

The production of this Case Law Manual would not have been possible
without the financial support of UNWOMEN Tanzania to whom we are
immensely grateful. I want also to express my gratitude to the members
of the Collection and Compilation Committee who worked tirelessly
in collecting and compiling the cases. I wish also to acknowledge with
appreciation, our researchers whose input helped us in putting this Case
Law Manual together.

This is just the beginning and for this reason we ask all our esteemed
members and readers to give us a feedback and their views in order to add
value to future issues.

Engera Kileo

CHAIRPERSON

TAWJA

1
CHILD RIGHTS
Rosaria Mashita Katakwe versus Edward Hakasenke And Others

IN THE HIGH COURT FOR ZAMBIA 2006/HP/0327

AT THE PRINCIPAL REGISTRY
AT LUSAKA

(CIVIL JURISDICTION)

BETWEEN

ROSARIA MASHITA KATAKWE (A minor, suing by her

Guardian and Next Friend,
PETRONELLA MWAMBA..........................................PLAINTIFF

AND

EDWARD HAKASENKE................................. 1ST DEFENDANT

WOODLANDS ‘A’ BASIC SCHOOL............... 2ND DEFENDANT
MINISTRY OF EDUCATION......................... 3RD DEFENDANT
ATTORNEY GENERAL ................................. 4TH DEFENDANT

BEFORE HON. MR. JUSTICE PHILLIP MUSONDA

For the Plaintiff: Mr. Bwalya of KBF and Partners

For the 1st Defendant: Mr. Wanabo of Lewis Nathan &
Associates
For the 2nd, 3rd and 4th Defendants: Mrs. Wengelani – Senior State
Advocate

Cases Referred to:

1. Blyth V Birmingham Water Works (1856) 11 Exch Page 781 at 784

2. Eagle Charalambous Transport Limited V Phiri (1993-94) ZR 180
3. Godfrey Sinabu Sinonge V Attorney General (1970) ZR 73
4. Rutherford V Attorney General (1976) INZL R403
2
 5. Jacob Vs Griffiths (1999) 174 DLR 4th
6. Short V J.W. Henderson Limited (1946) TLR 427 at 429

Works Referred to:

1. Clerk & Lundsell on Torts 17th Edition 5, paragraphs 5-2-, P.176
2. Charlesworth & Percy on negligence, 9th edition paragraphs 8, 128,
P.594

Legislation Referred to:

1. Penal Code, Chapter 87 of the Laws of Zambia
2. Penal Code Amendment Act No. 15 of 2005
__________________________________________________________
J__________________________________________________________
UDGMENT

This was a claim by a minor school girl suing through her Guardian and
next friend Petronella Mwamba for damages for negligence caused by the
defendant’s breach of duty to take care owed to the plaintiff. A declaration
that the Government is responsible for all school going children in the care
of its agents, such as teachers, school authorities and any other person in
its employment during the time the schools are in session and with regard
to all related matters over which such agents have control. Damages for
personal injury and emotional distress caused to the plaintiff as a result of
the first defendant’s wrongful and unlawful act for which 2nd, 3rd and 4th
defendants are vicariously liable.

The evidence as laid by the prosecution was that Rosaria Mashita Katakwe
who at the time of trial was a Grade 10 pupil at Kabulonga Girls was
a school girl at Woodlands ‘A’ Basic School. The first defendant was a
teacher at the said school and was teaching her civics and history. In
February 2000 she asked him if he had past papers in civics and history
and he told her he had them at home and promised to bring them for her.
However, the following day he never brought the papers and he forgot to
bring these papers on more than three occasions.

She was invited to go and collect papers from his home around 1500 hours.
At 1500 hours she went to his home and he asked her to go inside and she
found him playing music. He offered her a seat, after which he asked her
if she was scared and she admitted she was. When she asked about past
3
papers he said she should not be in a hurry and that he wanted her to be
free with him. He told her to go and get past papers from another room.
When she went in that room she was shocked to find it was a bedroom.
The room had no door but just a curtain. When she turned he was behind
her. She asked him what he was doing in there and where the past papers
were, but he told her not to rush and he touched her tried to push her on
the bed. He started telling her she was pretty, that he could even marry
her.

He tried to kiss her, later he said he could not hurt her and she was blank
and everything happened so fast. He put his manhood in her vagina and
he was on top of her and she was screaming but he covered her mouth with
his hand. After that she got her clothes dressed and said she wanted to go
home. He told her not to tell anybody as she could be chased from school
and he would lose his job.

She went home and did not tell her auntie PW 2. Later her private parts
were itching. She decided to go to the clinic where she was examined and
they gave her medicine to insert in her vagina and the other was for drinking
and they gave her a prescription. Though she was attending school, she
started getting low marks she was stressed. She told the head teacher what
had happened, who told her that he knew what had happened.

When the problem got worse he told the first defendant who said he
was not getting sick himself why was she getting sick, she was crying
and she then explained to her English teacher Mr. Mboshe, to whom
she explained the ordeal who told her to tell her auntie even if she was
difficult. She phoned the auntie at the behest of Mr. Mboshe, but when
Mr. Mboshe realized she had not told her auntie, he and Mr. Chanda
decided to inform the auntie and advised the auntie to report the matter
to the administration. Her auntie spoke to the Deputy Head Mr. Daka,
who called a senior teacher Mr. Zyambo and she explained what had
happened. Mr. Mulongo the Headmaster said they could not blame her
as she was a minor. The Headmaster reminded first defendant about a
previous relationship. Her auntie decided to take first defendant to the
police where she was interviewed and given a medical report.
She wound up her evidence that her teacher could order her to write
notes he could send her to do something and he could punish her and

4
the first defendant knew how old she was, she trusted and respected him,
but could not report to the Headmaster as she was scared. Some friends
would ask her what happened and some would make her feel bad, some
stopped playing with her. She would like to ensure girls are protected and
she would not like teachers to take advantage of the pupils, they should
be safe at school.

PW 2 was the auntie of the plaintiff Petronella Mwamba. She started

looking after her when she was 13. On a Tuesday in March 2006, Rosaria
called her around lunch time and said she wanted to speak to her when
she got home, but she declined to disclose the topic on the phone. But
when she got home plaintiff could not tell her anything so she chased her
outside and 30-40 minutes later two teachers came one of whom was her
class teacher. They told her plaintiff was sick because she had been raped
by one of her school teachers. They then asked her to go and report to
the school administration as first defendant had been doing that for some
time.

The following day she and plaintiff went to school around 0600-0700
hours but the Head teacher was not there so she instead saw the Deputy
Head whom they found with a Senior teacher. When first defendant was
called, he admitted plaintiff was his girlfriend and said he knew she was 14
years old. When asked if he had sex with her, first defendant said that was
a difficult question. He asked for forgiveness. Later she went to report the
police, who gave her a medical report to go to UTH where plaintiff was
counselled and later tested for HIV. A docket was opened and the police
were looking for defendant. During the week first defendant’s mother
called her and said what her son had done was wrong. Later at a meeting
between first defendant’s mother, her son and herself the police whom she
had informed of the meeting arrested first defendant. The HIV results
were negative.

She said she wanted to ensure that such situation does not happen to her
niece and other children. It is an emotional scar which doesn’t heal. She
was of the view that there were no policies because the Head teacher said
they knew first defendant had done that before, but they did not take any
measures or warned the pupils. The Deputy Head’s reconciliation proposal
was spurned because the other victim (child) was just transferred from that

5
school. There is no protection at all for the children because if one injures
another’s child they are given a verbal warning.That was the plaintiff ’s case.

DW 1 was the first defendant. He testified that he knew plaintiff who was
her pupil at woodlands, but he did not have canal knowledge, though the
relationship was so close that she could borrow his mobile phone to call
her auntie. She could sometimes be with him the whole morning. On the
day she asked for past papers, and he promised that he could take them the
following day, but he forgot and he forgot on three occasions. He however
wanted to talk to her on something, he wanted to tell her that he was
interested in her, but he did not mention for three days though she asked
him.

She could then say sir, why don’t you just say what you want, I know what
you want. He then told her that if she knew why should he tell her and
she said it was alright – from there she started spreading rumours that she
had a relationship with him. He called her and told her that what she was
doing and risky, she denied. Towards Valentine’s Day Rosaria followed him
with a bunch of flowers and a chocolate.

He tried to avoid her as he realized the whole thing was to put him in
trouble. One afternoon he was going home when Rosaria and her friends
volunteered to escort him. They were at his home for 25-30 minutes and
plaintiff reminded him about past-papers and he gave them to her and
he asked them to go as he wanted to sleep. The following day plaintiff
went to the staff room and asked for him, but he told her he was busy.
She requested to talk to him on diverse dates but he declined and she
complained to his workmates.

She picked him up because she wanted to have a relationship and he

denied. He identified the valentine card she gave him. He denied having
reciprocated to the plaintiff ’s love overtures nor did he have sex with her.

In cross examination, he answered that when accosted he admitted that

plaintiff was his girlfriend and that she did not propose him. He said he
called plaintiff his girlfriend because there was a relationship which started
at the beginning of February and ended towards the end.
DW 2 was Christopher Mulongwe a Headteacher of Woodlands A.

6
He testified that he had been Headmaster for 8 years. The case was reported
to him about first defendant’s behaviour. He asked first defendant in the
presence of Mr. Ndhlovlu the Deputy Head and a senior teacher Mr.
Zyambo and first defendant admitted that the girl was his girlfriend. The
witness told him it was a chargeable offence and he charged him. He
could not handle the matter any further as first defendant ran away and
he heard he gone to South Africa and he wrote to the District authorities
reporting the matter.

Later he learnt the first defendant had been detained at Woodlands

Police Station. He had warned the teacher when he heard that there was
a relationship between him and a grade IX girl, unfortunately there was
no report made.

It was submitted for the plaintiff the case was novel and that the case was
special because it gives the Zambian courts a chance to move the Zambian
Government by ‘Judge made law’ to strengthen its school policy on the
protection of the girl child against sexual abuse. That with the advent of
sexual transmitted diseases such as HIV/AIDS which have no cure, the
chances of millions of girls being infected with this ‘Death Sentence’ by
unscrupulous teachers/headmasters cannot go unabated.

Mr. Bwalya went to define negligence by quoting Alderson B’s passage in

Blyth V Birmingham Waterworks, which is in these terms:
“Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulated the conduct of Human
Affairs, would do, or doing something which a prudent and reasonable man
could not do”

Clerk & Lindsell on Torts, defines vicarious liability as:

“Where the relationship of employer and employee exists, the employer is

liable for the torts of the employee so long, only as they are committed in the
course of the employee’s employment. The nature of the tort is immaterial
and the employer’s is liable even where liability depends upon a specific state
of mind and his own state of mind is innocent”

7
The duty of a teacher/headmaster towards their pupils left in their care by
the unsuspecting parents/guardians, the learned authors Charlesworth &
Perley, on negligence have stated thus:

“The duty of a school teacher has been said to be to take care of his pupils as a
reasonably careful father would take care of the children of the family”

Mr. Bwalya argued that the girl child has legislative protection by the
amendment to the penal code by enacting Act No.15 of 2005, which
imposed a 15 year hard labour sentence on those convicted of defilement.
He also cited Article 4 of The Rights of Women in Africa Protocol which
reads:

(1) “Every woman shall be entitled to respect for her life and the integrity
of her person. All forms of exploitation, cruel, inhuman or degrading
treatment or punishment shall be prohibited

(2) State parties shall take appropriate and effective measures to:

(a) Enact laws to prohibit all forms of violence against women,

including unwanted or forced sex whether the violence takes
place in private or public;
(b) Adopt such other legislative Administrative, Social and
economic measures as may be necessary to ensure the prevention,
punishment and eradication of all forms of violence against
women”.

For the first defendant it was submitted that the requirement of

corroboration in sexual offences in criminal law is equally required in
civil cases and a passage in the Laws of Evidence in Zambia, Cases and
materials, by John Hatehard and Muna Ndulo which states that:

(a) Complaints are sometimes motivated by spite, sexual frustration or

unpredictable emotional responses,
(b) An allegation concerning the commission of a sexual offence is easily
made but difficult to defend

8
The upshot of the first defendant’s defence is that there was a relationship
which the plaintiff consensually engaged in and therefore she was ‘volenti
non fit injuria’ and the valentine card she sent to the first defendant and its
wording i.e., “if loving you is a sin, am hundred percent guilty” and Eagle
Charalambous Transport Limited V Phirr was cited in support of that
defence.

It is fact that the first defendant and the plaintiff had an amorous affair,
when the plaintiff was 13 years old and a pupil of the first defendant,
who was 25 years. It is a fact that as a result of the sexual act, the plaintiff
contracted a sexually transmitted disease for which she was hospitalized
and she was also tested for HIV/AIDS. This was not the first time the
first defendant was flirting with a school girl. He flirted with one and the
Headteacher warned him and they had the girl (the victim) transferred and
left the villain to continue teaching.

The legal issues are:

• Is the first defendant’s argument that the plaintiff ’s consent to a sexual

act, sustainable?
• Could it be said the second defendant’s servants, the first defendant and
DW 2 the Headmaster acted negligently?

I am startled by the submission on behalf of the first defendant that a 13

year old pupil can be said to have consented to a sexual relationship with
her teacher. To accept such a submission is doing violence to the legislative’s
intent in enacting Act No.15 of 2005, which repealed the defence in section
138(2), which section creates the offence of defilement of a girl under the
age of 16. Belief that a girl may have been above sixteen is no more a defence.

A teacher has moral superiority over his pupils and in any event he cannot
be heard to say the student consented without independence advice, even in
a contractual relationship. In any event a girl saying she loved him did not
consent to sex, when she is below 16, her statement may be futuristic. He
manipulated the girl by deliberately forgetting the examination papers she
asked from him in order to create an opportunity to sexually abuse her at
his home. She went to his home to collect school papers from her teacher.

9
When children are deposited at school the teachers become their parents,
and the late Judge Hughes’ statement, that the standard of care owed
by the headmaster of a school towards the pupils is that of a careful
father towards his own children is apt here. The Headmaster knew the
first defendant was a sexual pervert, in the first case he had the victim
transferred and he left the villain. Could he would have done the same if
the pervert was in his household and it became apparent he was sexually
abusing his daughters, would he have left such a matter unreported and still
retain the pervert in his household? His conduct therefore fell below, the
standard set by Hughes as he then was in Inonge’s case supra.

The question is can the second, third and fourth defendants be vicariously
liable for the tort committed by the first defendant? The first defendant
was a servant of Government as a teacher at the second defendant’s school
in the third defendant ministry and the fourth defendant appearing in
his representative capacity as Chief Legal Advisor to Government Lord
Thankerton in Short V J & W Henderson Litmited said there are four
indicia of a contract of service

(i) The employer’s power of selection of his servant;

(ii) The payment of wages or other remuneration;
(iii) The employer’s right to control the method of doing work, and
(iv) The employer’s right of suspension or dismissal

A teacher employed by the Ministry is selected by the Ministry, paid by
the Ministry, regulated by the Ministry in the performance of his duties,
can be supended or dismissed by the Teaching Service Commission.

Could it be said then that the first defendant was acting in the course of
his employment? Mrs. Wengelani has cited Jacob’s case supra. However,
this can be distinguished as the offender in that case did not have the
guardianship of the children surrendered to him nor did he have moral
superiority. This is a pupil, who asked for past examinations papers from the
first defendant as her teacher and the teacher forgot them on diverse dates,
and asked her to collect them from home where he sexually assaulted her.
Had he taken the past examination papers to school and given her there
would have been no opportunity to sexually assault her at his home. The only
inference his conduct can be accounted for is that he created an opportunity
by deliberately forgetting examination papers for the ‘sexual assault’.
10
There could be no consent by a child under 16. To characterize a valentine
card with words ‘if loving you is a sin, then I have committed one’, as
consenting to sexual assault, is legally, morally and psychologically flawed.
Such a perception undermines section 138 of the penal code, is contrary to
the ethics of a teacher not to sleep with school girls, and is psychologically
wrong as a child under 16 is not cognitively developed to consent to sex.
This was a situation where the first defendant had sex with the plaintiff
against her will. To accept the defence of volenti-non-fit injuria is to
agree that a person having an incestuous relationship, will say after all my
daughter sent me a love card, so she consented to be sexually abused and
such a submission is preposterous.

From what I have said I find that the first defendant defiled the plaintiff
which resulted in her contracting a venereal disease. The plaintiff ’s evidence
was so cogent and corroborated even by the first defendant himself, that
is why he put up the defence of ‘volenti non fit injuria’. The case has been
proved beyond the balance of probability.

I must say it was dereliction of duty by the police to fail to prosecute the
first defendant with the evidence before them; it was common cause that
the first defendant was flirting with the plaintiff. It is this dereliction
which forced the plaintiff to travel the civil litigation path on her journey
to justice.

In terms of assessment of damages the case is novel, however, society’s

indignation has to be reflected. An abusive girl either gets in an abusive
relationship or may not trust a partner, the effects are long term. The
healing process is long and lonely and the emotional scars never heal.
There is ‘enduring psychological brutalisation. I therefore have to do an
intelligent guess. I have to take inflationary trends into account:
Pain and suffering K 6,000,000
Mental torture (permanent) K30,000,000
Aggravated damages K 6,000,000
Medical expenses K 3,000,000
K45,000,000

The amount will attract Bank of Zambia long term deposit rate from the
issuance of the writ until Judgement and from the date of Judgement until

11
payment short term deposit rate. The matter is referred to the Learned
Director of Public Prosecutions for possible prosecutions. The Ministry
of Education is implored to make regulations which may stem such acts
in the future for example male and female pupils must not be allowed to
visit teachers’ houses nor should teachers send or ask pupils to visit their
homes.

The costs will follow the event to be taxed in default of agreement. Leave
to appeal to the Supreme Court granted.

12
Nguza Vikings @ Babu Seya And Others versus Republic

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: KIMARO, J.A., MBAROUK, J.A., And MASSATI, J. A.)

CRIMINAL APPEAL NO. 56 OF 2005
NGUZA VIKINGS @ BABU SEYA
JOHNSON NGUZA @ PAPII KOCHA
NGUZA MBANGU
FRANCIS NGUZA............................APPELLANTS

VERSUS

THE REPUBLIC.......................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania
at Dar es Salaam)
(Mihayo, J)

Dated the 27th day of January, 2005

In

Criminal Appeal No. 84 of 2004

..............

JUDGMENT OF THE COURT

3rd December, 2009 & 11th February 2010

KIMARO, J. A.:

This is a second appeal. All the appellants, the first being a father, and the
second to fourth his children, were jointly charged in the Court of Resident
Magistrate at Kisutu with ten counts of rape contrary to section130 (2) (e)
and 131 (A) (1) of the Penal Code as amended by sections 5and 6 of the
Sexual Offences (Special Provisions) Act, NO.4 of 1998. They were also
jointly charged with eleven counts of unnatural offence contrary to section
13
154 (1) of the Penal Code as repealed and replaced by section 16 of the
law. The victims of the offence were ten children, who, in 2003,the same
when the offences are alleged to have been committed were aged between
six and ten years old. They were all pupils of standard one at Mashujaa
Primary School, located at Sinza area in Kinondoni District. The trial
court entered an omnibus conviction for all appellants in t respect of all
counts. A sentence of life imprisonment was imposed on each appellant.
Each appellant was also ordered to pay a compensation of shillings two
million to each of the complainants. On appeal to the High Court against
the judgment and the sentence, the learned judge on first appeal said:

“The appellants were charged under section 131 (1) (3) of the Penal Code as
amended by SOSPA.I think the evidence as adduced fits the definition of gang
rape contrary to section 131A, under which the appellants were charged. I
substitute the section under which the appellants should have been sentenced
accordingly.”

Still aggrieved by the decision of the High Court, the appellants filed a
memorandum of appeal containing 19 grounds, but before the hearing,
they abandoned grounds 1, 2, 3, 5, 6, 7, 8, 11, 14, and 15 thus remaining
with nine grounds which are:

“4. The learned High Court Judge erred in vindicating the procedure by the
trial court to disallow and expunge from the record evidence of the police
officers summoned by an order of the trial court which contradicted evidence
of prosecution witnesses and to revisit and vacate decisions already made in
purported exercise of powers of revision which the trial court did not possess.

9. The learned High Court Judge erred in not finding that the non conducting
of ’’’ voire dire as by law required did not vitiate the proceedings.

10. The learned High Court Judge erred in not applying to the appellants the
same standard of identification that was applied to the 5th accused in view of
the fact that the
5th accused was well known to the victim witnesses.

12. The learned Judge of the High Court erred in finding that the accused persons
and house No. 607 Sinza Palestine were properly identified as the persons

14
who committed the crimes and the place in which the crimes were committed
respectively.

13. The learned High Court Judge was in error in finding that the record of the
proceedings in the trial court did contain a true and substantial reproduction of
the witnesses’ answers given during cross examination.

16. The learned Appellate Judge erred in law and in fact in confirming the trial
Court’s holding that the case for the prosecution in respect of each count had been
proved beyond reasonable doubt.

17. The learned appellate Judge had erred in law and in fact in rejecting the
defence case that all times material to the prosecution case there were people
other than the accused, at House No. 607 such that it was impossible for the
accused to have committed the alleged offences without being seen by those other
people.

18. The learned appellate Judge erred in law and in fact in upholding the trial
Court’s rejection of the defence of the 2nd, 3rd, 4th accused persons that they could
not have been at house No. 607 at the times material to the prosecution case
without making any findings on credibility of several defence witnesses.

19. The learned appellate Judge erred in law in upholding the trial Court’s
failure and/or refusal to draw an adverse inference against the prosecution for
their refusal to call material witnesses.”

Before us Mr. Mabere Marando, learned counsel, appeared for the

appellants, assisted by Mr.Hamidu Mbwezeleni, learned counsel. The
Republic Respondent was represented by Mr. Yustus Mulokozi, Principal
State Attorney, assisted by Mr. Yohane Masara, Senior State Attorney.
Before going on the grounds of appeal, a good starting point is to give a
brief summary of the facts that prompted the filing of the charges against
the appellants.

The evidence that was led in the trial court showed that in 2003 Aza Hussein
(PW12), Rehema (PW9), Juliet Mbariki (PW8), Dei Jaffari (PW13), Gift
Kipwapwa (PW2), Yasinta Mbele (PWll) and Amina Shomari (PW5) were
all standard one pupils at Mashujaa Primary school. One Candy David

15
Mwaivaji (PW1) was a guardian of PW2 and was living with her. PW2 is
a daughter of her sister in law and was seven years old then. PWl was also
living with a house girl called Sellina John. On 8th October, 2003 at night,
Candy noted that a foul smell was coming from PW2. She directed her to
take bath but that did not remove the smell. On the next day, in the absence
of PW2 who had already gone to school, PWl asked Sellina why a foul
smell was coming from PW2. Sellina informed Candy that she saw PW2
with shillings 200/- and upon inquiry on how she got the money, PW2 said
she got the money from one Babu Sea @ Nguza, the musician. This made
PWl suspicious. When PW2 returned home from school, PWl asked her
why Babu Sea gave her money. According to PW1, PW2 was honest. She
revealed to her how she met Babu Sea, the first appellant, who, by luring her
with a soda and chewing gum; he took her to his room. He told her to close
her eyes, tied her with a piece of black cloth over her eyes, undressed her,
and after applying an ointment on her private parts, he had sex with her. He
also told her to suck his penis, which PW2 did. The 1st appellant threatened
to take PW2 to the police or chop her ears if she revealed the sexual abuse
to anyone. PW 2 also informed PWl that she was not the only victim of
the sexual acts by the appellants. She mentioned the rest of the victims to
PW1. When PWl examined PW2’s private parts, she found them with
fresh blood and pus oozing from there. PW2 was taken to hospital and she
was diagnosed to be suffering from gonorrhea and was treated.

Apart from reporting the incident to the police, PWl with the assistance
of Gift, traced the residences of the rest of the victims of the offences
as mentioned by PW2. She informed their parents or guardians about
the sex ordeal with the appellants. From the testimonies of the parents,
guardians or relatives of the complainants, all the complainants admitted
involvement in sexual acts with the appellants. These are Aisha Mrutu
(PW4), mother of Alicia Longino (PW3); Hadija Omari (PW6), mother
of Rehema Mgweno (PW5) and Congesta Audax (PW7), mother of Juliet
Mbariki (PW8). Others are Mary Victory Chitumbi (PWIO), mother
of Isabella (PW9); Brigetha Kamenya (PW16), grandmother of Dei
Jaffari (PW13); Hassan Gamaka (PW17), father of Aza Hassan (PW12);
John Mbele (PW18) father of Yasinta Mbele (PWll);Lilian Mbawala
(PW19),guardian of Agneta Sia (PW14) and Amina Zuberi a relative of
Amina Shomari (PW15). According to the witnesses all the complainants
explained that the acts took place at house No.607 at Sinza which they

16
said was the residence of the 1st appellant. What used to take place was
that, the complainants were taken to the residence of the 1st appellant
where they were told to undress. The appellants oiled their private parts
and then had sex with them, both in the vagina and the anus. Some were
placed on a mattress on the bed and others on a mattress on the floor.
They were also told to suck the first appellant’s penis and anus. The acts
took place repeatedly between April and October 2003. All the victims
were examined by Dr. Petronila Ngiloi, (PW20), a Specialist Paediatric.
Her expert opinion was that Alicia (PW3), Gift Kipwapwa (PW2) and
Amina Shomari (PW5) were sodomized, while Aza Hassan (PW12),
Juliet Mbareki

(PW8), Isabela Angomile (PW9) and Dei Jaffari (PW13) were raped.
Agneta Sia (PW14) and Yasinta Mbele (PWll) were raped and sodomized.
Out of the ten children who were subjected to the sexual abuse, it was
only Rehema Mgweno who, according to the medical report, was found
to have survived from the sexual abuse. However, the evidence of Hadija
Omari (PW6) the mother of PW5 was that her visual examination of
PW5’s private parts showed that her vagina was enlarged. On this
evidence the appellants were arrested and charged as already indicated.
In their defence, all appellants denied the commission of the offence and
relied on the defence of alibi. Each appellant informed the trial court
that given the nature of the activities they did for a living, all save the last
appellant, being musicians and involved in practices daily, and at other
times conducting performances outside Dar es Salaam, they could not
have been at the “locus in quo” for the commission of the offences they
were charged with. Moreover, the first appellant told the court that he was
impotent. He said although he requested the prosecution to assist him in
having his potency examined, he received a negative response. The fourth
appellant was a student at Mbezi Secondary School and he said he used
to attend classes.

The prosecution case rested mainly on the credibility of the witnesses and
the identification of the appellants. The trial court believed the prosecution
evidence and disbelieved the appellants’ defence and they were all
convicted, and each of the appellants was sentenced to life, imprisonment.
As already stated the appellants lost their appeal in the High Court that
is why they are before us now with this second appeal.

17
In arguing the appeal, Mr. Marando, learned counsel for the appellant
started with ground nine of the appeal which faults the 1st appellate
court for not holding that the proceedings of the trial court were vitiated
for non compliance with the procedure for conducting “voire dire”
examination on the child witnesses. He said although the learned Judge
on first appeal faulted the procedure that was used by the trial court
for being improper, yet he held that the proceedings were not vitiated.
Citing the case of Sunday Juma Vs R Criminal Appeal No. 407 of
2007 (unreported) the learned counsel said the purpose for conducting
“voire dire” and the procedure was fully explained in the case. One, is to
ascertain whether the child witness possesses sufficient intelligence and
understands the duty to speak the truth. Two, is to ascertain whether the
child witness understands the nature of oath. Further submission by the
learned counsel for the appellants was to the effect that the learned judge
erred in law when he relied on section 127(2) of the Tanzania Evidence
Act which was amended by the Sexual Offences (Special Provisions) Act
to allow a conviction to be based on uncorroborated evidence of a child
witness. The learned counsel for the appellants relied on the case of James
Bandoma Vs R CAT Criminal Appeal No.93 of 1999 (unreported)
claiming that corroboration in this case was required. Citing the case
of Deemay Daati, Hawa Durbai and Nada Daati Vs R CAT Criminal
Appeal No.80 of 1994 (unreported) the Mr. Marando said that the “ratio
decidendi” in the case is that the evidence of a child of tender years taken
without conducting “voire dire” examination brings the evidence to the
level of unsworn evidence and corroboration will be required, which in
this case, was lacking. The Court was referred to the cases of Mutunga
Vs R (2005) EA 325, and Gabrieli Mahala Vs R (1960) EA 169 which
reiterated the same position. Mr. Marando also argued that the learned
Judge on first appeal misdirected himself in thinking that the provisions
of section 127(7) could be applied independently of section 127(2) of
the Law of Evidence Act. Section 127(7), contended the learned counsel
for the appellants, does not replace section 127(2). His opinion was that
section 127(7) is only applicable where there has first been compliance
with section 127(2). He said although section 127(2) is concerned with
independent evidence of a child, it is not designed to abandon compliance
with section 127(2). Speaking comparatively between India and Tanzania
by relying on Sarkar on Evidence, the learned counsel for the appellants
said there is a difference between the two countries. Whereas in India it

18
is a preliminary inquiry which is conducted hence making “voire dire”
examination a matter of practice, in Tanzania it is a statutory requirement.

He referred us to the case of Sunday Juma Vs R (supra), the latest one

decided by the Court, and urged us to discount the evidence of the child
witnesses taken without conducting “voire dire” examination properly.

Responding to this ground of appeal, Mr. Mulokozi learned Principal

State Attorney for the respondent conceded that “voire dire “examination
must be conducted properly to ascertain the capacity and competence of
the child witness and that the questions asked and the answers must be on
record. He said although in this case the questions and answers were not
put on record, a finding was made by the trial magistrate that apart from’
PW3, the rest of the child witnesses did not know the meaning of oath.
He also agreed that failure to conduct “voire dire “examination properly
reduced the evidence of the child witness to the level of unsworn evidence.
He relied on the cases of Herman Henjewele Vs R Criminal Appeal
No. Criminal Appeal No. 164 of 2005 (unreported). He said the effect of
such failure does not justify discounting of the evidence. Rather, it lowers
the value of the evidence and under such circumstances corroboration is
required. He was of the opinion that the case of Sunday Juma (supra)’
was decided “per in curiam,” and he urged us not to follow it. He said it
would appear that the case of Henjewele (supra) was not brought to the
attention of the Court.

On the use of section 127(7) of the Law of Evidence Act, the learned
Principal State Attorney said it was used to assess the credibility of the
witnesses and the reasons were recorded. He said in terms of the decision
of the case of Henjewele (supra), the evidence of the child witnesses was
treated as that of independent witnesses. Mr. Massalla, learned Senior
State Attorney, added that despite the irregularity in conducting “voire
dire” examination the decision of the trial court should be upheld.

On this ground of appeal there is no doubt that there was no compliance

with the procedure for conducting “voire dire” examination. It was
unfortunate that the error was committed by a magistrate of such a high
experience. The trial magistrate did not record the questions that were put
to the witnesses and their answers. Instead, she only recorded what she

19
found out of the child witnesses; that they knew the difference between the
truth and lies but they did not know the meaning of oath. Out of the ten
children, it was only one who knew the meaning of oath. Surely that was
improper. In the cases of Gabriel Maholi (supra), Sunday Juma (supra)
and Henjewele (supra) it was categorically stated by the Court that before
receiving evidence of a witness of tender age, the trial court must ascertain
that the child is possessed of sufficient intelligence to justify the reception
of the evidence and whether the witness understands the duty of speaking
the truth. This must be done by recording the, question and answer session
conducted on the child witness. It is only then the trial court should
proceed to determine whether the evidence should be received on oath or
without oath. For the failure to comply with the procedure for conducting
“voire dire” examination properly, the issue before us is what would be
the effect of the omission? Fortunately this is an issue which need not
detain us. As correctly pointed out by both the learned counsel for the
appellants and the learned Principal State Attorney, the position of the
law is settled. The omission brings such evidence to a level of unsworn
evidence of a child which requires corroboration. See the cases of Kisiri
Mwita s R (1981)TLR 218, Dhahiri Ally V R (1989) TLR 27, Deema
Daati and two others V R CAT Criminal appeal No.80 of 1994 and
Henjewela (supra). In this respect the learned Judge on first appeal was
right to say that non compliance with the procedure for conducting “voire
dire” does not vitiate’ the proceedings. In the case of Sunday Juma (supra)
the Court after making a finding that the evidence of a child witness was
taken without compliance with the procedure for conducting “voire dire”
examination said: .
“the test is meant to lay the basis of the Competence and credibility of the
Evidence of the child so as to comply with Section 127(1)! of the Evidence
Act. Failing in this test, therefore, is fatal. The evidence of the child MOZA
OMARI is hereby discounted.” (Emphasis added)

Mr. Marando requested the Court to follow the case of Sunday Juma
to allow this ground of appeal. On our part we agree with the learned
Principal State Attorney for the respondent that the case was decided
“per in curiam.” The Court did not give the reasons for departing from
the principle laid down in the previous cases and we have no reasons for
departing from the already established principle. This ground of appeal
therefore fails.

20
On whether there was corroboration to support the evidence of the
child witnesses, it is a matter to be decided later in the course of this
judgment. But at this juncture, we entirely agree with Mr. Marando that
the provisions of section 127(7) do not override the provisions of section
127(2). All that the section does is to allow the court, in sexual offences,
to assess the credibility of a child witness who is the only independent
witness or a victim of crime, and convict without corroboration, if the
court is satisfied that the child witness told nothing but the truth. The
section reads:

“Notwithstanding the preceding provisions of this section where in criminal

proceedings involving sexual offence the only independent evidence is that of a
child of tender years or of a victim of the sexual offence, the court shall receive
the evidence and may after assessing the credibility of the evidence of the child
of tender years or, as the case may be of the victim of the sexual offence on its
own merits, notwithstanding that such evidence is not corroborated, proceed to
convict, if for reasons to be recorded in the proceedings the court is satisfied
that the child of tender years or the victim of the sexual offence is telling
nothing but the truth. “ (Emphasis added).

From the wording of the section, before the court relies on the evidence
of the independent child witness to enter a conviction, it must be satisfied
that the child witness told nothing but the truth. This means that, there
must first be compliance with section 127(2) before involving section
127(7) of the Evidence Act; Voire dire” examination must be conducted
to ascertain whether the child possesses sufficient intelligence and
understands the duty to speak the truth. If the child witness understands
the duty to speak the truth, it is only then its evidence can be relied on for
conviction without any corroboration otherwise the position of the law
remains the same, that is to say that unsworn evidence of a child witness
requires corroboration. OSDORN’ S CONCISE LAW DICTIONARY
7th Ed. P.95 defines.

“corroboration as independent evidence which implicates a person accused of

a crime by connecting him with it; evidence which confirms in some material
particular not only that the crime has been committed but also that the accused
committed it.”

21
For grounds 16, 17 and 19 the learned counsel for the appellants argued
them together. The grounds are concerned with failure by the learned
Judge to make a finding to the effect that the trial court ought to have
made a finding in respect of each count, erred in rejecting, the defence of
alibi raised by the appellants and failure to draw adverse inference against
the prosecution for refusal to call material witnesses. The learned counsel
for the appellants argued vigorously that the learned Judge on first appeal
erred for not holding that the trial court ought to have made a finding
in respect of each count on whether it was proved or not. The learned
Principal State Attorney did not make any response on this ground.
With great respect to the learned counsel for the appellant, our view on
this ground is that, it was not raised as a specific ground of appeal in the
High Court, The first appellate Judge cannot be faulted for not making
a decision on a matter which was not specifically brought before him.
The petition of appeal filed in the High Court at pages 579 to 601 of the
record of appeal has 25 grounds of appeal but none of them challenged
the trial magistrate for failure to say whether or not each count was proved
and that a conviction ought to have been entered in respect of each count.
However, we agree with the learned counsel for the appellant that it was
wrong for the trial court to enter an omnibus conviction in respect of all
the counts. The trial court ought to have scrutinized each count and the
evidence adduced in support of each count as well as the defence of each
appellant, and then make a finding on whether or not each count was or
was not proved. The omission however was not fatal. It was a misdirection
which is curable under section 388 of the Criminal Procedure Act, CAP
20 R.E.2002. We will come to this aspect later when discussing ground 18.
On grounds No. 17 and 19 the learned counsel for the appellants attacked
the learned Judge on first appeal for failure to make a finding that the trial
magistrate was biased and did not accord the defence of the appellants the
weight it deserved. The trial magistrate was particularly attacked for the
style adopted in writing the judgment. The judgment, Mr. Marando said,
makes undeserving remarks on the defence witnesses, hence suggesting
that the trial magistrate was biased and had formed her own opinion
about the case. Instead of making her decision by analyzing the evidence
on record, she decided the case basing it on her own opinion. The learned
counsel for the appellants submitted extensively about the defence of alibi
relied upon by the appellants to say that there was no possibility for them
to have committed the offences at house NO.607. For the first appellant,

22
the learned counsel said he was not living in the house and at all material
times the house was occupied by people; namely his mother one Elombee
and a house girl. The first to third appellants were also musicians.

In 2003 the first appellant was in Achigo Band. On Mondays to Fridays

when they were not in bands, they did rehearsals at house NO.607. The
second and third appellants were in FM Academia and they did their
rehearsals at a place called Chetemba and they did several performances
outside Dar es Salaam including Arusha, Mwanza, Dodoma and Moshi.
The fourth appellant was a secondary school student at Mbezi Secondary
School and he would be attending classes. Remarking on the notes made
by the trial magistrate on the judgment giving her opinion on the evidence
of the defence, the learned counsel for the appellants lamented that the
trial magistrate seemed to have ignored the defence of the appellants
and the several witnesses they summoned to support their case, and had
already formed her own opinion about the case. He said for instance at
page 542 of the record of appeal it is recorded that:
“The second accused person testified having recorded an album with Judith
Wambura in August or September 2003 at unknown dates”.
Then the trial magistrate made the following remarks:

“Court: So what? Relevance to the charges?” Mr. Marando said similar

undeserving remarks are repeated in the judgment in respect of the
defence witnesses but nothing was said in respect of the prosecution
witnesses. The duty of the trial court, said Mr. Marando, was to evaluate
the defence evidence and then say why the witnesses were discredited.
The learned counsel for the appellants also submitted at length about the
prosecution witnesses, claiming that, the trial court made an improper
and discriminative evaluation of the evidence. As he traversed through the
prosecution evidence, the learned counsel said the evidence adduced by
the child witnesses did not prove that the offences were committed by the
appellants and the child witnesses appear to have been couched on what
to tell the court. Remarking on the evidence that was led by Aza Hassan
(PW5), the learned counsel said PW5 testified that the fifth accused who
was jointly charged with the appellants but was acquitted, said that the
fifth accused was her English teacher, a matter which was denied by the
fifth accused. The evidence of PW5, added Mr. Marando, does not show
how the appellants were connected with the commission of the offences

23
and no specific dates for the commission of the offences are indicated,
hence counts 1 and 2 were not proved, much as the medical report by Dr.
Petronila Ngiloi,(PW20) said that Asha was sexually abused.

He further said that the two counts did not specify who the victims of
the offences were, and it was wrong for the trial court to assume that
the victim of the offence was Aza Hassan. Mr. Marando said the trial
Principal Resident Magistrate did not accord the defence evidence the
same treatment.

The learned counsel for the appellants also said that, there was an
omission by the prosecution to summon material witnesses who could
have corroborated the evidence of the child witnesses that they were seen
going to house No.607. Such witnesses included one Mangi, an owner of
a container operated as a shop in front of House No. 607, neighbors, one
Zizel mentioned by PW2 to have introduced her to the 1st appellant and
one Cheupe, a student at Mashujaa Primary School who was said to have
abducted the victims of the crime and taken them to house NO.607 on
the instructions of the appellants.

On his part the learned Principal State Attorney was very brief. He said
there was no discrimination in the assessment of the evidence that was led
during the trial. Regarding the remarks made by the trial magistrate on the
judgment, the learned State Attorney said she took what she considered
important for purposes of assessing the demeanor of the witnesses. His
opinion was that even if there are irregularities in composing the judgment,
they are curable under section 388 of the Criminal Procedure Act.

The two grounds of appeal need not detain us. The learned Judge on first
appeal correctly observed that the trial Principal Resident Magistrate
dwelt too much on the contradiction in the defence case, but a conviction
in criminal cases is never based on the contradiction in the defence case,
but rather on the evidence adduced by the prosecution witnesses. In
other words the burden of proof in criminal cases lies on the prosecution
evidence and not on the defence and the standard is beyond reasonable
doubt. Discrepancies and contradictions in defence evidence· may only
assist the court in assessing the whole evidence to ascertain whether the
prosecution discharged the burden of proof but weaknesses in the defence

24
case cannot be the basis for the conviction of the accused. There is a line
of authorities on this point. See for instance the case of Samwel Silanga
vR (1993) T.L.R 149. As for the judgment, section 312 of the Criminal
Procedure Act, CAP 20 R.E.2002 gives guidance on the contents of
a judgment. In terms of the said provision, the writing of a judgment
is a style, and it is a personal experience. What is important is that the
judgment must contain points for determination, the decision of the
court and the reasons for the decision. Once that is complied with, any
additions to the judgment is a cosmetic although at times, may be adverse
to the parties. For this reason we emphasize the importance of avoiding
making remarks in the judgment which do not reflect impartiality. In this
case, we agree with the learned counsel for the appellants that the remarks
made by the trial magistrate were unwarranted under the circumstances,
more so because they were one sided. But as the learned Principal State
Attorney said, the defect is curable under section 388 of the Criminal
Procedure Act.

Regarding the failure by the prosecution to summon important witnesses

to corroborate the evidence of the child witnesses, we must say that
this ground lacks merit because the question of which witness should
be summoned to prove the prosecution case rests on the prosecution.
Moreover, it is not the number of witnesses which matters but rather
it is the credibility of the testimony which is important and that is why
section 143 of the Evidence Act CAP 6 R.E. 2002 disregards the number
of witnesses required to prove a certain issue. We said earlier on that in
the course of analyzing the evidence to see if each of the counts was or
was not proved, we will discuss whether there was corroborative evidence
to support the conviction of the appellants.

As for ground 18, the learned Judge on first appeal was faulted for not
holding that the defence of the 2nd, 3rd, and 4th appellants was not properly
assessed and their defence was rejected without giving any reasons. In
support of this ground, Mr. Marando said the defence evidence was
not evaluated and the reasons for the rejection of the evidence were not
given. He said even if the defence of alibi was not particularized or that
the appellants told lies, still, the prosecution had the duty of proving
the charges beyond reasonable doubt. Relying on the case of Philemon
Yahana Sanga Vs R CAT Criminal Appeal No.90 of 2000 (unreported)

25
and Sarkar on Criminal Procedure on the contents of the judgment, the
learned counsel for the appellants said that the judgment should always
be based on the evidence adduced and not on the personal opinion of the
magistrate.

He requested the Court to evaluate the defence evidence and treat it fairly.
On ground 13, the learned counsel for the appellant said the 1st appellant
brought witnesses from Achigo Band and they gave a timetable for their
rehearsals that they were conducted from Mondays to Thursdays but
that evidence was ignored. He prayed to the Court to give the defence
evidence the weight that was required. On the evidence of PW20, the
learned counsel for the appellants said her expert opinion was that, PW5
was a virgin and such evidence should have given the appellants the
benefit of doubt. He said although they do not have anything adverse
to explain why the charges were preferred against the appellants; it was
worthy considering whether there was no foul play in charging the
appellants and whether the offences were proved. He said in accordance
with the evidence of PW2 when she was examined at Mwananyamala
Hospital, she was found to have contacted a venereal disease but the
PF3 form was not tendered in court as evidence to prove this fact and
even PW20 who examined her on 22/10/2003 said she had no venereal
diseases. The learned counsel added that the doctor’s evidence was only
important to prove whether or not there was rape or sodomy but not
the person who committed the offences. He was of the opinion that if
the appellants committed the offences they deserve being condemned;
otherwise they should all be set free. On his part, Mr. Mbwezeleni learned
counsel agreed with his colleague and added that the side comments on
the judgment gave a wrong impression and should not have been made
at all. He was of the opinion that the case was framed up. Responding to
the submissions by the learned counsel for the appellants, Mr. Mulokozi,
learned Principal State Attorney said the incidents took place repeatedly
and both courts were satisfied with the assessment of the evidence and
that if the trial court was satisfied with one side, there was no need for
trusting the other side. He said the defence of alibi was properly rejected,
because particulars were not supplied as required by the provisions of the
law. On the suggestion by Mr. Marando that the evidence was cooked up,
the learned Principal State Attorney said that lacks support and should
not be considered. Regarding the evidence of Farida, who was said to be

26
the girlfriend of the 1st appellant, Mr. Mulokozi said she should not be
trusted. He said PW1, PW4, PW6, PW7, PW10, PW16, PW17, PW18,
PW19 and the investigator were independent witnesses relied upon by
the trial court to convict the appellants. He added that the evidence of
the doctor was to the effect that the children were sexually abused and
the trial court was justified to disregard the defence of alibi and convict
the appellants. His opinion was that the case was an exceptional one, and
the court looked at all the circumstances before arriving at its decision
and in so doing, there was no shifting of the burden of proof. He prayed
that the appeal be dismissed. In a brief reply, the learned counsel for the
appellants said it was wrong for the trial court to reject the defence of alibi
even if no particulars were supplied to the prosecution. He noted that the
particulars of the fourth appellant were given in the charge sheet and they
should have been used by the prosecution to ascertain the true position.
He repeated his earlier submission that house no.607 was a centre for
business activities and it was impossible for the complainants to go into
the house and be raped without being noticed. On the remarks by the
learned Principal State Attorney that after the trial court had believed
the prosecution evidence they had no reason to look at the other side, the
learned counsel for the, appellants said that was not the position of the
law. The duty of the trial court was to assess the evidence for both sides
and then make a decision and give reasons for believing one side and
disbelieving the other.

According to Mr. Marando the prosecution was requested to assist in

taking the first appellant to hospital for examination of his potency in
order to ascertain whether he was functioning but the request was turned
down.

As for the evidence of the doctor, the learned counsel for the appellants
said it was important to prove the “actus reus” but not the person who
committed the offence. Mr. Mbwezeleni added that the appellants showed
various discrepancies in the prosecution case hence giving the appellants
the benefit of doubt and so the appeal should be allowed and appellants
be set free.

Earlier on, we said that it was mandatory for the trial court to have made
a finding in respect of each count and not to enter an omnibus conviction.

27
It is now an opportune time for us to deal with the matter and in so doing;
we believe that the rest of the grounds of appeal will be answered. As
already indicated in this judgment, the learned Judge on first appeal made
a finding that the evidence that was adduced proved the commission of
the offence of gang rape contrary to section 131A of the Penal Code as
amended by SOSPA. The leaned Judge on first appeal however, did not say
anything about the unnatural offences. As Mr. Marando, learned counsel
for the appellants was asked to address us on the matter, he categorically
stated that the law does not provide for the offence of gang sodomy, and
so if the prosecution wanted to charge the appellants with the unnatural
offences, they should have brought separate charges of unnatural offence
in respect of each of the appellant and not to charge them jointly. We
agree with Mr. Marando that the law does not provide for the offence of
gang sodomy and the appellants should have been charged separately for
each of the unnatural offences alleged to have been committed by each
of the appellant. But as already stated the learned judge on first appeal
said the evidence proved gang rape. Our considered opinion is that it
was wrong to charge the appellants jointly with the offence of unnatural
offences because the law does not provide for gang sodomy. Each appellate
should have been charged separately for the unnatural offences. We allow
the appeal by all the appellants on the unnatural offences, set aside the
convictions and order their acquittal.

Coming to the offences of rape, the first count is in respect of Aza Hussein
(PW12). All the appellants are alleged to have committed the offence
against her on 11th October, 2003 at house No. 607 at Sinza B. In her
testimony PW12 said that it was all the appellants who raped her and
she was raped during school days. However, the testimony of F 4468 PC
Samwel (PW23) was to the effect that on 11th October, 2003 a Saturday,
he arrested the 1st appellant. The rest of the appellants were arrested on
12th October, 2003 by C. 9744 Dt. Corp. Jordan (PW 24). According to
the evidence of the doctor (PW20) and the PF3 form (exhibit P4), PW
12 was sexually abused. Given the discrepancy in the prosecution evidence
on the date of the commission of the offence, a Saturday which the Court
takes judicial notice under section 59( 1) (a) of the Law of Evidence Act
CAP 6 R.E.2002 that Saturdays, are non working days, while PW12 said
the offences were committed on working days, we find that the first count
was not proved. The appellants are accordingly acquitted.

28
Rehema Mgweno (PW5) is the victim of the third count, alleged to have
been committed by all the appellants between September and October,
2003. According to PW5 she was raped by the 1st appellant and he also
ordered her to suck his penis. Hadija Omari (PW6), the mother of PW5
did a visual examination of PW5’s vagina and she said it was enlarged. But
PW20, a medical specialist said as she examined PW5 she saw no signs of
sexual abuse. With such a discrepancy in the prosecution evidence, all the
appellants are given a benefit of doubt and they are all acquitted.

In the fifth count the victim is Alicia Longino (PW3). The offence is alleged
to have been committed by all the appellants at unknown day of October,
2003. Her testimony which was taken on oath was to the effect that she was
raped several times by all the appellants. However the medical examination
by PW20 revealed that there were no signs of being raped but she was
sodomized; For the reasons we have indicated, all the unnatural offences
were dismissed. The fifth count is equally dismissed and all the appellants
acquitted. The 7th count is in respect of Isabela Angonile (PW9), also
alleged to have has been raped by all the appellants at unknown time during
the month of September, 2003. PW9 testified that Yasinta Mbele told her
the name of the 1st appellant and that he dishes out money. In the company’
of Gift, Alisia, Aza, Dei, Amina and Shemsa and Yasinta Mbele PW9 went
to the residence of the first appellant at house No.507. According to the
witness, all the appellants were there. The first appellant covered her face
with a black cloth and after he oiled her private parts, he had sex with her.
After the sexual act, the first appellant washed her and then ordered her to
suck his penis which had wounds and she did it although nauseated. PW9
said she felt pains but she did not reveal the information to her mother
because the appellant threatened to kill her. On that day she was given
shillings 300/=. As she gave evidence she was able to identify the first and
second appellants by their names. The rest of the appellants she identified
them by appearances. According to the witness the appellants had sex with
her. The witness said at times she cried for help because of the pain she
suffered, but the first appellant increased the voice of the radio so that their
voices would not be heard. She recalled an incident when, because of pain,
they cried asking for help and one woman entered the room of the 1st
appellant and she found them underneath the bed hiding. The witness said
as the 1st appellant heard a knock on the door, he got dressed. When the
woman entered the room, they continued crying, and she canned them

29
and told them to refrain from that bad habit. The medical examination by
Petronila Ngiloi( PW20) a specialist pediatric revealed that PW9 had a
torn hymen, and old perennial bruises an indication that she was sexually
abused by a blunt object. The PF3 form was admitted in court as exhibit P6.
All the appellants denied the commission of the offence and raised the
defence of alibi. The first to third appellants claimed that what they did
for a living did not allow them to be at the “locus in quo” to commit
the offence. Furthermore, the first appellant said he was impotent hence
incapable of committing the alleged offence. As for the fourth appellant
he said he was a secondary school student who would be attending classes
at the time the offence was alleged to have been committed.

The issue before us is whether the evidence on record proved the

commission of the offence. As already indicated, PW9 was a child of seven
years and she testified without oath. Moreover “voire dire” examination
was not properly conducted. As the omission brings the evidence to the
level of unsworn evidence, and her evidence was taken without oath,
without ascertaining her capacity to testify, corroboration was required.

See the case of Henjewele (supra). From the evidence on record there is
no doubt at all that PW9 was raped. She testified to that effect, and there
was medical evidence by PW20, that PW9 was sexually abused. PW9
said it was the appellants who raped her. The only issue is whether there is
corroborative evidence to prove that it was the appellants who raped her.
The offence is alleged to have been committed at house No 607 Sinza.
Mr. Marando contended that there was no way in which the offence could
have been committed there without other people noticing, because the
house had other occupants, namely the mother of the 1st appellant and
a house girl. In addition, Mr. Marando said in front of the house there
was a shop and the owner would see the children as they went into the
house but he was not summoned as a witness. Even other material witness
like Zizel and Cheupe were not summoned. We have already commented
on the witnesses the prosecution have to call and we need not make a
repetition of what we have said. Suffice it to say that, on record, there
was evidence to show that the children could have gained access into the
house without being noticed. The observations made at the “locus in quo”
through the assistance of PW13, showed that there was an entrance into
the house which would be used by the children to gain access into house

30
No 607 without being noticed. Now what was the corroborative evidence
on record? That was the description of the room of the 1st appellant. PW9
said there was a mattress on the bed and another on the wall and that some
of the children were put on the bed and others on a mattress on the floor.
We said at the beginning of this judgment the victims of the offences of
rape were ten female children, all pupils of Mashujaa Primary school and
their evidence on the description of the room of the first appellant was
similar. A bed with a mattress and another mattress on the wall which
would, during the time of having sex with the children was put on the
ground. No. C 9744 Dt. Corp Jordan (PW24) who arrested the 2nd to 4th
appellants said in his evidence that:

“Those children led us to the house of Nguza near a school at Sinza a primary
school near a shop/container. The children victims showed me the room where the
alleged rape took place. The room was to the right it had a bed with a mattress/
and the mattress leaded (sic!) on the wall where clothes were hanged. The
children victims had said that the sex was done on a bed and on the mattress
on the floor. (Emphasis added)

The witness also testified of having seen a variety of male trousers and
shirts. He also saw a table. When the trial magistrate visited the scene of
crime, (reflected at page 170 of the record of appeal), Dei Jaffari (PW13)
Mashujaa Primary School showing how the victims left the school and
went to house No. 607. The trial magistrate recorded thus:

‘She led us on how their short trip to the house of the first accused looked like.
From the near toilet to the behind the container/shop to small entrance (not
gated) entering the door through a sitting room straight would lead to the other
exit (door with a grill. Before exit door we were led by her to the left and then to
the door in front on right and the last room. In the room she showed us the bed
with a mattress where the sex is alleged to take place and where the other
matress would be placed for sex too. She showed us the radio. However she
said she forgot the toilet. (However we noted a toilet with showers in the same
room which is self contained). I noted the wardrobe where clothes are hanged
almost the whole wall. A small container/shop is in front of the first accused’s
house (Telephone) However the container/shop which Dei showed us as where
they would get the sweets and soda is at a distance but was shielding the
house of the first accused ‘’Dei showed us how they would came (sic!) from the

31
school compound enter the first accused’s house without passing the front of the
container. (Emphasis added).

The provisions under which the appellants are charged strictly forbid any
sexual intercourse with a female below the age of 18 years. The objective
is to protect the children who are not yet matured to make right decisions
for their lives. The first appellant claimed that he had problems with his
potency and for that matter he could not have committed the offence.
He said that the prosecution refused to assist him in having his potency
examined by the doctor to confirm whether he was or was not capable of
committing the offence of rape. In our considered opinion the prosecution
had no obligation to do that. We say so because in terms of the provisions of
section 114 (l)of the Law of Evidence Act, CAP 6 R.E 2002 the question
of the potency of the 1st appellant was within his own knowledge and the
burden of proof was on him to prove that his penis was not functioning.

The section reads:

“Where a person is accused of any offence the burden of proving the existence
of circumstances bringing the case within any exception or exemption from, or
qualification to, the operation of the law creating the offence with which he is
charged, and the burden of proving any fact especially within the knowledge
of such person is upon him. Provided that such burden shall be deemed to be
discharged if the court is satisfied by the evidence given by the prosecution,
whether on cross examination or otherwise, that such circumstances or facts
exist. Provided further that the person accused shall be entitled to be acquitted
of the offence with which he is charged if the court is satisfied that the evidence
given by either the prosecution or the defence, creates a reasonable doubt as to the
guilt of the accused person in that respect.”

Section 114 (2) (b) of the Evidence Act is also relevant. It does not
impose on the prosecution, the burden of proving that the 1st appellant
was not impotent. The evidence from PW9 was that she had sex with
the 1st appellant. The doctor who examined PW9 confirmed that she was
sexually abused by a blunt object. Under such circumstances penetration is
not an issue. The medical report supports that there was penetration. The
question as to whether the 1st appellant’s penis was functioning or not was
one within his knowledge. Under section 114(1) of the Evidence Act the
burden was on him to prove that he was impotent. He has not done so.

32
The case does not fall within any of the proviso given in the said section.
Under the circumstances we find that the offence of rape in count 7 was
proved in respect of the 1st appellant.
As for the rest of the appellants although PW9 said the offence was
committed several times, the particulars of the offence do support her.
The particulars show that the offence committed on an unknown day of
September 2003. The testimony of PW9 was that it was the 1st appellant
who raped her on the first day she was taken to his residence by Yasinta
Mbele. Even if there were rehearsals taking place at house No. 607 there
was nothing to prevent the 1st appellant from the commission of the
offence. According to the evidence, the incident took place for few hours.
Moreover, there is no reason why all the children would have told lies
against him. He admitted that he had no grudges with any of them.

Another small important matter to be cleared was the evidence by PW9

that the 1st appellant tied her with a black cloth. The defence of the 1st
appellant was that if the witness had her face tied up, she could not have
known that it was the 1st appellant who committed the offence on her. We
are satisfied that PW9 knew that it was the 1st appellant who, raped her
because after the sexual abuse he washed her and then ordered her to suck
his penis. This piece of evidence removes any doubt on PW9 that she did
not know who raped her. We thus find that the offence was proved against
the 1st appellant and we confirm his conviction in that respect. As for the
rest of the appellants there is no evidence to link them with the commission
of the offence. The charge against them is dismissed and they are acquitted.
The complainant in the 10th count is Juliet Mbareki (PW8). The’ offence
is alleged to have been committed at unknown time between September
and October. The evidence of the witness was that the 1st and 2nd appellants
whom she identified by names as Babu Sayer/ Sea and Papii Kocha had sex
with her. She also made a dock identification of the 3rd and 4th appellants
that they also had sex with her but could not recall their names. She said
it was Yasinta Mbele and certain boys who abducted and held her by her
waist and took PW8 and her friends to house No. 607. She said the sexual
abuse was repeated three times. She also said that the sexual abuse took
place on a mattress with the 1st appellant while his children had sex with
her on a mattress on the floor. Conjesta Audax (PW7) mother of PW8 said
she made visual examination of the vagina of her daughter and she found
it enlarged and was discharging some dirty and had a foul smell. On the

33
other hand the medical examination by PW20 was that Juliet Mbariki was
sexually abused. The PF3form was admitted, in court as exhibit P4 and the
medical opinion of the doctor was that PW8 was sexually abused.

The line of the defence of the 1st appellant has already been discussed in
count seven. The rest of the appellants also relied on the times, one time
after school that is after 11 am and at other times during break time which
started at 10 am to 11 am. The position of the 1st appellant is clear and
we have fully analyzed his defence. He was in house No. 607. Given the
evidence on record there was nothing which would have prevented the
1st appellant from the commission of the offence. We have analyzed his
defence in detail as we discussed count seven. Regarding the 2nd appellant
his defence of alibi does not rule out the possibility of the commission
of the offence. We say so because as we have indicated, the offence took
about one hour only and on a few occasions. This means that even if the 2nd
appellant had performances outside Dar es Salaam, there were times he was
in Dar es Salaam. According to his defence he was outside Dar es Salaam
periodically but not always. In any event, we do not see any reason for PW8
to fabricate evidence against him. She was a small child who did not have
the capacity to know the danger which lay ahead of her for her involvement
in the sexual acts. She did not know that sexual acts could have ruined her
life completely.

We have shown above that there was corroborative evidence. In this

respect we are satisfied that the offence was proved against the 1st and the
2nd appellant and they were properly convicted with this count. As for the
rest of the appellants, the evidence against them is doubtful because the
complainant only made dock identification of them. The question we ask
is if PW8 was able to mention the names of the 1st and 2nd appellants why
not the rest of the appellants? The 3rd and 4th appellants are given benefit of
doubt on this offence and they are acquitted.

In count 12 the complainant is Dei Jaffari (PW13). The offence was

alleged to have been committed against her during unknown time between
September and October, 2003. In her testimony she said she was raped by
the 1st appellant. The doctor confirmed that she was raped. The PF3 form
was admitted in evidence as exhibit P9. This is the witness who showed the
trial magistrate how they used to go to the house of the 1st appellant from

34
the school and how they gained access to the house. As indicated in count
seven she also gave a description of the room of the 1st appellant which as we
have shown is corroborative evidence on who committed the offence. From
the analysis of the defence of the 1st appellant, in count 7 we are satisfied that
this offence was equally proved beyond doubt in respect of the 1st appellant.
The 14th count is in respect of Gift Kipapwa (PW12). We need not waste
our time on this count because the evidence of the doctor (PW20), was that
the witness was sodomized. As already stated we dismissed all the unnatural
offences because the appellants were wrongly charged with gang sodomy
as the law does not provide for such offences. Since there is no sufficient
evidence to prove the offence of rape it is dismissed and all appellants are
acquitted. Yasinta Mbele (PW11) is the complainant in count 18. The
offence is alleged to have been committed on unknown date between April
and 8th October, 2003. The testimony of this witness was that one day as
she was going to school and had decided to seek for the company of Juliet
(PW8), her classmate; she met the 1st appellant at the school compound.
The 1st appellant lived in the neighborhood. He called her and asked for her
name and she revealed it to him. PW11 also asked for the 1st appellant’s
name and he informed her that he was Nguza. On that same day as she was
walking home after class, in the company of her friends; Gift, Juliet, Alisia,
Isabel and Aza, they passed at the 1st appellant’s house. The 1st appellant
who was with his children caught her and took her with her friends to his
room. The 1st appellant tied her face with a black cloth and had sex with
her on a mattress on the floor after oiling her private parts. The others were
put on the bed. According to the witness Pappi Nguza, 2nd appellant, did
have sex with her too. In return to the sexual abuse she was given shillings
200/=. Giving a description of the room, PWll said apart from the bed and
the two mattresses, there was also a wardrobe. This witness who was a link
to the whole incident of the sexual abuse admitted that she was instructed
by the 1st appellant to take her friends to him and he informed them that
they would be given money by the 1st appellant. She said she suffered pain
because of the sexual abuse but she did not tell anyone because the 1st
appellant threatened to cut her mouth and take her to the police if she
informed anyone about the sexual abuse. She denied having kidnapped any
of her friends to take them to the 1st appellant. She said all of them went
there on their own volition. The report of the doctor who examined her
said that PWll had a torn hymen and old healed perennial, anal sphincter
lax. The medical opinion was that she was sexually abused in the vagina

35
and anus by a blunt weapon. The PF3form was tendered and admitted in
evidence as exhibit P10. The defence of the 1st appellant is as was given in
the seventh count which we discussed in detail. On the same reasons we
find that this offence was proved. Regarding the 2nd appellant his position
is as discussed in count 10. He was outside Dar es Salaam occasionally and
not always and there was nothing which could have prevented him from
the commission of the offence. Moreover, no reason has been given to show
that the witness had any reasons for fabricating evidence against him. We
are equally satisfied that the offence was proved beyond doubt in respect
of the 1st and 2nd appellants. Next is count 20. According to the particulars
of the offence in the charge sheet as per the record of appeal at page 8 the
victim of the offence in count 20 is S d/o K. The judgment of the trial court
at page 524 shows that the complainant referred to as S/K in count 20 is
Amina Shomary (PW15). But we ask whether S/K can be an acronym of
Amina Shomary. For what we understand to be protective purposes, the
names of the complainants are given by their acronyms in all the counts
and for this reason we disagree with Mr. Marando that the names of the
complainants in counts 1 and 2 was not given. For instance in count 7, the
complainant is A/L. At the time she gave evidence, it was shown that her
name is Alisia Longino. Similarly in count 12 D/J is Dei Jafari and in count
14 G/K is Gift Kapwapa. Given the sequence of acronyms in the other
counts we fail to see the link between Amina Shomary and the acronym
S/K. It is common knowledge that a charge sheet can be amended to reflect
correct particulars. See section 234 of the Criminal Procedure Act. The
record of appeal does not show that there was any time the charge sheet was
amended to give a correct acronym of Amina Shomary. The trial Principal
Resident Magistrate should not have taken for granted that S/K was the
acronym for Amina Shomary, becausenit does not follow the sequence used
for the rest of the complainants in this case. For this reason, we dismiss the
charge because of variance between the evidence and the particulars of the
charge. The last count no.22 is for Agneta Sia (PW14) whose acronym in
the charge sheet is A/W. Let us say straight away that for this count we
need not waste time dwelling on it because at the time PW14 gave evidence
she could not identify any of the appellants, notwithstanding the fact that
she mentioned Babu Sayer/Sea and Pappi Kocha as the persons who had
sex with her. She was recorded in her evidence saying:

36
“One day after school we were taken by the first accused Babu Sayer/Sea and
took us to his house. I was with Shamsa, Alicia, Tabia, and taken into the room
of Babu Sayer /Sea. He told us to suck his (first accused) penniesoiled our private
parts, and put his pennies in the private parts in front and behind. He told us to
lick his breasts. He and Pappi Kocha had sex with me. I don’t know Babu Sayer/
Sea or Pappi Kocha. I can’t show Babu Sayer or Pappi Kocha. There is no Babu
Sayer/Sea in this room.” (Emphasis added).

Since PW14 was not able to identify any of the appellants she said raped
her, it was improper for the appellants to be convicted with that offence. In
the process of evaluating the evidence that was on record in respect of each
count, we analyzed the defence evidence particularly that of the 1st and 2nd
d appellants and we are satisfied that they were involved in the commission
of the offences we have indicated. In this regard, their defence of alibi was
properly rejected. We have also shown that there was corroborative evidence
to the commission of the offences by the 1st and 2nd appellants and that was
the description of the room in house No.607 where the offences took place.
From the visit that was made by the trial Principal Resident Magistrate
when led by Dei Jafari (PW13) it became apparent that the children could
go into the house without using the main entrance hence being unnoticed
by outsiders. The increased volume of voice of the radio while the sexual
acts were taking place was another corroborative evidence to hide what
was taking place in the room. There was also’ evidence on record by the
complainants that at a certain time Farida Abdu (DW 10) the girlfriend
of the 1st appellant found the victims of the offences in the room of the
1st appellant hiding under the bed. It was their evidence that when the
1st appellant heard a knock on the door he got dressed and informed the
victims to hide underneath the bed. Because the children shouted for help
they were discovered and canned. This evidence shows that there was a
possibility of the sexual acts taking place without the other occupants of the
house knowing what was going on.

Given the analysis of the evidence made in respect of the various counts of
the offences of rape, we are satisfied that grounds 13 and 18 partly succeed
to the extent that there was no proper evaluation of the evidence in respect
of some of the counts. The appeal therefore, partly succeeds and fails as
follows, the 1st appellant is guilty of the offence of rape in counts 7 and 12
contrary to sections 130(2)(e)and 131A 1 of the Penal Code as repealed

37
and replaced by sections 5 and 7 of the SOSPA. In respect of counts 10
and 18 the 1st and 2nd appellants are guilty of the offence of gang rape
contrary to section 131A of the Penal Code. Counts 1, 3, 5, 14, 20 and 22
are all dismissed in respect of all the appellants. Counts 7 and 12 are also
dismissed in respect of the 2nd to 4th appellants and count 10 and 18 are
dismissed in respect of the 3rd and 4th appellants.

Eventually, the convictions against the 3rd and 4th appellants are quashed
and the sentence and orders of compensation are set aside. They are set free
unless withheld for any other reason. As for the 1st and 2nd appellants, the
order for compensation is sustained only in respect of the counts they have
been convicted with and it is quashed and set aside in respect of the rest of
the counts they have been acquitted. It is accordingly ordered.

38
Dr. Moses Norbert Achiula versus Republic

IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA
(CORAM: MSOFFE, J.A., MBAROUK, J.A., And MANDIA, J.A.)

CRIMINAL APPEAL NO. 63 OF 2012

MOSES NORBERT ACHIULA………………….APPELLANT

VERSUS

THE REPUBLIC……………………………………RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania
at Mbeya)
(Wambura, J.)
dated the 27th day of September, 2011
In
Criminal Appeal No. 13 of 2011

JUDGMENT OF THE COURT

3rd& 8th May, 2012

MSOFFE, J.A.:

This appeal arises from the decision of the High Court at Mbeya (Wambura,
J.) upholding the sentence of thirty years imprisonment meted on the
appellant upon his conviction of rape contrary to sections 130 (2)(e) and 131
of the Penal Code by the District Court of Mbeya at Mbeya (Mteite, RM).

In this appeal there are seven grounds of appeal which read as under:-

a) That the Learned Judge erred in law and in fact in holding that the Appellant
was given an opportunity to defend himself while it was clear from the record
that the court had not informed him of his right to make final submissions;

b) That the Learned Judge erred in law and in fact in holding that the answers
to the voire dire examination of PW2 were sufficient to convince the trial
court that the witness knew of the meaning and duty to speak the truth.

39
c) That the Learned Judge erred in law and in fact in holding that it was the
duty of the court to assist witnesses in a criminal case.

d) That the Learned Judge erred in law and in fact in holding that PW2 was
a truthful and credible witness.

e) That the Learned Judge engaged in conjecture in holding that since the
Appellant was living alone there was nothing that would have prevented
him from ravishing PW2. In consequence thereof, she shifted the burden
of proof onto the Appellant.

f ) That the Learned Judge erred in law and in fact in holding that in the
absence of medical evidence as to whether the Appellant had the same
venereal disease as that found on PW2, there was still a possibility that he
actually had sexual intercourse with her.

(g) That the Learned Judge erred in law and in fact in dismissing the
argument that there had been no proof of the age of the alleged victim,
PW2, and hence the charge of rape had not established.

At the hearing of the appeal Dr. Masumbuko R.M. Lamwai, learned

advocate, appeared on behalf of the appellant. The respondent Republic
had the services of Ms. Rosemary Shio assisted by Mr. Stambuli Ahmed
Stambuli, learned Senior State Attorney and learned State Attorney,
respectively. Both Dr. Lamwai and Ms. Shio made fairly detailed oral
submissions in support of their respective positions in the matter. They
will excuse us that we will not refer to each and every submission that was
advanced by them in the process of arguing for and against the appeal.
In fact, in determining the appeal, we propose to dispose it of generally
instead of addressing each ground separately as learned counsel did before
us.

One of the grounds of appeal is that the appellant was not given the
opportunity to defend himself. In arguing this ground Dr. Lamwai
maintained that at the trial the appellant was not informed of his right
to make final submissions. This, according to Dr. Lamwai, offended the
mandatory provisions of section 233 of the Criminal Procedure Act (CAP
20 R.E. 2002) (the Act) which reads:-

40
233. The prosecutor or his advocate and the accused or his advocate shall be
entitled to address the court in the same manner and order as in the trial under
the provisions of this Act before the High Court.

A look at the record before us will show that on 17/1/2011 the appellant
closed his case thus:-

Your honour my witnesses show negative aspects against me, so I do pray for
closing my defence case.

Thereafter, the case was adjourned for delivery of judgment on 17/1/2011.

It is true therefore, that following the closure of the defence case no
submissions were made in line with the dictates of section 233 of the Act.
The question is whether the trial District Court was duty bound to inform
the appellant of the right to make final submissions after closing his case.
On this, we fail to go along with the position taken by Dr. Lamwai. Like
Ms. Shio, we too are of the considered view that we do not read anything
under the section requiring or obliging the court to inform an accused
person of the right to make final submissions. Prudence would demand
that an accused person be informed of that right but that is the farthest
we can say on the point. In fact, if the legislature had intended that an
accused person be informed of the right provided under the section in
issue it could have easily legislated to that effect as it did in other sections
of the Act i.e. sections 231, 240(3) etc.

Another complaint relates to the voire dire examination conducted on

PW2 Amina Godwin, the complainant and the key witness in the case
against the appellant. The record of the voire dire examination as appears
on page 15 of the record reads:-

PW2. Amina d/o Godwin, 12 Years, Christian.

Court: So far PW2 is a child of tender age below 14 years, then let a voire
test examination be conducted.

VOIRE DIRE TEST:

Question: Are you studying

Answer: Yes

41
Question: In which class
Answer: STD IV

Question: At which school

Answer: At Mapinduzi Primary School

Question: Are you worshiping

Answer: Yes

Question: Where
Answer: At Assemblies of God Church at Simike

Question: Do you know the meaning of telling truth

Answer: Yes

Question: What does it mean?

Answer: Is to speak something

Question: What happen when one tells lies?

Answer: You will be burned by a fire

Question: Therefore what does it mean by telling lies

Answer: Speaking lies is a sin
Court: From the a foregoing, I am satisfied that PW2 is intelligent
enough and indeed she knows the meaning of speaking the truth, and
further understands the nature of an oath as such she is permitted to give
her evidence under oath.

The complaint here is two-fold:- That the questions put to PW2 were
leading questions, and that they did not justify a finding that PW2 was
intelligent enough and knew the nature of an oath.
Admittedly, case law does not provide for a standard form of questions that
are to be asked in the conduct of a voire dire examination. Nonetheless,
it occurs to us that the questions asked and their respective answers
should be in such form and manner as will enable the trial court to make
meaningful findings under section 127(2) of the Evidence Act (CAP 6
R.E. 2002).

42
In this case, there is no dispute that the evidence of PW2 was given under
oath after the trial court was satisfied that she knew the nature of an oath
and was intelligent enough to justify the reception of her evidence. The
question is whether the questions put to PW2 were leading ones which
did not allegedly justify the finding that PW2 was intelligent enough to
warrant the trial magistrate’s finding to that effect. With respect, in our
reading of the above questions, we do not read anything to suggest that
the questions put to PW2 were leading ones. Neither do we read anything
thereat to suggest that the answers therein did not show that PW2 was
intelligent enough to warrant the magistrate’s finding.

The third complaint relates to the age of PW2. In Dr. Lamwai’s view the
age of PW2 was not ascertained. On this, he was of the opinion that the
prosecution ought to have established that PW2 was 12 years of age at the
time. According to Dr. Lamwai, the prosecution ought to have done so
more so because at the preliminary hearing the appellant had denied all
facts except his own personal particulars.

The charge sheet presented to the court on 21/1/2010 shows that PW2
was aged 11 years. When she testified on 1/7/2010 she said she was 12
years of age. She was therefore a child of tender age in terms of section
127(5) of the Evidence Act (CAP 6 R.E. 2002).

It seems to us that the question of PW2’s age is coming up as an

afterthought. We say so because this was not a serious issue at the trial.
The fact that the voire dire examination was conducted was in itself
indicative of the fact that she was of tender age. She was not contradicted
by anyone on her age she gave at the trial. We say so because when she
testified on 1/7/2010 even the appellant did not cross-examine her on her
age. If the appellant thought that PW2’s age was an important matter
he ought to have cross-examined her on the point. Needless to say, it is
trite law that failure to cross-examine a witness on an important matter
ordinarily implies the acceptance of the truth of the witness’s evidence-
See this Court’s decision in Cyprian Athanas Kibogoya V Republic,
Criminal Appeal No. 88 of 1992 (unreported).

Furthermore, the appellant’s defence given on 31/12/2010 had nothing

to do with the age of PW2. If, according to the defence, PW2’s age was a

43
very important issue at the trial we fail to see why the appellant did not
cross-examine PW2 on it and, or at the very least, also canvass it in his
defence at the trial.

The last major ground of appeal relates to the credibility attached to the
evidence of PW2 by the courts below. In other words, the complaint here,
as argued before us by Dr. Lamwai, is that the evidence of PW2 did not
establish that the appellant raped her. In our response to this complaint,
we wish to revisit the evidence albeit very briefly. There was no dispute at
the trial that the appellant (a Senior Medical Officer), PW2, PW1 Grace
Sola, PW3 Kisa Bukuku and PW4 George Adolf Kazimoto (the street
Chairman), were neighbours at Old forest area, Mbeya. One day PW1
noticed that PW2 was not walking properly. Upon enquiry PW2 told
her that the appellant had been ravishing her for quite some time. The
rest was a long story. It will suffice to say briefly that PW2 testified that
the appellant raped her on several occasions after luring her with money
coupled with threats that she should not inform anyone lest he would
kill her. According to PW2 on one such occasion the appellant did as
follows:-

He was seeing me when I was going to school, as I was passing near at his house.
He summoned me to mop. He took me to his bedroom, undressed my underpants
and inserted his member “dudu lake” inside my private parts. I wanted to shout
for help, then, he told me that in case I shout for help he will kill me. I sustained
injuries……

After PW2 gave her evidence, the court observed as follows:-

COURT: A demenour of PW2 is noted to the extent that she was firm
throughout the examination in chief and cross-examination.

The question is whether there is basis for us to fault the courts below
in this second appeal where we are guided by section 6(7) (a) of the
Appellate Jurisdiction Act (CAP 141 R.E 2002) which enjoins us to deal
with matters of law (not including severity of sentence) but not matters
of fact. In other words, the question is whether we should fault the courts
below in the credibility they attached to PW2 which, essentially in the
justice of this case, is a matter of fact.

44
In Selemani Makumba V Republic, Criminal Appeal No. 94 of 1999
(unreported) this Court stated:-

True evidence of rape has to come from the victim, if an adult, that there was
penetration and no consent, and in case of any other woman where consent is
irrelevant that there was penetration.
(Emphasis supplied.)

The above holding has been consistently followed by this Court in many of
its decisions on the issue. See, for instance, Alfeo Valentino V Republic,
Criminal Appeal No. 96 of 2006, Kayoka Charles V Republic, Criminal
Appeal No. 325 of 2007 and Godi Kasenegala V Republic, Criminal
Appeal No. 10 of 2008 (all unreported).

In this case, like the courts below, after giving the matter a careful
consideration, we too are satisfied that the evidence of PW2 established
that she was raped by the appellant. To this end, we find no basis for
faulting the courts below in the credibility they attached to the evidence
of PW2. Her evidence is clear that the appellant committed the so called
“statutory” rape on her in the process of which he inserted his penis into
her vagina.

The appeal lacks merit. We hereby dismiss it.

45
Ally Hussein Katua versus Republic

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA
(CORAM: MSOFFE, J.A., LUANDA, J.A., And MANDIA, J.A.)

CRIMINAL APPEAL NO. 99 OF 2010

ALLY HUSSEIN KATUA …………………………… APPELLANT

VERSUS

THE REPUBLIC ………...……………………… RESPONDENT

(Appeal from the Judgment of the High

Court of Tanzania at Tanga)

(Teemba, J.)

Dated the 16th day of April, 2010

In Criminal Appeal No. 85 of 2005
--------------

JUDGMENT OF THE COURT

30 March & 8 April 2011

MSOFFE, J.A.:

Before the District Court of Muheza (Mussa, PDM) the appellant ALLY
HUSSEIN KATUA was charged with the offence of rape contrary to
sections 130 (1) and 131 (1) of the Penal Code, as amended. After a
full trial he was acquitted for want of sufficient evidence. Aggrieved, the
Director of Public Prosecutions appealed to the High Court of Tanzania
at Tanga where Teemba, J. set aside the order of acquittal, convicted the
appellant as charged, and sentenced him to a term of imprisonment for
thirty years with an order for payment of Shs. 500,000/= as compensation
to the victim of the rape in question. The appellant is dissatisfied, hence
this appeal.
46
The memorandum of appeal is a three page document in which there
are three basic complaints. In view of the position we have taken on the
appeal we will set out the complaints in fairly sufficient detail. One, that
the charge was defective in that the specific offence under section 130 (3)
of the Penal Code, as amended, was not stated. To this end, the appellant
cited a passage from this Court’s decision in Mhina Hamisi v Republic,
Criminal Appeal No. 83 of 2005 (unreported) thus:-

Lack of consent is a vital element in the offence of rape. Yet the charge against
the appellant did not disclose this important element. It is trite law that a
charge should disclose the nature of the offence so that an accused person may
know the nature of the case he has to answer.

Two, that the evidence of the complainant, PW1 Rehema Athumani,

should not have been believed and acted upon wholesale because her own
grandmother, PW2 Mwantumu Juma, testified and told the trial court
that she had a history of mental illness and confusion. In this sense, the
appellant cited portions of the evidence of PW2 thus:-

I recall on 20/1/2004 one Rehema Athumani (PW1) complained that his head
was confused. However, when Rehema Athumani (PW1) was seriously sick, I
fed the occurrence to the accused, hence the accused called at my house and treated
Rehema Athumani (PW1). I thus in the following day followed the accused
and fed to him of what was happening … It was thereafter we left and on the
way Rehema Athumani (PW1) shouted as usual and cried out …

Three, the judge on first appeal did not address her mind to the issue of
time frame which was important in checking the veracity of the evidence
of PW1 and PW2. We must point here that this point is not elegantly
framed in the memorandum of appeal and in this regard we take the
liberty to reproduce the point verbatim thus:-

… PW1 the victim clarified in court’s dock that the scenario accrued on
21/1/2004 at 8.00 p.m. it was on 21/1/2004 at 11.00 a.m. she was informed
by PW1 of the rape scenario, it is ridiculous; and with simple arithmetic this was
nine (9) hours before the occurrence of the entire offence …

47
At this juncture, we think it is pertinent to state the facts, albeit briefly.
PW1 was a student at Mlingano Secondary School. She was staying with
her grandmother PW2 Mwantumu Juma in the same village in which the
appellant, a traditional healer or local medicineman, also lived. Prior to the
date of incident PW1 was reported sick and the appellant was approached
so that he could treat her. On 21/1/2004 PW1 was taken to the appellant’s
home. The appellant initiated some treatment. What followed thereafter
was a long story which bordered on rituals, sorcery etc. but it will suffice to
say that PW1 was taken to a number of places and ultimately the appellant
asked her to undress and she obliged. Then the appellant spread a piece of
cloth on the ground, asked her to sleep on it, slept on her chest and then
raped her. When the appellant was through with the sexual encounter,
which he had earlier told PW1 that it was part of the treatment or healing
process, he warned her not to disclose it to anyone. They put on their clothes
and went towards the appellant’s home. After leaving the appellant’s home,
and on their way back home she disclosed the rape incident to PW2. The
incident was eventually reported to the relevant authorities.

In defence, the appellant admitted to have treated PW1 on the day in

question. His only point of departure from the prosecution version was
that he denied raping PW1. He was supported by his witnesses on the
sickness and treatment of PW1 but none could vouch or say anything on
the alleged rape.

This is a second appeal, so to say, in the sense that the case originated
from the District Court of Muheza. Under such circumstances, this
Court is cautious and rarely interferes with findings of fact by the court(s)
below. The Court can only interfere where there are misdirections or
non-directions on the evidence, where the court(s) misapprehended the
evidence etc. – See Director of Public Prosecutions v Jaffari Mfaume
Kawawa (1981) TLR 149, Amratlal D.M. t/a ZANZIBAR SILK
STORES v A.H. JARIWALA t/a ZANZIBAR HOTEL (1980) TLR
31, DPP v NOBERT MBUNDA, C.A.T Criminal Appeal No. 108 of
2004 (unreported).

As observed by this Court in Goodluck Kyando v Republic, Criminal

Appeal No. 118 of 2003 (unreported):-

48
… It is trite law that every witness is entitled to credence and must be believed
and his testimony accepted unless there are good and cogent reasons for not
believing a witness …

The crucial issue in this appeal is whether or not PW1, the key and only
material witness, was credible and entitled to be believed.

The complaint in the first ground of appeal should not detain us. It is true,
as opined by Mr. Faraja Nchimbi learned State Attorney appearing on
behalf of the respondent Republic, that normally the element of lack of
consent ought to be reflected in a charge of rape. But with the advent of
section 130 (2) (e) of the Penal Code consent is no longer relevant where
the victim is under eighteen years of age. In this case, there was no dispute
that PW1 was aged 17 years at the time and therefore within the ambit
of the above provision. As it is, although the charge facing the appellant
did not specifically state the above provision there was no harm because
the omission was cured by section 388 (1) of the Criminal Procedure
Act (CAP 20 R.E. 2002) in that the appellant knew the nature of charge
against him. In fact, we may observe here in passing that the charge
against the appellant ought to have been preferred under sections 130
(1) (2) (e) (d) and 131 (1) of the Penal Code. 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.

This brings us to the second ground of appeal in which the main complaint
really is that the evidence of PW1 should not have been believed wholly
more so because he had the history of mental illness. With respect, much
as we agree that PW1 had that history but in the circumstances of this
case we are satisfied that her evidence was nothing but the whole truth.
She was so coherent in her testimony that she must have testified on an
event in which she had utmost control of and her mental faculties at the
time were quite alive to what the appellant had done to her. She was very
much in control of the situation at hand and what was happening in the
world around her at the time. To this extent, we are in entire agreement
with the judge on first appeal in her assessment of the reliability of the
evidence of PW1 thus:-

49
“First PW1 remembered all the stages of her treatment by the respondent. She
was able to identify the places and actions performed during the fateful night,
and which were not disputed at all. Second, she repeated the same thing to
the family meeting and to her school teachers. Third, she was taken to police
and finally she testified before the trial court on the same accusations against
the respondent. Nowhere on record it is indicated that PW1 failed, at any
particular moment to remember the occurrence in connection to this incident.
PW1 was fine when narrating the incident to PW2. Thus, her credibility was
not shaken and therefore, her testimony was nothing but the truth of what
exactly happened.”

Further to the above passage from the High Court judgment, we also
believe that PW1 was truthful when she testified thus:-

“It was thereafter the accused asked me to accompany him so that we could bury
the head of the hen. I did follow and we went to a junction. He refused the
grandmother to follow. We thus came to a junction and we buried the head of
that hen and thereafter asked me we walk to the down at a distance of about
15 paces. It was at that area again the accused asked me to take of my clothes
again. I took off all the clothes and the accused took off all the clothes. The
accused thereafter laid down the piece of cloth and he asked me to lay there
looking upwards. I did follow his directions, but abruptly the accused who at
that juncture had also removed his clothes did lay on my body hence he looked
downwards. The accused however, was of carnal knowledge of me in that the
penis of the accused entered wholly to my vagina. The accused on doing that
act alleged that he was doing the act so called “KUTAMBIKA”. However, I
believed that he was carrying a “TAMBIKO”. However, I informed the accused
that I was feeling pains. The accused thereafter he left me and he asked to now
accompany him so that we could be back home. However, at that juncture I
revealed white solutions at my vagina, here I revealed so at the juncture, I
abacked at my house. The accused asked me not to tell anybody otherwise all my
things would be distorted and even I will fail to go to school. It was thereafter
we turned back at the house of the accused, whereby I met my young brother
and my grandmother. It was thereafter the accused allowed us to leave and we
left. However, on the way I fed to my grand mother of the occurrence hence she
fed also to others. However, my grandmother a backed to the accused and asked
him of the accused, hence my grandmother abacked and informed me that he
refused…”

50
Surely, if PW1 was mentally sick or confused, as the appellant would wish
us to believe, she would not have been able to give the above narrative
which consisted of even the minutest details. As already stated, her version
of the story was coherent and consistent with truth.
We are aware from the evidence of PW1 that on returning to the
appellant’s house she did not immediately report the rape incident to
her grandmother PW2; and that the failure to do so might probably be
contrary to the holding of this Court in Marwa Wangiti and Another v
Republic, Criminal Appeal No. 6 of 1995 (unreported) that:-

The ability of a witness to name a suspect at the earliest opportunity is an all

important assurance of his reliability, in the same way as unexplained delay or
complete failure to do so should put a prudent court to inquiry.

But the following points should be made here. One, that Wangiti’s case
is good law but it did not lay a principle that the failure or delay to name a
suspect at the earliest opportunity is fatal. At the end of the day therefore,
each case has to be decided in its own context and peculiar circumstances.
Two, in this case, there was no total failure by PW1 to report the incident
at the earliest possible opportunity. On the contrary, she reported the
incident to PW2 immediately after the two had left the appellant’s home.
Once PW1 reported to PW2 the latter carried forward the narrative thus:-

… It was thereafter we left and on the way Rehema Athumani (PW1) shouted
as usual and cried hence I abacked at the accused, hence I fed everything to the
accused. The accused took medicine and brought the same to Rehema Athumani
(PW1) thereafter she became alright and the accused had already left. Rehema
Athumani (PW1) thereafter fed to me that she cried out because the accused who
is her uncle was of carnal knowledge of her. It was thereafter I fed the occurrence
to one Habiba Kuziwa the cell leader…

So, if we may repeat, from the evidence of PW1 and PW2 (above) it is
evident that PW1 reported the rape incident immediately after the duo
had left the appellant’s home. It is also evident that when PW1 shouted
and cried PW2 thought that she did so as part of her normal habit but
PW1 clarified that she did so in agony due to what the appellant had done
to her.

51
Three, at any rate, PW1 clarified as to why she did not report the
incident to PW2 immediately after they had assembled at the appellant’s
home. This is borne out by, or rather reflected in, her evidence in cross-
examination by the appellant thus:-

… you told me not to tell and that is why I did not inform your wife and
anybody right away …
(Emphasis supplied.)

The provisions of section 130 (4) (a) of the Penal Code are important in
an offence of this nature to the effect that penetration however slight is
sufficient to constitute the sexual intercourse necessary to the offence. In
this case, evidence of penetration is abundant and is to be found in the
above evidence of PW1 thus:-

… The accused however, was of carnal knowledge of me in that the penis of the
accused entered wholly to my vagina. The accused on doing that act so called
“KUTAMBIKIA”. However, I believed that he was carrying a “TAMBIKO”.
However, I informed the accused that I was feeling pains. The accused thereafter
he left me and he asked me to accompany him so that we could be back home.
However, at that juncture I revealed white solutions at my vagina…

The third and final ground of appeal could have been framed under
ground two in that it essentially seeks to impeach the evidence of PW1 on
ground of alleged contradictions in the latter’s testimony. With respect,
this ground has no merit. As already stated, like the High Court judge,
we are satisfied that PW1 was a credible witness. So even if there were
contradictions, our view is that they were minor and did not go to the root
of the overall prosecution case against the appellant.

Without prejudice to the foregoing, under section 6 (7) (a) of the

Appellate Jurisdiction Act (CAP 141 R.E. 2002) an aggrieved party
may appeal to this Court on a matter of law (not including severity of
sentence) but not on a matter of fact. Strictly speaking, in our reading
and appreciation of the evidence on record there is no serious point of
law involved in this appeal. The evidence involved in the case essentially
centres on matters of fact only.

For the foregoing reasons, we dismiss the appeal.

52
DISCRIMINATION
Odafe and others versus Attorney General and Others (Nigeria)

Odafe and Others v Attorney-General and Others (2004) AHRLR

205 (NgHC 2004)

Festus Odefe, Tumba Terry, David Martins, Ekun Oluwatosin v Attorney-

General of the Federation, Controller General of Prisons, Deputy Controller of
Prisons Kirikiri Medium, Prison, Lagos, Minister for Internal Affairs
Federal High Court of Nigeria, Port Harcourt judicial division, 23
February 2004, suit FHC/PH/CS/680/2003  
Judge: Nwodo
Extracts
Detention and  segregation of  HIV/AIDS  patients 
Equality, non-discrimination (discrimination on the grounds of HIV
status, 14, 29, 30
Fair trial (access to justice, enforcement of human rights, 15, 16, 21-23;
presumption of innocence, 17; trial within reasonable time, 18, 20, 38)
Health (non-treatment of prisoners with HIV/AIDS, 25-27, 33-35, 38)
Torture (non-treatment of prisoners with HIV/AIDS, 31-35)
Interpretation (international standards, 37)
Socio-economic rights (costs, 38)

Judgment

[1.] Sequel to the grant of leave on 25 November 2002 to the applicants

to enforce their fundamental rights in respect of the relief stated in the
statement in support of the application. The applicants by motion of
notice dated 29 November 2002 and filed on 2 December 2002 prays the
Court for the following relief:

1. A declaration that the continuous detention and the consequent

segregation and discrimination of the applicants as confirmed HIV/
AIDS patients is an infraction of the applicants’ constitutionally
guaranteed rights to dignity of the human person and their right to
freedom from discrimination provided for in sections 34(1)(a) and
42(1) of the 1999 Constitution respectively.
53
 2. A declaration that the applicants as confirmed HIV/AIDS patients
have a right to proper medical treatment while in prison custody
sequel to the Prisons Act, the Prisons Regulation Law and the
United Nations Standard Minimum Rules for the Treatment of
Prisoners.
3. A declaration that the failure of the officers, servants, agents and
privies of the respondents to give the applicants as confirmed HIV/
AIDS patients proper medical attention while in prison custody
amounts to inhuman and degrading treatment and an infraction of
their fundamental rights as guaranteed under section 34 and section
42 of the 1999 Constitution of the Federal Republic of Nigeria, and
article 5 of the African Charter on Human and Peoples’ Rights.
4. A declaratory order directing the said authorities to relocate the
applicants to designated government owned hospitals for proper
medical attention.

[2.] The applicants relied on the affidavit of John Oziegbe and the
statement in support of the motion ex-parte for leave.

[3.] The respondents did not file counter affidavit. The affidavits of service
filed by the bailiff of court and which is part of Court’s record is evidence of
service of the motion on notice, enrolled court’s order, the process, hearing
notices and written address on the respondents respectively. Despite
service none of the respondent appeared nor reacted in the application.

[4.] The learned counsel for the applicants, O Fapohunda, on application

filed a written submission on 22 July 2003 and dated 21 July 2003 and 15
January 2004. He adopted the submission as his argument and with leave
addressed the Court further orally.

[5.] In his written address he raised two issues for determination. On

issue 1 he poised: ‘Do the applicants have legal rights to seek the relief
set out for determination by this honourable Court.’ He submitted that
the applicants have legal rights to seek the relief set out for determination
by this honourable [Court] that the applicants’ fundamental rights are
guaranteed under sections 34(1)(a) and 42(1)(a) of the 1999 Constitution.
He stated applicants are awaiting trial inmates and are presumed innocent
until there is a conviction.

54
[6.] He submitted that the continuous detention of the applicants without
trial in their physically disabled state having been confirmed as HIV/
AIDS patients amounts to torture, whilst the refusal and or restriction
from treatment and the discrimination by prison officials (agents for the
respondent) and inmates as a result of the physical disabilities in their
opinion would amount to discrimination. He submitted that the concept
of torture has been held by the courts to include mental or psychological
trauma referred to the case of Uzoukwu v Ezeonu 1991 6 NWLR pt
200 708. He submitted that the continuous detention, segregation and
discrimination of the applicants amounts to torture and the condition
under which they are held is inhuman, degrading and an infraction of the
applicants’ fundamental rights as provided for in section 34(1) of 1999
Constitution.

[7.] On issue 2 he poised: ‘Has there been an infringement or infraction

of the applicants’ legal rights as contained in the provisions of the
Constitution of the Federal Republic of Nigeria 1999, the Prisons Act,
and the Prisons Regulation Law and The United Nations Standard
Minimum Rules for the Treatment of Prisoners’. He contended that
the infringement and infraction of the applicants’ legal rights flow from
their continuous detention without trial and as awaiting trial inmates the
applicants are entitled to the constitutional safeguard of their rights and
having been diagnosed as carriers of HIV/AIDS patients they ought to be
given proper medical treatment and should not be discriminated against.

[8.] He submitted that the prison authorities under section 8(1) to (3)
of the Prison Act are given the responsibility of removing and taking
prisoners to hospital, either private or government owned, for proper
medical treatment but that this was not done.

[9.] Awaiting trial inmates who have not been convicted of any offence
have a right to life and the failure of the respondents to give them proper
medical attention is a deprivation of that right to life.

[10.] He submitted that applicants being Nigerian citizens although

restrained under the law for allegedly committing various offences are
presumed innocent until the allegations against them are proven.

55
[11.] Finally the Court has the duty to jealously protect and guide the
citizens against flagrant infringement either by individuals or government
officials. He relied on the case of Muojekwu v Ejikeme 2000 5 NWLR pt
657, 402 at 410 ratio 7.

[12.] In adopting his written submission, learned [counsel] orally addressed

the Court further. He contended that the applicants are awaiting trial
and presumed innocent. He referred to section 8(1) of the Prison Act
and submitted the applicants are seeking relief known to law since the
subsection refers to prisoners with serious illness. He submitted that HIV
can appropriately be defined as a serious illness.

[13.] I have carefully considered the affidavit in support of the application,

the submissions of the learned counsel and the authorities and statutes
cited. The learned counsel formulated two main issues for determination.
I will adopt those two issues in the determination of the relief sought.

Issue 1: Do the applicants have legal rights to seek the relief set out for
determination by this Honourable Court?

[14.] The applicants are awaiting trial inmates currently at Kirikiri Medium
Prison in Lagos detained on the orders of some magistrate in Lagos
for various offences ranging from armed robbery and murder. Whilst
applicants were in detention they were diagnosed and tested positive to
HIV/AIDS. Exhibit LK1 is the medical report ... and applicants averred in
the affidavit that they are discriminated against because of their ailment.

[15.] On whether awaiting trial accused persons have a legal right to seek
redress, section 46(1) of the 1999 Constitution provides that ‘[a]ny person
who alleges that any of the provisions of this Chapter (four) has been, is
being or is likely to be contravened in any state in relation to him may
apply to a High Court having jurisdiction in that area for redress’.

[16.] The word ‘any person’ I respectfully hold means that anybody without
any distinction has a legal right to enforce the provisions of Chapter 4.

[17.] It is settled law that a prisoner on death row has rights enforceable
under the Constitution. This was the legal position in the case of Peter

56
Nemi v State 1996 6 NWLR pt 452 at 42. Equally, it is my respectful view
that the Constitution, having stipulated that an accused awaiting trial is
presumed innocent until proven guilty, the accused also enjoys similar
enforceable rights under the provision of section 46(1) of the Constitution.

[18.] It is also pertinent to note at this stage that the evidence before the
Court in exhibit LK1 reflects that the first applicant has been awaiting
trial for three years eleven months, the second applicant for four years
eight months, the third applicant for two years four months whilst the
fourth applicant (reported dead) three years eight months. These reports
are as of 2002 when the report was signed. Clearly the applicants have
respectfully been awaiting trial for a period of not less than two years. The
1999 Constitution, in safeguarding the rights to personal liberty of every
person, provide under section 35(1)(c) and subsection (4) that any person
arrested and detained upon reasonable suspicion of having committed an
offence shall be arraigned before a court of law within a reasonable time
and if not tried within two months from date of arrest or detention shall be
released on bail unconditionally or upon such conditions as are reasonably
necessary. Reasonable time was defined as a period of two days or such
reasonable time as may be considered by court.

[19.] Furthermore under section 36(1) of the Constitution a person shall be

entitled to a fair hearing within a reasonable time by a court.

[20.] It is indisputable that applicants have been awaiting trial for an

unreasonable period without trial. This is condemnable and the blame will
go the first respondent, the chief legal officer in the country.

[21.] Therefore the Constitution recognises that accused persons detained

awaiting trial has a right of access to court by virtue of the provision of section
36(1) and section 35(1)(c) and (4) and section 46(1) of the Constitution.

[22.] Furthermore the appellate Court has ruled in Peter Nemi v State
supra that a prisoner on death row still has rights enforceable under the
Constitution. I therefore respectfully hold that the present applicants
awaiting trial are conferred with rights under the Constitution and article
7 of the African Charter on Human and Peoples’ Rights Cap 10 to seek
redress of court for any infraction of those rights.

57
[23.] Mr Fapohunda submitted that the continuous detention of the
applicants without trial in their physical disabled state amounts to torture,
whilst the refusal of treatment and discrimination by prison officials and
inmates amount to discrimination. I have earlier on condemned the fact
that applicants have been awaiting trial for the period of not less than two
years. Whether they are confirmed as HIV/AIDS patients or not, every
detained accused is entitled to a fair hearing.

[24.] Obviously in the instant case applicants were diagnosed with HIV/
AIDS whilst in detention.

[25.] Further, whether applicants are arraigned before a court or not

each have a right under sections 7 and 8 of the Prisons Act Cap 366 to
be treated for any serious illness once certified and the medical officer
recommends his removal to a hospital. Exhibit LK1 issued by Dr Nebo
Kingsley, the medical officer in prisons, has a list of 11 inmates awaiting
trial and their special conditions.

[26.] The prison officials having been placed on sufficient notice by the
contents of that document (exhibit LK1) are under a duty to [observe] the
conditions set out in section 8 for removal of sick prisoners to hospital. The
second and third respondents, though they were served did not appear nor
[did they] file a counter affidavit to contradict the facts averred. I therefore
deem the facts averred in the affidavit as correct. Consequently I hold the
second and third respondents have not taken legal step to that effect.

[27.] On whether HIV/AIDS is a serious illness to fall within the

provisions of section 8 of the Prison Act, it is my respectful view that
AIDS is an understatement to use the word serious. This is because it
is deadly. In the South African case of Minister of Health and Others v
Treatment Action Campaign and Others [(2002) AHRLR 189 (SACC
2002)] the Constitutional Court of South African described HIV/AIDS
as one of the many illness that requires attention and that it is the greatest
threat to public health in their country.

[28.] The government HIV/AIDS & STD strategic plan for South Africa
2000 to 2005 in the same report had this to say:

58
During the last two decades, the HIV pandemic has entered our
consciousness as an incomprehensible calamity. HIV/AIDS had claimed
millions of lives, inflicting pain and grief, causing fear and uncertainty and
threatening the economy.

[29.] So presented clearly applicants who have been so diagnosed, as HIV/

AIDS are afraid and also sick from the prognosis of the virus. Because
of lack of sufficient awareness it is yet to be generally appreciated how
contagious the virus is and the level of contact required before a person
will contract the illness. It is therefore not strange nor am I surprised that
the prisons officials are discriminating against the applicants from the
averments in the affidavit which has not been contradicted.

[30.] However, the right to freedom from discrimination as enshrined in

section 42(1) of the Constitution did not cover discrimination by reason
of illness, virus or disease. For emphasis I produce section 42(1): a ‘citizen
of Nigeria of a particular community, ethnic group, place of origin, sex,
religion or political opinion shall not by reason only that he is such a
person ...’.

[31.] Therefore from the above category specified, applicants cannot

invoke section 42(1) on the contention that they have a right to exercise
under that section. The concept of torture has been succinctly described
by the appellate Court in Uzoukwu v Ezeonu supra to include mental or
psychological trauma.

[32.] Justice Nasir in the same case defined torture to include mental
agony whilst inhuman treatment means any barbarous act or acting
without feeling for the suffering of the other.

[33.] Justice Niki Tibi JCA observed that torture could mean mental
torture where the person’s mental orientation is disturbed so that he
cannot think and do things rationally as a rational human being. Applying
this definition to the present case it is my respectful view that an average
person diagnosed with HIV/AIDS ... will be greatly disturbed and will live
in perpetual fear of the enemy attack. The second and third respondents
are under a duty to provide medical help for applicants. Article 16 of
African Charter Cap 10 which is part of our law recognises that fact and

59
has so enshrined that ‘[e]very individual shall have the right to enjoy the
best attainable state of physical and mental health’.

[34.] Article 16(2) places a duty on the state to take the necessary
measures to protect the health of their people and to ensure that they
receive medical attention when they are sick. All the respondents are
federal agents of this country and are under a duty to provide medical
treatment for the applicants.
[35.] I therefore hold that the state having failed to provide medical
treatment for the applicants who are diagnosed as HIV/AIDS carriers,
their continuous detention without medical treatment amounts to
torture.

On issue 2

[36.] I have already held that the respondents failed to comply with the
provisions of section 8(1) and (3) of the Prisons Act and article 16 of the
African Charter. ...

[37.] The applicants ... have a right to life; however, the fact is that the
applicants are in the custody of the second to fourth respondents awaiting
trial and suffering from illness. The second to fourth respondents are under
a duty to provide medical attention for them; failure to do so is non-
compliance of the provisions of section 8 of the Prison Act and article 16
of the African Charter on Human and Peoples’ Rights. The nature and
detailed consequences of the virus are not placed before the Court for me
to arrive at the conclusion that the non-compliance is an infringement
of their right to life. In other words, that if treatment is provided they
will live, if not provided they will die. This is for an expert in the medical
area concerned to tell the Court and there is no expert evidence before
me. From the foregoing I conclude as follows: The government of this
country has incorporated the African Charter on Human and Peoples’
Rights Cap 10 as part of the law of the country. The Court of Appeal in
Ubani v Director SSS 1999 11 NWLR pt 129 held that African Charter
is applicable in this country. The Charter entrenched the socio-economic
rights of a person.

60
[38.] The Court is enjoined to ensure the observation of these rights. A
dispute concerning socio-economic rights such as the right to medical
attention requires the Court to evaluate state policy and give judgment
consistent with the Constitution. I therefore appreciate the fact that the
economic cost of embarking on medical provision is quite high. However,
the statutes have to be complied with and the state has a responsibility
to all the inmates in prison, regardless of the offence involved, as in the
instant case where the state has wronged the applicants by not arraigning
them for trial before a competent court within a reasonable time and they
have been in custody for not less than two years suffering from an illness.
They cannot help themselves even if they wanted to because they are
detained and cannot consult their doctor.

[39.] I therefore declare as prayed in [prayers for] relief 1 2, 3 and in

respect of 4 I order the authorities to comply with the provision of section
8 of the Prison Act and relocate the applicants after the precondition
has been complied with, to a hospital in accordance with section 8 of the
Prison Act..

[40.] I award N100 000.00 costs in favour of the applicants.

 

61
Rono v. Rono and Onother (Kenya)

Rono v Rono and Onother

[2005] 1 EA 363 (CAK)

Division: Court of Appeal of Kenya at Eldoret

Date of judgment: 29 April 2005
Case Number: 66/02
Before: Omolo, O’kubasu and Waki JJA
Sourced by: LawAfrica
Summarised by: C. Kanjama

[1] Constitution – Fundamental rights – Discrimination on grounds of sex

– Whether customary law of patrilineal succession of land discriminatory
– Section 82 – Constitution of Kenya.

[2] International law – Customary international law and ratified treaties

– Whether relevant in interpretation of statutory law – Whether African
customary law on succession would be interpreted in light of customary
international law prohibiting sex discrimination.

[3] Succession – Distribution of land – Relevance of customary law –

Factors to be taken into account in distributing agricultural land between
widows, sons and daughters of the deceased – Section 3 – Judicature Act
(Chapter 8) – Sections 27, 29, 32, 33 and 40 – Law of Succession Act
(Chapter 160).

Editor’s Summary

The deceased died intestate leaving two wives, three sons and two
daughters from the first house and four daughters from the second house.
The parties agreed on the distribution of all the assets of the deceased
except for his 192 acre freehold land. The first house suggested that each
widow and daughter get 14 acres while each son gets 22 acres. The second
house proposed that each house gets 96 acres.

The superior Court considered the customary law of the deceased

wherein succession was patrilineal with equal allocation to each house but
62
daughters receiving no share of inheritance. The Court also considered
statutory law in which distribution was done to dependants and division
to houses according to number of units adding the widow as an additional
unit. The trial Judge did her own independent distribution in which she
gave each daughter an equal share of five acres, each son an equal share of
30 acres and the two widows 20 and 50 acres respectively. The share was
to account for the fact that daughters were likely to marry, and that the
widow with four daughters would get a bigger share since she had no son
with a big share.

The second house appealed, arguing that there was no statutory basis
for awarding differential shares to daughters and sons without a special
inquiry. In response, it was argued that agricultural land was exempt from
the statutory directions on distribution and was subject to the customary
law of the deceased.

Held – Customary law is applicable in Kenya only insofar as it is not

repugnant to justice and morality and not inconsistent with any written
law. Discrimination on grounds of sex is prohibited in the Constitution,
but with a proviso excluding laws relating to adoption, marriage, divorce,
burial and succession. International customary law may however be
relevant in determining what constitutes discrimination, including the fact
that Kenya has ratified even though not adopted numerous international
instruments prescribing elimination of discrimination against women.
Longwe v International Hotels [1993] 4 LRC 221 adopted.

Customary law is excluded from application in statutory succession except

where there is an express provision allowing its application. The Act does
allow customary law to be applied in respect of agricultural land and crops
thereon, but only in such areas as the Minister by notice in the Gazette
may specify. The Minister did publish a list of various districts but the
domicile of the deceased was not included. Hence the law applicable to
the distribution of the agricultural land was statutory law.

Under statutory law, the superior Court has discretion to take into account
fairness in determining the distribution to dependants. This discretion
must be exercised on sound factual and legal basis. The possibility of girls
marrying is only one factor that may be considered.

63
Equal treatment of the children by the deceased was another factor.
However, in intestate succession, there was no principle of law that the
houses of the deceased, or the children/beneficiaries, must inherit equally.

Appeal allowed. Court makes independent distribution of 30 acres to

each widow and 14,4 acres to each child of the deceased.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP”
means approved; “C” means considered; “D” means distinguished; “DA”
means disapproved; “DT” means doubted; “E” means explained; “F” means
followed; “O” means overruled)

Longwe v International Hotels [1993] 4 LRC 221 – A

Judgment

Waki J: This is a succession matter relating to the estate of Stephen

Rono Rongoei Cherono, who died intestate on 15 July 1988 at the age
of 64. He was a farmer in Uasin Gishu. At the time of his death he left a
sizeable number of properties, both movable and immovable. He was also
survived by two wives and nine children (six daughters and three sons).
In probate and administration cause number 40 of 1988, the High Court
in Eldoret granted letters of administration to the two widows and the
eldest son without objection from other members of the family. Disputes
however soon arose about the distribution of the assets and liabilities of
the distribution by the Court. Ultimately on 12 June 1997, Nambuye J
delivered her judgment (dated 5 May 1997) determining the distribution.
The second widow however, together with her children was dissatisfied
with that judgment and so preferred an appeal to this Court.
Undisputed facts

From the record and findings of the superior Court, the following facts
are common ground:
1. The deceased had two wives, Jane Toroitich Rono (hereinafter
“Jane”) the first widow, and Mary Toroitich Rono (hereinafter
“Mary”), the second widow.

64
2. The deceased had three sons and two daughters with Jane:
(i) William Malakwen Rono (William).
(ii) Samwel Bet Rono.
(iii) John Toroitich Rono.
(iv) Mary Kipsiro (Chebii) Rono.
(v) Lina Chepkemoi Rono.

3. Mary Kipsiro (Chebii) Rono, the eldest daughter, aged 42 years at

the time of hearing in 1994, was married but divorced her husband
and returned home with four children of the marriage.

4. Lina Rono, the second born daughter aged 40 in 1994, was

unmarried but staying in a loose cohabitation with a man and had
two children.

5. The deceased had four daughters with Mary:

(i) Rose Cheruiyot Rono (Rose).
(ii) Cherotich Rono.
(iii) Grace Rono.
(iv) Joan Jepkemboi (Kipkemboi) Rono.

6. Rose, aged 32 years in 1994 was married under custom (though no

dowry was paid) and had four children.

7. Cherotich aged 30 in 1994 was unmarried with no children.

8. Grace aged 29 in 1994 was unmarried but a single parent of one

child.

9. Joan Jepkemboi aged 20 years in 1994 was unmarried with no

children.

10. The following assets were left unencumbered and available for
distribution:

(a) Land: 192 acres of freehold, land registration number 9249

comprising approximately 303 acres, farmhouse on land
registration number 9249 and three quarters of an acre of
undeveloped commercial plot number 117, Iten Township.
65
 (b) Vehicles and machinery: Motor vehicle registration
number KTX 951, Toyota Hilux, Ford tractor registration
number KLV 349, posho mill complete with a lister
engine, water tank, mill and five stores, fodder chopper,
Maize Sheller and tractor plough.

(c) Household furniture and effects: four beds, two wardrobes,

book shelf, two dining tables and six dining chairs, four
stools, coffee table in the shape of map of Africa, two chest
drawers, three pressure lamps, two hurricane lamps, sewing
table, typewriter, record player, wall clock, milk separator,
fixed washing basins, two lamp stands, water tank boiler,
milk cans, one National radio, wall safe.

11. The following liabilities were left unsettled by the deceased:

(i) Hospital bill KShs220 884-50
(ii) AFC loan KShs31 366-70
(iii) Iten County Council rates KShs5 518-10
(iv) Income tax KShs103 760-00
(v) Settlement Fund Trustees Loan (unknown)

12. The deceased belonged to the Keiyo sub-tribe of the Kalenjin

Community.

13. The deceased lived with his two wives and children in one
farmhouse and treated all of them equally.

The dispute
The dispute was highlighted in the viva voce evidence of William
supported by Jane, representing the first house, and by Rose, supported by
Mary, representing the second house.
Both houses were agreed on the distribution relating to the Iten township
plot, the Toyota vehicle, the tractor and its implements, the posho mill
together with water tank and stores, the fodder-chopper and all the
household furniture and effects except six items of minor significance.
The major bone of contention related to the distribution of the 192 acres
of land and the liabilities of the estate.

66
The proposal put forward by the first house in respect of the land was
that the first house would share 108 acres; 22 acres going to the three
sons and 14 acres each, to Jane and her two daughters. The second house
would share 70 acres; all five of them, including Mary getting 14 acres
each. The remaining 14 acres would comprise: 11 acres for a market where
each member of the family would be entitled to one acre; two acres for a
communal cattle dip, and one acre for the farm house where all members
of the family were entitled to reside. The rationale for giving a bigger
share to the first house and to the male children was because the land
was bought and improvements were made, before the second house came
into existence, and because the girls of the family had an option of getting
married and leaving the home. At all events, according to Keiyo traditions,
girls have no right to inheritance of their father’s estate.

The second house saw plain discrimination in that proposal and proposed
a 50/50 share of the land, each house receiving 96 acres and deciding what
to do with it. Nothing would be set aside for communal use except a cattle
dip and the farmhouse which would be occupied by all but remain as part
of the half share for each house. There was no evidence, they contended,
that the first house worked harder on the land than the second house and
in any event the deceased treated and educated them all equally without
discriminating between boys and girls in his lifetime. He had even given
one of the sons of the first house, (Samwel) to the second house where
there were no sons.

As for liabilities, the first house proposed that they settle the Aga Khan
Hospital bill in the sum of KShs264 525 while the second house settles
the other bills relating to AFC, income tax, Lands Office and County
Councils, all totaling to KShs203 271-95. That would be in the ratio of
60:40. On the other hand, the second house proposed an equal liability
payment of all debts at the ratio of 50/50.

The High Court decision

In arriving at what it called “its own independent distribution,” the superior

Court considered both customary and statutory laws on succession. It
made a finding that the deceased was Marakwet, although the evidence
was that he was Keiyo. The Elgeyo subtribe (also referred to as Keiyo) are

67
listed in the same chapter as the “Marakwet” and the “Tugen” in Cotran’s
Restatement of African Law Volume 2, which the superior Court referred
to for the proposition that the pattern of inheritance was patrilineal, and
that in polygamous households distribution was by reference to the house
of each wife irrespective of the number of children in it. Daughters receive
no share of inheritance. The superior Court also referred to the Law of
Succession Act (Chapter 160) sections 27, 28, 40(1) and (2) relating to
distribution to dependants and division to houses according to the number
of units, adding the widow as an additional unit. In the end, the learned
Judge took into consideration the wishes of the parties and of written law
that the girls getting married and inheriting further property from their
own families would give them an unfair advantage over the other family
members. She held:

“The situation prevailing here is rather peculiar though not uncommon

in that one house has sons while another has only daughters. Statute law
recognises both sexes to be legible for inheritance. I also note that it is on
record that the deceased treated his children equally. It follows that all the
daughters will get equal shares and all the sons will get equal shares. However
due to the fact that daughters have an option to marry the daughters will
not get equal shares to boys. As for the widows if they were to get equal
shares then the second widow will be disadvantaged as she does not have
sons. Her share should be slightly more than that of the first widow whose
sons will have bigger shares than daughters of the second house.”

The distribution of the land thus ended up as follows:

(a) Widows
Jane 20 acres
Mary Rono 50 acres
Total 70 acres
(b) Daughters
Lina Rono 5 acres
Mary Chebii 5 acres
Cherutich Rono 5 acres
Grace Rono 5 acres
Chepkemboi Rono 5 acres
Rose Rono 5 acres
Total 30 acres

68
 (c) Sons
William Rono 30 acres
Samuel Rono 30 acres
John Rono 30 acres
Total 92 acres

The liabilities were distributed as follows:

First house
(a) Hospital bill KShs110 442-25
(b) AFC Loan KShs15 683-35
(c) Iten County Council KShs2 889-00
(d) Wareng County Council Rates KShs1 759-05
(e) Income tax KShs51 880-00
Total KShs182 653-65
Second house
(a) Hospital bill KShs110 442-25
(b) AFC Loan KShs15 683-35
(c) Iten County Council Rates KShs2 889-00
(d) Wareng County Council Rates KShs1 759-05
(e) Income tax KShs51 880-00
Total KShs182 653-65

The other orders made by the superior Court are contained in the decree
issued on 21 March 2002 and are not challenged save for the omission
to provide that half share of plot number 117, Iten Township would go
to the second widow, Mary Rono, which omission is conceded in this
appeal.

The appeal and submission of counsel

The decree of the superior Court challenged by Mary on 11 grounds but

it is unnecessary to reproduce them since one ground was abandoned
and the rest were condensed into three and were ably argued as such by
learned counsel for the appellant, Mr P Gicheru.

The main ground was that the superior Court erred in taking into
consideration the Marakwet customary law or any customary law, since the
estate that fell for consideration was governed by the Law of Succession

69
Act (Chapter 160) Laws of Kenya. Section 3(2) of that Act defines “child”
without any discrimination on account of sex. The Constitution of Kenya
also in section 82 outlaws discrimination on grounds, inter alia, of sex.
Mr Gicheru thus submitted that section 40 of the Succession Act should
have been applied in which case all the children and the widows would
have been considered as units, entitling them to equal distribution of
land. It was erroneous therefore to entertain the consideration that the
girls would have unfair advantage due to the possibility of their future
marriage. On the evidence the girls in both houses were advanced in age
in 1994 and were still unmarried or divorced 10 years later when this
appeal was argued. The speculation that they would marry had therefore
no basis. As there was no special inquiry made to determine whether any
of the heirs deserved more land than the others, there was no basis for
discriminating against the girls. It did not matter, he submitted, that the
appellant received 50 acres, which is 30 acres more than her co-widow.
Such distribution would still be contrary to the law and the purpose of the
appeal was to enforce compliance with the law of succession.

For his part, learned counsel for the respondents, Mr PKK Birech
submitted on this issue that the superior Court Judge had a discretion
to distribute the estate and she cannot be faulted. She considered and
discarded the application of customary law. She then applied sections 27,
28 and 40 of the Succession Act. He conceded that the Act catered for
all children including unmarried daughters but referred to section 33 of
the Act which exempts the application of the Act to agricultural land and
livestock and subjects distribution of such property on intestacy to the law
or custom applicable to the deceased’s community or tribe. The superior
Court was justified therefore in considering customary law and giving
only nominal acreage of the land to the girls.

The second ground of appeal, was readily conceded, was that there was no
mention in the judgment or decree about the remaining half share of plot
number 117 in Iten Township after the superior Court distributed one
half of it to the first widow, Jane. It was submitted and accepted, that the
remaining half share should go to the appellant, Mary.

Finally on the third ground of appeal on distribution of liabilities, Mr

Gicheru submitted that it was inequitable for the learned Judge, having

70
dished out a large portion of the immovable property to the first house, to
order payment of the sizeable liabilities on equal basis. The distribution of
the liabilities should be proportionate to the distribution of assets. For his
part Mr Birech saw nothing wrong with ordering the girls to pay up the
liabilities since they had shared in the assets of the estate.

The law
The manner in which Courts apply the law in this country is spelt out in
section 3 of the Judicature Act (Chapter 8) Laws of Kenya. The application
of African customary laws takes pride of place in section 3(2) but it is
circumscribed thus:

“. . . so far as it is applicable and is not repugnant to justice and morality

or inconsistent with any written law ...”

The Constitution, which takes hierarchical primacy in the mode of exercise

of jurisdiction, outlaws any law that is discriminatory in itself or in effect.
That is section 82(1). In section 82(3), it defines discrimination as follows:

“... affording different treatment to different persons attributable wholly

or mainly to their respective descriptions by race, tribe, place of origin or
residence or other local connexion, political opinions, colour, creed, or sex
whereby persons of one such description are subjected to disabilities or
restrictions to which persons of another such description are not made
subject or are accorded privileges or advantages which are not accorded to
persons of another such description.”

That provision has not always been the same with regard to discrimination
on grounds of sex; “or sex” was inserted in a relatively recent constitutional
amendment by Act 9 of 1997. In the same section however, the protection
is taken away by provisions in section 82(4) which allow discriminatory
laws, thus:

“Subsection (1) shall not apply to any law so far as the law makes
provision:

71
 (a) ...

(b) With respect to adoption, marriage, divorce, burial, devolution of

property on death or other matters of personal law;

(c) For the application in the case of members of a particular race

or tribe of customary law with respect to that matter which is
applicable in the case of other persons; or

(d) Whereby persons of a description mentioned in subsection (3)

may be subjected to a disability or restriction or may be accorded
a privilege or advantage which, having regard to its nature and to
special circumstances pertaining to those persons or to persons
for any other description, is reasonably justifiable in a democratic
society.”

Is international law relevant for consideration in this matter? As a

member of the international community, Kenya subscribes to international
customary laws and had ratified various international covenants and
treaties. In particular, it subscribes to the international Bill of Rights,
which is the Universal Declaration of Human Rights (1948) and two
international human rights covenants: the Covenant on Economic, Social
and Cultural Rights and the Covenant on Civil and Political Rights (both
adopted by the United Nations General Assembly in 1966). In 1984 it also
ratified, without reservations, the Convention on the Elimination of All
Forms of Discrimination Against Women, in short “CEDAW.” Article 1
thereof defines discrimination against women as:

“Any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field.”

In the African context, Kenya subscribes to the African Charter of Human

and Peoples’ Rights, otherwise known as the Banjul Charter (1981), which
it ratified in 1992 without reservations. In article 18, the Charter enjoins
member states, inter alia, to:

72
“...ensure the elimination of every discrimination against women and also
ensure the protection of rights of the woman and the child as stipulated
in international declarations and conventions.”

It is in the context of those international laws that the 1997 amendment

to section 82 of the Constitution becomes understandable. The country
was moving in tandem with emerging global culture, particularly on
gender issues. There has of course, for a long time, been raging debates in
our jurisprudence about the application of international laws within our
domestic context. Of the two theories on when international law should
apply, Kenya subscribes to the common law view that international law
is only part of domestic law where it has been specifically incorporated.
In civil law jurisdictions, the adoption theory is that international law
is automatically part of domestic law except where it is in conflict with
domestic law. However, the current thinking on the common law theory
is that both international customary law and treaty law can be applied
by State Courts where there is no conflict with existing State law, even
in the absence of implementing legislation. Principle 7 of the Bangalore
Principles on the Domestic Application of International Human Rights
Norms states:

“It is within the proper nature of the judicial process and well established
functions for national Courts to have regard to international obligations
which a country undertakes – whether or not they have been incorporated
into domestic law – for the purpose of removing ambiguity or uncertainty
from national constitutions, legislation of or the common law.”

That principle, amongst others, has been reaffirmed, amplified, reinforced,

and confirmed in various other international fora as reflecting the
university of human rights inherent in men and women. In Longwe v
International Hotels [1993] 4 LRC 221, Musumali J stated:

“... ratification of such (instruments) by a nation State without reservations

is a clear testimony of the willingness by the State to be bound by the
provisions of such (instruments).

Since there is that willingness, if an issue comes before this Court which
would not be covered by local legislation but would be covered by such

73
international (instrument), I would take judicial notice of that Treaty
Convention in my resolution of the dispute.”

A clear pointer to the currency of that thinking in this country is in the

draft Constitution where it is proposed that the Laws of Kenya comprise,
amongst others:

“Customary international law and international agreements applicable to

Kenya.”

I have gone at some length into international law provisions to underscore

the view I take in this matter that the central issue relating to discrimination
which this appeal raises, cannot be fully addressed by reference to domestic
legislation alone. The relevant international laws which Kenya has ratified,
will also inform my decision.

Conclusion
The deceased in this matter died in 1988, while the Succession Act which
was enacted in 1972, became operational by Legal Notice number 93 of
1981, published on 23 June 1981. I must therefore hold, as the Act so
directs, that the estate of the deceased falls for consideration under the Act.
Section 2(1) provides:

“2(1) Except as otherwise expressly provided in the Act or any other

written law, the provisions of this Act shall constitute the law of Kenya in
respect of, and shall have universal application to, all cases of intestate or
testamentary succession to the estate of deceased persons dying after the
commencement of this Act and to the administration of estates of those
persons.”

The application of customary law, whether Marakwet, Keiyo or otherwise,

is expressly excluded unless the Act itself make provisions for agricultural
land and crops thereon or livestock where the law or custom applicable to
the deceased’s community or tribe should apply. But the application of the
law or custom is only limited to “such areas as the Minister may by Notice
in the Gazette specify.” By Legal Notice number 94 of 1981, made on
23 June 1981, the Minister specified the various districts in which those
provisions are not applicable. The list does not include Uasin Gishu district

74
within which the deceased was domicile. So that, the law applicable in the
distribution of the agricultural land in issue in this matter is also written
law. Does the Act provide for the manner of distribution? Partly yes.

The superior Court was of the view that section 27 of the Act donates
unfettered discretion to the Court in the sharing of the estate considering
the definition of “dependant” in section 29 to include the “wife and the
children of the deceased.” It is in exercise of that discretion that the learned
Judge disregarded consideration of the sharing proposed by the parties
altogether and made her “own independent distribution.” It was also
pursuant to that discretion that she based her decision to allocate minimal
shares to the daughters on the basis that they would get married.

While I do not doubt the discretion donated by the Act in matters where
dependents seek a fair distribution of the deceased’s net estate I think the
discretion, like all discretions exercised by Courts, must be made judicially
or put it another way, on sound legal and factual basis. The possibility that
girls in any particular family may be married is only one factor among
others that may be considered in exercising the Court’s discretion. It is
not a determining factor. In this particular case however, I find no firm
factual basis for making a finding that the daughters would be married.
As shown by the undisputed facts above, all except one were unmarried or
divorced in 1994 and were advanced in age. Eleven years later when this
appeal was heard, there was no evidence that the situation had changed. It
is also an undisputed fact that the deceased treated all his children equally
and never discriminated between them on account of sex. It is a factor in
my view that was not sufficiently considered although it resonates with the
noble notions enunciated in our Constitution and international laws. The
respondents themselves clearly recognised and honoured the wishes of the
deceased when they proposed to give 14 acres of the land to each daughter
of the deceased. I find no justification for the superior Court whittling
that proposal down to five acres to each daughter. More importantly,
section 40 of the Act which applies to the estate makes provisions for
distribution of the net estate to the “house according to the number of
children in each house, but also adding my wife surviving the deceased as
an additional unit to the number of children.” A “house” in a polygamous
setting defined in section 3 of the Act as a “family unit comprising a
wife ... and the children of that wife.” There is no discrimination of such
children on account of their sex.
75
I think, in the circumstances of this case there is considerable force in the
argument by Mr Gicheru that the estate of the deceased ought to have
been distributed more equitably taking into account all relevant factors
and the available legal provisions. I now take all that into account, and
come to the conclusion that the distribution of the land, which is the issue
falling for determination, must be set aside and substituted with an order
that the net estate of 192 acres of land be shared out as follows:

(a) Two acres for the farm house now commonly occupied by all
members of the family to be held in trust by the joint administrators
of the estate.

(b) 30 acres to the first widow, Jane Toroitich Rono.

(c) 30 acres to the second widow, Mary Toroitich Rono.

(d) 14,44 acres to each of the nine children of the deceased.

As for the liabilities, they should in reality have been paid off by the estate
as a whole before distribution of the net intestate estate. The superior
Court however found it fit to distribute the liabilities equally between the
two houses, and the only challenge on appeal was that the distribution of
the land should have been similarly treated. As I have interfered with the
distribution of the land, I find no further basis for disturbing the order by
the superior Court in respect of liabilities.

In the result, I would allow the appeal to the extent stated above. A fresh
decree would issue accordingly. As this is a family matter, each party shall
bear its own costs.

Omolo JA: I had the advantage of reading in draft form the judgment
prepared by Waki JA, and while I broadly agree with that judgment, I
nevertheless wish to point out that I do not understand the learned Judge
to be laying down any principle of law that the Law of Succession Act
(Chapter 160) of the Laws of Kenya, lays down as a requirement that
heirs of a deceased person must inherit equal portions of the estate where
such a deceased dies intestate and that a Judge has no discretion but to
apply the principle of equality as was submitted before us by Mr Gicheru.

76
I can find no such provision in the Act. Section 40(1) of the Act provides
that:

“Where an intestate has married more that once under any system of law
permitting polygamy, his personal and household effects and the residue
of the net intestate estate shall, in the first instance, be divided among the
houses according to the number of children in each house, but also adding
any wife surviving him as an addition unit to the number of children.”
(emphasis added)

My understanding of that section is that while the net intestate estate

is to be distributed according to houses, each house being treated as a
unit, yet the Judge doing the distribution still has discretion to take into
account or consider the number of children in each house. If Parliament
had intended that there must be equality between houses, there would
have been no need to provide in the section that the number of children
in each house be taken into account.

Nor do I see any provision in the Act that each child must receive the
same or equal portion. That would clearly work an injustice particularly in
case of a young child who is still to be maintained, educated and generally
seen through life. If such a child, whether a girl or a boy, were to get an
equal inheritance with another who is already working and for whom no
school fees and things like that were to be provided, such equality would
work an injustice and for my part, I am satisfied the Act does not provide
for that kind of equality.

What I understand Waki JA, to be saying is that in the circumstances of

this particular case, there was no reasonable factual basis for drawing a
distinction between the sons on the one hand and the daughters on the
other hand. Subject to what I have said herein, I agree with the judgment
of Waki JA and the orders proposed by him. Those orders shall be the
order of the Court.

O’Kubasu JA concurs in the judgments of Waki and Omolo JJA.

For the appellant:
Mr P Gicheru instructed by Kalya & Co
For the respondents:
Mr PKK Birech instructed by Birech Ruto & Co
77
Attorney General v. Dow (Botswana)

Attorney-General v Dow (2001) AHRLR 99 (BwCA 1992)

 The Attorney-General v Unity Dow
Court of Appeal, Lobatse, 3 July 1992 (no 4/91)
Judges: Amissah, Aguda, Bizos, Schreiner, Puckrin
Extract: Amissah JP delivering the leading judgment
Previously reported: (1992) LRC (Const) 623; (1998) 1 HRLRA 1

Challenge against provisions of the Citizenship Act for being discriminatory

in their effect

Equality, non-discrimination (discrimination on the grounds of sex, 64,

65, 85)

Interpretation (broad and generous approach to constitutional

interpretation; nature and status of preamble, 11, 13-30; international
standards, 100-109)

Limitations of rights (strict interpretation of limitations, 66-73, 87)

Constitutional supremacy (48, 49)
Locus standi (110-131)
 
Amissah JP

[1.] This appeal is brought by the Attorney-General against the judgment

given by Horwitz AJ in favour of Unity Dow in her claim that her
constitutional rights had been infringed by certain specified provisions of
the Citizenship Act 1984.

[2.] The facts of the case which gave cause for the respondent’s complaint
were well summarised by the learned judge a quo, and for convenience
and with due apologies I will repeat that summary. As he said:

The Applicant, Unity Dow is a citizen of Botswana having been born

in Botswana of parents who are members of one of the indigenous
tribes of Botswana. She is married to Peter Nathan Dow who,
although he has been in residence in Botswana for nearly 14 years

78
 is not a citizen of Botswana, but a citizen of the United States of
America. Prior to their marriage on 7 March 1984 a child was born
to them on 29 October 1979 named Cheshe Maitumelo Dow and
after the marriage two more children were born: Tumisang Tad
Dow born on 26 March 1985 and Natasha Selemo Dow born on
26 November 1987. She states further in her founding affidavit that
my family and I have established our home in Raserura Ward in
Mochudi and all the children regard that place and no other as their
home.’ In terms of the laws in force prior to the Citizenship Act of
1984 the daughter born before the marriage is a Botswana citizen
and therefore a Motswana, whereas in terms of the Citizenship Act
of 1984 the children born during the marriage are not citizens of
Botswana (although children of the same parents), and are therefore
aliens in the land of their birth.

[3.] The respondent claimed that the provisions of the Citizenship Act of
1984 which denied citizenship to her two younger children were sections
4 and 5. Those sections read as follows:

4(1) A person born in Botswana shall be a citizen of Botswana by

birth and descent if, at the time of his birth: (a) his father was a citizen
of Botswana; or (b) in the case of a person born out of wedlock,
his mother was a citizen of Botswana. (2) A person born before the
commencement of this Act shall not be a citizen by virtue of this
section unless he was a citizen at the time of such commencement.

5(1) A person born outside Botswana shall be a citizen of Botswana

by descent if, at the time of his birth: (a) his father was a citizen
of Botswana; (b) in the case of a person born out of wedlock, his
mother was a citizen of Botswana. (2) A person born before the
commencement of this Act shall not be a citizen by virtue of this
section unless he was a citizen at the time of such commencement.

[4.] I should hereby add that the respondent’s case before the Court a
quo also embraced discriminatory treatment which she claimed the Act
gave to alien men married to Botswana women on the one hand, and
alien women married to Botswana men on the other. The section of the
Citizenship Act of 1984 which, according to the respondent, perpetrated

79
this distinction was section 15. But as the judgment of the Court a quo
did not refer to that aspect of the case in its determination of the injustice
suffered by the respondent from the Citizenship Act, I shall refrain from
going further into that aspect of the case.

[5.] The case which the respondent sought to establish and which was
accepted by the Court a quo was captured by paragraphs 13 to 15, and
paragraphs 18, 19, 21 and 22 of her founding affidavit. They read as
follows:

13. I am prejudiced by the section 4(1) of the Citizenship Act by

reason of my being female from passing citizenship to my two
children Tumisang and Natasha.

14. I am precluded by the discriminatory effect of the said law in that

my said children are aliens in the land of mine and their birth and
thus enjoy limited rights and legal protections.

15. I verily believe that the discriminatory effect of the said sections,
(4 and 5 supra) offend against section 3(a) of the Constitution of the
Republic of Botswana.

18. I am desirous of being afforded the same protection of the law

as a male Botswana citizen and in this regard I am desirous that my
children be accorded with Botswana citizenship...

19. As set out above, I verily believe and state that the provisions of
section 3 of the Constitution have been contravened in relation to
myself.

21. As a citizen of the Republic of Botswana, I am guaranteed under

the Constitution, immunity from expulsion from Botswana and verily
believe that such immunity is interfered with and limited by the
practical implications of sections 4, 5, and 13 of the said Citizenship
Act.

22. I verily believe that the provisions of the Constitution have been
contravened in relation to myself.

80
[6.] The sections of the Constitution of the Republic which the respondent
prayed in aid in this regard, therefore, are sections 3 and 14. Section 3
is the section which deals with the fundamental rights and freedoms of
the individual. Section 14 deals with the protection of the freedom of
movement. I shall have occasion to recite them and to refer to them in
some detail in the course of this judgment.

[7.] After hearing the respondent, then the applicant in the case, and the
Attorney-General in opposition, the learned judge a quo found in favour
of the former. The relevant parts of his judgment are as follows:

I therefore find that section 4 [of the Citizenship Act] is discriminatory

in its effect on women in that, as a matter of policy:

(i) It may compel them to live and bear children outside of wedlock.

(ii) Since her children are only entitled to remain in Botswana if

they are in possession of a residence permit and since they are
not granted permits in their own right, their right to remain in
Botswana is dependent upon their forming part of their father’s
residence permit.

(iii) The residence permits are granted for no more than two years at
a time, and if the applicant’s husband’s permit were not renewed
both he and applicant’s minor children would be obliged to leave
Botswana.

(iv) In addition applicant is jointly responsible with her husband for

the education of their children. Citizens of Botswana qualify for
financial assistance in the form of bursaries to meet the costs of
University education. This is a benefit which is not available to a
non-citizen. In the result the applicant is financially prejudiced by
the fact that her children are not Botswana citizens.

(v) Since the children would be obliged to travel on their father’s

passport the applicant will not be entitled to return to Botswana
with her children in the absence of their father.

81
 What I have set out at length may inhibit women in Botswana from
marrying the man whom they love. It is no answer to say that there
are laws against marrying close blood relatives - that is a reasonable
exclusion... It seems to me that the effect of section 4 is to punish a
female citizen for marrying a non-citizen male. For this she is put
in the unfavourable position in which she finds herself vis-à-vis her
children and her country. The fact that according to the Citizenship
Act a child born to a marriage between a citizen female and a non-
citizen male follows the citizenship of the father [may] not in fact
have that result. It depends on the law of the foreign country. The
result may be that the child may be rendered stateless unless its
parents emigrate. If they are forced to emigrate then the unfortunate
consequences which I have set out earlier in this judgment may ensue.
I therefore come to the conclusion that the application succeeds. I
have also come to the conclusion that section 5 of the Act must join
the fate of section 4.

[8.] The appellant has appealed against this decision on several grounds.
He complains that the Court a quo erred in holding that the applicant had
sufficiently shown that any of the provisions of sections 3-16 (inclusive)
of the Constitution had been, was being, or was likely to be contravened
in relation to her by reason of the provisions of section 4 or section 5 of
the Citizenship Act so as to confer on her locus standi to apply to the
High Court for redress pursuant to section 18 of the Constitution. After
holding that the provisions of the Constitution should be given a generous
interpretation’, the Court a quo erred in failing to give any or any adequate
effect to other principles of construction, in particular, the principle that
an Act of the National Assembly must be presumed to be infra vires
the Constitution: the principle that an Act or instrument, including the
Constitution should be construed as a whole; and with regard to section
15(3) of the Constitution, the principle of inclusio unius exclusio alterius’,
to which effect is given in section 33 of the Interpretation Act.

[9.] The Court a quo also erred, in that instead of holding that the word
sex’ had been intentionally omitted from section 15(3) of the Constitution
so as to accommodate, subject to the fundamental rights protected by
section 3 thereof, the matrilineal structure of Botswana society, in terms
of the common law, the customary law, and statute law, it held that section

82
15(3) of the Constitution merely listed examples of different grounds of
discrimination and was to be interpreted as including discrimination on
the grounds of sex’, and that section 4 and/or section 5 of the Citizenship
Act denied to the respondent by reason of sex her rights under the
Constitution. The rights mentioned in the appellant’s grounds of his
appeal being the respondent’s: her right to liberty and/or her right to
the protection of the law under section 3 of the Constitution, her right
to freedom of movement and immunity from expulsion from Botswana
under section 14 of the Constitution, and her protection from subjection to
degrading punishment or treatment under section 7 of the Constitution.

[10.] According to the complaint neither section 4 nor section 5 in fact

denied the respondent any of the rights and protections mentioned. Further,
the complaint went on, the Court a quo, having extended the definition of
discrimination in section 15(3) of the Constitution, also erred in failing
to consider and apply the limitations to the rights and freedoms protected
by section 15 of the Constitution which are contained in subsection 4(c)
(the law of citizenship being a branch of personal law), subsection (4)(e)
and subsection (9) (to the extent that the Citizenship Act re-enacts prior
laws), or to avert its mind to the special nature of citizenship legislation,
and the fact that citizenship was not a right protected under Chapter II of
the Constitution, nor was any right to pass on citizenship’ there created or
protected. Finally, the complaint stated, the Court a quo erred in holding
that section 4 and section 5 of the Citizenship Act were discriminatory in
their effect or contravened section 15 of the Constitution.

[11.] Argument was offered before us on most of the grounds stated above,
but rearranged to follow a somewhat different format. Apart from the locus
standi point, the basic question was whether upon a proper interpretation
of Chapter II of the Constitution, the chapter on fundamental rights
and freedoms of the individual, especially sections 3, 14, 15 and 18, the
constitutional right which the respondent claimed to have been infringed
had actually not been infringed with respect to her by sections 4 or 5 of
the Citizenship Act of 1984. The other submissions were formulated as
argument around that central theme.

[12.] It will be recalled from her founding affidavit which has been
recited above that the respondent complained in the Court below that

83
she was prejudiced by section 4(1) of the Citizenship Act by reason of
her being female from passing citizenship to her two children Tumisang
and Natasha; that the law in question had discriminatory effect in that
her children named were aliens in her own land and the land of their
birth, and they thus enjoyed limited rights and legal protections therein;
that she believed that the discriminatory effect of specified sections of the
Citizenship Act offended against section 3 (a) of the Constitution; and
that she believed that the provisions of section 3 of the Constitution had
been contravened in relation to herself.

[13.] We are here faced with some difficult questions of constitutional

interpretation. But our problems are to some extent eased by the fact that
not all matters for our consideration were in dispute between the parties:
neither party maintained that the Constitution had to be construed
narrowly or restrictively. Both parties agreed that a generous approach had
to be taken in constitutional interpretation. Both sides also agreed that
section 3 of the Constitution was a substantive section conferring rights
on the individual. This, in my view, put an end to any argument about
whether the section was a preamble or not. It also, in my view, totally
undermines any judgment based on the premise that section 3 is only a
preamble. The sections of the Constitution which arose for construction
were also, more or less, agreed.

[14.] With regard to the approach to the interpretation of the

Constitution, learned counsel for the appellant further drew our attention
to the Interpretation Act of 1984 (cap 01:01) which in section 26 provides
that:

Every enactment shall be deemed remedial and for the public good
and shall receive such fair and liberal construction as will best attain
its object according to its true intent and spirit.

[15.] He then submitted that by section 2 of the Act, each provision of

the Act applied to every enactment, whether made before, on or after the
commencement of the Act, including the Constitution. This section, he
submitted, therefore, must be the section which has to be applied to the
present case. I agree that the provisions of the Interpretation Act apply to
the interpretation of the Constitution. The section cited, however, is not

84
inconsistent with viewing the Constitution as a special enactment which
in many ways differs from the ordinary legislation designed, for example,
to establish some public utility or to remedy some identified defect in the
body politic.

[16.] A written constitution is the legislation or compact which

establishes the state itself. It paints in broad strokes on a large canvas
the institutions of that state, allocating powers, defining relationships
between such institutions and between the institutions and the people
within the jurisdiction of the state, and between the people themselves. A
constitution often provides for the protection of the rights and freedoms
of the people, which rights and freedoms have thus to be respected in all
further state action. The existence and powers of the institutions of state,
therefore, depend on its terms. The rights and freedoms, where given by it,
also depend on it. No institution can claim to be above the constitution;
no person can make any such claim. The constitution contains not only
the design and disposition of the powers of the state which is being
established, but embodies the hopes and aspirations of the people. It is
a document of immense dimensions, portraying, as it does, the vision of
the peoples’ future. The makers of a constitution do not intend that it
be amended as often as other legislation; indeed, it is not unusual for
provisions of the constitution to be made amendable only by special
procedures imposing more difficult forms and heavier majorities of the
members of the legislature.

[17.] By nature and definition, even when using ordinary prescriptions

of statutory construction, it is impossible to consider a constitution
of this nature on the same footing as any other legislation passed by a
legislature which is itself established, with powers circumscribed, by the
constitution. The object it is designed to achieve evolves with the evolving
development and aspirations of its people. In terms of the Interpretation
Act, the remedial objective is to chart a future for the people, a liberal
interpretation of that objective brings into focus considerations which
cannot apply to ordinary legislation designed to fit a specific situation.
As Lord Wright put it when dealing with the Australian case of James v
Commonwealth of Australia (1936) AC 578 at page 614:

85
 It is true that a Constitution must not be construed in any narrow
and pedantic sense. The words used are necessarily general, and
their full import and true meaning can often only be appreciated
when considered, as the years go on, in relation to the vicissitudes
of fact which from time to time emerge. It is not that the meaning
of the words changes, but the changing circumstances illustrate and
illuminate the full import of that meaning.

[18.] We in this Court, however, are not bereft of previous authority of

our own to guide us in our deliberations on the meaning of the Botswana
Constitution. The present case does not present us with a first opportunity
to explore unsheltered waters and to interpret the Constitution free
from all judicial authority. We do have some guidance from previous
pronouncements of this Court as to the approach which we should follow
in this matter. In Attorney-General v Magi (1981) BLR 1 at page 32,
Kentridge JA said:

A constitution such as the Constitution of Botswana, embodying

fundamental rights, should as far as its language permits be given a
broad construction. Constitutional rights conferred without express
limitation should not be cut down by reading implicit restrictions
into them, so as to bring them into line with the common law.

[19.] In Petrus and Another v The State (1984) BLR 14, my brother,
Aguda JA had occasion to review the Courts’ approach to constitutional
construction. In that review, he said at page 34:

It was once thought that there should he no difference in approach

to constitutional construction from other statutoryinterpretation.
Given the British system of government and the British judicial
set-up, that was understandable, it being remembered that whatever
statutes that might have the look of constitutional enactment in
Britain, such statutes are nevertheless mere statutes like any others
and can be amended or repealed at the will of Parliament. But the
position where there is a written Constitution is different.

[20.] Aguda JA then cited in support the view of Higgins J in the

Australian High Court in Attorney-General for New South Wales v

86
Brewery Employees Union of New South Wales (1908) 6 CLR 469 at
pp 611-612, that:

Although we are to interpret the words of the Constitution on

the same principles of interpretation as we apply to any ordinary
law, these very principles of interpretation compel us to take into
account the nature and scope of the Act that we are interpreting - to
remember that it is a Constitution, a mechanism under which laws
are to be made, and not a mere Act which declares what the law is
to be.

[21.] He also cited Sir Udo Udoma of the Supreme Court of Nigeria in
Rain Rabin v The State (1981) 2 NCLR 293 at p 326 where that learned
judge said:

The Supreme Law of the Land; that it is a written, organic instrument

meant to serve not only the present generation, but also several
generations yet unborn ... that the function of the Constitution is
to establish a framework and principles of government, broad and
general in terms, intended to apply to the varying conditions which
the development of our several communities, must involve, ours
being a plural, dynamic society, and therefore, more technical rules of
interpretation of statues are to some extent inadmissible in a way as to
defeat the principles of government enshrined in the Constitution.

[22.] Finally, he cited Justice White of the Supreme Court of the United
States in South Dakota v North Carolina (1904) 192 US 286 [at 341],
where the learned judge said:

I take it to be an elementary rule of constitutional construction that

no one provision of the Constitution is to be segregated from all the
others, and to be considered alone but that all the provisions bearing
upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purpose of the instrument.

[23.] Aguda JA concludes his review in the Petrus case by saying:

It is another well-known principle of construction that exceptions
contained in constitutions are ordinarily to be given strict and narrow,

87
rather than broad constructions. See Corey v Knight (1957) Cal App 2d
671; 310 p 2d 673 at p 679.

[24.] With such pronouncements from our own Court as guide, we do

not really need to seek outside support for the views we express. But
just to show that we are not alone in the approach we have adopted in
this country towards constitutional interpretation, I refer to similar dicta
of judges from various jurisdictions such as Wilberforce in Minister of
Home Affairs (Bermuda) and Another v Fisher and Another (1980) AC
319 at pages 328 to 329; Dicksen CJ in the Canadian case of R v Big
M Drug Mart Ltd (1985) 1 SCR 295 at page 344; the Namibian case
of Mwondingi v Minister of Defence, Namibia 1991 (1) SA 851 (run)
at 857-858; and the Zimbabwe cases of Hewlett v Minister of Finance
and Another 1982 (1) SA 490(C) at 495D-496E and Ministry of Home
Affairs v Bickle and Others 1984 (2) SA 439 per Georges CJ at page 447;
United States cases such as Boyd v United States I 16 US 616 at 635 and
Trop v Dunes 356 US 86.

[25.] In my view, these statements of learned judges who have had occasion
to grapple with the problem of constitutional interpretation capture the
spirit of the document they had to interpret, and I find them apposite in
considering the provisions of the Botswana Constitution which we are
now asked to construe. The lessons they teach are that the very nature of
a constitution requires that a broad and generous approach be adopted in
the interpretation of its provisions; that all the relevant provisions bearing
on the subject for interpretation be considered together as a whole in
order to effect the objective of the constitution; and that where rights and
freedoms are conferred on persons by the constitution, derogations from
such rights and freedoms should be narrowly or strictly construed.

[26.] It is now necessary to examine the constitutional provisions giving

rise to the dispute in this case. Section 3 states that:

3. Whereas every person in Botswana is entitled to the fundamental

rights and freedoms of the individual, that is to say, the right, whatever
his race, place of origin, political opinions, colour, creed or sex, but
subject to respect for the rights and freedoms of others and the public
interest to each and all the following freedoms, namely:

88
 (a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and

association; and

(c) protection for the privacy of his home and other property
and from deprivation of property without compensation, the
provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms subject to
such limitations of that protection as are contained in those
provisions, as being limitations designed to ensure that the
enjoyment of the said rights and freedoms by any individual
does not prejudice the rights and freedoms of others or the
public interest.

[27.] The first impression gained from the opening whereas’ is that section
3 is a preamble. If it were so, different consequences might arise from
it compared with the consequences arising from it being a substantive
provision conferring rights on the individual. In section 272 of Bennion
on Statutory Interpretation the effect of a preamble is given as follows:

The preamble is an optional feature in public general Acts, though

compulsory in private Acts. It appears immediately after the long
title, and states the reason for passing the Act. It may include a recital
of the mischief towards which the Act is directed. When present, it
is thus a useful guide to the legislative intention.

[28.] Obviously section 3 is not a preamble to the whole of the Constitution.

An argument made that it is a preamble therefore would have to limit
its operative effect as such, if any, to Chapter II on the Protection of
Fundamental Rights and Freedoms of the Individual. Were it a preamble,
it would have to be taken as a guide to the intention of the framers of the
Constitution in enacting the provisions of that chapter.

[29.] A careful look at the section, however, shows that it was not intended
merely as a preamble indicating the legislative intent for the provisions of
Chapter II at all. The internal evidence from the structure of the section is
against such an interpretation.

89
Although the section begins with whereas’, it accepts that every person
in Botswana is entitled to the fundamental rights and freedoms of the
individual, ... whatever his race, place of origin, political opinions, colour,
creed or sex’ is, and continues to enact positively that the provisions of
this Chapter shall have effect for the purpose of affording protection to
those rights and freedoms (that is, the rights and freedoms itemised in
(a), (b) and (c) of section 3), subject to such limitations as are contained in
those provisions (that is, the provisions in the whole of Chapter II) being
limitations designed to ensure that the enjoyment of the said rights and
freedoms by any individual does not prejudice the rights and freedoms of
others or the public interest’. That positively enacted part of section 3 alone
should be sufficient to refute a suggestion that it is a mere preamble. But
section 18(1) of the Constitution which finds itself in the same Chapter
II put the matter beyond doubt. It provides that:

Subject to the provisions of subsection (5) of this section, if any

person alleges that any of the provisions of sections 3 to 16 (inclusive)
of this Constitution has been, is being or is likely to be contravened
in relation to him then without prejudice to any other action with
respect to the same matter which is lawfully available, that person
may apply to the High Court for redress.

[30.] If a preamble confers no right but merely provides an aid to the

discovery of legislative intention, it is impossible to hold otherwise than
that from section 18(1), it is clear that contravention of section 3 leads to
enforcement by legal action.

[31.] From the wording of section 3, it seems to me that the section is not
only a substantive provision, but that it is the key or umbrella provision
in Chapter II under which all rights and freedoms protected under that
chapter must be subsumed. Under the section, every person is entitled to
the stated fundamental rights and freedoms. Those rights and freedoms are
subject to limitations only on two grounds, that is to say, in the first place,
limitations designed to ensure that the enjoyment of the said rights and
freedoms by any individual does not prejudice the rights and freedoms of
others’, and secondly on the ground of public interest’. Those limitations
are provided in the provisions of Chapter II itself, which is constituted by
sections 3 (but effectively, section 4) to 19, of the Constitution.

90
[32.] The argument has been advanced that even if rights and freedoms are
conferred by section 3, that section makes no mention of discrimination,
and therefore, that section does not deal with the question of discrimination
at all. Discrimination is mentioned only in section 15 of the Constitution;
it is, therefore, that section only which we ought to look at in a case
which basically alleges discrimination. But that argument assumes that
section 15 is an independent section standing alone in Chapter II of the
Constitution. It is only if section 15 is considered as standing on its own,
separate and distinct, and conferring new rights unconnected with the
rights and freedoms stated in section 3 that it can be said that section 15
has no connection with section 3. As I have tried to demonstrate by the
examination of the wording used in section 3, that assumption cannot
be right. The wording is such that the rest of the provisions of Chapter
II, other than those dealing with derogations under the general powers
exercisable in times of war and emergency in sections 17 and 18, and
the interpretation of section 19 of the Constitution, have to be read in
conjunction with section 3. They must be construed as expanding on or
placing limitations on section 3, and be construed within the context of
that section.

[33.] As pointed out before, the wording of section 3 itself shows clearly
that whatever exposition, elaboration or limitation is found in sections 4 to
19 must be exposition, elaboration or limitation of the basic fundamental
rights and freedoms conferred by section 3. Section 3 encapsulates the
sum total of the individual’s rights and freedoms under the Constitution in
general terms, which may be expanded upon in the expository, elaborating
and limiting sections ensuing in the chapter. We are reminded of the
lesson that all the provisions of a constitution which have a bearing on a
particular interpretation have to be read together. If that is the case then
section 15 cannot be taken in isolation as requiring separate treatment
from the other relevant provisions of Chapter II or indeed from those of
the rest of the Constitution.

[34.] Support is given to this view by a look at other provisions of Chapter

II. A number of rights and freedoms dealt with in section 3 are not
specifically referred to in the express terms in which they are later dealt
with in the succeeding sections of Chapter II.

91
[35.] Take, for example, section 6 of Chapter II which details the protection
against slavery, servitude or forced labour. Section 3 does not specifically
mention the words slavery’, servitude’ or forced labour’. But clearly these
words can, and in the structure of the Constitution must, be subsumed
under some general expression or term in section 3. That section confers
the right and freedom to liberty’ and security of the person’. A person who
is put in slavery or servitude or made to do forced labour cannot be said to
enjoy a right to liberty or security of his person. Infringing section 6 will
automatically infringe section 3.

[36.] Take section 7 of the same Chapter II which gives protection

against torture or inhuman or degrading treatment. Section 3 does not
specifically mention torture’, inhuman treatment’ or degrading treatment’.
But section 3(a) confers the right to life, liberty, security of the person and
the protection of the law’. It would be strange to propound the argument
that a person who has been subjected to torture, inhuman or degrading
treatment has only his right under section 7 infringed, but that his right
to life, liberty, security of the person and the protection of the law remains
intact because torture, inhuman or degrading treatment are not specifically
mentioned in section 3. The same applies to section 14 which deals with
freedom of movement. Again freedom of movement is not mentioned in
section 3 although the person deprived of such freedom cannot be said to
be enjoying his liberty’ or security of the person’ which are mentioned in
section 3.

[37.] The United States Constitution makes no specific reference

to discrimination as such. Yet several statutes have been held to be in
contravention of the Constitution on the ground of discrimination. These
cases have been decided on the basis of the 14th Amendment of the
Constitution passed in 1868 which forbids any state to deny to any person
within its jurisdiction the equal protection of the laws’ (see, for example,
Reed v Reed 404 US 71; Craig v Boren, Governor of Oklahoma, et al 429
US 190; Abdiel Caba v Kazim Mohammend and Maria Mohammend 441
US 380) or on the equally wide due process clause in the 5th Amendment
passed in 1791 (for example, Frontiero v Richardson, Secretary of Defence
411 US 677; Weinberger, Secretary of Health, Education and Welfare v
Wiesenfeld 420 US 636), or sometimes on both Amendments.

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[38.] In Botswana, when the Constitution, in section 3, provides that
every person ... is entitled to the fundamental rights and freedoms of the
individual’, and counts among these rights and freedoms the protection
of the law’, that fact must mean that, with all enjoying the rights and
freedoms, the protection of the law given by the Constitution must
be equal protection. Indeed, the appellant generously agreed that the
provision in section 3 should be taken as conferring equal protection of
the law on individuals. I see section 3 in that same light. That the word
discrimination’ is not mentioned in section 3 therefore does not mean that
discrimination, in the sense of unequal treatment, is not proscribed under
the section.

[39.] I also conclude from the foregoing that the fact that discrimination
is not mentioned in section 3 does not detract from section 3 being the
key or umbrella provision conferring rights and freedoms under the
Constitution under and in relation to which the other sections in Chapter
II merely expound further, elaborate or limit those rights and freedoms.
Section 15, which specifically mentions and deals with discrimination,
therefore does not, in my view, confer an independent right standing on
its own.

[40.] One other possible argument may be advanced against section 3 as

the section of the Constitution conferring rights and freedoms: it arises
from the question whether the proposition can seriously be maintained
that the section gives the same right to every person in Botswana. What,
it may be asked in this connection, about children? Do they have the
same rights and freedoms as adults? What about aliens? Can they claim
the same rights and freedoms as citizens? The answer to both questions
is, while under the jurisdiction of the State of Botswana, yes, but subject
to whatever derogations or limitations may have been placed by specific
provisions of the Constitution with respect to them. With regard to a child,
section 5 which gives protection against deprivation of personal liberty, for
example, makes in subsection 1(f ) an exception by restrictions imposed on
him with the consent of his parent or guardian, for his education or welfare
during any period ending not later than the date when he attains the age
of eighteen years’. Section 10(11)(b) places a limitation on the right of
persons under the age of 18 to free access to proceedings in court. The
qualifications for the Office of President (section 33) places a minimum

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age of 35 on the capacity to be elected President, and a minimum age limit
of 21 years is placed on the capacity for election of a member of parliament.
These are all limitations to his freedoms under the Constitution.

[41.] Aliens, on the other hand, have their rights and freedoms curtailed by,
for example, section 14(3)(b) which permits the imposition of restrictions
on the freedom of movement of any person who is not a citizen of
Botswana; and by section 15(4)(b) which permits discrimination with
respect to persons who are not citizens of Botswana’.

[42.] Where other derogations or limitations are made to the general rights
and freedoms conferred by section 3 of the Constitution, they are made in
sections 4 to 16 or through specific provisions of the Constitution which
are inconsistent with the rights or freedoms conferred.

[43.] If my reading of sections 3 to 16 of the Constitution is correct, and

if section 3 provides, as I think, equal treatment to all save in so far as
derogated from or limited by other sections, the question in this particular
case is whether and how section 15 derogates from the rights and freedoms
conferred by section 3(a), which requires equal protection of the law to all
persons irrespective of sex.

[44.] The case made for the appellant in this respect is, to put it succinctly,
that section 15 is the section of the Constitution which deals with
discrimination; that, significantly, whereas section 3 confers rights and
freedoms irrespective of sex, the word sex’ is not mentioned among the
identified categories in the definition of discriminatory’ treatment in
section 15(3); that the omission of sex is intentional and is made in order
to permit legislation in Botswana which is discriminatory on grounds of
sex; that discrimination on grounds of sex must be permitted in Botswana
society as the society is patrilineal and, therefore, male oriented. The
appellant accepts that the Citizenship Act 1984 is discriminatory, but this
was intentionally made so in order to preserve the male orientation of the
society; that Act, though discriminatory, was not actually intended to be so,
its real objective being to promote the male orientation of society and to
avoid dual citizenship, the medium for achieving these ends being to make
citizenship follow the descent of the child; and that even if the Act were as
a result discriminatory, it was not unconstitutional.

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[45.] Before I attempt to answer the question whether any of the sections
of the Citizenship Act infringes the rights and freedoms conferred by
section 3(a), as the respondent has complained that they do, it is necessary
that one or two incidental matters put forward in support of the central
theme described be disposed of. It was submitted by the appellant that
Parliament could enact any law for the peace, order and good government
of Botswana, and that the Citizenship Act was a law based on descent
which was required to ensure that the male orientation imperative of
Botswana society and the need to avoid dual citizenship be advanced. There
is no doubt that the Citizenship Act is an Act of Parliament. I also accept
that an Act of Parliament is presumed to be intra vires the Constitution.
But it must be added that that presumption is not irrebutable. The power
of Parliament to legislate in the terms propounded is found in section 86
of the Constitution.

[46.] It is a provision which, I daresay, is found in the constitutions of

all former colonies and protectorates of Britain, and which gives the
legislature the amplitude of power to legislate on all matters necessary for
the proper governance of a country. In Britain, the power of Parliament to
legislate is uncircumscribed. The fact was what led Philip Herbert, fourth
Earl of Pembroke and Montgomery, in a speech at Oxford on 11 April
1648 to say that, My father said, that a Parliament could do anything but
make a man a woman, and a woman a man.’ But as we know, when in the
19th century Kay LJ gave a property and mathematical rendition of the
same sentiment by saying in Metropolitan Railway Co v Fowler (1892) 1
QB 165 at 183, that, Even an Act of Parliament cannot make a freehold
estate in land an easement, any more than it could make two plus two
equal five.’ Scrutton LJ in Taff Vale Railway Co v Cardiff Railway Co
(1917) 1 Ch 199 at 317 countered by saying, I respectfully disagree with
him, and think that for the purposes of the Act’ it can effect both statutory
results.’ (See Megarry A Second Miscellany-at-Law.)

[47.] Scrutton LJ’s statement is correct because Britain does not live under
a written constitution; no piece of legislation by Parliament has primacy
over others and Parliament cannot legislate to bind future Parliaments. We,
therefore, speak of the supremacy of Parliament in Britain. What the British
Parliament has done or is capable of doing is no sure guide to us trying
to understand a written constitution. The American Revolution which

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started off the era of written constitutions changed all that. With a written
constitution, under which the existence and powers of the legislature are
made dependent on the constitution, the power to legislate is circumscribed
by the constitution. As section 86 of the Botswana Constitution put it, the
power of Parliament to make laws for the peace, order and good government
of Botswana’, is subject to the provisions of the Constitution’. Parliament
cannot, therefore, legislate to take away or restrict the fundamental rights
and freedoms of the individual, unless it is on a subject on which the
Constitution has made an exception by giving Parliament power to do so,
or the Constitution itself is properly amended. Instead of the supremacy of
Parliament, we have, if anything, the supremacy of the Constitution.

[48.] As the legislative powers of Parliament in Botswana are limited

by the provisions of the Constitution, where the Constitution lays down
matters on which Parliament cannot legislate in ordinary form, as it does
in Chapter II, for example, or guarantees to the people certain rights and
freedoms, Parliament has no power to legislate by its normal procedures
in contravention or derogation of these prescriptions. This view of a
constitution is, of course, contrary to the law and practice of the British
Constitution under which the normal canons of construction of Acts of
Parliament are formulated.

[49.] Our attention has been drawn to the patrilineal customs and
traditions of the Botswana people to show, I believe, that it was proper for
Parliament to legislate to preserve or advance such customs and traditions.
Custom and tradition have never been static. Even then, they have always
yielded to express legislation. Custom and tradition must a fortiori, and
from what I have already said about the pre-eminence of the constitution,
yield to the Constitution of Botswana. A constitutional guarantee cannot
be overridden by custom. Of course, the custom will as far as possible be
read so as to conform to the constitution. But where this is impossible, it is
custom not the constitution which must go.

[50.] In this connection a document entitled Report of the Law Reform

Committee on: (i) Marriage Act (ii) Law of Inheritance (iii) Electoral Law
and (iv) Citizenship Law was put before us for our consideration. The report
apparently covered the activities of the Committee from June to December
1986, and was laid before Parliament in March 1989. The Committee had,

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apparently, gone round the country finding out the reaction of the people
to the laws named. The authority for placing the report before us was said
to be section 24(1) of the Interpretation Act which provides that:

24 (1) For the purpose of ascertaining that which an enactment was

made to correct and as an aid to the construction of the enactment a
court may have regard to any textbook or other work of reference, to
the report of any commission of enquiry into the state of the law, to any
memorandum published by authority in reference to the enactment
or to the Bill for the enactment, to any relevant international treaty,
agreement or convention and to any papers laid before the National
Assembly in reference to the enactment or to its subject matter, but
not to the debates in the Assembly.

[51.] The object of putting the report before us was, presumably, to

demonstrate that the majority of the people whose views were collected
wanted or agreed to the differentiation or discrimination made between
men and women under the Citizenship Act. It is noticed, however, from
the report itself that the expression of the people was made in the form of
answers to questions. The manner in which those questions were put does
not appear in the report. Neither do we know the explanations made to the
people before they came out with the recorded answers. Nowhere in the
report is reference made to the fact that the provisions of the Citizenship
Act, at least, may possibly be affected by the Constitution. For this reason,
the report loses much of its value as an expression of the people after all
relevant facts and considerations had been placed before them.

[52.] Besides, the report is a document prepared some years after both
the Constitution and Citizenship Act were passed. The Constitution was
promulgated in 1966. The Act was passed in 1984. The activities of the
Committee resulting in the report were in 1986, and the document was
laid before Parliament in 1989. I must say that with the interpretation of
the provisions of the Citizenship Act I have no difficulty whatsoever. Its
provisions are clear. What difficulty I have is in respect to the Constitution
which we are trying to unravel in this case, not the Citizenship Act. I would
have derived some value from the report if the activities of the Committee
leading to it had been before, not after, the Constitution was promulgated.
For then I would have got some indication of what the people of Botswana

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thought was the overriding characteristic of their society which should
not be altered by any rights or freedoms to individuals conferred by the
Constitution. That would have given me some assistance, other defects
aside for the moment, in determining the intention of the framers of the
Constitution in enacting the fundamental rights and freedoms chapter.
But that is not the case here. Even if, therefore, the report qualifies
under section 24(1) under any papers laid before the national assembly
in reference to the enactment or to its subject matter’, I do not think it
in any way aids my efforts at interpreting the Constitution, which is the
question at hand, or whether provisions of the Citizenship Act, which to
me are quite clear, infringe the Constitution.

[53.] It seems to me that the argument of the appellant was to some

extent influenced by a premise that citizenship must necessarily follow
the customary or traditional systems of the people. I do not think that
view is supported by the development of the law relating to citizenship.
Botswana as a sovereign republic dates from 30 September 1966. Before
then persons who were within the territorial area which is now Botswana
acquired their citizenship under British laws. The law of citizenship
in Britain is now governed by legislation. But the development of the
concept of citizenship, like most other political concepts, dates as far back
as ancient Greece. Walker in The Oxford Companion to Law describes
citizenship as:

The legal link between an individual and a particular state or

political community under which the individual receives certain
rights, privileges, and protections in return for allegiance and
duties. Whether an individual has citizenship of a particular state
depends on its own legal system and by reason of differences between
legal systems some individuals may be stateless and others have
citizenship of more than one state. In ancient Athens only some of
the population were citizens; resident aliens, women, and slaves were
excluded. The Romans similarly initially had a restricted concept of
citizenship, but gradually extended it until in AD 212 Caracalla’s
Constitutio Antoniniana gave citizenship to most of the freemen of
the Empire. The concept was in abeyance in the middle ages until
city dwellers became a third force in politics, with the nobles and
clergy. Citizenship was the relationship to a city implying certain

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 liberties. The American and French Revolutions gave a new meaning
to citizenship, contrasting it with subject’, while in the twentieth
century the movement for women’s rights has further extended
the concept. In modern practice what rights and duties attach to
citizenship depends on the municipal law of each state.

[54.] Mr Justice Gray of the American Supreme Court in United States

v Wong Kim Ark 169 US, 649 at 655 (1898) saw the development of the
law on citizenship in the following terms:

II. The fundamental principle of the common law with regard to

English nationality was birth within the allegiance, also called
legality’, obedience’, faith’, or power’, of the King. The principle
embraced all persons born within the king’s allegiance and subject to
his protection. ... It thus clearly appears that by the law of England
for the last three centuries, beginning before the settlement of this
country, and continuing to the present day, aliens, while residing in
the dominions possessed by the Crown of England, were within
the allegiance, the obedience, the faith or loyalty, the protection, the
power and the jurisdiction of the English sovereign; and therefore
every child born in England of alien parents was a natural born
subject, unless the child of an ambassador or other diplomatic agent
of a foreign state, or of an alien enemy in hostile occupation of the
place where the child was born.

III. The same rule was in force in all the English colonies upon this
continent down to the time of the Declaration of Independence, and
in the United States afterwards, and continued to prevail under the
Constitution as originally established.

[55.] That must also have been the position with Botswana until
independence. All who were born within the protection or jurisdiction of
the sovereign power became citizens by birth. That, however, is not claimed
to have interfered with the male orientation of Botswana customary society.

[56.] The old classic, Oppenheim on International Law Volume 1 (Peace)

(8th ed 1955) gives the international law aspect of the matter. At 645, it
makes the following distinction:

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 ‘Nationality’ in the sense of citizenship of a certain state, must not
be confused with nationality’ as meaning membership of a certain
nation in the sense of race. Thus, according to international law,
Englishmen and Scotsmen are, despite their different nationality
as regards race, all of British nationality as regards their citizenship.
Thus further, although all Polish individuals are of Polish nationality
qua race, for many generations there were no Poles qua citizenship.

[57.] By this, I understand that Botswana nationality in the sense of the

identity of the Botswana people, which like the Poles would be a matter
of descent, need not be the same as Botswana nationality in the sense of
citizenship. Although it is possible that citizenship should by municipal
law be based on descent or guardianship, there is no historical reason for
compelling any state to so base its citizenship laws, especially where there
is some serious obstacle like a constitutional guarantee in the way. Even
in Britain, where until the Guardianship Act of 1973, all parental rights,
including guardianship, were vested in the father, unless the child was born
out of wedlock, nationality was not based on descent or guardianship. I
find, therefore, no necessary nexus mandating that citizenship should be
based on traditional or customary ideas of descent or guardianship.

[58.] The British concept of citizenship, which at one time must have
governed the position in Botswana, had started with a question of
allegiance, and been conferred on a basis of birth within the territorial
jurisdiction. In Taswell-Langmead’s Constitutional History (11th ed
1960) by TFT Plucknett, at 678, the position of the alien, the opposite of
the citizen, was contrasted with that of the citizen in these words:

By way of a conclusion we may consider the position of the alien who

strictly had no civil liberties. There were many reasons for this. He
was often a merchant intent on the dangerous operation of taking
money out of the realm; he was sometimes a usurer; he might be a
cleric with obnoxious bulls and provisions from Rome; he might be
an enemy; after the Reformation his theology as well as his trading
might arouse antipathy.

[59.] It is clear that what the State of Britain was trying to guard against
was not purity in descent or guardianship, but a host of prejudicial activities

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which those not within the sovereigns allegiance threatened. Of course in
modern states, it is the municipal law which determines the citizenship of
the individual. The legislature may choose which prescription to follow. The
basis may be birth to parents who are themselves citizens irrespective of
where the child is born, or may be birth within the territorial jurisdiction,
while yet a third course may have a mixture of both. There may be other
prescriptions. It is all a matter for the state legislature. But whatever
course municipal law adopts must comply with two prerequisites: it must,
in the first place, conform to the constitution of the state in question, and
secondly it must conform to international law. For as Oppenheim points
out, at 643-4:

while it is for each state to determine under its law who are its
nationals, such law must be recognised by other states only in so
far as it is consistent with international conventions, international
custom, and the principles of law generally recognised with regard
to nationality’.

[60.] As he points out by way of example, a state which imposes its

nationality upon aliens residing for a brief period in its territory or upon
persons resident abroad may not have the privilege so conferred accepted
by other members of the international community.

[61.] I may mention also in passing that the fact that different states
follow different criteria in conferring citizenship means that whatever
Botswana provides in its citizenship laws may not achieve the objective
of eliminating dual citizenship, if that indeed is what is desired, because
where some states confer citizenship by birth to parents, whether through
the male or the female line, and others confer citizenship by birth within
a territorial area, cases will occur where a child born to citizens of state A,
which follows the descent principle, within the territorial jurisdiction of
state B, which follows the territorial area principle, will initially acquire
the citizenship of both states A and B.

[62.] Other combinations between the parents may produce similar results.
In this very case, the respondent’s eldest child, Cheshe, who acquired
Botswana citizenship at birth because her parents were not married at the
time, also became, and presumably still is, an American citizen by descent.

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Such a child may continue with this dual citizenship for the rest of his
or her life. But those states which want to avoid dual nationality would
then require the child to opt for the citizenship which he or she wishes
to continue with upon attaining majority. The device for eliminating dual
citizenship does not, therefore, appear to me to lie in legislation which
discriminates between the sexes of the parents.

[63.] As far as the present case is concerned, the more important

prerequisite which each legislation must comply with is the requirement
that the legislative formula chosen must not infringe the provisions of
the Constitution. It cannot be correct that because the legislature is
entitled to lay down the principles of citizenship, it should, in doing so,
flout the provisions of the Constitution under which it operates. Where
the legislature is confronted with passing a law on citizenship, its only
course is to adopt a prescription which complies with the imperatives
of the Constitution, especially those which confer fundamental rights to
individuals in the state.

[64.] With those considerations in mind, I come now to deal with the
central question, namely, whether section 15 of the Constitution allows
discrimination on the ground of sex. The provisions of the section which
are for the moment relevant to this issue are subsections (1), (2), (3) and
(4). They state as follows:

(1) Subject to the provisions of subsections (4), (5) and (7) of this
section, no law shall make any provision that is discriminatory either
of itself or in its effect.

(2) Subject to the provisions of subsections (6), (7) and (8) of this
section, no person shall be treated in a discriminatory manner by any
person acting by virtue of any written law or in the performance of
the functions of any public office or any public authority.

(3) In this section, the expression discriminatory’ means affording

different treatment to different persons, attributable wholly or mainly
to their respective descriptions by race, tribe, place of origin, political
opinions, colour or creed whereby persons of one such description
are subjected to disabilities or restrictions to which persons of

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 another such description are not made subject or accorded privileges
or advantages which are not accorded to persons of another such
description.

(4) section (1) of this section shall not apply to any law so far as that
law makes provision

(a) for the appropriation of public revenues or other public funds;

(b) with respect to persons who are not citizens of Botswana;

(c) with respect to adoption, marriage, divorce, burial, devolution of

property on death or other matters of personal law

(d) for the application in the case of members of a particular race,

community or tribe of customary law with respect to any matter
whether to the exclusion of any law in respect to that matter
which is applicable in the case of other persons or not; or

(e) whereby persons of any such description as is mentioned in

subsection (3) of this section may be subjected to any disability
or restriction or may be accorded any privilege or advantage
which, having regard to its nature and to special circumstances
pertaining to those persons or to persons of any other such
description, is reasonably justifiable in a democratic society.

[65.] Subsection (1) mandates that no law shall make any provision that is
discriminatory either of itself or in its effect’. Subsection (2) mandates that
no person shall be treated in a discriminatory manner by any person acting
by virtue of any written law or in the performance of the functions of any
public office or any public authority’. Subsection (3) then defines what
discriminatory’ means in this section. It is affording different treatment
to different persons, attributable wholly or mainly to their respective
descriptions by race, tribe, place of origin, political opinions, colour or
creed whereby persons of one such description are subjected to disabilities
or restrictions to which persons of another such description are not made
subject or accorded privileges or advantages which are not accorded to
persons of another such description’. The word sex’ is not included in

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the categories mentioned. According to the appellant, therefore, sex’ had
been intentionally omitted from the definition in section 15(3) of the
Constitution so as to accommodate, subject to the fundamental rights
protected by section 3 thereof, the patrilineal structure of Botswana
society, in terms of the common law, the customary law, and statute law.

[66.] If that is so, the next question is whether the definition in section
15(3) in any way affects anything stated in section 3 of the Constitution.
We must always bear in mind that section 3 confers on the individual the
right to equal treatment of the law. That right is conferred irrespective
of the person’s sex. The definition in section 15(3) on the other hand is
expressly stated to be valid in this section’. In that case, how can it be said
that the right which is expressly conferred is abridged by a provision which
in a definition for the purposes of another section of the Constitution
merely omits to mention sex? I know of no principle of construction in
law which says that a fundamental right conferred by the Constitution on
an individual can be circumscribed by a definition in another section for
the purposes of that other section. Giving the matter the most generous
interpretation that I can muster, I find it surprising that such a limitation
could be made, especially where the manner of limitation claimed is the
omission of a word in a definition in that other section which is valid only
for that section. What the legal position, however, is, is not that the courts
should give the matter a generous interpretation but that they should
regard limitations to fundamental rights and freedoms strictly.

[67.] If one comes imploring the Court for a declaration that his or
her right under section 3 of the Constitution has been infringed on the
ground that, as a male or female, unequal protection of the law has been
accorded to him or her as compared to members of the other gender, the
Court cannot drive that person away empty handed with the answer that
a definition in section 15 of the Constitution does not mention sex so her
right conferred under section 3 has not been infringed. How can the right
to equal protection of the law under section 3 be amended or qualified by
an omission in a definition for the purposes of section 15? We are told
that the answer lies in an application of the rule of construction expressio
unius exclusio alterius.

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[68.] Before testing the validity of that maxim in this case, I think we should
examine further the manner in which limitations on the fundamental
rights and freedoms of Chapter II of the Constitution are set out in the
Constitution itself. A number of sections in the chapter make exceptions
or place limitations on the rights and freedoms conferred. A close reading
of the provisions of the chapter discloses that whenever a provision wishes
to state an exception or limitation to a described right or freedom, it does
so expressly in a form which is bold and clear. In some cases the form
of words used occurs so frequently that it can even be characterised as a
formula. In section 4(2) the protection of the right to life is limited by:

A person shall not be regarded as having been deprived of his life in

contravention to subsection (1) of this section if he dies as the result
of the use, to such extent and in such circumstances as are permitted
by law, of such force as is reasonably justified - (a)for the defence of
any person from violence or for the defence of property ...

[69.] In section 6(2) the protection from slavery, servitude and forced
labour is limited by: For the purposes of this section, the expression forced
labour’ does not include a) any labour required in consequence of the
sentence or order of this court ...’.

[70.] In section 7(2) the protection from inhuman treatment is limited

by:

Nothing contained in or done under the authority of any law shall

be held to be inconsistent with or in contravention of this section
to the extent that the law in question authorises the infliction of
any description of punishment that was unlawful in the former
Protectorate of Bechuanaland immediately before the coming into
operation of this Constitution.

[71.] The expression nothing contained in or done under the authority

of any law shall be held to be inconsistent with or in contravention ... of
this section to the extent that the law authorises’ or makes provision for’’,
in particular, is often used to create the required exceptions. It is again
used in section 8(5) with respect to the protection from deprivation of
property; in section 9(2), with respect to the limitations on the protection

105
for privacy of home and other property; in section 10(12), with respect to
limitations to the provisions to secure protection of law; in section 11(5)
with respect to limitations on the protection of freedom of conscience;
in section 12(2) with respect to limitations on the protection of freedom
of expression; in section 13(2), with respect to the limitation to the
protection of freedom of assembly and association; and in section 14(3)
with respect to the limitation on the protection of freedom of movement.
Section 16(1), which gives a general and comprehensive power to derogate
from fundamental rights and freedoms in time of war or where a state of
emergency has been declared under section 17, uses a variation of the
formula.

[72.] Even section 15 follows that pattern. As we have seen, subsection

(1) proscribes laws which make any provision which is discriminatory
either of itself or in its effect, and subsection (2) proscribes discriminatory
treatment in actions under any law or public office or authority. Then
subsection (4) places the limitations on that proscription. It opens by
saying, Subsection (1) of this section shall not apply to any law so far as
that law makes provision - ‘and proceeds to itemise the provisions which
are exempted from the application of subsections 15(1) and (2). Then in
subsection (5) a limitation is placed on the protection from discrimination
with respect to qualifications for service as a public officer etcetera by the
use of what has been described before as the formula: Nothing contained
in any law shall be held to be inconsistent with or in contravention of
subsection (1) of this section ...’. And in subsection (9), where savings are
made from the protection with respect to laws in force immediately before
the coming into force of the Constitution or to written laws repealed and
re-enacted, a variation of the same formula is used.

[73.] If the makers of the Constitution had intended that equal treatment
of males and females be excepted from the application of subsections 15(1)
or (2), I feel confident, after the examination of these provisions, that they
would have adopted one of the express exclusion forms of words that
they had used in this very same section and in the sister sections referred
to. I would expect that, just as section 3 boldly states that every person
is entitled to the protection of the law irrespective of sex, in other words
giving a guarantee of equal protection, section 15 in some part would
also say, again equally expressly, that for the purposes of maintaining the

106
patrilineal structure of the society, or for whatever reason the framers of the
Constitution thought necessary, discriminatory laws or treatment may be
passed for or meted to men and women. Nowhere in the Constitution is
this done. Nowhere is it mentioned that its objective is the preservation of
the patrilineal structure of the society.

[74.] But I am left to surmise that the Constitution intended sex-based

legislation by the omission of the word sex’ from section 15(3) and that
the reason for the word’s omission was to preserve the patrilineal structure
of the society. I find it a startling proposition. If that were so, is it not
extraordinary that equal protection is conferred irrespective of sex at all by
section 3? What is even more serious is that section 15 would then, under
subsection (1), permit not only the making of laws which are discriminatory
on the basis of sex, but under subsection (2) it would permit the treatment
of people in a discriminatory manner by any person acting by virtue of
any written law or in the performance of the functions of any public office
or any public authority’. Does this mean that differential treatment is
permissible under the Constitution by any person in the performance of
any public office or any public authority depending on whether the person
being dealt with is a man or a woman? That interpretation boggles the
mind.

[75.] Faced with the remarkable consistency in the manner in which the
Constitution makes exceptions to or places limitations on the protections
that it grants, I have the greatest difficulty in accepting that the Constitution
chose only the all important question of sex discrimination to make its
desired exception by omission in a definition. Why did the framers of the
Constitution choose, in this most crucial issue of sex-based discrimination,
required to preserve the male orientation of traditional society, to leave the
matter to this method? Why did they make the discovery of their intention
on this vital question dependent on an aid to construction, an aid which
is not conclusive in its application, when in other cases desired exclusions
had been so boldly and expressly stated? I can find no satisfactory answers
to these questions. My difficulty is further compounded when I consider
that this omission in the definition is expected not only to exclude sex’ from
a protection conferred in section 15 but also to actually limit or qualify a
right expressly conferred by section 3, the basic and umbrella provision for
the protection of fundamental rights and freedoms under the Constitution.

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[76.] The application of the expressio unius principle to statutory
interpretation in Botswana, which has to compete for supremacy in this
case with conclusions derived from the positive internal evidence of
the Constitution itself as to how it makes exceptions when desired, is,
according to the argument of the appellant, provided for by section 33 of
the Interpretation Act (Cap 01:04) which states that:

33. Where an enactment qualifies a general expression by providing

that it shall include a number of particular matters or things, any
matter or thing which is not expressly included is by implication
excluded from the meaning of the general expression.

[77.] It is true that ‘sex’ is omitted from the categories mentioned in

the definition in section 15(3) of the Constitution. But even if that
definition through the omission qualifies any general expression found
in the subsection, it appears to me that it does not qualify any general
expression in section 3, which is the section under which the respondent
complained. Nevertheless, as the appellant submits that the respondent
could challenge the provisions of the Citizenship Act, if at all, only on
the ground that her rights under section 15 of the Constitution have
been contravened, the expressio unius principle calls for examination. In
any event, section 24(2) of the Interpretation Act admits all aids to the
construction of an enactment in dispute when it provides that: 24 (2) The
aids to construction referred to in this section (that is, those dealing with
what material could be used by a Court as an aid to construction) are in
addition to any other accepted aid.’

[78.] The occasions on which the expressio unius principle applies are
summarised in Bennion on Statutory Interpretation at 844 as:
It is applied where a statutory proposition might have covered
a number of matters but in fact mentions only some of them.
Unless these are mentioned merely as examples, or ex abundanti
cautela, or for some other sufficient reason, the rest are taken to
be excluded from the proposition ... [it] is also applied where a
formula which in itself may or may not include a certain class is
accompanied by words of extension naming only some members
of that class. The remaining members of the class are then taken
to be excluded. Again the principle may apply where an item is

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 mentioned in relation to one matter but not in relation to another
equally eligible.

[79.] The competing claims in this case are that the omission was deliberate
and intended to exclude sex-based discrimination, the alternative being
that the omission was neither intentional nor made with the object of
excluding sex-based discrimination. I have already shown how exclusions
from the protections in the fundamental rights chapter of the Constitution
have in other cases been made. The method is wholly against the argument
based on the application of the exclusio unius principle. Further, when
the categories mentioned in sections 3 and 15(3) of the Constitution are
compared, it will be seen that they do not exactly match. Not only is sex’
omitted from the definition in section 15(3) although it appears in section
3, but tribe’ is added to the definition in section 15(3) so that it reads, race,
tribe, place of origin, political opinions, colour or creed’, although tribe’
does not appear in section 3.

[80.] The appellant explained the addition of tribe’ on the ground that
it was specifically included because of the concern that the framers of
the Constitution had for possible discrimination on that ground. That
indicates that the classes were mentioned in order to highlight some
vulnerable groups or classes that might be affected by discriminatory
treatment. I find this conforming more with the mention of the class
or group being ex abundanti cautela rather than with the intention to
exclude from cover under section 15 a class upon which rights had been
conferred by section 3. Here, as Bennion points out at 850, the ruling
maxim is abundans cautela non nocet (abundance of caution does not
harm) (see the Canadian case of Docksteader v Clark (1903) 11 BCR 37,
cited by EA Driedger in The Construction of Statutes).

[81.] I do not think that the framers of the Constitution intended to

declare in 1966 that all potentially vulnerable groups or classes who would
be affected for all time by discriminatory treatment have been identified
and mentioned in the definition in section 15(3). I do not think that they
intended to declare that the categories mentioned in that definition were
forever closed. In the nature of things, as far-sighted people trying to
look into the future, they would have contemplated that with the passage
of time not only the groups or classes which had caused concern at the

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time of writing the Constitution, but other groups or classes needing
protection would arise. The categories might grow or change. In that
sense, the classes or groups itemised in the definition would be and, in
my opinion, are, by way of example, what the framers of the Constitution
thought worth mentioning as potentially some of the most likely areas of
possible discrimination.

[82.] I am fortified in this view by the fact that other classes or groups with
respect to which discrimination would be unjust and inhuman and which,
therefore, should have been included in the definition were not. A typical
example is the disabled. Discrimination wholly or mainly attributable to
them as a group as such would, in my view, offend as much against section
15 as discrimination against any group or class. Discrimination based
wholly or mainly on language or geographical divisions within Botswana
would similarly be offensive, although not mentioned. Arguably religion
is different from creed, but although creed is mentioned, religion is not.
Incidentally, it should also be noticed, that although the definition mentions
race’ and tribe’, it does not mention community’, yet the limitation placed
on subsection 15(1) by section 15(4) refers to a particular race, community
or tribe’.

[83.] All these lead me to the conclusion that the words included in the
definition are more by way of example than as an exclusive itemisation.
The main thrust of that definition in section 15(3) is that discrimination
means affording different treatment to different persons wholly or mainly
attributable to their respective characteristic groups.Then, of course, section
15(4) comes in to state the exceptions when such differential treatment is
acceptable under the Constitution. I am, therefore, in agreement with the
learned judge a quo when he says that the classes or groups mentioned in
section 15(3) are by way of example.

[84.] On the basis of the appellant’s argument, the legislature relying on

the omission of sex’ in section 15(3), could, for example legislate that the
women of Botswana shall have no vote. Legislation in Botswana may also
provide in that case that no woman shall be President or be a member
of parliament. The appellant states that the legislature will not do that
because there will be no rational basis for it, and in any case it will not,
under subsection 15(4)(e), be reasonably justifiable in a democratic society.

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But is not the basis for such legislation the same as the preservation of
the patrilineal structure of the society which, as has been urged, led to the
deliberate omission of sex’ in the definition of discrimination?

[85.] In any case, the appellant cannot, for this purpose, take advantage of
the exception provided in section 15(4)(e) which permits discrimination
which is reasonably justifiable in a democratic society to support his
argument on the rationality of the basis of the legislation, because, in
the first place, that would be using the exception for purposes directly
opposite to what was intended, and secondly, on his own argument, if sex’
is deliberately left out of the definition of discrimination in subsection (3)
in order to perpetuate the patrilineal society, it is left out for all purposes
of section 15, including the provisions of subsection (4)(e). That provision
in subsection 15(4)(e) expressly refers to persons of any such description
as is mentioned in subsection (3) of this section ...’. That, by the argument
of the appellant, cannot include anything done on the basis of the sex of
the person.

[86.] Fundamental rights are conferred on individuals by constitutions, not

on the basis of the track records of governments of a state. If that were the
criterion, fundamental rights need not be put in the constitution of a state
which is known for the benevolent actions of its government. In any event,
if the constitution is the basic or founding document of the particular state,
that state would have no track record for anyone to go by. In the best of
all possible worlds, entrenchment of fundamental rights in a constitution
should not be necessary. All that these rights require in such a state would
be accorded as a matter of course by the government. Fundamental rights
are conferred on the basis that, irrespective of the government’s nature or
predilections, the individual should be able to assert his rights and freedoms
without reliance on its goodwill or courtesy. It is protection against possible
tyranny, oppression or deprivations of those selfsame rights.

[87.] A fundamental right or freedom once conferred by the constitution

can only be taken away or circumscribed by an express and unambiguous
statement in that constitution or by a valid amendment of it. It cannot be
taken away or circumscribed by inference. It is for these reasons that I find
it difficult to accept the argument of the appellant which asks us to infer
from the omission of the word sex’ in the definition of discrimination

111
in section 15(3) that the right to equal protection of the law given in
section 3 of the Constitution to all persons has, in the case of sex-based
differentiation in equality of treatment, been taken away.

[88.] Questions as to whether every act of differentiation between classes

or groups amounts to discrimination and what categories of persons are
protected under section 15 may arise. If the categories of groups or classes
mentioned in section 15(3) are but examples, where does one draw the
line as to the categories to be included? Of course, treatment to different
sexes based on biological differences cannot be taken as discrimination in
the sense that section 15(3) proscribes. With regard to the classes which
are protected, it would be wrong to lay down any hard and fast rules. The
vulnerable classes identified in sections 3 and 15 are well known. I would
add that not only the classes mentioned in the definition in section 15(3),
but, for example, the class also mentioned in subsection (4)(d), where it
speaks of community’ in addition to race’ and tribe’ have to be taken as
vulnerable.

[89.] Civilised society requires that different treatment should not be

given to people wholly or mainly on the ground of membership of the
designated classes or groups. But as has been shown with respect to
race and gender-based discrimination, the development of thought and
conduct on these matters may take years. One feels a sense of outrage that
there was a time when a Chief Justice of the United States would say, as
did Taney CJ in Dred Scott v Sanford 60 US 393 at 406 (1857):

The question then arises, whether the provisions of the Constitution,

in relation to the personal rights and privileges to which the citizen
of a state should be entitled, embraced the negro African race, at that
time in this country ... In the opinion of the court, the legislation
and histories of the times, and the language used in the Declaration
of Independence, show, that neither the class of persons who had
been imported as slaves, nor their descendants, whether they had
become free or not, were then acknowledged as part of the people,
nor intended to be included in the general words used in that
memorable instrument ... They had for more than a century before
been regarded as beings of an inferior order; and altogether unfit to
associate with the white race, either in social or political relations;

112
 and so far inferior, that they had no rights which the white man was
bound to respect; and that the negro might justly and lawfully be
reduced to slavery for his benefit ... This opinion was at that time
fixed and universal in the civilised portion of the white race. It was
regarded as an axiom in morals as well as in politics, which no one
thought of disputing, or supposed to be open to dispute; and men in
every grade and position in society daily and habitually acted upon
it in their private pursuits, as well as in matters of public concern,
without doubting for a moment the correctness of this opinion.

[90.] Today, it is universally accepted that discrimination on the ground

of race is an evil. It is within the memory of men still living today in some
countries that women were without a vote and could not acquire degrees
from institutions of higher learning, and were otherwise discriminated
against in a number of ways. Yet today the comity of nations speaks clearly
against discrimination against women. Changes occur. The only general
criterion which could be put forward to identify the classes or groups is
what to the right thinking man is outrageous treatment only or mainly
because of membership of that class or group and what the comity of
nations has come to adopt as unacceptable behaviour.

[91.] One point was taken by the appellant in his grounds of appeal
but not developed further by him before us. That is the argument that
in section 15(4)(c) of the Constitution there is an exclusion from the
provisions of subsection (1) with respect to adoption, marriage, divorce,
burial, devolution of property on death or other matters of personal law’,
and that an exclusion with regard to the law of citizenship is an exclusion
which qualifies under other matters of personal law’. I raise this point here
only to show that it has not been overlooked, and that in my view it is not
valid. In the first place, as stated in connection with the argument which
prayed in aid the provisions of section 15(4)(3), the underlying argument
that on the basis of the omnibus clause in section 15(4)(c) discriminatory
laws on citizenship could be made on the basis of sex is defeated by the fact
that section 15 as a whole does not deal with discrimination on the basis
of sex at all. Proceeding from that general exclusion to exclude further
from the section discrimination in citizenship cases on the ground of sex
seems to me to be excluding sex-based discrimination from a provision
which does not in any case apply. That cannot achieve the desired object.

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[92.] On the other hand, there is a sense in which the expression personal
law’ may be used to describe the aggregate of elements affecting the
legal status of a person. That would be the case, for example, when one is
considering matters of personal law as opposed to the law of things. But it
does not seem to me to be the use made of that expression here. The more
common meaning of personal law is the system of law which applies to a
person and his transactions determined by the law of his tribe, religious
group, case, or other personal factor, as distinct from the territorial law of
the country to which he belongs, in which he finds himself, or in which
the transaction takes place. (See Walker in The Oxford Companion
to Law.) That, I think, is the sense in which personal law is used here.
Apart from the laws on adoption, marriage, divorce, burial, devolution of
property on death’ of the communities to which persons belong which are
expressly mentioned in the provision, I would expect the omnibus clause,
other matters of personal law’, to cover related matters of family law on,
for example, domicile, guardianship, legal capacity, and rights and duties
in the community and such matters. Otherwise, if the wider meaning of
all laws affecting personal legal status is taken as the correct meaning,
the omnibus clause in the exception would serve to wipe out practically
all protections given to individuals as persons. In the usual narrow sense,
however, citizenship, which is conferred by statute on a state-wide basis is
not a matter of personal law.

[93.] The point was also mentioned, though not developed, that the
provisions of the Citizenship Act questioned were re-enactments of
previously existing legislation, and, therefore, were saved from challenge
by section 15(9)(b) which states that:

(9) Nothing contained in or done under authority of any law shall

be held to be inconsistent with the provisions of this section - (b)
to be extent that the law repeals and re-enacts any provision which
has been contained in any written law at all times since immediately
before the coming into operation of this Constitution.

[94.] Serious examination of this provision shows that it clearly does not
apply to the situation in this case. It would apply if sections 4 and 5 of the
Citizenship Act had existed as laws before the Constitution came into
effect. We know they did not. Even sections 21 and 22 of the Constitution

114
which they were intended to replace were not in existence as laws prior
to the coming into operation of the Constitution. But above all, I think
that section 15(9)(b) applies only when a written law in existence before
the Constitution, and therefore, one which is protected whatever its terms
by section 15(9) if it continues after the Constitution is repealed and re-
enacted exactly or at least substantially in the same form as before. By
this test, the provisions of section 4 and 5 would not qualify, even if they
had replaced some written law in existence before the Constitution. They
were not exactly the same or even substantially the same as the provisions
before.

[95.] The point was rightly taken that if discrimination on the basis of
sex was disallowed by the Constitution, the Constitution itself proceeded
to break its prescription by providing in the original form, after section
21 which dealt with births within Botswana in terms which were gender
neutral, section 22 which provided that: A person born outside Botswana
or after 30 September 1966 shall become a citizen of Botswana at the date
of his birth if at that date his father is a citizen of Botswana.’

[96.] Obviously, the Constitution there treated children of Botswana

men differently from children of Botswana women, in that the children
of Botswana men acquired citizenship which children of Botswana
women did not necessarily acquire. In their wisdom, the framers of the
Constitution at the time thought that the prescriptions they provided
for the acquisition of nationality for persons born outside its territory
or jurisdiction should be limited to descent through the male line. It
made no distinction between birth within wedlock or otherwise. It made
no provision with respect to the mother of the child. That was how the
Constitution framers thought Botswana citizens born outside Botswana
should be traced. We cannot declare a provision in the Constitution
unconstitutional. It would otherwise be a contradiction in terms. The
Constitution had always had the power to place limitations on its own
grants. If it did so, what it enacted was as valid as any other limitation
which the Constitution placed on rights and freedoms granted.

[97.] What a constitutional provision can do, however, ordinary legislation

cannot necessarily do. The same limiting provision which the Constitution
places on a grant, if put into ordinary legislation may be open to review

115
on the ground of vires, and if found to infringe any of the provisions
of the Constitution will be declared invalid, unless it could otherwise
be justified under the Constitution itself. The fact that the Constitution
differentiated between men and women in its citizenship has to be
accepted as a legitimate exception which the framers thought right. But
that does not provide a general license for discrimination on the basis of
sex. My view on the meaning of sections 3 and 15, therefore, is not altered
by the original provision in section 22.

[98.] Incidentally, it would be noticed from the original constitutional

provisions on citizenship that no distinction was drawn between descent
through the male or female line in the case of persons born within the
jurisdiction. If the framers had intended that a distinction in citizenship
be made dependent on the nationality of the father in order to preserve
the male orientation of Botswana society, this was where it would have
been found. It was the most important provision on the acquisition of
citizenship because it was the provision governing the acquisition of
citizenship by the overwhelming number of Botswana. Yet the repealed
section 21 of the Constitution simply stated that: Every person born
in Botswana on or after 30 September 1966 shall become a citizen of
Botswana.’

[99.] The learned judge a quo referred to the intentional obligations

of Botswana in his judgment in support of his decision that sex-based
discrimination was forbidden under the Constitution. That was objected
to by the appellant. But by the law of Botswana, relevant international
treaties and conventions may be referred to as an aid to interpretation.
We noticed this in our earlier citation of section 24 of the Interpretation
Act which stated that a’s an aid to the construction of the enactment a
court may have regard to ... any relevant international treaty, agreement
or convention ...’.

[100.] The appellant conceded that international treaties and conventions

may be used as an aid to interpretation. His objection to the use by the
learned judge a quo of the African Charter on Human and Peoples’ Rights,
the Convention for the Protection of Human Rights and Freedoms, and
the Declaration on the Elimination of Discrimination Against Women,
was founded on two grounds. In the first place, he argued that none of

116
them had been incorporated into the domestic law by legislation, although
international treaties became part of the law only when so incorporated.
According to this argument, of the treaties referred to by the learned
judge a quo, Botswana had ratified only the African Charter on Human
and Peoples’ Rights, but had not incorporated it into domestic law. That,
the appellant admitted, however, did not deny that particular Charter the
status of an aid to interpretation. The appellant’s second objection was
that treaties were only of assistance in interpretation when the language
of the statute under consideration was unclear. But the meaning of both
section 15(3) of the Constitution and sections 4 and 5 of the Citizenship
Act was quite clear, and, therefore, no interpretative aids were required.

[101.] I agree that the meaning of the questioned provisions of the

Citizenship Act is clear. But from the strenuous efforts that the appellant
has made in justification of his interpretation of section 15(3) of the
Constitution his claim that the meaning of that subsection is clear seems
more doubtful. The problem before us is one of discrimination on the basis
of sex under the Constitution. Why, one may ask, do sections 3 and 15 of
the Constitution apparently say contradictory things? It is the provisions
of the Constitution itself which give rise to the difficulty of interpretation,
if any, not the Citizenship Act.

[102.] What we have to look at when trying to determine the intentions

of the framers of the Constitution is the ethos, the environment, which
the framers thought Botswana was entering into by its acquisition of
statehood, and what, if anything, can be found likely to have contributed
to the formulation of their intentions in the Constitution that they made.
Botswana was, at the time the Constitution was promulgated, about to
enter the comity of nations. What could have been the intentions and
expectations of the framers of its Constitution? It is to be recalled that
Maisels P in the Petrus case, referred to earlier, at 714 to 715 said in
this connection that: ... Botswana is a member of a comity of civilised
nations and the rights and freedoms of its citizens are entrenched in its
Constitution which is binding on the legislature.’

[103.] The comity of civilised nations was the international society into
which Botswana was about to enter at the time its Constitution was
drawn up.

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Lord Wilberforce in the case of Minister of Home Affairs (Bermuda)
v Fisher (1980) AC 319, at 329 to 329 spoke of this international
environment acting as one of the contributory influences which fashioned
and informed the approach of the framers of the Constitution of Bermuda
in words which could, with slight modification, have been written equally
for Botswana. He said:

Here, however, we are concerned with a constitution, brought in

force certainly by Act of Parliament, the Bermudian Constitution
Act 1967 of the United Kingdom, but established by a self-contained
document ... It can be seen that this instrument has certain special
characteristics.(1) It is, particularly in Chapter 1, drafted in a broad
and ample style which lays down principles of width and generality.
(2) Chapter 1 is headed protection of fundamental rights and
freedoms of the individual.

It is known that this chapter, as similar portions of other constitutions

instruments drafted in the post-colonial period, starting from Nigeria,
and including the constitutions of most Caribbean territories, was
greatly influenced by the European Convention for the protection of
human rights and fundamental freedoms (1953) ... That convention
was signed and ratified by the United Kingdom and applied to
dependent territories including Bermuda. It was in turn influenced
by the United Nations Universal Declaration of Human Rights of
1948. These antecedents, and the form of Chapter 1 itself, call for a
generous interpretation, avoiding what has been called the austerity
of tabulated legalism’, suitable to give to individuals the full measure
of the fundamental rights and freedoms referred to.

[104.] The antecedents of the Constitution of Botswana with regard to

the imperatives of the international community could not have been any
different from the antecedents found by Lord Wilberforce in the case of
Bermuda. Article 2 the Universal Declaration of Human Rights of 1948
states that:
Everyone is entitled to all the rights and freedoms set forth in this
declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.

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[105.] The British Government must have subscribed to this declaration
on behalf of itself and all dependent territories, including Bechuanaland,
long before Botswana became a state. And it must have formed part of
the backdrop of aspirations and desires against which the framers of the
Constitution of Botswana formulated its provisions.

[106.] Article 2 of the African Charter on Human and Peoples’ Rights

provides that:

Every individual shall be entitled to the enjoyment of the rights

and freedoms recognised and guaranteed in the present Charter
without distinction of any kind such as race, ethnic group, colour,
sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or other status.

[107.] Then paragraphs 1 and 2 of article 12 state that:

(1) Every individual shall have the right to freedom of movement

and residence within the borders of a state provided he abides by the
law.

(2) Every individual shall have the right to leave any country
including his own, and return to his country. This right may only
be subject to restrictions, provided for by law for the protection of
national security, law and order, public health and morality.

[108.] Botswana is a signatory to this Charter. Indeed it would appear

that Botswana is one of the credible prime movers behind the promotion
and supervision of the Charter. The learned judge a quo made reference
to Botswana’s obligations under such treaties and conventions. Even if it
is accepted that those treaties and conventions do not confer enforceable
rights on individuals within the state until Parliament has legislated its
provisions into the law of the land, in so far as such relevant international
treaties and conventions may be referred to as an aid to construction of
enactments, including the Constitution, I find myself at a loss to understand
the complaint made against their use in that manner in the interpretation
of what no doubt are some difficult provisions of the Constitution. The
reference made by the learned judge a quo to these materials amounted to
nothing more than that. What he had said was:
119
 I am strengthened in my view by the fact that Botswana is a signatory
to the OAU Convention on discrimination. I bear in mind that
signing the convention does not give it power of law in Botswana
but the effect of the adherence by Botswana to the convention must
show that a construction of the section which does not do violence
to the language but is consistent with and in harmony with the
convention must be preferable to a narrow construction’ which results
in a finding that section 15 of the Constitution permits unrestricted
discrimination on the basis of sex.

[109.] That does not seem to me to be saying that the OAU convention,
or by its proper name the African Charter of Human and Peoples’ Rights,
is binding within Botswana as legislation passed by its Parliament. The
learned judge said that we should so far as is possible so interpret domestic
legislation as not to conflict with Botswana’s obligations under the Charter
or other international obligations. Indeed, my brother Aguda JA referred
in his judgment at 37 to the Charter and other international conventions
in a similar light in the Petrus case. I am in agreement that Botswana
is a member of the community of civilised states which has undertaken
to abide by certain standards of conduct, and, unless it is impossible to
do otherwise, it would be wrong for its courts to interpret its legislation
in a manner which conflicts with the international obligations Botswana
has undertaken. This principle, used as an aid to construction as is quite
permissible under section 24 of the Interpretation Act, adds reinforcement
to the view that the intention of the framers of the Constitution could not
have been to permit discrimination purely on the basis of sex.

[110.] I now come to the submission on locus standi. I have left this point
until the end because I agree with the appellant who himself admitted
in his submissions that: This is a case where in view of the circularity’ of
some of the arguments, it may be necessary for the Court to consider the
merits before coming to a conclusion on the locus standi’. I feel that it
could not have been determined without first going into the merits. With
respect to the point, the appellant argued that the Court a quo erred in
holding that the respondent had locus standi to ask to pass on either
section 4 or 5 of the Citizenship Act. The appellant, it was submitted, is
a practising lawyer, who on marrying on 7 March 1984, freely married
into an existing citizenship regime carrying with it all the consequences

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referred to by the judge a quo, namely, that not only her husband but her
children by the marriage were liable to be expelled from Botswana, and
that if her husband were to decide to leave both Botswana and herself,
the children, assuming that they were left behind, could only continue
to live in Botswana if granted residence permits. She was, went on the
argument, at the time of her marriage exercising her right to liberty, and
could not now be heard to complain of a consequence which she had
consciously invited. Nor could she rely on the choice she freely made as an
infringement of her rights which should confer jurisdiction under section
18 of the Constitution.

[111.] In any event, the appellant argued, there was no threat or likelihood,
as alleged by the respondent, of expulsion of her husband, who had been in
Botswana for 15 years, and potential adverse consequences of a speculative
nature were not sufficient to confer locus standi under section 18. Section
5 of the Citizenship Act, the appellant argued, had no relevance at all to
the respondent; the argument advanced that she was still of child-bearing
age and might choose to have another child outside Botswana was too
remote for consideration.

[112.] And, in the case of her present children, it was submitted that
there were strong reasons for holding that she was not sufficiently closely
affected by any action taken against them as a result of section 4 of the Act
to enable her to claim that the provisions of the Constitution were being
or likely to be contravened in relation to her by such action as required by
section 18.

[113.] I do not think a person should be prejudiced in the enjoyment of

his or her constitutional rights just because that person is a lawyer.

[114.] On the locus point, the appellant further argued that the popularis
actio of Roman law, which gave an individual a right of action in matters
of public interest was not a part of Roman-Dutch common law. The
principle of our law being that a private individual must sue on his own
behalf; the right he sought to enforce must be available to him personally,
or the injury for which he or she claimed redress must be sustained or
apprehended by himself. The cases of Darymple v Colonial Treasurer
1910 TS 372; Director of Education, Tvl v MacCagie 1918 AD at 621;

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Veriava v President of SA Medical and Dental Council 1985 (2) SA 293
(T) at 315; and Cabinet of the Transitional Government of SWA v Eins
1988 (3) 369 (A) were cited as authorities to show that section 18 of
the Constitution reflected this principle when it provided that the wrong
(that is, the actual threatened contravention of the relevant sections) must
be in relation to the applicant.

[115.] But the point made by those authorities has been distinguished in
cases affecting the liberty of the subject by the South African Appellate
Division in Wood v Odangwa Tribal Authority 1975 (2) SA 294 (A)
at 310 where Rumpff CJ, after analysing the proposition that the actio
pupularis did not apply in Roman-Dutch law, said:

Nevertheless, I think it follows from what I have said above, that

although the actiones populares generally have become obsolete in
the sense that a person is not entitled to protect the rights of the
public’, or champion the cause of the people’ it does not mean that
when the liberty of a person is at stake, the interest of the person
who applies for the interdict de libero homine exhibendo should be
narrowly construed. On the contrary, in my view it should be widely
construed because illegal deprivation of liberty is a threat to the very
foundation of a society based on law and order.

[116.] I need not, however, go into these cases in detail. Section 18 speaks
for itself. I have recited the relevant provisions in subsection (1) earlier
on in this judgment. It says that if any person alleges that any of the
provisions of sections 3 to 16 (inclusive) of this Constitution has been, is
being or is likely to be contravened in relation to him’, that person may
apply to the High Court for redress. The section shows that the applicant
must allege’ that one of the named sections of the Constitution has been,
is being or is likely to be infringed in respect of him. He must therefore
sue only for acts or threats to himself. But the section does not say that the
applicant must establish as a matter of proof that any of these things has
or is likely to happen to him. The meaning of allege’ is declare to be the
case, especially without proof ’ or advance as an argument or excuse’ (see
Concise Oxford Dictionary (8th ed 1990). I believe that in the context of
section 18(1), it is the earlier of the two meanings that the word has.

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[117.] Of course, the allegation to enable the applicant to seek the aid of
the courts must not be frivolous or without some foundation. But that is
not the same thing as a requirement to establish positively. In my opinion,
we here see an example of a case where constitutional rights should not
be whittled down by principles derived from the common law, whether
Roman-Dutch, English or Botswana. Under section 18(1), an applicant
has the right to come before the courts for redress if he declares with some
foundation of fact that the breach he complains of has, is in the process
of being or is likely to be committed in respect of him. Where a person
comes requesting the aid of the courts to enforce a constitutional right,
therefore, the question which has to be asked in order that the courts
might listen to the merits of his case is whether he makes the required
allegation with reasonable foundation. If that is shown, the courts ought
to hear him. Any more rigid test would deny persons their rights on some
purely technical grounds.

[118.] In this connection I refer to a parallel situation in the case of Craig

v Boren cited earlier in which the United States Supreme Court at 194 et
seq demonstrated, on the point of locus to bring a constitutional challenge
on the grounds of discrimination, that persons not directly affected within
the class discriminated against could bring the action if they could show
that they were or could be adversely affected by the application of the
law. In that case, the question was whether a law prohibiting the sale of
non-intoxicating’ 3.2 per cent beer to males under the age of 21 and to
females under the age of 18 constituted gender-based discrimination that
denied males between 18 and 20 years of age the equal protection of the
laws. The Court held that a licensed vendor of the beer had standing to
challenge the law.

[119.] Did the applicant allege that her constitutional right had been,
was being, or was likely to be infringed? That question I now proceed to
answer in the case of the respondent. We recall from the paragraphs of her
founding affidavit which are recited in the earlier part of this judgment
that after setting out what she believed to be the constitutional provisions
which had been infringed, she continued in paragraph 19 thereof to state
that as set out above she verily believed that the provisions of section 3
of the Constitution had been contravened in relation to myself ’. I do not
think the allegation could be clearer.

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[120.] Has that allegation some basis of truth? No doubt due to a mixture
of some adventitious claims made by her with respect to her husband,
who is without doubt an alien and could under the Constitution be placed
under some disabilities, her case seems to have been misunderstood. It
was, for example, argued by the appellant that the Citizenship Act laid
down how citizenship should be acquired and taken away, and therefore,
for a person to attack the Act he or she must be shown to be a person
who did not enjoy the rights of citizenship, not one, like respondent
who was enjoying full rights of citizenship. In this case, the respondent’s
children might, according to the argument, have been affected by the
Citizenship Act, not herself. But the Citizenship Act, although defining
who should be a citizen, has consequences which affect a person’s right
to come into, live in and go out of this country, when he likes. Such
consequences may primarily affect the person declared not to be a citizen.
But there could be circumstances where such consequences would extend
to others. In such circumstances, the courts are not entitled to look at life
in a compartmentalised form, with the misfortunes and disabilities of one
always kept separate and sanitised from the misfortunes and disabilities
of others.

[121.] The case which I understand the respondent to make is that due to
the disabilities under which her children were likely to be placed in her
own country of birth by the provisions of the Citizenship Act, her own
freedom of movement protected by section 14 of the Constitution was
correspondingly likely to be infringed and that gave her the right under
section 18(1) to come to court to test the validity of the Act. What she says
is that it is her freedom which has been circumscribed by the disabilities
placed on her children. If there is any substance to this allegation, the
courts ought to hear her. The argument that a mother’s relationship to her
children is entirely emotional and that an emotional feeling cannot found
a legal right does not sound right to me.

[122.] Nor am I impressed by the argument that a mother has no

responsibility towards a child because it is only the guardian who has a
responsibility recognised by law, and in Botswana, that guardian is the
father. The very Constitution which all in Botswana must revere recognises
a parent’s, as distinct from the guardian’s, responsibility towards the child.
Recall that section 5(1)(f ) states that:

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 5(1) No person shall be deprived of his personal liberty save as may
be authorised by law in any of the following cases, that is to say -
(f ) under the order of a court or with the consent of his parent or
guardian, for his education or welfare during any period ending not
later than the date when he attains the age of 18 years.

[123.] This provision assumes that before the child is 18 years of age, the
parent, a term which we all must agree includes a mother, also has some
responsibility towards the child’s education and welfare. In any case he or
she can control what happens to the child. During that period, especially
at the younger end of the infant’s lifespan, the parents’, especially, the
mother’s, movements are to a large extent determined by the child’s. At
about this same time, the welfare of a child in a broken home is generally
considered better protected in the custody of the mother than that of the
father.

[124.] It is totally unrealistic to think that you could permanently keep

the child out of Botswana and yet by that not interfere with the freedom
of movement of the mother. When the freedom of the mother to enter
Botswana to live and to leave when she wishes is indirectly controlled by
the location of the child, excluding the child from Botswana is in effect
excluding the mother from Botswana. If the exclusion is the result of a
determination of the child’s citizenship which is wrong, surely this would
amount to an interference with, and therefore an infringement of, the
mother’s freedom of movement.

[125.] But, then, the argument goes, the respondent has not shown that
there was any likelihood of her non-Botswana children being kept out
of Botswana. The answer to that is that governments with a discretion to
exercise do not always give advance notice of how they intend to exercise
that discretion. It is not unknown for a government which decides to
deport or expel an alien to do so without prior notice of its intention.
Must the person who is subject to, or may indirectly be affected by, such
expulsion wait until the expulsion order is made before he or she can
bring legal proceedings? When is he or she threatened with the likelihood
that an order could be made? To the question whether the immigration
officers in Botswana had a discretion to turn away an alien from entering
the country, the appellant’s reply was that they had.

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[126.] The appellant also put in an affidavit made by the immigration
officers at the Gabarone Airport with respect to the latest entry into
Botswana of the respondent’s husband and her non-citizen children. I
believe this was intended to refute allegations indicating various forms of
harassment or inconveniences that the respondent claimed the husband
and children had suffered. I quote it because it is educative. The senior
immigration officer in charge of the department’s affairs at the airport
on the date of arrival deposed to the fact that the respondent was known
to her, and that at no time did the respondent complain to her of any
harassment or threats made to her family by the immigration officers.
She had consulted her officers, none of whom had any recollection of the
incident referred to by the respondent. Then she proceeded to state the
normal procedure followed by persons arriving at the airport. She said:

When passengers arrive at Sir Seretse Khama Airport, Botswana

passport holders are not required to fill in forms, but proceed straight
through the booth reserved for them to the immigration checkpoint,
then on to clear customs. In the case of visitors or returning residents
holding foreign passports, these fill in entry forms which they produce
with their passports to the immigration officers in the booths reserved
for foreign passport holders. If everything is in order they are given
a green card which is presented at the immigration checkpoint and
they pass through to customs.

If there is a query then the passport holder is given a red card to

present at the immigration checkpoint, where further inquiries are
made and the problem is sorted out. Where a returning resident
does not have a valid residence permit or visitor’s permit endorsed
in his passport then one of two things will happen - either (a) a
form 7 is served upon the visitor, requiring him to appear before an
immigration officer at a given time for examination as to whether he
is entitled to remain in Botswana; or (b) his passport is endorsed for
a short period to enable him to regularise his stay in Botswana.

The latter is what appears to have happened to Mr Dow and his non-
citizen children, as it appears that his passport did not reflect a valid
residence permit or visitor’s permit at that time. The record of his entry is
not, however, available as this was over twelve months ago.

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[127.] Botswana is entitled to deal with aliens in the manner described.
The Constitution allows it and international law and practice recognise it.
The respondent in the affidavit to which the senior immigration officer’s
was in answer alleged that she was in the company of her husband and her
three children on that occasion, all having arrived back from holiday. She
and the eldest daughter, the Botswana citizen, were granted unconditional
entry into Botswana, while the husband and her other two children were
put through the alien treatment. The senior immigration officer’s affidavit
did not deny that the respondent and the eldest daughter were also
present at the time. It also, at least, confirmed that different treatment was
normally accorded to citizens and non-citizens. The chief immigration
officer also made an affidavit in answer to the respondent’s. In it he said:

4. According to the file Mr Dow arrived in Botswana on 12 October

1977 as a United States Peace Corps Volunteer teacher. He remained
exempted from holding a residence permit as an employee of the
Botswana Government until 21 January 1990. On 16 July 1990 Mr
Dow submitted an application for a residence permit for himself and
his two younger children. While his application was being processed,
he continued his studies on the basis of three months waivers, which
is standard procedure in a case such as this. This was the situation
during December 1990/January 1991.

5. Mr Dow’s application was duly approved by the Immigration

Selection Board on 17 April 1991. After preparation of the permit,
this was despatched to the Dean of Students, University of Botswana
on 29 May 1991, marked for Peter Nathan Dow’. It appears from
the affidavit that Mr Dow did not receive the permit, but merely
continued having the waiver certificate in his possession stamped
every three months by his nearest immigration officer.
6. On 8 January 1992, at his request, a replacement permit was issued
to Mr Dow, including the two children and valid 17 April 1991 to 30
June 1992, when his course was to expire.

[128.] I do not think I need comment on the disturbing experiences of

a mother who finds different and unfavourable treatment as to residence
meted by authority to some of her three children in comparison to
others who are accorded completely opposite treatment by the same

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authority. Whether or not the authorities think that eventually the
required permission sought by the disadvantaged children will be given,
during her wait she must go through a period of uncertainty, anxiety and
mental agony. In this case, it seems that for some time, at least, two of
the respondent’s three children had no more than three months granted
each time for their stay in Botswana. Chasing after the extensions itself
cannot be a matter of joy. The mother’s concern for permission for her
children to stay cannot be lightly dismissed on the ground that it was no
business of hers, the responsibility being the children’s father’s. Well-knit
families do not compartmentalise responsibilities that way. As long as the
discretion lies with the governmental authorities to decide whether or not
to extend further the residence permit of the husband, on whose stay in
Botswana the stay of the respondent’s children depends, the likelihood of
the children’s sudden exhaustion of their welcome in the country of their
mother’s birth and citizenship is real.

[129.] Those with the power to grant the permission have the power to
refuse. Were they to be refused continued stay, not only the children’s
position but the mother’s enjoyment of life and her freedom of movement
would be prejudiced. It does seem to me not unreasonable that a citizen
of Botswana should feel resentful and aggrieved by a law which puts her
in this invidious position as a woman when that same law is not made to
apply in the same manner to other citizens, just because they are men.
Equal treatment by the law irrespective of sex has been denied her.

[130.] The respondent has, in my view, substantiated her allegation that

the Citizenship Act circumscribes her freedom of movement given by
section 14 of the Constitution. She has made a case that as a mother
her movements are determined by what happens to her children. If her
children are liable to be barred from entry into or thrown out of her own
native country as aliens, her right to live in Botswana would be limited. As
a mother of young children she would have to follow them. Her allegation
of infringement of her rights under section 14 of the Constitution by
section 4 of the Citizenship Act seems to me to have substance. The
Court a quo, therefore, had no alternative but to hear her on the merits.

[131.] The appellant has argued that if even the respondent had locus
standi with respect to a challenge to section 4 of the Citizenship Act,

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she certainly did not have locus with respect to section 5, as the situation
which that section provides for, namely, the citizenship of children born
outside Botswana, does not apply to the respondent in any of the cases of
her children. The possibility of the respondent giving birth at some future
date to children abroad was too remote to form a basis for a challenge
to section 5. With this submission I agree. But I must point out that the
objections to section 4 may well apply to section 5. I, however, make no
final judgment on that.

[132.] The appellant has argued that because of the manner in which the
repeal and re-enactment of the laws on citizenship was done, declaring
that section 4 was unconstitutional would create a vacuum. On that I
would like to adopt the words of Centlivres CJ in the case of Harris v
Minister of Interior 1952 (2) SA 428 (A) at 456 where he says:

The Court in declaring that such a statute is invalid is exercising a duty

which it owes to persons whose rights are entrenched by statute; its
duty is simply to declare and apply the law and it would be inaccurate
to say that the Court in discharging that is controlling the legislature.
See Bryce’s American Constitution (3rd ed, volume 1 at 582). It is
hardly necessary to add that Courts of law are not concerned with
the question whether an Act of Parliament is reasonable, politic or
impolitic. See Swart NO and Nicol NO v De Kock and Garner 1951
(3) SA 589 at 606 (AD) ...

[133.] I expect if there is indeed a vacuum, Parliament would advise itself

as to how to meet the situation.

[134.] The upshot of this discourse is that in my judgment the Court a

quo was right in holding that section 4 of the Citizenship Act infringes
the fundamental rights and freedoms of the respondent conferred by
sections 3 (on fundamental rights and freedoms of the individual), 14
(on protection of freedom of movement) and 15 (on protection from
discrimination) of the Constitution. The respondent has, however, not
given a satisfactory basis for locus standi with respect to section 5 of
the Act. And I therefore make no pronouncement in that regard. The
learned judge a quo in the course of his judgment accepted the argument
of counsel for the respondent that sections 4 and 5 of the Act denied the

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respondent protection from subjection to degrading treatment. I do not
think it necessary to go into that question for the purposes of this decision.
The declaration of the Court a quo that sections 4 and 5 of the Citizenship
Act (Cap 01:01) are ultra vires the Constitution, is, accordingly, varied by
deleting the reference to section 5. Otherwise the appeal is dismissed.

[135.] It remains for me to thank counsel for the very able and painstaking
manner in which they have researched and presented their cases. I think
here I speak for all my brothers if I say that we have indeed profited from,
and enjoyed the manner of presentation of their arguments.

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Ndewawiosia d/o Ndeamtzo v. Imanuel s/o Malasi
(1968) HCD NO. 127
(PC) Civ. App. 80 –D-66, 10/2/68, Saidi J.

Plaintiff, the youngest daughter of deceased and the only unmarried daughter,
appealed against a judgment awarding deceased’s land to defendant, the
nephew of deceased. Deceased died twenty years ago survived by his five
daughters, four of whom had married, and by the illegitimate son of plaintiff,
whom he had recognized. Defendant bases his claim to the land on the fact
that females are not entitled to inherit clan land and on the assertion that
shortly before his death the deceased had asked defendant to take charge of
the land. Both plaintiff and defendant are Wachagga.

Held: (1) Traditionally, among the Wachagga and various other tribes of
Tanzania, women were disabled from inheriting the property of their fathers
in order that such property would stay within the clan. (2) The provisions
of the Restatement of Customary Law [G.N.436 of 1963, Cap 333 of the
Laws] are somewhat contradictory and do not appear to terminate this
disability. Paragraph 29 declares a daughter to be a principal heir if the
deceased has left no sons, but paragraph 20 provides, “Women can inherit,
except for clan land, which they may receive in usufruct but may not sell”
(3) The disability preventing females from inheriting has been abolished in
other areas of Tanzania.

[Citing Bi-Mwana Amina Mukubali v. Severini Shumbusho, Digest of

Appeals from Local Courts 1955 – 1956, No.88; Saidina d/o Angovi v.
Saiboko Mlemba, Digest of Appeals from Local Courts, 1961, Vol. VIII
(No. 205.] The Court stated, “It is quite clear that this traditional custom
has outlived its usefulness. The age of discrimination based on sex is long
gone and the world is now in the stage of full equality of all human beings
irrespective of their sex, creed, race or colour. On grounds of natural justice
and equity daughters like sons in every part of Tanzania should be allowed
to inherit the property of their deceased fathers whatever its kind or origin,
on the basis of equality.” (4) in any event, the claim of plaintiff ’s illegitimate
son is superior to that of defendant, for an illegitimate child is a member
of his maternal family. [Citing G.N. 279 of 1963, Cap. 333 of the Laws.]
Appeal allowed and direction given that plaintiff and her son be put in
possession of the Kihamba.

131
Sara H. Longwe versus Intercontinental Hotels

IN THE HIGH COURT FOR ZAMBIA

AT THE PRINCIPAL REGISTRY
AT LUSAKA
(Civil Jurisdiction)
BETWEEN:
Sara H. Longwe...........................Petitioner
And
Intercontinental Hotels.................Respondent

Before the Honourable Mr. Justice C.M. Musumali in Open Court on

the 4th day of November 1992.

For the Petitioner: Mrs. Lilian Mushota of Mushota and Associates

For the Defendant: Mr. Mumba Malila of Christopher Russel, Cook, and
Company

JUDGMENT
The petitioner Sarah Hlupekile Longwe (female) has sued the
Intercontinental Hotels Corporation Limited T/A Intercontinental
Hotels Lusaska seeking the following declaration against the said hotel:

1) That she has been and is likely to continue to be unfairly discriminated

against on the grounds of sex.

2) That she and indeed any person female or male is entitled to human
rights and that it is therefore unlawful for the hotel to refuse admission
to public places on the grounds that a person is female or is a female
not accompanied by a male.

3) That the ministerial policy position and the investigator-General’s

ruling marked exhibit SHL5 and SHL6 attached to her affidavit
(in support of the petition) be a pronouncement of the law which
should be so observed and enforced by all hotels, motels, and other
institutions and persons, punishable for contempt if not observed.

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4) That all public institutions be open to all people irrespective of sex or
other discriminatory attributes, provided they have not breached any
written laws or regulations and that all institutions whose policies and
regulations result in female harassment are against the law, against
public policy or interests, and against international conventions to
which Zambia is a party.

5) Than an injunction be issued restraining the respondent hotel

whether by itself, its servants or agents, or otherwise from turning
away any unaccompanied woman from its hotel or doing any other
act which amounts to discrimination of people on the basis of sex or
marital status.

6) That ordinary and exemplary damages be awarded to the petitioner

for the embarrassment and humiliation caused to her.

7) Costs.

The evidence in this case is all agreed: that on the 1st February, 1992,
the petitioner was refused entry into the Luangwa Bar of the respondent
hotel on the ground that she was an unaccompanied female i.e. that she
did not have male company, which was the requisite company for women
wanting to go into that bar. In his evidence Mr. Malimba Kanyanga,
the only witness for the respondent, said that women not accompanied
by a male who was patroning that bar before this rule came into force
used to fight amongst themselves for men; and that as a result of that
behaviour hotel residents and other male patrons were complaining to the
hotel management and urging it to do something to bar unaccompanied
women into that bar. The said witness did not however produce any
documents supporting his evidence on this point. But this is not a serious
flaw in his testimony given the fact and this was not in dispute at all, that
women without male company were allowed in all other places open to
the public in that hotel. So I did accept this evidence that there were some
complaints against the behaviour of women without male company who
were patronizing the bar in question which lead to this rule or regulation,
now the subject of this case.

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In her submission Mrs. Mushota for the petitioner said that this petition
has been brought to this court under the provisions of Article 11 and 23
of the Constitution. She then quoted these articles, and argued that under
the Constitution human rights are guaranteed to everybody irrespective
of sex. Those rights, she went on, include the freedom of movement. The
respondent’s behaviour towards the petitioner on the date and time in
issue was a violation of her rights given her by Article 23, argued Mrs.
Mushota, as it was based on her sex and presumed marital status.

Next the learned counsel for the petitioner submitted that a hotel such as
the respondent hotel is a public place. This was because the Government
(1) can regulate them. (2) gives trading licenses to the hotels and (3) has
shares in this and some other similarly placed hotels. In addition to these
factors, the hotel is bound to receive people who approach it and request
if for the use of its facilities such as beds, food, drink and are willing to pay
for them. In support of this contention she referred to the English case
of Browne v Bramot (1902) 1K.B. 696. A hotel, she went on may only
refuse to supply its facilities to people who approach and ask it for them,
if in the case of beds it is full and in the case of food and drink they have
run out or have been reserved for other customers. The learned counsel
also referred this court to the case of R.V. Higgins (1948) 1K.B. 652 and
to Charles Worth’s Mercantile Law 12th Edition, and submitted that in
this case the respondent’s bar was not full when the petitioner wanted to
patronize it. She then submitted that the hotel’s right of admission should
only be reserved in respect of indecently dressed or otherwise unfit people
regardless of sex.

Lastly on this line of argument, Mrs. Mushota submitted that even if the
respondent hotel is held by this court to be a private premises, it would
still be required to observe Article 23(2) of our Constitution. Further, she
said, there are other laws of this country which adequately provided for
the infraction of ‘soliciting’ which can be used to deal with any person
suspected of contravening the law.

After these submissions Mrs. Mushota moved on the International

Instruments. She started off here by stating that Zambia has ratified
many international treaties and U.N. conventions; that it is a party to the
African Charter on Human and Peoples’ Rights and (2) The convention

134
of the Elimination of All Forms of Discrimination Against Women.
She then quoted articles 1, 2, 3, 4, and 5 of the African Charter and 1,
2, and 3 of the Convention. The learned Counsel then moved to and
quoted the Bangalore Principles of 1988 which were formulated by
Commonwealth Chief Justices and endorsed by a subsequent colloquium
of Commonwealth African Jurists, and Judges including Chief Justice of
Zambia.

Finally she submitted that the petitioner is entitled to damages for the
public embarrassment and injury to her reputation by being treated as a
prostitute.

The respondent’s submissions were that (and here the learned counsel
repeated the undisputed facts of this case which have already been
reproduced in this judgment); that this was the second such refusal to the
petitioner, the first one having been in 1984; that this petition has been
presented under Article 11 and 23 of the Constitution; that in fact the
proper Article should have been 28 (1).

Mr. Malila next tackled the issue of “Discrimination” as defined by

Article 23(3) of the Constitution. Under this definition, he went on,
the discrimination has to be based on one of the eight grounds namely
race, tribe, sex, place of origin, marital status, political opinions, colour, or
creed. The question is whether the petitioner was discriminated against
in the sense mentioned in the definition. It was his view that she was
not so discriminated but merely ‘denied access’ to the said bar because
she was a woman unaccompanied by a man. He went on and said that
at no time did the respondent put the petitioner’s marital status in issue;
that marital status is an irrelevant issue in determining whether or not an
unaccompanied woman should be allowed into the bar in question or not.
The policy in issue would catch all unaccompanied woman married or not,
he said. The learned counsel went on and submitted that the petitioner
was not allowed access into the said bar not because she was a woman
but because she was a woman without male company. The petitioner was
therefore not discriminated against in the wording of the definition in the
Constitution.

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Mr. Malila then argued that should this court find that the petitioner
was discriminated against, this court has to interpret the provision of
Article 23(3) of the Constitution properly so that the true meaning of
the legislature as evidence by the language which has been used in that
Article and not what the legislature may have intended to say but did not
say, can come out. In support of BASU’s Commentary on the Constitution
of India 5th Edition Vol. 1 and to Solomon v Solomon (1877) C.22 at
38. The wording of Article 23 of the Constitution is certain, precise, and
unambiguous, he submitted.

The learned counsel went on and said that the petitioner bears the
burden of proving that the respondent violated Article 23. To do so she
has to prove either that (1) the respondent made the law that made the
provision that is discriminatory either itself or in its effect; or (2) she was
discriminated against by the respondent’s agents acting pursuant to “any
written law or in the performance of the functions of any public office
or any public authority.” He then said that the respondent is a limited
company which does not have any power to make law i.e. an Act of
Parliament or a Statutory Instrument as per Articles 62, 78, and 80 of the
Constitution respectively. The respondent thus has only a policy and not
a law, submitted the learned counsel. Also, it has not been shown that the
respondent’s agent acted in the performance of a Public office or public
authority. In the light of these facts the petitioner has failed to establish
that her Article 23 right has been violated, he submitted.

Next the learned counsel tackled the freedom of movement under Article
22 of the Constitution. After quoting the relevant parts of that Article,
Mr. Malila went on and submitted that this is not an absolute right as it
is limited by the requirements of Article 17(1), 23(2), and (3) and the civil
‘non-constitutional’ rights such as the right to exclude unwanted visitors
from one’s premises and the right to sue for trespass to mention but only
these two. He then said that the petitioner was free to exercise her freedom
of movement whenever she pleased, but if she decided to exercise it on
the respondent’s premises, she was required to abide by any reasonable
conditions obtaining on those premises. One such condition was that she
had to be in male company if or when she wanted to patronize the bar in
question. It was his contention that it has not been the intention of the
legislature through Article 22 to give to individuals unrestricted entry into

136
any place, private or public. He then submitted further that constitutions
are meant to cover state actions or state agencies.
He went on and said that Zambia being a signatory of the U.N.
Convention on the Elimination of All Forms of Discrimination against
Women, may unfortunately have failed to pass an implementing statute
or to include the salient points in the Constitution and may thereby not
be living up to her international commitments. That being the case, went
on the learned counsel, women cannot get all their rights provided them
by that convention by coming to courts when those rights are not reflected
in the Republican Constitution. For these reasons, it was his submission
that the petition be dismissed with costs to the respondent.

The starting point in my determination of this dispute is to state the

provisions of Articles 11, 21, 22, 23, and 28 of the Constitution. Articles
11 and 23 have been relied upon by the petitioner as being the basis of this
petition. Article 28 has, on the other hand, been contended by the defense
as being the basis of this petition. Article 21 deals with the freedom of
assembly and association. Article 22 deals with the freedom of movement
and is also in issue in this matter. Leaving out provisions not relevant to
this case those Articles provide as follows and I quote:

’11. It is recognized and declared that every person in Zambia has been
and shall continue to be entitled to the fundamental rights and freedoms
of the individual, that is to say, the right, whatever his race, place of origin,
political opinions, colour, creed, sex, or marital status, but subject to the
limitations contained in this part, to each and all of the following, namely;

(a) .................... the protection of the law.

(b) Freedom of............. assembly movement and association.
(c) .................

and the provisions of this part shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations of
that protection as are contained in this part, being limitations designed
to ensure that the enjoyment of the said rights and freedoms by any
individual does not prejudice the rights and freedoms of others or the
public interest.’

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’21. (1) Except with his own consent, no person shall be hindered in the
enjoyment of his freedom of assembly and association, that is to say, his
right to assemble freely and associate with other persons............
(2) Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of this Article to the
extent that is shown that the law in question makes provision:

(a) that is reasonable required in the interests of .................... public

morality............
(b) that is reasonably required for the purpose of protecting the rights
or freedoms of other persons;
(c) ......................
(d) ......................

And except so far as that provision or, the thing done under the authority
thereof as the case may be, is shown not to be reasonably justifiable in a
democratic society.’

’22. (1) Subject to the other provisions of this Article and except in
accordance with any other written law, no citizen shall be deprived of his
freedom of movement, and for the purposes of this Article freedom of
movement means-
(a) the right to move freely throughout Zambia
(2) .............................
(3) .............................’

’23. (1) Subject to clauses (4), (5), and (7) no law shall make any provisions
that is discriminatory either of itself or in its effect.

(2) Subject to clauses (6), (7), and (8), no person shall be treated in a
discriminatory manner by any person acting by virtue of any written law
or in the performance of the function of any public office or any public
authority.

(3) In this Article the expression ‘discriminatory’ means, affording

different treatment to different persons attributable, wholly or mainly to
their respective descriptions by... sex... marital status..... whereby persons
of one such description are subjected to disabilities or restrictions to
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which persons of another such description are not made subject or are
accorded privileges or advantages which are not accorded to persons of
another such description.

(4) Clause (1) shall not apply to any law so far as that law makes
provision-
(a) ........................
(b) ........................
(c) ........................
(d) ........................
(e) whereby persons of any such description as is mentioned in Clause
(3) may be subjected to any disability or restriction or may be
accorded any privilege or advantage which, having regard to its
nature and the special circumstances pertaining to those persons
or to persons of any other description, is reasonably justifiable in a
democratic society.
(5) ......................................................................................................

(6) Clause (2) shall not apply to anything which is expressly or by

necessary implication authorized to be done by any such provision or law
as is referred to in Clause (4) or (5).

(7) Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of this Article to the
extent that is shown that the law in question makes provision whereby
persons of any such description as is mentioned in Clause (3) may be
subjected to any restriction on the rights and freedoms guaranteed by
Articles ....................... 21 and 22, being such a restriction as is authorized
by Clause.................(2) of Article 21 or Clause (3) of Article 10................
(
8) ..........................................................’

’28. (1) Subject to Clause (5) if any person alleges that any of the
provisions of Articles 11 to 26 inclusive has been, is being, or is likely to
be contravened in relation to him, then, without prejudice to any other
action with respect to the same matter which is lawfully available, that
person may apply for redress to the High Court which shall-
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 (a) hear and determine any such application;
(b) ....................................................
and which may, make such order, issue such writs and give such directions
as it may consider appropriate for the purpose of enforcing, or securing
the enforcement of any of the provisions of Article 11 to 26 inclusive.

(2) (a) ..........................................

(b) .........................................

(3) No application shall be brought under Clause (1) on the grounds that
the provisions of Articles 11 to 26 (inclusive) are likely to be contravened
by reason of the proposals contained in any bill which, at the date of the
application has not become a law.

(4) ...........................................

The African Charter Etc.

Article 1: The member states of the Organization of African Unity parties
to the present Charter shall recognize the rights, duties, and freedoms
enshrined in this Charter and shall undertake to adopt legislative or other
measures to give effect to them.

Article 2: Every individual shall be entitled to the enjoyment of the rights

and freedoms recognized and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, color, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or other status.

Article 3:

1. Every individual shall be equal before the law.

2. Every individual shall be entitled to equal protection or the law.

Article 4: This talks about the inviolability of human beings. I will not
reproduce it here as that principle is not an issue in this matter.

Article 5: Is also not in issue in this matter.

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The Convention on the Elimination of All Forms of Discrimination
against Women.
Article 1: Discrimination is distinction, exclusion or restriction made on
the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their
marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil
or any other field.

Article 2: Discrimination against women in all its forms,agree to pursue by all

appropriate means and without delay a policy of eliminating discrimination
against women and, to this end, undertake:...............................................
To ensure that public authorities and institutions shall refrain from
engaging in any act or practice of discrimination against women. To ensure
that all acts of discrimination against women by persons, organizations, or
enterprises are eliminated.

Article 3: States Parties shall take in all fields, in particular in the political,
social, economic and cultural fields, all appropriate measures, including
legislation, to ensure the full development and advancement of women,
for the purpose of guaranteeing them the exercise and enjoyment of
human rights and fundamental freedoms on a basis of equality with men.

Lastly Mrs. Mushota referred to the Bangalore Principles of 1998 which

have been brought into being by Commonwealth Jurists and Chief
Justices. That document provides as follows:-

1. Fundamental human rights and freedoms are inherent in all

humankind and find expression in constitutions and legal systems
throughout the world and in the international human rights
instruments.

2. These international human rights instruments provide important

guidance in cases concerning fundamental human rights and
freedoms.

3. There is an impressive body of jurisprudence, both international and

national, concerning the interpretation of particular human rights

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 and freedoms and their application. This body of jurisprudence is of
practical relevance and value to judges and lawyers generally.

4. In most countries whole legal systems are based upon common law,
international conventions are not directly enforceable in national
courts unless their provisions have been incorporated by legislation
into domestic law. However, there is a growing tendency for national
courts to have regard to these international norms for the purpose
of deciding cases where the domestic law – uncertain or incomplete.

5. This tendency is entirely welcome because it respects the universality

of fundamental human rights and freedoms and the vital role of
an independent judiciary in reconciling the competing claims of
individuals and groups of persons with the general interests of the
community.

6. While it is desirable for the norms contained in the international

human rights instruments to be still more widely recognized and
applied by national courts, this process must take fully into account
local laws, traditions, circumstances and needs.

7. It is within the proper nature of the judicial process and well-

established judicial functions for national courts to have regard to
international obligations which a country undertakes-whether or
not they have been incorporated into domestic law-for the purpose
of removing ambiguity or uncertainty form, national constitutions,
legislation or common law.

8. However, where national law is clear and inconsistent with the

international obligations of the State concerned in common law
countries the national court is obliged to give effect to national law. In
such cases the court should draw such inconsistency to the attention
of the appropriate authorities since the supremacy of national law in
no way mitigates a breach of an international legal obligation, which
is undertaken by a country.

9. It is essential to redress a situation where, by reason of traditional

legal training, which has tended to ignore the international dimension,

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 judges and practicing lawyers are often unaware of the remarkable and
comprehensive developments of statements of international human
rights norms. For the practical implementation of these views it is
desirable to make provision for appropriate courses in universities and
colleges, and for lawyers and law enforcement officials; provision in
libraries of relevant materials; promotion of expert advisory bodies
knowledgeable about developments in this field; better dissemination
of information to judges lawyers and law enforcement officials; and
meetings for exchanges of relevant information and experience.

10. These views are expressed in recognition of the fact that judges and
lawyers have a special contribution to make in the administration of
justice in fostering universal respect for fundamental human rights and
freedoms.

My next task is the resolution of the issues which have been raised in this
matter. In that exercise I feel compelled to start with the issue of whether or
not this petition is well grounded on Articles 11 and 23 of the Constitution
on which it has been brought to this court. My answer is in the affirmative.
This is because it is my considered view that Article 11(a), as quoted already
in this judgment, gives to every individual who is resident in this country,
citizen or not a right to be protected by the law. A person who therefore
feels that his human right or rights, let alone any other provision of the law,
is/are infringed is entitled to come to these courts and seek an appropriate
order in his favour, on the basis of this Article. Such a person is also in order
to seek such redress on the basis of a specific provision of Part III of our
Constitution is in a specific breach. Articles 12 to 24 both inclusive and 28
provide for such breaches, and anybody alleging such a breaches, as the case
may be, has locus on the basis of such allegation. But in our Constitution,
the legislature thought it was wise to further provide under Article 26 for
the different categories of aggrieved persons who have locus in these kind
of matters. Those people whose rights: (1) have already been breached; (2)
are being breached and (3) in danger of being breached in the future. Thus
a litigant alleging the breach of his human rights is able to base his action
on either Article 11 alone, or Article 11 and any other relevant Articles(s)
of Part III or indeed Article 28 and the relevant other Article(s) of Part III.
This action is therefore properly before this court.

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Next is the issue that the incident complained of in this matter was not
the first such occurrence in respect of the same person and in respect
of the same bar. I got the impression that this issue was canvassed by
the learned respondent’s advocate to try and suggest that the petitioner
should therefore have know better the second time. My view is that the
petitioner was entitled to institute these kinds of proceedings at any time
she was treated in the way she was on those two occasions i.e. either on
the first occasion or indeed on the second time as she has decided to do
this time. As to whether she should have known better the second time
or not that is the very core of the case. So the answer will become obvious
in the remaining part of this judgment.

The next issue is the contention by Mr. Malila that Constitutional

provisions are meant to cover State actions or public bodies or public
officers. The necessary amplification of this argument is that human rights
observances are necessary only in matter of the State and/or public bodies
and/or public officers; that other categories of people or institutions in a
country are exempt from such observances altogether. At this juncture we
need to know what is meant by human rights. The definition of Professor
Louis Henkin in his article in (1981) 81 Columbia Law Review at page
1582 succinctly answers this question. He defined human rights as:

..............claims which every individual has or should have upon the

society in which she or he lives. To call them human rights suggests that
they are universal; they are the due of every human being in every human
society. They do not differ with geography or history, culture or ideology,
political or development. They do not depend on gender or race, class or
status. To call them “rights” implies that they are claims “as of right” and
not merely appeals to grace or charity or brotherhood or love; they need
not be earned or obligation, in some political order under some applicable
law....................”

I totally agree with this definition.

At this juncture I would like to explain the evolution of Constitutions.

This explanation applies to both unwritten and written constitutions in
principle. But in practice it is more relevant to a State or States with a
written Constitution or Constitutions. A constitution is a product of

144
the surrender by the citizenry of their individual rights to their rulers
(Governments) in order for those rulers to distribute and supervise the
enjoyment of those rights in an atmosphere of peaceful co-existence by
all. Breaches of that enjoyment of the rights attracts certain sanctions
so that normalcy is restored. Now the surrender of people’s rights to the
ruler inevitably has made the rulers very powerful vis-a-vis the individual
citizenry. Since power corrupts and absolute power corrupts absolutely,
there is a danger of abuse of those powers by the rulers against the very
people who have reposed it in them on their behalf. So to try and control
such abuse the people through their elected representatives have laid
down certain rules of conduct of business by the rulers. With the passage
of time it was recognized that those rules needed to apply to all organs of
the State and Public Institutions or persons. Since those rules come from
the collective will of the citizenry, it is felt that they for the basis of all the
regulations that are passed to regulate the conduct of the citizenry and
that to change them needs an absolute majority of the citizenry in favour.
This is how difficult provisions of amending or repealing constitutional
provisions have come into being. That majority is sometimes two-thirds
or three-quarters of all the members of a given legislature or State if the
arrangement is a federation. Thus human rights are almost written into a
country’s constitution.

This is in order to give the requisite constitutional powers they deserve, as I

have just explained. But what started as regulations to control the powers
of the rulers, have with the passage of time, in my considered view, come
to cover the activities of even private individuals or institutions. This has
come about, in my view, upon a realization that there are certain activities
by the individual citizens which would offend against the peaceful co-
existential tenets of today’s civilized living standards of man unless they are
controlled by the Supreme law of the land. And so present day’s provisions
of human rights in Constitutions command both the rulers and the ruled
alike to observe certain standards. This feature is very easily noticed in our
Constitutions i.e. the past and present ones. For example the right to life
under Article 12(1) and (2) of our Constitution is a command to everybody,
ruler or ruled to respect it. So are the rights: of personal liberty (Article
13(1); to freedom from slavery and force labour 9Articles 14(1) and (2); to
freedom from torture (Article 15); to privacy of home and other property
(Article 17(1) and to freedom of conscience (Article 19(1) (2) (3) and (4).

145
I could go on but these will support what I have just said. This is the same
approach taken by many, if not all International Treaties. There may, of
course be some human rights which can only be accorded to the citizenry
by a Government Department or some such public institution or a public
servant. It is only ordinary common sense that in the wording of such a
right, the appeal should be to the public institution(s) or public person.
This is the category where the right to protection o the law under Article
18 of our present constitution falls. Whilst still on this issue it is pertinent
also to say that under our Constitution the word “person” has been defined
under Article 113 as: “Includes any company or association or body of
persons, corporate or unincorporated’. This shows that the Constitutional
provisions in this country are intended to apply to everybody: public or
private persons unless the context otherwise dictates.

I must also state that it is true that most, if not all the rights, which have
been provided for by the Bill of Rights are also covered by personal or
private law such as the law of torts or criminal law. But that state of affairs
does not deprive an aggrieved person of his choice, whether to proceed
under the Bill of Rights or under another branch of the law. The golden
choice in this regard is the aggrieved person’s.

I then move on to the determination of the petitioner’s right which was

infringed by the respondent hotel, if any was so infringed at all. The
starting point here is the determination of the issue whether or not the
petitioner was discriminated against in her pursuit of life being refused
entry into the Luagwa Bar on the basis of her sex. I must here say that
it was quite amusing reading the arguments put forth by Mr. Malila for
the respondent hotel, to try and persuade me to find in the respondent’s
favour that the petitioner was not so discriminated against. I have to say,
on this question, that I have been more than satisfied that the petitioner
was discriminated against in the manner she was treated in 1984 and this
year (1992) when she was a female who did not have male company at
the material times. Now if that is not discrimination on the basis of sex
or gender what else is it, looking at the matter in a reasonable ordinary
person’s perspective? I have not been able to find any reasonable argument
to persuade me into holding that this was not based on the fact that at the
material time this female (the petitioner) because she was a female, and
nothing else, was commanded by the hotel to be accompanied by another
human being but who must be a male, in order for her to allowed by the
146
hotel to patronize this bar. On the other hand an unaccompanied male i.e.
a male who was not in the company of a female, was free to patronize the
same bar. This was very naked discrimination against the females on the
basis of their gender or sex, by the respondent hotel.

Now was this discrimination allowed by the Constitution. Starting with

the contentions by the respondent, this discrimination came into being
because patrons of that bar, mostly male I think, had been complaining to
the hotel management about the behaviour of unaccompanied women who
used to patronize the bar in issue. Those women used to fight over men in
that bar. Now reading the derogations allowed for under the constitution
they are in respect of acts authorized by an Act or Acts of Parliament or
principles of law or delegated legislation. This is what Articles 21(2), 22(3),
and 23(4) (5) (6) and (7), mention only these provisions say. Now was this
discriminatory rule by the respondent hotel, a law in the context of the
constitutional provisions that are in place in this country? The starting point
in this regard is the definition of the word law which is in the constitution
itself. Browsing through it I found the definition of the term “existing law”
under Section 2 of the Constitution of Zambia Act of 1991. It reads as
follows:

“Existing law” means all law, whether a rule of law or a provision of an Act
of Parliament of any other enactment or instrument whatsoever (including
any Act of Parliament of the United Kingdom or Order of Her Majesty
in Council). Having effect as part of the Law Zambia or part thereof
immediately before the commencement of this Act, and includes any Act
of Parliament or statutory instrument made before such commencement
and coming into force, on such commencement of thereafter.”

The interpretation and General Provisions Act Cap 2 of the Laws of Zambia
does not define the word “law”. So the foregoing definition must rule.

My understanding of the word “law” as used in the context of your Bill of

Rights is that it means an Act of Parliament or Statutory instrument or
a rule of law. The discriminatory regulation which is the subject of this
litigation was thus not a law in the meaning of “law” in our constitution.
This is because only Parliament has power to make such laws. This means
that (1) none of the permitted derogations of our Constitution applies now

147
and applied at the material time to the regulation in question; and (2) the
discrimination in question does not and did not fall under the provisions
of Article 23. But that regulation did breach Article 21 (freedom of
assembly and association) and 22 (freedom of movement) in respect of
the petitioner, and indeed all those women who have been refused entry
into Luangwa Bar of the respondent hotel over the years. This is because
they were denied their choices of where to go and who to associate with
by that regulation. The complaints by the patrons against the behaviour
of women who were not being accompanied by men in that bar did not
call for the putting in force of a rule or regulation which contravened the
Bill of Rights, without permission of or authority from the legislature to
do so. The fights over men problem ought to have been taken care of by
the use of the public law and order laws of this country.

Before I end, I have to say something about the effect of International

Treaties and Conventions which the Republic of Zambia enters into
and ratifies. The African Charter on Human Rights and People’s Rights
and the Convention on the Elimination of All Discrimination against
women etc (ante) are two such examples. It is my considered view that
ratification of such documents by a nation state without reservations is
a clear testimony of the willingness by that State to be bound by the
provisions of such a document. Since there is that willingness, if an issue
comes before this court which would not be covered by local legislation
but would be covered by such international document, I would take
judicial notice of that Treaty or Convention in my resolution of the
dispute.

As for documents such as the Bangalore Principles, I am of the view that

they do not enjoy the same status as the Treaties and Conventions. This
is because it is my very considered view that in the separation of powers
principle, I do not think that a meeting of jurists in an international
forum can make resolutions which are binding on their respective states,
in law. I am of the strong view that such powers are entrusted in the
Executive Wing of the State. So whilst it is not wrong to take note of such
resolutions I think it is misdirection in law to treat them as standing at par
with Treaties and Conventions entered into and ratified by the executive
wing. This is the general principle. There may be some exceptions, as is
generally the case with general principles. But those exceptions would

148
have to be decided upon if or when they occur. The Bangalore Principles
do not appear to be exceptions to this general rule.

When all is said therefore, since the regulation or rule in issue contravened
the human rights provisions of our constitution, as already explained, I
order and direct that it be scrapped forthwith.

Mrs. Mushota asked this court to grant her client ordinary and exemplary
damages against the respondent hotel. I have to say that I did not receive
any evidence which would support an award of exemplary damages. So
that prayer is not granted.

Coming to ordinary damages, I did not also receive any evidence to show
the degree of ordinary damages the petitioner suffered. I am therefore
of the considered view that I can only award her a token amount. I
accordingly award her a sum of five hundred kwacha (K500.000). I also
award her the costs of this action.

149
In the Matter of the Estate of King’ara Kimeria – Succession Cause
1763 of 2008

In The Matter of The Estate of King’ara Kimeria (Deceased) [2012]

Eklr 1
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 1763 of 2008
RULING

The protester in the summons for confirmation of grant dated 4th June
2010 is the sister of the 1st administrator (Kamau Kingara), Wanjiku
Kingara and Wamaitha Kingara, all children of one of the decead’s two
wives ( also deceased). The three are the step-sisters and step-brother of
the 2nd administrator (George Kungu Kingara), Wanjiku Kingara and
Wanjiku (Wanjiru?) Kingara. The eight are the only surviving children of
the two houses of the deceased’s polygamous household.

The protestor is claiming ½ of the estate available for distribution to

her late mother’s household on the ground that she is unmarried and
therefore entitled to an equal share of the said estate with her brother,
the 1st administrator. She therefore objects to the attempts by the two
administrators to give her only 1/8 of her fathers’ estate whilst giving the
bulk of her household’s entitlement to the 1st administrator. The grant
in respect of the estate in question was issued on 3rd February 2000 and
is yet to be confirmed. On 20th April 2010 the court directed that the
summons for confirmation be filed within 30 days, which the petitioners
did on 7th June 2010. Thereafter submissions were filed on the only issue
arising, which has to do with the mode of distribution of the estate.

The only reason advanced by the two administrators as to why the applicant
should get only ⅛ of the estate is that she is married and would inherit
from or through her husband. The protester filed her affidavit of protest
on 22nd June 2010 in which she depones that she is not married and that
she has been in occupation and cultivation of the portion in question with
the mother (now deceased). She holds the view that being a daughter of
the deceased and unmarried, she is entitled to an equal share of the estate

150
property (devolving to her mother’s house) with the 1st administrator,
stating that the proposed mode of distribution, which seeks to give the
latter a larger share is discriminatory. She contends that if the same is
approved then she would suffer loss by being disinherited.

The deceased’s estate comprises of two parcels of land namely;

KIAMBAA/MUCHATHA/T.67 and KIAMBAA/THIMBIGUA/1187

which the administrators propose to distribute as follows:

1. KIAMBAA/MUCHATHA/T.67 to the administrators in equal

shares.

2. KIAMBAA/THIMBIGUA/1187 as follows:
(i) ½ acre to George Kungu Kingara
(ii) ⅜ to Kamau Kingara
(iii) ⅛ to the protestor

The respondents’ only response to the protest, as appearing in the replying

affidavit filed on13th July 2010, is that the protester is married and would
inherit property at her place of marriage.

Written submissions were exchanged and filed in the matter. To support

her claim the protester relies on the following authorities:-
1. The constitution of Kenya 2010; Articles 27 and 60
2. The succession Act (Cap 160); Sections 2(2) 38, 40, 41 and 42.
3. The Judicature Act (Cap 8); Sections 3(2).
4. Monica Wambui Rua –vs- Stephen Nduati Rua H.C.C.A. No. 408 of
1988 ([2004[
eKLR)
5. Nyeri H.C. Succ. Cause No. 204 of 2005
In the matter of the estate of David Mathini Wambugu (Deceased)
[2008]eKLR
6. Nairobi Succ. Cause No; 706 of 2000
In the matter of the estate of Priscilla Wairimu Kamau (Deceased)
[2005] eKLR
7. Meru Succ. Cause No. 308 of 1991
In the matter of the estate of Rukunga Kaimathiri (Deceased) [2011]
eKLR
151
The respondents (petitioners) have not cited any authorities but do accept
that the protester is constitutionally entitled to inherit the deceased’s land,
only arguing that the mode of distribution should be as proposed by them,
since she is married to one James Murigi but separated and living at her
parent’s home. They have submitted, without proof, that she is awaiting
to resolve existing differences with the alleged husband. They hold the
view that ⅛ of her father’s estate is “commensurate with her status” and
in the same breath submit that the distribution is not discriminatory. I
find the petitioners’ reasoning self defeating in that they recognise the
protestor as being entitled to inherit their fathers’ land by virtue of her
living at her parents’ home, unlike the other sisters who have raised no
claim, presumably because they believe they are not entitled to inherit. The
respondents’ contention that the protester is not entitled to any portion
of KIAMBAA/MUCHATHA/T.67(despite their not disputing that she
occupies a ¼ thereof, which belonged to her mother) is founded on the
ground that the mother only had a life interest and that the said portion
reverted to the estate after her demise. I find the protester not to have any
quarrel with this argument since it is for the same reason she considers the
said portion as being available for contribution. The proposal to grant the
protester a much smaller portion of her father’s estate on the basisthat the
same is considered to be “commensurate with her (marital) status” is clearly
discriminatory in light of Article 27 sub-articles (1) (4) and (5) of The
Constitution of Kenya2010 and violates the provisions of Article 60(f )
of the Constitution. It goes contrary to theprovisions of Section 38 of
the Succession Act which provides that among the children of adeceased
intestate (if there be more than one) the net intestate estate shall divided
equally among the surviving children.

The net estate of the deceased comprises of the two parcels of land,
KIAMBAA/MUCHATHA/T.67 and KIAMBAA/THIMBIGUA/1187
which the contestantshave agreed to share equally among the two houses.
I am not persuaded that such an agreement can stand in view of Section
40 of the Succession which provides that in the case of a polygamous
household, the net intestate estate shall in the first instance, be divided
among the houses

“according to the number of children in each house, but also adding any wife
surviving theintestate as an additional unit to the number of the children”.

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My understanding of this is that parliament intended that the provisions
of Section 38 be given effect even in the case of polygamous households
where the children would also share equally. It would appear from the
documentation filed that the intestate was predeceased, by his two wifes.
The number of children has been given as 4 in the 1st house and 3 in the
2nd house. This clearly means therefore, that there are seven units in the
intestacy. My interpretation of this, provision, as I have held elsewhere,
is that the household with more children (units) would receive more
than the one with the fewer. Within the household however, the children
would then share the estate equally, but with the right to renounce one’s
entitlement in favour of others and the filing of necessary consents in that
respect. This being the case it is clear to me that the common practice
where intestacies in polygamous households are shared equally between
the households is not only illegal but clearly inequitable. It violates the
letter and spirit of Section 38 of the Succession Act, and defeats the
purpose thereof.

In the circumstances I find that the protester succeeds in her application.

There is clear discrimination and her right to inherit her father’s estate is
jeopardized. I find that the proposed mode of distribution contravenes not
only the Constitution of Kenya 2010, but also the Succession Act itself.

Moreover the summons for Confirmation of Grant dated 4th June 2010
does not confirm to the requirements of the Succession Act in that the
affidavit in support does not name all the surviving beneficiaries, their
interest (if any) their renunciation thereof or their respective consents to
the proposed mode of distribution. For this reason the same is hereby
struck out.

I order that the administrators do file an appropriate summons for

Confirmation of Grant taking into account the legal provisions as
considered herein Orders accordingly.

153
FAIR TRIAL
Alex John versus The Republic

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And MANDIA, J.A.)

CRIMINAL APPEAL NO. 129 OF 2006

ALEX JOHN …………………...............…………. APPELLANT

VERSUS
THE REPUBLIC ………………………..………… RESPONDENT

(Appeal from the decision of the High Court of

Tanzania at Dar es Salaam)

(Mushi, J.)

Dated the 6th day of July, 2005

in
HC Criminal Appeal No. 32 of 2003

---------

JUDGMENT OF THE COURT

15th May, & 4th June, 2009

RUTAKANGWA, J.A:.
The appellant and eight others were jointly charged with the offence
of armed robbery contrary to sections 285 and 286 of the Penal Code,
before the District Court of Temeke at Temeke (henceforth the trial
court). At the end of the day, only the appellant was found guilty and
convicted as charged. The rest were acquitted. He was sentenced to the
statutory minimum sentence of thirty years imprisonment. Aggrieved by
154
the conviction, he unsuccessfully appealed to the High Court at Dar es
Salaam, hence this appeal.

The appellant has filed a memorandum of appeal containing two grounds

of appeal. In the first ground he is complaining that the two courts below
erred in law and fact in founding the conviction for armed robbery on
flawed visual identification evidence. The second complaint is that he was
not given a fair trial contrary to Article 13(6)(a) of the Constitution of the
United Republic of Tanzania, 1977 (henceforth the Constitution).

To argue the appeal, the appellant appeared before us in person and

was unrepresented. The appellant presented no additional arguments to
substantiate his grounds of appeal which were, admittedly, discursive in
nature. This was understandable having been drawn by a lay hand. For
the respondent Republic, Ms Evetha Mushi, learned State Attorney,
appeared. Although she had initially resisted the appeal, she ultimately
opted not to support the conviction of the appellant, for reasons we shall
show subsequently. To start with, we consider it appropriate to give the
essential background to this appeal.

On the night of 26th August, 2001 bandits broke into the house of one
Maulid S. Zame (PW2) at Chamazi, Dar es Salaam. It was at 02.00 a.m. as
PW2 was in one of the rooms eating. Alerted by a bang on the outer door of
the house, he proceeded to the sitting room to find out what was happening.
In the sitting room he came face to face with a number of bandits who were
armed with a gun, iron bars and pangas. The bandits ordered him to return
to the room and to be given money. When he resisted, he was cut twice on
the left arm. In the process, the bandits, who were all strangers to PW2,
took his radio cassette, a weighing machine, a bale of clothes and cash Tshs.
70,000/=. They then vanished, but were pursued by PW2’s “neighbours”. In
the course of giving chase, two of the bandits were killed. PW2 reported
the robbery at the nearby police post where he recorded his statement and
was issued with a PF3 (Exh. P1) and sent to Temeke government hospital
for treatment. The appellant and his co-accused were arrested randomly on
divers dates and for reasons not connected with this robbery.

After No. B 7731 D/Sgt. Leonard (PW4) had recorded what he thought
to be a confession to the robbery by the appellant, the latter and his

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colleagues were charged accordingly, in the trial court on 4th September,
2001. They pleaded not guilty and were remanded in custody.

On 10th September, 2001, Inspector Shufaa (PW5) of Chango’mbe Police

Station, conducted an identification parade. At the parade, the appellant
was identified by PW2 as one of the bandits he saw at scene of the crime.
Thereafter the case was adjourned for mention on several occasions until
14th November, 2001, when the preliminary hearing was held. Although
the trial court scheduled the formal trial to commence on 28th November,
2001, it never took off until 5th March 2002. In between the hearing
was re-scheduled seven times because of either non – appearance of
prosecution witnesses or the prosecutor’s failure to take exhibits to court.

The last prosecution witness testified on 7th June, 2002 when the
prosecution closed its case. Without making any ruling under section 230
of the Criminal Procedure Act, Cap 20 R.E. 2002 (henceforth the Act)
on whether or not the accused persons had a case to answer or addressing
them in terms of section 231(1) of the Act, the learned trial Honorary
Magistrate adjourned the case for “hearing on 21st June 2002”. The
accused persons were all sent back to remand prison. On 21st June 2002
the trial could not continue as some of the accused persons had not been
brought from remand prison. The trial again could not continue on 5th July
as rescheduled, because, the public prosecutor who appeared claimed to
be “new to the case”. On this particular day all the accused persons made a
pertinent prayer to the trial court. They prayed “to be supplied with court
proceedings” in order to prepare themselves for their defence. The trial
court rejected the prayer.

In rejecting the accused persons’ prayer, the learned Honorary Magistrate,

in a one-sentence ruling, curtly said:-

“Accused’s request refused as this would entail a long delay in disposing

of the case.”

He then ordered thus:-

“Order:- Defence hearing on 19th July, 2002. Accused further
remanded in custody.”

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On 19th July, the defence case could not start because some of the accused
persons had not been brought from prison. On the next fixed date
(19/08/02), the hearing was again adjourned for what the trial magistrate
described as “unforeseeable circumstances”. The hearing was again put off
twice, on 10th September, 2002 and 24th September, 2002, respectively, for
undisclosed reasons although the accused persons were all in attendance.

When the case went again before the trial court on 22nd October, 2002
the learned trial magistrate without complying with section 230 of the
Act, ordered the accused to testify in defence of the charge against them
after complying with section 231(1). All elected to give evidence on that
day except the appellant. The appellant told the trial court that he would
be ready to testify on his own behalf, after he had been supplied with the
“proceedings” as earlier requested. The trial magistrate again dismissed the
prayer because as he ruled “that right does not accrue in the middle of the
trial” but after judgment has been delivered. The defence case was then
unilaterally closed by the trial magistrate. Judgement was reserved for 21st
October, 2002, but it was eventually delivered on 26th November, 2002.

In his judgment, the learned trial Honorary Magistrate had this to say
in respect of the appellant’s co-accused:-

“I must hasten to say that in the whole evidence I could not find
even a single piece of evidence that could connect accused 1-7 and
9. Indeed these accused were not even supposed to enter upon
their defence. In view of this they are found not guilty and are
acquitted………”

We are in full agreement with this acquittal. As he rightly held, there was
no scintilla of evidence adduced by the prosecution implicating them in
any way with the robbery or any other kindred offence. These accused
persons, therefore, were entitled, as of right, to an acquittal under section
230 of the Act on 7th June, 2002. Be it as it may, we have to regrettably
observe here that his admission that he wrongly forced these accused
persons to defend themselves, should not be a cause for amusement. It
is a confession to incompetence and/or laxity in discharging his judicial
duties. From whatever perspective it is viewed, in our view, neither is it a
virtue worth espousing and/or tolerating. Furthermore, for the benefit of

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all trial magistrates, we would like to make it abundantly clear that the
provisions of section 230 of the Act are imperative and mandatory and
must always be strictly complied with. Regarding trials before the High
Court reference is made to the decision of this Court in the case of TETE
MWANTENGA KAFUNJA & 2 OTHERS V. REPUBLIC, Criminal
Appeal No. 102 of 2005 (unreported).

We would go further and observe that in our settled view, forcing accused
persons to enter the witness box and defend themselves and calling
witnesses on their behalf and, like in this particular case holding them in
remand prison when they have no case to answer, is a flagrant violation
of their fundamental right to freedom enshrined in Article 15 of the
Constitution. We have found it apposite to make these observations
because we are convinced that if such laxity is left to continue it will lead
to disastrous miscarriages of justice thereby making a mockery of the
machinery of administration of justice.

Coming to the appellant before us, the trial magistrate found him guilty
as charged on the basis of only one piece of evidence. This was the visual
identification evidence of PW2 which he found to be water-tight. The
learned trial magistrate relied on this piece of evidence only because
he found and held that the alleged confession of the appellant was not
proved at all by the prosecution to have been freely made or given to
PW4. He also discounted the evidence pertaining to the identification
parade because the same was conducted contrary to laid down procedures.

We have carefully studied the entire evidence on record. We are,

respectfully, in agreement with the learned trial magistrate on his findings
regarding the alleged confession and the identification parade. We have
additional reasons to complement those given by the magistrate.

Regarding the alleged confession, after objectively reading the so called

caution statement, which contains more in-puts from PW4 than from the
appellant, we are satisfied that it never contained any confession relating
to the robbery committed at the house of PW2 on the night of 26th August
2002. It could not, therefore, be used to prove the guilt of the appellant.

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As we have already indicated in this judgment, the appellant first
appeared in open court on 4th September, 2001 being charged with
committing the said robbery. The appellant was seen by a great number
of people, including PW2 probably. The identification parade was held
on 10th September, 2001. It was, therefore, not surprising that PW2
pointed him out. This identification was, therefore, totally useless as its
evidential value was markedly whittled down by being conducted after
the appellant had appeared in open Court. We are saying so advisedly
because we have found no iota of evidence on record going to show that
PW2 had given the description of the appellant, or any other bandit,
either to the Police or anybody else prior to 10th September, 2001. Indeed
the evidence of PW1 No. C 7851 D/Cpl. Damiani clarifies this aspect
of the case beyond any doubt. It was his evidence that the appellant was
arrested not because he was connected with the robbery at PW2’s house
but on the basis of information relating to other undisclosed matters. It
has become evident to us, therefore, that the appellant was lined up at the
identification parade on the basis of the confession that never was, which
to say the least might have been the figment of PW4’s own imagination.
On these facts and background the appellant decided to challenge his
conviction in an appeal to the High Court.

The appeal to the High Court which was predicated on six (6) grounds
of appeal, was dismissed in its entirety. The learned first appellate judge
in deciding the appeal believed that the appellant had lodged only two
grounds of appeal, challenging the cogency of the identification evidence
and the admissibility of the caution statement. He, unfortunately,
overlooked the 5th and 6th grounds of appeal. Of course, the 1st, 2nd and
3rd grounds all related to identification evidence and could conveniently
be combined. The 5th and 6th grounds could also be similarly combined as
the complaint therein was that he was not given a fair trial. As a result of
omitting to address his attention to the latter two grounds, in dismissing
the appellant’s appeal, the learned judge said:-

“……………the main issue to decide in this appeal is the

question, whether or not PW2 did sufficiently identify the
appellant, during the identification parade. I am satisfied that
PW2 did. There was adequate light during the robbery. PW2
did spend some time struggling with the appellant, something

159
 which would have given PW2 some ample opportunity to study
the facial features of the appellant, to make him (PW2) remember
and describe them later, during the parade……………”

Like the trial magistrate, he found support for PW2 from the appellant’s
failure to defend himself. He then concluded thus:-

“I am satisfied that the appellant was adequately identified by

the PW2 (sic), as one of the robbers who had attacked and robbed
him that night of 26/08/2001. He was properly convicted and
sentenced…………”

Hence this appeal.

We have two crucial issues to determine in this appeal. These are :-
(a) Whether the appellant was denied a fair trial, as guaranteed under
Article 13(6) (a) of the Constitution, and
(b) Whether the appellant’s conviction was based on cogent and water-
tight identification evidence.

We shall deal with them in that order starting with issue (a). We have
already given in great details the factual basis for this particular ground
of complaint. Our immediate concern is whether or not this complaint is
legally sound.

Admittedly, this issue has greatly exercised our minds. Can Article 13
of the Constitution be invoked in aid of the appellant in the peculiar
circumstances of this case? The answer to this question depends much on the
interpretation one puts on this constitutional provision which guarantees
equality before the law and other relevant provisions of the laws enacted
to give full effect to this constitutional provision. Before looking at these
statutory provisions, however, we have found it instructive to first reproduce
here the relevant provisions of the Constitution cited by the Appellant.

The English version of the Constitution provides as follows in Article

13(1) and (6) (a):-
“13-(1) All persons are equal before the law and are entitled,
without any discrimination, to protection and equality before
the law.

160
 ( 6) To ensure equality before the law, the state authority
shall make procedures which are appropriate or which take into
account the following principles, namely;

(a) When the rights and duties of any person are being
determined by the court or any other agency, that person shall
be entitled to a fair hearing and to the right of appeal or other
legal remedy against the decision of the court or of the other
agency concerned.” [Emphasis is ours]

We are aware that one of the laws enacted by our Parliament to ensure
“equality before the law” when the “rights and duties of any person are being
determined by the court” is the Act as far as criminal trials are concerned.
The Act contains many provisions guaranteeing a fair trial or hearing in
conformity with the provisions of Article 13(6)(a) of the Constitution.
For the purpose of this appeal, however, section 231(1) is the most
relevant. It reads as follows:-

“231(1) At the close of the evidence in support of the charge, if

it appears to the court that a case is made against the accused
person sufficiently to require him to make a defence either in
relation to the offence with which he is charged or in relation
to any other offence of which, under the provisions of sections
300 to 309 of this Act, he is liable to be convicted, the court
shall again explain the substance of the charge to the accused and
inform him of his right __

(a) to give evidence whether or not on oath or affirmation, on

his own behalf; and

(b) to call witness in his defence, and shall then ask the accused
person or his advocate if it is intended to exercise any of the
above rights and shall record the answer; and the court
shall then call on the accused person to enter on his defence
save were the accused person does not wish to exercise any
of those rights……………”

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This section not only guarantees to an accused person a right to be heard
on his own behalf , but also imposes a duty on the trial court to inform
him fully of this right. But what does this accused’s right to give evidence
on his own behalf entail? A clear cut answer is not readily available from
the above quoted provisions of the Act. This is usual in the drafting
of statutes. For, as Denning , L.J. once aptly observed in SEAFORD
COURT ESTATES LTD V. ASHER [1949] 2 KB 481, at page 499.

“…………it must be remembered that it is not within human

powers to foresee the manifold set of facts which may arise, and
even if it were, it is not possible to provide for them in terms free
from all ambiguity……………..”

It has also occurred to us that a literal construction of this statutory

provision will not provide a satisfactory answer either. This is because on
the basis of that construction, it can be postulated that the appellant was
informed of this right and called upon to offer evidence in his defence by
the trial court but he refused or failed to take advantage of it by insisting
to first be supplied with copies of court proceedings. As such, it might
be argued, he has himself to blame. Such an argument, in our considered
opinion, would be devoid of merit. This is because, in our view, this provision
enshrining the fundamental right to a hearing, must be given a liberal and
purposive construction, if it is to be held to be in conformity with the
provisions of Article 13 (6) (a) of the Constitution, which was indeed
the intention of the Legislature. In including this section in the Act, the
Legislature intended to impose a duty on a trial court to create or provide
an environment for a fair hearing or a fair trial (both phrases are often
used inter-changeably). So, an accused’s right to give evidence on his own
behalf, simply means that he must be given a fair trial. This right would be
illusory were an accused person ordered to conduct his defence without
being afforded reasonable opportunity to present his case fairly and fully to
the court. Such opportunities, include, being supplied with copies of court
proceedings when requested. Acceding to such a request, unless expressly
provided otherwise, in our settled view, would be a sure facilitation to the
effective enjoyment of the constitutionally guaranteed right of access to
equal justice by all and a statutory right to be heard in defence.

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In NDYANABO V. ATTORNEY GENERAL [2001]2 E.A 485, this
Court held that in Tanzania a person’s right to unimpeded access to courts
“can be limited only by a legislation which is not only clear but which is not
violative of the provisions of the Constitution.” We have no law barring
courts from providing accused persons with copies of court proceedings
during the course of the trial so as to enable them to conduct an effective
defence. On the contrary, section 231 of the Act guarantees this right.
If there was any such law, the same would be held to be violative of the
constitutional right to a fair hearing.

What was requested by the appellant was within the powers of the trial
court to meet. The appellant needed the notes of the evidence to prepare
himself properly. This, in our considered opinion, would have helped
further the interests of justice. The cogency of the reason for the rejection
of the request flew in the face of the fact that it took three months before
the accused persons were called upon to defend, when almost all of them
had no case to answer. The appellant was, therefore, denied his right under
section 231(1) of the Act to defend himself. In short, he was denied a
fair trial. For this reason only, we would uphold this ground of appeal and
allow the appeal.

All things being equal, we would have concluded our discussion on the
issue here. But we have found ourselves constrained to go a step further
and demonstrate that we are not adding a new dimension in procedural
law and/or unduly expanding the concept of a right to a fair trial.

It is evident from Article 13 (1) and 6 (a) of the Constitution that equality
before the law and entitlement to a fair trial or hearing are constitutional
guarantees. In our settled minds, these are fundamental rights enjoyed
by all human beings and not gifts or privileges which can be granted and
withdrawn or withheld and/or granted at the pleasure of some authority or
agency. The right to a fair trial or hearing is a firmly rooted international law
norm and is evidenced by the proposal to include it in the non-derogable
rights provided for in Article 4(2) of the International Covenant on Civil
and Political Rights (1966) (henceforth the ICCPR): See, the Draft Third
Optional Protocol to the ICCPR, Aiming at Guaranteeing Under All
Circumstances the Right to a Fair Trial and a Remedy.
The right to a fair trial, apart from the said Article 13(6)(a), we should

163
hasten to add, is explicitly encapsulated in Article 10 of the Universal
Declaration of Human Rights (or the UDHR hereinafter), Article 7(1)
of the African Charter on Human and Peoples Rights, and Article14 of
the ICCPR, all of which Tanzania has ratified. It is also guaranteed in
Article 6(1) of the European Convention for the Protection of Human
Rights And Fundamental Freedoms as well as Article 8(1) and (3) of the
American Convention on Human Rights. In addition, it is recognized
in Articles 6(a) and 7(2) of the Treaty Establishing the East African
Community (1999). Article 14 of the ICCPR, for instance, partly provides
as follows in sub-articles (1) and 3 (b):-

“14 (1) All persons shall be equal before the courts and tribunals. In
the determination of any criminal charge against him or his rights
and obligations in a suit at law everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial
tribunal established by law……

(3) In the determination of any criminal charge against him,

everyone shall be entitled to the following minimum guarantees
in full equality:-

(b) To have adequate time and facilities for the preparation

of his defence and to communicate with counsel of his own
choice.” [Emphasis is ours].

In the case of THE ATTORNEY GENERAL V. LESINOI [1980]

TLR 214 this Court held that it is a general principle of law that the
interpretation of our provisions in the Constitution have to be made in
the light of jurisprudence which has developed on similar provisions in
other international and regional statements of the law. Similarly, in the
case of D.P.P vs ALLY & OTHERS, Criminal Appeal Nos. 44 and 45 of
1985, the Court held;-

“In interpreting the Constitution, the courts have to take into

account the provisions of the UDHR (1948) and other treaties
which Tanzania has ratified”.

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In addition, in the case of D.P.P. V DAUDI PETE [1993] TLR 22,
the Court sanctioned resort to the African Charter, in interpreting the
constitutional Bill of Rights.

In view of these succinct pronouncements by the Court, we can now safely

pose this question: What is a fair trial?

Webster’s New Word Law Dictionary provides the following definition:-

“A trial by a neutral and fair court, conducted so as to accord

each party the due process rights required by the applicable law;
Of a criminal that the defendant’s constitutional rights have
been respected.” [Emphasis is ours].

To us, a “neutral and fair court” is one which, all things being equal, is
prepared to hear and actually hears all sides before it decides. As far as
Tanzania is concerned the “due process rights” are adequately enshrined in
Articles 13 to 17 of the Constitution.

It is settled law which binds us, that fair trial guarantees must be observed
and respected from the moment the investigation against the accused
commences until the final determination of the proceedings, the appeal
process inclusive. See, for instance, Manfield Nowak in his U.N. Covenant
on Civil and Political Rights, CCPR Commentary (N.P. Engel, Arington
1993) at page 244.

Relying on the case of EKPETO V. WANOGHO (2004) 18 NWLR (Pt

905) 398, the Supreme Court of Nigeria in the case of NEWSWATCH
COMM. LTD V. ATTA (2006) All FWLR (Pt.318) page 580 at 611,
held that fair hearing according to the law envisages that both parties to
a case be given opportunity of presenting their respective cases without
let or hindrance from the beginning to the end. It went on to hold that
a fair trial also envisages that the court or tribunal hearing the parties’
case should be fair and impartial without it showing any degree of bias
against any of the parties. So, a fair trial, first and foremost, encompasses
strict adherence to the rules of natural justice, whose breach would lead to
the nullification of the proceedings.

165
But hearing both sides or parties as a gesture of complying with this right,
is not enough. To be meaningful the parties must be given, in full equality,
the minimum guarantees, mentioned in Article 14(3) of the ICCPR. One
of those minimum guarantees is an entitlement by the accused to “adequate
time and facilities for the preparation of his defence and to communicate
with counsel of his own choice.” There must be, what has come to be known
in international human rights jurisprudence, “equality of arms” between the
defence and the prosecution, throughout the trial. For the purpose of this
appeal, however, we shall restrict ourselves to this right during the trial.

According to the European Court of Human Rights (the ECHR

hereafter):-

“….One of the elements of the broader concept of a fair trial

is the principle of equality of arms, which requires each party
to be given a reasonable opportunity to present his or her case
under conditions that do not place him or her at a substantial
disadvantage vis-a-vis his opponent.”
See, NID HUBER v. SWITZERLAND [1997] ECHR
18990/91 at para 23, 18th February, 1997.

The same Court in the case of LOBO MACHADO v PORTUGAL [1996]

ECHR 15764189 at para 31, had observed that this right in principle
means the opportunity for parties to a trial to have knowledge of and
comment on all evidence advanced or filed, with a view to influencing the
court’s decision.

Adopting the ECRH definition of the right or principle of equality of arms,

the Appeals Chamber of the Criminal Tribunal for the Former Yugoslavia,
has held that this principle must be given a more liberal interpretation.
For this reason, it held that it:-
“…shall provide every practical facility it is capable of granting
under the Rules and Statute when faced with a request by a party
for assistance in presenting its case ..” See, THE PROSECUTOR
v. DUSKO TADIC, Case No. IT – 94 – 4 – 1 – A.

We fully endorse this pragmatic approach, as it is aimed at improving the

quality of the justice we deliver. We are saying so advisedly because courts

166
have a constitutional obligation to dispense quality and equal justice.
With this end in view, they should not “unduly allow any of the parties to
tactly introduce delay or be a clog in the wheel of progress of justice,” or unduly
deny any party his right to prosecute or defend his case effectively for
flimsy reasons.

Indeed this Court in NDYANABO’S case (supra) 485, lucidly stated:

“Secondly, the provisions touching fundamental rights have to

be interpreted in a broad and liberal manner, thereby jealously
protecting and developing the dimensions of those rights and
ensuring that our people enjoy their rights…..”

One of the most often cited situations which have been held to constitute
a violation of this well entrenched principle is denying the accused
person time and/or facilities reasonably needed for adequate and effective
preparation and presentation of his defence.

What would constitute “adequate time and facilities” was, for understandable
reasons, not defined in the ICCPR or other Covenants and Treaties or in
the Constitution. These will be determined by the peculiar circumstances
of each case, the local conditions at the place of trial and the needs of the
time. That is why in DUSKO TADIK’s case (supra), the Court concluded,
rightly in our view, that from settled jurisprudence the principle is not
applicable to “conditions outside the control of the Court.” It is for this
strong reason that we are prepared, for the moment, to embrace the
position taken by the International Crimes Tribunal for Rwanda (ICTR)
in the case of PROSECUTOR v. KAYISHEMA, that this principle
should be taken to mean “equality of rights” and not “equality of resources”
as has been held by the U.N. Special Court for Sierra Leone. All the
same, we accept the holding of the erstwhile European Commission of
Human Rights to the effect that the term “facilities” must be taken to
mean, among other things, that an accused and/or his counsel must be
granted access to appropriate information, files and documents necessary
for the preparation of a defence. This, of course, is subject to unavoidable
and reasonable security restrictions. See, the cases of X v. AUSTRIA
(7138/75, 5th July, 1977, 9 DR 50 and HAASE v. FEDERAL REPUBLIC
OF GERMANY (7412/76, 12 July, 1977, 11 DR 78). Such access in our

167
considered opinion, should be readily granted before the trial, during the
trial and after the trial, in case of a conviction for appeal purposes. Since
in our view, copies of open court proceedings, cannot by any stretch of
imagination be classified as “security risk documents,” the same ought to
be made available to an accused person, at any stage of the trial, when so
requested, for the purposes of facilitating an effective cross-examination
and/or preparation of an effective defence, so that at the end of the day,
justice is seen to have been done. When such a request is refused on the
basis of flimsy or arbitrary reasons, then there is no equality of rights.
There is no fair trial. This should be the case under our municipal law as
we have already shown.

In the present appeal, the appellant and his co-accused had made
a reasonable request to the trial court to be given a copy of the court
proceedings to enable them marshal their defence in case they were found
to have a case to answer. As already shown in this judgment, the request
was rejected on the ground of avoiding delay in the disposal of the case.
We have found this to be a very flimsy and unacceptable reason. If there
were to be any delay in the disposal of the case, it would not have been
caused by the defence but by the court itself and the prosecution as earlier
on detailed. The issue of delay was raised by the court itself, after the
prosecution had closed its case. While the prosecution was given a lot of
latitude when presenting its case, the defence was not facilitated to mount
an effective defence. There was, in short, no “equality of rights” between
the prosecution and the defence.

As earlier pointed out, Ms. Mushi was initially dismissive of this ground of
complaint, because the witnesses had testified in the appellant’s presence.
But when, eventually, it dawned on her that there was a lapse of over
seven months between the day PW1 testified and the day the appellant
and his colleagues were called upon to defend themselves; that there was
no evidence to show that the accused had been given writing materials so
as to take notes during the trial, and that they do not have the memory
of either a filing cabinet or a computer, she conceded the gravity of the
complaint and pressed us to allow this appeal.

For the foregoing reasons, we are of the settled mind that this appeal has
merits and should be allowed. The trial of the appellant is accordingly

168
nullified, quashed and set aside. Similarly, the thirty – year jail sentence
is quashed and set aside.

Under normal circumstances, we would have ordered a re-trial. However,

it is settled law that a re-trial should not be ordered unless the appellate
court is of opinion that on a proper consideration of the admissible or
potentially admissible evidence, a conviction might result. See, PASCAL
CLEMENT BRANGANZA v. R [1957] EA. 152 (C.A) and SHIV
KUMAR v. R [1957] EA. 469 (C.A), among others.

We have had the opportunity of dispassionately scrutinizing the entire

prosecution evidence. We have learnt that the only piece of evidence
going to implicate the appellant with the robbery came from PW2. Our
appreciation of PW2’s evidence has led us to the conclusion that PW2
mentioned the appellant not because he actually saw him at the scene of
the crime but he purported to identify him at the discredited identification
parade. Such evidence is glaringly lacking in cogency. It definitely cannot
ground a conviction. For this reason, we shall not order a re-trial.

All said, we order that the appellant be released forthwith from prison
unless he is otherwise lawfully held.

169
GENDER BASED VIOLENCE
Onesphory Materu versus The Republic

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM : MSOFFE, J.A., LUANDA , J.A., And MANDIA , J.A.)

CRIMINAL APPEAL NO. 334 OF 2009

ONESPHORY MATERU ................................ APPELLANT

VERSUS

THE REPUBLIC........................................ RESPONDENT

(Appeal from the judgment of the High Court

of Tanzania at Tanga)

(Mussa, J.)

dated the 31st day of July, 2009

in
Criminal Appeal No. 3 of 2009
__________

JUDGMENT OF THE COURT

22 & 28 March 2011

MANDIA , J.A.:

On 25/2/2007 PW4 WP 3503 Anna of Lushoto Police Station was

resting at home. At 14.20 hours (2.20 p.m.) in the afternoon a fellow police
officer called PC Jumanne called her by telephone and asked her to go to
the Police Station to attend to an emergency. She went there and found
one suspect, who was in remand, crying. The suspect is the complainant
170
PW2 Salma Yusuf who alleged that the appellant had raped her inside a
police cell and had promised to release her in writing. The suspect Salma
Yusuf showed PW4 WP 3503 Anna a written note in the appellant’s
handwriting (Exhibit P1) in which the appellant had directed the release
of Salma Yusuf from remand custody. During cross-examination by Mr.
Ntonge, learned advocate who appeared for the appellant in the trial, WP
3503 Anna divulged to the court that the complainant was crying out as
to why the appellant had carnal knowledge of her on promise of release
but was now refusing to release her, and that the appellant had washed
her (PW4’s) private parts with water after the act of sexual intercourse
in order to wash away the seminal fluid. PW4 also revealed under cross-
examination that it was abnormal for a male police officer to enter a
female cell, and that it was also abnormal for a suspect to be released
using the method of writing a note in the form of Exhibit P1. All the
same PW4 WP 3503 Anna directed one PC Jumanne, a fellow police
officer, to report the matter to their seniors. PC Jumanne was not called
to testify in the court of first instance, but the senior officer, to whom
he made the report as directed by PW4 WP 3503 Anna, testified. He is
PW1 Assistant Inspector Athumani of Lushoto Police Station. Inspector
Athumani in turn interviewed the complainant and thereafter reported
the matter to the officer in charge SP Maganga. SP Maganga in turn
was not called to testify. All in all, on the following day 26/2/2007 PW3
WP 3257 Corporal Agripina took the complainant to hospital where she
was examined and a medical report PF3 filled in for her and tendered
in court as Exhibit P2. WP Corporal Agripina, while giving evidence-
in-chief told the trial court that the victim was found with bruises and
remains of semen in the vagina. The certified proceedings showed that
PW3 was not cross-examined by the appellant’s advocate, but when the
original record was called up it transpired that PW3 was indeed offered
for cross-examination, and this is what she said:-

“xxd by accd:
I am explaining what I had witnessed. I know the semens as I am
old enough. I know not the semen at the vagina of victim was of
whom. Yes, there is difference between semen and milk. I brought the
said victim on 26/2/2007.”

171
This bit of evidence shows clearly that PW3 WP 3257 Corporal Agripina
not only took PW2 Salma Yusuf to hospital for medical examination but
in fact attended the medical examination and was an actual witness thereof.

In her narrative to court, the complainant PW2 Salma Yusuf, a fourteen

years old girl, gave evidence under affirmation after voire dire test. She
first gave evidence on 12/10/2007 and was duly cross-examined by the
accused person. She was recalled to court on 12/12/2007 at the application
of Mr. Ntonge learned advocate, who had entered appearance on behalf of
the appellant. In her testimony on 12/10/2007 the complainant alleged
that the appellant first undressed her and then undressed himself and the
sexual act followed, whereas in her testimony on 12/12/2007 she said the
appellant first undressed himself before undressing her. Apart from this
inconsistency, the evidence of the complainant is straightforward, and it
shows that on 25/2/2007 she was in remand custody at Lushoto Police
Station on a charge of theft. At 11 a.m. in the morning the appellant, who
was a police officer on duty at the Police Station, approached her and took
her from her police cell, where she was the lone suspect, to a bench outside
where she could sit in the sun. Apart from affording her the sunshine treat,
the appellant gave her Shs. 1,000/=. Thereafter the appellant took her back
to her cell and wrote her a “release note”. The note was quoted in full by the
learned first appellate judge when the matter was in appeal, and it makes
interesting reading. It goes thus:-

BOND SHEET

Mimi Salima Nimeachiliwa na Polisi kwani nimeonekana sina hatia leo

tarehe 25/2/07

Cpl. Materu
CHUMBA CHA MASHTAKA Stamped
POLISI KITUO LUSHOTO 59

After giving the complainant the “release note” the appellant left her inside
the police cell. He went back after her at about 2 p.m. and had sex with
her while the two were both in a state of undress. The appellant disengaged
from the sex act when PC Jumanne called, and this is what made the
complainant cry out when she realized that the appellant would not keep
his promise of releasing her after the sex act.
172
The appellant gave sworn testimony in his defence in the trial court. He
admitted that he was on duty at the Police Station on 25/2/2007 as alleged
by the prosecution witnesses. He also admitted that he wrote the “release
paper” as alleged by the prosecution witnesses who were fellow police
officers. Giving the reason why he wrote the “release note”, the appellant
testified that he wrote the note on behalf of one PC Mboka of Bumbuli
Police Station who made a verbal promise to release the complainant
but did not put the promise into writing. The appellant alleged that the
complainant got agitated and demanded written assurance that she will
be released and he (appellant) gave the written note on behalf of PC
Mboka. After receiving the note the complainant cooled down and he,
the appellant, left on other duties. The appellant refuted the allegations of
sexual misconduct leveled against him, and fielded one witness in defence
DW2 Getruda Aloyce who claimed that she saw the appellant writing the
“release note” in order to cool down the complainant.

Notwithstanding all his protestations of innocence, the trial court found

the appellant guilty, convicted him and sentenced him to thirty years
imprisonment, twenty four strokes of the cane and an order that he
pays Shs. 700,000/= as compensation to the complainant. This package
aggrieved the appellant, and he preferred a first appeal to the High Court
of Tanzania at Tanga. The appeal was dismissed in its entirety, hence this
second appeal.

When the appeal was called on for hearing the appellant appeared in
person, unrepresented, and the respondent/Republic was represented
by Mr. Faraja Nchimbi, learned State Attorney. The appellant filed a
memorandum of appeal consisting of two main grounds. The first ground
is that the trial court did not warn itself of the dangers of convicting on the
basis of the uncorroborated evidence of the victim. The appellant argued
that the victim PW2 Salima Yusuf was not worth of belief because she
contradicted herself by first saying that the appellant undressed her before
undressing himself, and later changing to say the appellant undressed
himself before undressing her. In the second ground the appellant is
faulting the two courts below for relying on the “release note” written by
the appellant as proof that the offence was committed.

173
On the requirement of a self-warning by the court we find that the appellant
had raised this same point in the second ground of his memorandum
of appeal to the High Court. The High Court addressed this point very
adequately at page 60 of the record by tracing the history of the law before
and after the advent of Section 127 (7) of the Evidence Act as amended
by the Sexual Offences Special provisions Act, Number 4 of 1998. Prior to
the amendment there was a requirement for the court to warn itself of the
dangers of basing a conviction on the uncorroborated evidence of a child
where a sexual offence was involved. After the amendment, the need for
the warning was done away with. The only burden imposed on the court
now is to give reasons that it is satisfied that a child of tender years or the
victim of the offence is telling nothing but the truth. We dismiss ground
one for lack of merit.

In the second ground the appellant faults the courts below for relying on
the “release note” which he wrote to the complainant. The record of trial
shows that in his defence the appellant admitted to writing the “release
note” and even fielded a defence witness DW2 Getruda Aloyce to prove
that the appellant indeed wrote the note Exhibit P1. It is instructive
that the note was tendered in evidence without any objection from the
appellant. Ground two has no merit and we dismiss it as well. In the final
analysis, we find that the appeal has no merit and we dismiss it in its
entirety.

174
Leonard Jonathan versus The Republic

IN THE HIGH COURT OF TANZANIA

AT MOSHI

CRIMINAL APPEAL NO. 53 OF 2001

(ORIGINAL CRIMINAL CASE NO. 292 OF 2000 D/COURT HAI)

LEONARD JONATHAN........................................APPELLANT

VERSUS
REPUBLIC.........................................................RESPONDENT
--------------
JUDGMENT
==========

BEFORE E. N. MUNUO, J.

In Hai District Court Criminal Case No. 292/2000 four accused

persons namely:-

Accused No. 1 Leonard Jonathan;

Accused No. 2 Stephano Jonathan;
Accused No. 3 Anaufoo Justine; and
Accused No. 4 Jackson Elinawinga

were jointly charged with rape c/s 130 (2) and 131 (3) of the Penal
Code Cap 16 Vol. 1 of the Revised Laws as Amended by the Sexual
Offences Special Provisions Act No. 4 of 1998. It was alleged that on
the 16/12/1999 at about 18.00 hours at Masama Mula Village in Hai
District within Kilimanjaro Region the accused had carnal knowledge
of one Aminiana Elikira, a girl aged 23 years, without her consent. The
accused persons denied the charge. The trial court acquitted accused No. 2
to 4. Accused No. 1 Leonard Jonathan, the appellant was convicted of the
offence charged. He was sentenced to a term of 30 years imprisonment
plus ten strokes of cane. Aggrieved, the accused lodged the present appeal
to challenge the conviction and sentence.

175
The complainant, P.W. 1 Aminael Elinkira, the daughter of P.W. 3
Elinkira Samanga testified that on the 16/12/1999 she was going home
from church in the company of P.W.2 Neema Mengishu. They found
the appellant Leonard Jonathan and the co-accused on the way; people
they knew from before. The accused persons caught the complainant and
carried her to the house of Accused No. 1 Leonard Jonathan. In that
capture the accused persons were armed with a matchet and sticks with
which they threatened rescuers who responded to the victim’s alarm. The
father of the complainant got word of the captivity of his daughter.

He swiftly gathered and was accompanied by P.W. 4 Joram Mwasha, P.W.

5 Goodluck Amani and P.W.6 Wilson Nsaro. The father’s contingent
broke the door of the appellant’s house and released the victim who had,
unfortunately, already been sexually assaulted by Accused No. 1.

The complainant stated that when the co-accused carried her to the house
of the appellant, the latter locked the door. In that room one Eshiwakwe
Justine who is at large helped the accused by holding apart the legs of the
victim while Accused No. 1 sexually assaulted her. When Accused No. 1
had satisfied his lust, Eshiwakwe was ready for this turn but fortunately
the victim’s father broke the door open thereby interrupting the sexual
assault by Eshiwakwe Justine who is at large. Dissatisfied with P.W.3’s
act of breaking the door and setting free his daughter who then ran home,
Accused No. 3 struck P.W. 3 with a stick on the back of his head causing
him to fall down. His colleagues rushed him to the hospital. Subsequently,
the accused persons were arrested and jointly charged with rape.

The complainant reported the matter to the police. She got a PF.3 form
for treatment. Per her PF.3 form, P.W.1 suffered strangulation on her
neck, bruises in her private parts which were smeared with spermatozoa,
bruises and haemotoma on the knee joints and chest, dangerous harm
inflicted by rape and the hands (blunt object). She tendered her PF.3
form as Exhibit P. 1.

In his defence on oath, the appellant admitted that he had carnal

knowledge of the complainant. He claimed that he was in love with her
and that had wanted to marry her but that she insisted on a Christian
marriage which he could not afford. He then decided to ambush, catch

176
and marry her under Chagga customary marriage norms, he stated. He
said people pressed the complainant to go to the hospital and take action
against him. The appellant took responsibility for the rape denying that
his co-accused were involved in the matter.

In his twelve grounds of appeal the appellant denied the offence contending
that his guilt was not proved beyond all reasonable doubt. He further
contended that the ingredients of the offence were not established by the
prosecution. He faulted the credibility of the prosecution witnesses and
observed that no torn clothing was tendered to establish rape. He insisted
that he, on the material day, married the complainant under customary
norms so he committed no offence. He rejected the PF.3 form exhibit P.1
as being of no weight.

The appellant faulted the trial magistrate for not finding the defence of
contracting a Chagga customary marriage with the complainant on the
fateful December 16, 1999 probable.

Ms. Makala learned State Attorney supported the conviction and sentence
on the straight forward and strong evidence adduced by the complainant
which evidence was fully corroborated y P.W.2, P.W.3, P.W.4, P.W.5 and
P.W.6 and also by the PF.3 form, exhibit P.1.

The issue is whether the accused raped the victim or married her under
Chagga Customary law as he maintained in his defence and in ground
seven of the appeal.

There is no speck of doubt that on the evidence on record, and in law the
prosecution established the guilt of the appellant beyond all reasonable
doubt. The evidence of the complainant was fully corroborated by her
PF3 form Exhibit P.1 which shows that she suffered bruises in her private
parts, which were smeared with spermatozoa; she suffered bruises on her
left knee, chest and a strangled neck: all injuries caused by the violence
the appellant deployed on the victim. The appellant sexually assaulted the
victim with the assistance of a co-suspect, one Eshiwakwe Justine who is
at large. The later held the victim’s legs apart thereby giving the appellant
access to her private parts. The appellant muzzled the victim to prevent
her from crying out but she did cry out all the same for P.W.3, P.W.4,

177
P.W.5 and P.W.6 did hear her cry in the locked room which P.W.3 broke
thereby releasing her.

The complainant was forcibly caught; carried to the appellant’s house by

a gang of five men including the appellant. The co-accuseds were armed
with a matchet and sticks to keep off people who wanted to intervene.
It was the victim’s brave father who broke open the door of the assailant
setting the complainant at liberty. She quickly dressed and ran home. The
complainant was captured and carried to the house of the appellant with
the assistance of his four co-suspects. He then locked the room and with
the help of his co-colleague Eshiwakwe Justine who has since remained
at large, the appellant sexually assaulted the victim. The complainant did
not consent to the carnal knowledge. Under those circumstances the
ingredients of the offence of rape were constituted thereby rendering the
appellant liable of raping the complainant as charged.

The defence contracting a Chagga customary marriage through the rape

is improbable and fallacious in fact and law.

Under the Law of Marriage Act No. 5 of 1971 which governs all legally
recognized marriages including customary law marriages, Section 2 of the
said Act defines Marriage as follows:-

“S.2 marriage has the meaning attributed to it in Section 9,

and any reference to a marriage means a marriage whether
contracted before or after the commencement of this Act
and whether contracted in Tanganyika or elsewhere”.

Section 9 of the Law of Marriage Act No. 5 of 1971 defines marriage:

“9 (1) Marriage means the voluntary union of a man and a

woman, intended to last for their joint lives”.

The appellant admitted in his sworn defence that he captured and carried
away the victim where after he had carnal knowledge of her without her
consent apparently because he could not afford a Christian marriage.
As I stated earlier on, the victim did not consent to the rape, she was
bruised and humiliated by the entire violent transaction which was beastly

178
executed against her volition which completely negated anything called
marriage under Chagga or other customary norms.

The complainant is protected by the domestic Law of Marriage Act

No. 5/1971 for without volition there can be no marriage between
parties intending or contracting a marriage. She is further protected by
International norms notably under the provisions of Article 4 of the 1993
United Nations Declaration on Elimination of Violence Against Women
(DEVAW) which calls on States to protect and offer adequate relief
to women victims of violence, and calls on States to condemn violence
against women and not invoke custom, tradition or religion to avoid their
obligations.

The complainant is also protected by Article 14 of the 1948 Universal

Declaration of Human Rights which gives adults the right to choose ones
spouse and the right to voluntarily marry the particular spouse by stating:

“Article 14 (1) Men and Women of full age,

without any limitation due to race, nationality
or religion, have the right to marry and to found
a family. They are entitled to equal right as to
marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with free

and full consent of the intending spouses.

Article 14 (2) of the Universal Declaration of Human Rights is akin to

the provisions of Section 9 (1) of the Law of Marriage Act No. 5 of 1971
which have a conditions of volition and the consent of the intending
spouses for a valid marriage.

Finally there are the provisions of the Convention on the Elimination of

All Forms of Discrimination Against Women (CEDAW), 1981. Article
2 of CEDAW calls on states to modify or abolish discrimination:-
“Laws, regulations
Customs and
Practices.”

179
See, TOWARDS A JURISPRUDENCE OF EQUALITY –
TRAINING MANUAL, by Justice Nathalia Kimaro and Pellagia
Khaday, Dar es Salaam, 2001. Tanzania ratified CEDAW on July 17,
1980.

Article 16 (b) of CEDAW guarantees the right to freely choose one

spouse and marry on ones volition by stating:-

“Article 16 States Parties shall take all appropriate measures

to eliminate discrimination against women in all matters
relating to marriage and family relations and in particular
shall ensure; on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter

into a marriage only with their free and full consent;
(c) To (h) .........................”

The complainant’s fundamental human right of marrying voluntarily is

also protected under Article 23 of the Convention on Civil and Political
Rights, 1966 which became effective in March, 1976 and which was
ratified by Tanzania on June 11, 1976. Article 23 of C C P R states:
“Article 23.

1. The family is the natural and fundamental

group unit of society and is entitled to
protection by society and the State.

2. The right of men and women of

marriageable age to marry and to found a
family shall be recognized.

3. No marriage shall be entered into without

the free and full consent of the intending
spouses.

4. ...........................”

180
In view of the above provisions of domestic and international law, the
appellant seriously offended the complainant’s fundamental right to
choose her spouse and marry on her own volition. These circumstances
reinforce her complaint of rape which I have already observed, was proved
beyond all reasonable doubt for she never consented to the appellant
carnally knowing her or marrying her under the obnoxious customary
practice of grabbing women, locking them up and sexually assaulting
them in the name of Chagga customary marriage.

All in all the appeal is devoid of merit. The sentence is statutory under the
Sexual offences Special Provisions Act No. 4 of 1998. For those reasons
the appeal is dismissed in its entirety.

It is so ordered.

Editors Note: The appellant’s appeal to the Court of Appeal of Tanzania

in Criminal Appeal No. 225 of 2007was unsuccessful. The High Court’s
decision was upheld

181
John Martin Marwa v. Republic

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA

(CORAM: MSOFFE, J.A., KIMARO, J.A., And MANDIA, J.A.)

CRIMINAL APPEAL NO. 22 OF 2008

JOHN MARTIN @ MARWA………………………APPELLANT

VERSUS

THE REPUBLIC………………………….…….RESPONDENT

(Appeal from the judgment of the Resident Magistrate’s Court

(extended jurisdiction) at Tabora)

(Mbuya, PRM. Ext. Jur.)

dated the 14th day of December, 2007

in
Criminal Appeal No. 56 of 2006
----------
JUDGMENT OF THE COURT

21 & 23 June, 2011

MSOFFE, J.A.:

Mbuya (PRM, Ext. Jur.) in exercise of his extended jurisdiction affirmed

the sentence of thirty years imprisonment meted on the appellant upon
his conviction of rape contrary to Sections 130 and 131 of the Penal Code
by the District Court of Nzega. Still aggrieved, the appellant has preferred
this second appeal. He appeared in person before us while the respondent
Republic was represented by Ms. Lilian Itemba, learned State Attorney.

In the memorandum of appeal there are four grounds of complaint. It

occurs to us, however, that the grounds crystallize on the following major

182
complaints. That the complainant PW1 Oliver Katuga lied to the court
that she was raped. That there were contradictions in the prosecution
case. That the PF3 did not show that there was penetration in PW1’s
vagina. That the whole case was a frame up that was orchestrated by PW4
Clement Peter.

Very briefly, the prosecution case was that the appellant was a temporary
teacher at Puge Secondary School in Nzega District. PW1 was not only
a student at the school but she was also the Head girl at the material time.
According to PW1, in the evening of 2/11/2005 the appellant called her
and asked her to assist him in chasing up absentee students. PW2 Stella
Makunenge and PW3 Nshoma Malale saw the appellant leaving together
with the appellant. On the way back, the appellant raped PW1. On
arrival at the school PW1 immediately informed PW2 that the appellant
had raped her. She also reported to PW4 and PW5 Daniel Mabala.
The matter was reported to the police and a PF3 was issued. The PF3
disclosed, among other things, that there were “marked spermatozoa 12/
cmm” in PW1’s vagina.

Before us, the appellant essentially repeated the complaints in the

memorandum of appeal. In the process, it appeared to us that the thrust
of his complaint was, as stated above, that he was framed up by PW4.

On the other hand, Ms. Lilian Itemba was of the affirmative view that the
prosecution case was credible. She carried us through the evidence of the
prosecution witnesses and urged that they were witnesses of truth. In her
view, even without the other evidence in the case, the evidence of PW1
alone was enough to ground the conviction in terms of Section 127(7) of
the Evidence Act (CAP 6 R.E. 2002).

The first question we have to address is whether PW1 was raped. It is

important to address this point because, according to the appellant, PW1
was a liar. It is also important for us to address this point because we
are aware that in a case of this nature the best evidence of rape is that of
the victim. The evidence of PW1 on this point is very clear. She stated
thus: -
As he attacked me, he held my hands. I wanted to shout, he held
my neck tightly. I was now still standing. He threw me down.

183
 He started threatening and that I would be slaughtered. He
undressed the khanga then my underskirt and skin tight and my
underwear. He said he will be my husband right then. He began
to rape me. He came on my top and on my chest and begun. I
was pained as he placed his penis into my vagina. He placed in
thrice, and I managed to throw him out of me and then left him, I
ran to school right then…
(Emphasis supplied.)

Like the courts below, we see no justification for doubting PW1 on her
evidence above. The above evidence established that there was penetration
within the provisions of Section 130 (4) (a) of the Penal Code (CAP 16
R.E. 2002) to the effect that: -

Penetration however slight is sufficient to constitute the sexual

intercourse necessary to the offence.

Before us, the appellant repeated his evidence and oral submission
before the trial District Court and the Resident Magistrate’s Court with
extended jurisdiction, respectively, that there were contradictions in the
evidence of witnesses on time, etc. On this, we are in agreement with Ms.
Lilian Itemba that contradictions, if any, were minor and did not go to the
root of the prosecution case against the appellant. At any rate, the courts
below adequately addressed the so called contradictions and opined and
found that they were minor and did not affect the vital and overrall case
against the appellant. With respect, we have nothing to fault the courts
below in their findings and conclusions on the point.

As for the PF3, contrary to what the appellant said, it infact showed that
there were sperms in PW1’s vagina, as pointed out above. However, the
PF3 in question had no strong probative value in the case because the
appellant was not informed of his right to have the doctor who made
the report summoned for cross-examination in terms of Section 240(3)
of the Criminal Procedure Act (CAP 20 R.E. 2002). However, in our
view, even without the PF3 the other evidence in the case was sufficient
to warrant the conviction in issue.

184
Finally, as stated above, before us the appellant repeated his earlier
testimony at the trial that the case was a frame up by PW4 against him.
On this, we wish to adopt the reasoning of the trial Resident Magistrate,
which Ms. Lilian Itemba also emphasized before us, that even if it was true
that there were grudges it was inconceivable that the other prosecution
witnesses would lie against him. As pointed out above, the appellant was
seen leaving with PW1. On arrival back to the school compound PW1
immediately reported the incident to the witnesses. We do not see how
PW1, PW2, PW3 and PW5 could have told lies against the appellant in
the circumstances of this case.

Before we conclude this judgment we note that no order for compensation

to the victim of the rape was made in the case. The failure to make such
order offended the mandatory provisions of Section 131(1) of the Penal
Code which mandates the court to make an order for compensation of an
amount to be determined by the said court.

When all is said and done, we are of the settled view that the appeal
is devoid of merit. We hereby dismiss it. In exercise of our revisional
jurisdiction under Section 4(2) of the Appellate Jurisdiction Act (CAP
141 R.E. 2002) we hereby order the appellant to pay shs. 500,000/=
compensation to PW1 Oliver Katiga.

185
PROPERTY RIGHTS & INHERITANCE
Bi Hawa Mohamed v. Ally Seifu
BI HAWA MOHAMED v ALLY SEFU 1983 TLR 32 (CA)
Court Court of Appeal of Tanzania - Dar Es Salaam
Judge Nyalali CJ, Makame JJA and Kisanga JJA

29 November 1983

CIVIL APPEAL N0. 9 OF 1983

Family Law - Matrimonial property - Whether domestic services of a
house wife amount to contribution in acquisition of matrimonial assets.

Family Law - Matrimonial assets - Family assets - Assets envisaged u/s

114 (1) of the Law of Marriage Act, 1971 - Matrimonial assets acquired
by spouses during marriage by their joint efforts.

The appellant and respondent were wife and husband respectively until
the dissolution of their marriage by a court decree of the Primary Court
of Ilala District at Kariakoo, Dar es Salaam in 1980. In subsequent
proceedings the Primary Court held that the appellant was not entitled
to any share in the matrimonial assets as she was a mere wife and that
the house was bought by the husband’s money. On appeal to the High
Court, the Primary Court’s decision was substantially upheld. This is a
second appeal.

Held: (i) Since the welfare of the family is an essential component of the
economic activities of a family man or woman it is proper to
consider contribution by a spouse to the welfare of the family as
contribution to the acquisition of matrimonial or family assets;

(ii) the “joint efforts” and ‘work towards the acquiring of the assets’
have to be construed as embracing the domestic “efforts’ or
“work” of husband and wife;

(iii) where a spouse commits a matrimonial mis-conduct which

reduced to nothing her contribution towards the welfare of
the family and consequential acquisition of matrimonial or
186
 family assets she or he would not be entitled to a share in the
property.

Appeal dismissed.

Cases referred to:

1. Zawadi Abdallah v Ibrahim Iddi [1981] T.L.R. 311
2. Rukia Diwani Konzi v Abdallah Issa Kihenya Matr.

Cause No. 6 of 1971.

3. Bateman v Bateman [1979] FAM 25
4. Iddi Kunganya v Ali Mpate [1967] HCD 49
5. Egerton v Brownlow [1853] 4 HL as 196
6. Martin v Martin [1976] 3 All ER 625

R.C. Kesaria for the appellant.

Judgment
Nyalali, C.J., read the following considered judgment of the court: The
appellant Bi Hawa Mohamed and Ally Seifu were wife and husband
respectively until the dissolution of their marriage by court decree of
the Primary Court of Ilala District, at Kariakoo, Dar es Salaam in 1980.
In subsequent proceedings, seeking the division of matrimonial assets, the
Primary Court held in effect that Bi Hawa Mohamed was not entitled
to any share in the matrimonial assets, as to use the words of one of the
assessors, “She was only a mere wife, and the house was bought by the
husband with his own money”. The Primary Court went on to accept the
offer made by Ally Seifu to pay a sum of shs 2,000/- as a parting gift to
her in accordance with his religious tenets. On appeal, the High Court,
Kimicha, J. substantially agreed with the views of the trial Primary Court
but increased the amount of the parting gift to shs 3,000/=. Bi Hawa
Mohamed was further aggrieved by the decision of the High Court
and she obtained legal aid from the Tanganyika Law Society, hence this
appeal to this Court. Mr. R.C. Kesaria, learned Advocate, appeared on
legal aid for the appellant. The Respondent appeared in person. The High
Court certified that a point of law was involved. It can be broadly state
as follows:

187
Did the High Court and Primary Court err in law in holding the view
that domestic services of a housewife do not amount to contributions
made by her in the acquisition of matrimonial assets.

From the proceedings in the High Court and Primary Court the following
facts were established on the evidence. The appellant and respondent
were married according to Islamic rites in Mombasa, Kenya, sometime
in 1971. The respondent had a house in Mombasa and they used it as the
matrimonial home. Furthermore, the respondent was a Seaman and his
work involved travelling abroad for many months. While so travelling, he
would provide adequate maintenance for the appellant, who remained at
Mombasa, to I look after the matrimonial home. On one occasion, he
gave her an additional sum of shs. 18,000/= to set up business activities.
She however failed to establish any business and the money cannot be
accounted for. In 1974, the respondent purchased a house in Dar es
Salaam with his own money. This house is House No. 40 along Swahili/
Mhoro Streets and is the subject of this case. In 1975 the spouses moved
from Mombasa to this house in Dar es Salaam and they were using this
house as the matrimonial home at the time of their divorce.

The power of the Court to divide matrimonial assets is derived from

section 114(1) of the Law of Marriage Act, 1971 which states:

114(1) The court shall have power, when granting or subsequent to the
grant of a decree of separation or divorce, to order the division between the
parties of any assets acquired by them during the marriage by their joint
efforts or to order the sale of any such asset and the division between the
parties of the proceeds of sale.

It is apparent from the citation and the wording of section 114 that the
assets envisaged thereat must firstly be matrimonial assets, and secondly,
they must have been acquired E by them during the marriage by their
joint efforts.

This first important point of law for consideration in this case is what
constitutes matrimonial assets for purposes of section 114. In our
considered view, the term “matrimonial assets” means the same thing as
what is otherwise described as ‘family assets’. Under paragraph 1064 of

188
Lord Hailsham’s Halsbury’s Laws of England 4th Edition, p. 491, it is
stated:

The phrase “family assets” has been described as a convenient way of

expressing an important concept; it refers to those things which are
acquired by one or other or both of the parties, with the intention that
there should be continuing provision for them and their children during
their joint lives, and used for the benefit of the family as a whole. The
family assets can be divided into two parts (1) those which are of a capital
nature, such as the matrimonial home and the furniture in it (2) those
which are of a revenue producing nature such as the earning power of
husband and wife.

The next important point of law for consideration and decision in this
case is whether the assets in question - that is House No. 40

situated along Swahili/Mhoro Streets in Dar es Salaam was a matrimonial

or family asset at the time of dissolution of the marriage of the parties.
The answer here is easy. On the facts established in the two courts below,
that house was used by the parties as their matrimonial home after they
moved from Mombasa to Dar es Salaam. It was therefore a matrimonial
or family asset.

The next point of law for consideration and decision is whether this
matrimonial or family asset is subject to division between the parties under
the provisions of section 114 (1). It is apparent that the Court’s power to
divide matrimonial or family assets under section 114(1) is invoked only
when the following conditions exist:

(i) When the Court has granted or is granting a decree of divorce

or separation; and

(ii) When there are matrimonial or family assets which were acquired
by the parties during the marriage; and

(iii) When the acquisition of such assets was brought about by the
joint efforts of the parties.

189
There is no controversy regarding the existence of conditions (i) and
(ii). The real dispute centres on condition (iii) - that is, on whether the
matrimonial home was acquired by the joint efforts of the appellant and
respondent.

It is the appellant wife’s contention that her efforts in performing her

domestic duties had the effect of placing the respondent husband in a
financial position to buy the house in question. As already mentioned, the
two courts below rejected this contention on the ground that performance
of domestic duties by a housewife does not count in the acquisition of
matrimonial or family assets. The fundamental question now is whether
this view of the two courts below is erroneous.

We are aware that there are two schools of thought which currently
contend in the High Court on this issue. In the case of Zawadi Abdallah v
Ibrahim Iddi, [1981] TLR 311 Mapigano, J. referred to these two schools
of thought by stating:

There are those who maintain that under section 114 the term joint effort
is limited to direct contribution by a spouse by way of money, property and
work, to the acquisition of the asset in question and that housekeeping
and raising the children count for nothing. I

On the other hand, there are those who take the view that household
work must be regarded as part of the joint effort or contribution towards
the acquisition of any asset by the husband and that the wife’s citing of the
husband’s marriage vow and the fact that she has been running the home
operate to entitle her to a slice in her husband’s estate. You may, if you
prefer, describe the two constructions as narrow and broad, respectively.
The question which I am called upon to answer in this case is which one
of those views is correct. This is an important matter and I confess I have
not found it all easy. To my knowledge not much has been said about it
in this country and there is a paucity of judicial pronouncement on the
matter. Such few decisions as there are either way and happily I am not
bound by any.

Those who champion the broad view see no valid distinction, in principle,
between the wife who takes up employment or carries on business or

190
profession and the one who remains at home and devotes her time running
the home. They would construe the terms contribution and joint efforts
liberally to include domestic services rendered by the full time “domestic”
wife.

They would advance several reasons to back up their viewpoint. Among

the reasons:

(1) That it is the philosophy and spirit of our time and that it is quite in
harmony with realities and changed social and economic circumstances,
(2) that the domestic work may be more valuable to family than of a wife
who is self-earning; (3) that the husband can hardly conduct his business
if his wife does not cook the dinner and mind the children; (4) that in
certain instances the wife may have sacrificed her own career on the altar
of matrimonial life and if say after twenty or thirty years of marriage
her husband for old man’s reasons or no reason whatsoever (as probably
was the position in the case before me), sees fit to banish her, the decree
of divorce may have the further undesirable and sad effect of practically
thrusting her into destitution; and (5) that in yet certain instances the
estate of the husband may have been built up by the industry of the
husband and the thrift and prudence of the wife in running the home and
that, therefore, it is in conformity with one’s sense of justice and fairness
that she should share as of right in the fruits of his success. They would
find encouragement and comfort in the words of Scarman,
L.J. which appear in the Medico-Legal Journal, 1966 Vol. 34 at p.19 that:

It is recognised that a married woman who brought up a family and

maintained a home was thereby actually supporting her husband in his
bread-winning activities by releasing him from family duty. Quite plainly
if the marriage broke down she must have a claim upon the family funds
by reason of that vital contribution to the family life. It was here that law
of England (as it then was) went wrong.

These are, I think, strong and weighty reasons and no doubt that the strict
operation of the doctrine of separate property can occasion a great deal of
distress to a divorced woman. But we should bear in mind that the whole
question is a legal one.

191
Judge Makame for one has taken stand on the side of the liberal school.
Sitting in this court at this place he felt himself prepared and able to say
that the domestic services that a wife renders count. That was in the case
of Rukia Diwani Kinzi v Abdalah Issa Kihenya - Matrimonial Cause
No. 6 of 1971. His reading of section 114 does not square with that of
the magistrate who heard this case. The learned judge thought that the
section has sufficient width to embrace the broad view. Stated the learned
judge:

There is a school of thought which says that domestic services a housewife

renders do not count when it comes to acquisition, and therefore the
subsequent possible division, of matrimonial assets...
I find this view too narrow and conservative and I must confess my
inability to subscribe to it. Section 114 of the Law of Marriage Act does
not really support the school of thought referred to and is, in my view,
capable of accommodating a more liberal interpretation.

A little further on Mapigano, J. continued.

Even in a country like Britain, where salaried married women are quite
common, the modern progressive view, with which I wish to associate
myself, is that looking after the home and bringing up the children is
a valuable contribution. See for example the recent case of Bateman v
Bateman, The law Report 1979 FAM 25.

But be it noted that in this respect our statutory law compares unfavourably
with the English Law. The perimeters or ambits of the English Law are
simply and expressly more extensive. The English case to which the
learned judge made reference was an application by the wife for financial
provision and adjustment of property in her favour, upon the dissolution
of the marriage between her and the respondent. The decision of the court
was manifestly predicated upon the provisions of the English Matrimonial
Causes Act, 1973, which makes explicitly provisions to the effect that in
adjusting property rights under that Act, the contribution made by each
of the parties to the welfare of the family is a relevant consideration to be
taken into account. So in my respectful opinion the decision in that case
can hardly be helpful or persuasive.

192
Mapigano, J. continues:
As shown, in this case the learned magistrate expressed and followed the
narrow interpretation. He argued that since traditionally looking after the
household and caring for the children is the occupation and responsibility
of wife, just as the feeding and clothing the family is the occupation and
responsibility of the husband, then that should not be considered as a
contribution or joint effort. Was he wrong? At the risk of being deemed a
conservative, though I would like to believe that I am not, I must say that
on the view that I take of the law I feel compelled to pronounce that the
decision of the learned magistrate is, in the final analysis, sound. I share
his opinion that under section 114 the housework of a wife and looking
after the children are not to be equated with the husband’s work for the
purpose of evaluating contributions to marital property. I hold as he did
that such domestic services are not to be taken into consideration when
the court is exercising its powers under the section. I will give my reasons.

First, I think that the broad view is inextricably linked with other matters.
It does bring to the fore other issues which are arguably troublesome in
regard to which the statute does not appear to make any clear provisions.
Two such issues come to my mind. One, there would be in many cases
the question whether the matter is to be decided with reference to the
matrimonial differences which may in fact have made it necessary to
consider the matter in the light of the principle that no one should be
allowed to benefit from his own wrong. To put it interrogatively, will a
wife be allowed to benefit from a marriage which she has wrecked? Two
there would be the relationship between the order under section 144 and
the order which the court may make with regard to maintenance under
section 115.

Secondly, and I regard this to be a stronger point, the question can be

asked: Is there really anything in law to give any strong colour to the
suggestion that is put forward by the liberal school? Certainly it was not
part of our own law before the enactment of the Law of Marriage Act. See
for example Iddi Kungunya v Ali Mpate [1967] HCD 49. And to be sure,
there is no provision in the Law of Marriage Act which says so in terms.
That throws up a question of judicial policy. It is this, that where there are
no clear rules of law governing matters of such general social importance,
matters which directly affect the interests of almost every matrimonial

193
couple and which raise issues that might be the subject of public
controversy and on which laymen are as well able to decide as lawyers, can
the courts properly proceed on their view of public policy? (There is the
warning uttered by a judge over a century and half ago that public policy is
a most unruly horse, you can never know where it will carry you.) Would
it not be to encroach on the province of the Legislature? Patel, J. thought
so. He observed briskly in the case of Hamidi Amir Hamid (supra) that
if the Legislature had intended that domestic services performed by a
wife be regarded a contribution and joint effort it would have said so in
language clear and plain. But the liberal school might put forth the line
that the law should be innovative and responsive to societal aspirations. I
would embrace that principle. I do understand that judges must develop
the law and indeed it is now generally accepted that sometimes they must,
and do, legislate. The myth that common law judges merely enunciate or
discover the existing law should now stand discredited. Blackstone was, I
think, one of the leading proponents of that theory. However, as the great
American judge Holmes once said, and many subscribe to that view point,
the judges should do so only interstitially, and with molecular rather than
molar motions. In 1969 (in his paper which he read at the University
college Dar es Salaam) Sir Charles Newbold, then the President of the
Court of Appeal for East Africa, put the point in this way.

“The power of the judges to make law is a power which can be exercised
within very circumscribed limits. The power is exercised in two fields.
The first is where rights and duties of a member of the community are
determined by legislation; and in that field the circumscribing limits are
the doctrines of equity and the indefinable but real customs and needs of
the community. Within the field in which rights and duties are specified
by legislation a judge’s duty is to apply and enforce the legislation and,
save as regards subordinate legislation, he cannot challenge the validity
or effectiveness of the legislation”.

Further, I think perhaps I should read a short passage from the decision
of Parke J in Egerton v Brownlow (1853) 4 HL as 196, a passage which
has been frequently quoted with approval by many judges including Sir
Charles Newbold:

194
“It is the province of the statesman, and not the Lawyer, to discuss, and
of the Legislature to determine, what is best for the public good and to
provide by proper enactments. It is the province of the judge to expound
the law only; the written from the decisions of our predecessors and
of our existing courts, from textwriters of acknowledged authority, and
upon the principles to be clearly deduced from them by sound reason and
just inference; not to speculate upon what is best, in his opinion, for the
advantage of the community”.

In my considered opinion, I think that if at all there is any grey area in

respect of the matter, the appropriate solution to the problem lies in the
intervention of the Legislature and not in judicial Legislation. But is there
a grey area? That leads me to my next point and this is where I would put
the emphasis.

I apprehend that to follow the broad view would be to give recognition to

the concept of community of property between the husband and the wife
-communio bonorum - and perhaps with its logical corollary community
of loss and debts. And, specifically, it would run directly counter to section
58 and 60 (1) of the Law of Marriage Act and empty those two provisions
of all meaning and effect. Those sections are some of the striking features
of the statute and seem to reflect the notion of separate property.

They say that subject to the provision of section 59 (which relate to

matrimonial homes) and to any agreement the parties may make, any
property acquired in the name of the husband or of the wife, presumptively
belongs exclusively to that person. There are material which strongly point
to a definite legislative intention that domestic services should not count
when the court is dealing with the matter of division of assets under section
114. In this regard attention should be called to the fact that the Act
is based on the work of the Kenya Commission on the Law of Marriage
and Divorce which was headed by Spry J.A. and which is comprised in
the Commission’s report of August, 1968. The Act borrows heavily from
the draft bill prepared by the said commission - Appendix VII to the
report. For instance our sections 58, 60 and 114 are, respectively, exactly
the same as sections 66, 68 and 123 of the draft bill. Now the view and
recommendations of the Spry Commission on the subject now at hand are
contained in paragraphs 177-184. It is patently clear that the Commission

195
rejected the broad view and section 123 of the draft bill must, therefore,
be taken to embody or reflect that standpoint. Our Government White
Paper No. 1 of 1969 - which preceded the enactment contains nothing
which suggests a difference between the ideas of the Spry Commission
and those of the authors of the White Paper. The White Paper has only a
few words about the subject. It is the last sentence of paragraph 19 and it
merely says that:

“The proposed law should provide expressly that either spouse may
own his or her own separate property which he or she owned before, or
acquired after, marriage”. I am well aware that the Spry Report cannot be
treated as authority in any technical sense. But I find it valuable because it
provides the background to our Law and helps to discover the intention of
the Legislature. I think I can treat the background as strongly indicating
that our Legislature adopted the ideas and philosophy contained in that
report. It should, therefore, be inferred that the purpose for which section
114 was enacted by our Legislature was not all that broad as canvassed by
the liberal school. It seems, from a historical perspective, that the section
was not designed to help a married woman who has no property or
has failed to acquire any during marriage because of household duties. In
other words, it was not written into section 114 that a wife’s marital status
and duties should per se make her a partner in the husband’s economic
enterprises or gains. That in my opinion, is the true construction of the
section.

I am not of course saying that is good law. I am not for instance gainsaying
the fact that one of the ills of the breakdown of marriage is the economic
hardship that a woman may have to suffer, where, as is common in Tanzania,
the woman has not acquired any property, and I think, therefore, that
there is much to commend the liberal viewpoint to serious reflection, and
consideration. What I am saying is that the broad view does not comport
with the history of the legislation and that the other provisions of the Act
would make little sense if that view is adopted. I am saying that if the law
is unsatisfactory the proper solution to the problem should be legislative
rather than judicial.

We have, with respect, quoted Mapigano, J. at length because he appears

to deal adequately with the arguments in favour of the opposite views of

196
the High Court and because we are satisfied that the narrow view is wrong
and the broad view is correct. We hereafter demonstrate what we mean.
Although it is correct to say that under English Law, the joint efforts or
contributions of spouses is considered directly in relation to the welfare of
the family rather than directly in relation to the acquisition of matrimonial
or family assets, we do not see any difference between the effect of English
Law and our Law on this issue since the welfare of the family is an essential
component of the economic activities of a family man or women. So, it is
proper to consider contribution by a spouse to the welfare of the family as
contribution to the acquisition of matrimonial or family assets.

With regard to the fear that the broad view might result in a wife being
“allowed to benefit from a marriage which she has wrecked” we think,
with respect, that it is misguided because what is in issue is the wife’s
contribution or efforts towards the acquisition of matrimonial or family
assets, and not her contribution towards the breakdown of the marriage.
Of course there may be cases where a wife’s misbehaviour may amount to
failure to contribute towards the welfare of the family and thus failure to
contribute towards the acquisition of matrimonial or family assets; but this
has to be decided in accordance with the facts of each individual case.

As to the alleged difficulties of making orders under section 114 along

with orders under section 115 of the Law of Marriage Act, we do not think
that the provision of these two sections are contradictory or irreconcilable.
It is apparent that the two sections deal with different matters. Section 114
deals with the apportionment of family assets and liabilities in general,
whereas section 115 concerns assignment of a A specific liability - that is,
the liability to maintain a wife or former wife. Moreover where a former
husband is ordered to maintain his former wife after divorce or separation,
such an order amounts to a revenue producing asset vested in the wife
within the scope of the second category of family assets as defined under
paragraph 1064 of Halsbury’s Laws of England cited earlier on, and has
to be taken into account in the division of available matrimonial or family
assets.

The point made is that the broad approach to the issue presupposed the
existence of common ownership of matrimonial or family assets.

197
Contrary to the concept of separate ownership recognized under sections
58 and 60 is not correct since the issue of division of matrimonial or family
assets arises only when the Court is granting or has granted a decree of
separation or divorce but not otherwise.
As to the point to the effect that the broad view of the law on the issue
is not supported by authority existing before the enactment of the Law
of Marriage Act, we do not think that it is logical or sensible to take the
absence of earlier authority as precluding progress in the law of the Land.

The argument that the broad view of the law amounts in effect to judicial
legislation, is not supportable since the court is not making or introducing
a new rule in a blank or grey area of social relations but is interpreting
existing statutory provisions - that is - the words “their joint efforts” and
“the contributions made by each party in money, property or work towards
the acquiring of the assets” used under section 114.

Undoubtedly, these provisions are not free from ambiguity. In such a

situation the court has to be guided by the established rules of construction
of statutes. Mapigano, J. used the report of the Kenya Commission on the
Law of Marriage and Divorce which, it is said, was the basis of our Law
of Marriage Act, 1971. We think such a report should be used only as
a last resort upon failure to make sense of these statutory provisions on
application of the normal rules of construction.

One such normal rule of construction of ambiguous provisions is the

MISCHIEF RULE. Under this rule, the court, in looking for the true
meaning of ambiguous statutory provisions, is guided by the defect or
mischief which the statute was enacted to rectify or cure. On examination
of the Law of Marriage Act, 1971, and the law as it existed before its
enactment, one cannot fail to notice that the mischief which the Law of
Marriage Act, 1971 sought to cure or rectify was what may be described
as the traditional exploitation and oppression of married women by their
husbands.

It is apparent that the Act seeks to liberate married women from such
exploitation and oppression by reducing the traditional inequality between
them and their husbands in so far as their respective domestic rights and
duties are concerned. Although certain features of traditional inequality still
exist under the Act, such as polygamous marriages, these do not detract
198
from the over-all purpose of the Act as an instrument of liberation and
equality between the sexes.
Guided by this objective of the Act, we are satisfied that the “joint efforts”
and “work towards the acquiring of the assets” have to be construed as
embracing the domestic “efforts” or “work” of husband and wife.

The other point of law for consideration and decision in this case is
whether the appellant (former wife) is entitled to any share in the house
in question. On the facts established by the two courts below, it is apparent
that the appellant’s domestic “efforts” or “work” consisted mainly in looking
after the matrimonial home. She neither cooked for nor washed clothes
for her husband nor did she make his bed except on the few occasions
when he was not travelling in ships abroad. Moreover the couple had no
children for her to take care of. As the respondent (former husband) was
frequently away from home while working as a Seamen, it is obvious that
the main beneficiary of such “effort” or “work” was not the respondent
but the appellant herself who lived in the house. Of course this does not
mean that her domestic “efforts” or “work” was worthless. It is common
knowledge that lack of care of the house results in deterioration of such
house.

The principles which guide a court in determining the shares of husband

and wife in matrimonial or family assets are spelled out under sub-section
2 of section 114 which states.

(2) In exercising the power conferred by subsection (1), the court shall
have regard:
(a) to the custom of the community to which the parties belong,
(b) to the extent of the contributions made by each party in money,
property or work towards the acquiring of the assets.
(c) to the needs of the infant children, if any, of the marriage, and
subject to those considerations, shall incline towards equality of
division.

On the established facts of this case, it would seem that the principles
stated in (a) and (b) are the only ones relevant case. The parties are
Moslems, and it was established that as a Moslem (or at any rate according
to their own sect of Islam) the respondent is expected to give a parting

199
gift to his former wife according to his abilities. We are satisfied that such
religious practice, which was undisputed, can properly be construed as a
“custom of the community to which the parties belong”. The High Court
found that the appellant was entitled to shs. 3,000/= under this head. The
record shows that she received the money in court. We find no reason to
interfere with this payment.

With regard to the principle stated under paragraph (b) of sub-section 2

of section 114, it is evident that the extent of the appellant’s contribution
is indicated by her “efforts” or “work” in looking after matrimonial home
as against the respondent’s performance of his own part of domestic
obligations towards the appellant. On the established facts the respondent
adequately provided for the maintenance and accommodation of the
appellant. As a matter of fact, no complaint is made against him in respect
of performance of domestic duties towards his former wife. The question
arises whether this diligent performance of his own domestic duties can be
taken as disentitling the appellant from claiming a share in matrimonial or
family assets. We do not think so. The correct approach is that husband
and wife, in performing their domestic duties are to be treated as working
not only for their current needs but also for their future needs. In the
present case, the appellant, in looking after the matrimonial home, must
be regarded as working not only for her current needs but also for her
future needs and such future has to be provided from the matrimonial
or family assets jointly acquired during the marriage in keeping with the
extent of her contribution.

On the facts of this case, the appellant was paid a sum of Shs. 18,000/=
apparently when the spouses were still resident in Mombasa. The money
was to be used by her to set up some family business. She did not use
the money for the purpose it was intended. She apparently squandered it
away. What is the significance of these facts?

There are two ways of looking at this situation. Firstly the money can
be regarded as an advance made by the respondent towards the future
needs of the appellant. Taking into account the nature of the appellant’s
contribution, the advance of shs. 18,000/= at the time was in our considered
view sufficient provision for the future needs of the appellant and she is
not entitled to claim a further share in the matrimonial or family assets.

200
Secondly, the squandering of that money by the appellant when weighed
against her contribution, can be regarded as a matrimonial misconduct
which reduced to nothing her contribution towards the welfare of the
family and the consequential acquisition of matrimonial or family assets.
As was said in the English case of Martin v Martin [1976] 3 All ER. 629
by CAIRNS, L.J:

...Such conduct must be taken into account because a spouse cannot be

allowed to fritter away assets by extravagant living or reckless speculation
and then to claim as great a share of what is left as he would have been
entitled to if he had behaved reasonably.

We are satisfied that on this basis also, the appellant is not entitled to
claim any share in the available matrimonial or family assets. So this
leaves only the sum of shs. 3,000/= already paid and received in accordance
with the religious custom of the parties. In the final analysis therefore, this
appeal fails and we hereby dismiss it. Bearing in mind that this is a legal
aid case, we see no reason to order the appellant to pay costs. Each party
therefore is to bear his or her own costs and we order accordingly.

Appeal dismissed.

201
Midwa versus Midwa

[2000] 2 EA 453 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of Ruling 31 July 2000
Case Number: 197/2000
Before: Kwach Tunoi and Keiwua JJA
Sourced by: LawAfrica

Summarised by: H K Mutai

[1] Children – Custody – Custody of children given to husband –
Principles to be applied in custody disputes where children are of tender
age – Whether mother should be deprived of custody of the children.

[2] Practice – Application for stay of execution – Divorce petition –

Grounds of cruelty – Wife tested positive for HIV – Court order given
removing wife from matrimonial home – Whether wife should be allowed
back in matrimonial home.

Editor’s Summary
In January 2000 the Respondent filed a petition before the High Court
seeking a divorce from his wife of ten years on the grounds of cruelty.
In particular, he alleged that the Applicant, having tested HIV-positive
around December 1996, was endangering his life and that he could not
live under the same roof with her. On 6 June 2000, the High Court ordered
that the Applicant be expelled from the matrimonial home and consigned
to the servants’ quarter and that the Respondent be awarded custody of
the parties’ two children pending the hearing of the cause. The Applicant
applied to the Court of Appeal for stay of the High Court’s orders pending
the hearing and determination of her appeal against them. She contended
that part of her salary went towards the payment of the mortgage on the
house and it was therefore totally unjustified for her to be confined to
the servants’ quarter. She also averred that no exceptional circumstances
existed to justify giving custody of the children to the father.

Held – The order compelling the Applicant to live in the servants’

quarter of her own house, whose mortgage her salary was servicing, was

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traumatising, dehumanising and likely to adversely affect her health. All
things being equal, children of tender age ought to be with their mother
and, in giving custody of such children to the father, it was incumbent
on the court to ensure there were sufficient grounds for doing so; Re S
(an infant) [1958] 1 All ER 783 and Karanu v Karanu [1975] EA 18
applied. The High Court judge had erred in applying this principle as no
exceptional circumstances had been shown to justify depriving the mother
of custody. The intended appeal was thus arguable, the application would
be allowed and the Applicant restored to the matrimonial home.
Cases referred to in ruling
East Africa
Karanu v Karanu [1975] EA 18 – AP
United Kingdom
Re S (an infant) [1958] 1 All ER 783 – AP
Ruling

KWACH, TUNOI AND KEIWUA JJA: This is an application under

Rule 5(2)(b) of the Court of Appeal Rules seeking an order for a
stay of execution of the order of the superior court (Rawal J) dated 6
June 2000, by which order the Applicant, the wife in the petition, was
expelled from the matrimonial home and consigned into the servants
quarter euphemistically labelled an outhouse pending the hearing and
determination of the intended appeal.

Though this is a peculiar case and one of its rare kind to reach this Court,
we are somehow perturbed in the manner in which the Learned Judge
approached it. In the process she ignored the medical condition of the
wife and the tender age of the children of the marriage and consequently
made certain orders which plainly cry loudly for justice.

The parties are husband and wife. They solemnised their marriage under
the African Christian Marriage and Divorce Act at the All Saints’
Cathedral, Nairobi, on 10 February 1990. The husband works with Total
Kenya Ltd while the wife is an officer with the National Bank of Kenya.
They are blessed with two sons, now aged 7 and 10. The marriage appears
to have been reasonably happy until in or about December 1996 when the
wife tested HIV positive. The medical status of the husband has so far not
been revealed.

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On 24 January 2000, the husband petitioned for divorce on the grounds of
cruelty; the particulars thereof being given as that the wife having tested
HIV positive was endangering the life of the husband. Other instances
of cruelty cited in the petition are assaults, abuse and other matrimonial
offences allegedly committed by the wife upon the person of the husband
and the children. These are not relevant to the application before us and
neither have they been tried in the cause which is still pending before the
superior court.

Under the Matrimonial Causes Act (Chapter 152) Laws of Kenya only
impotence, insanity and infectious venereal diseases are recognized as
grounds of petition for divorce and for decree of nullity.

Ms Abida Ali for the wife, submits that the servants quarter is unfurnished,
unpainted and incomplete. It has only a simple bed and a cooker. The
wife is denied access and enjoyment of the matrimonial home and yet her
salary is deducted every month in payment of the mortgage taken for its
construction. She contended that it was totally unjustified for the Learned
Judge to confine the wife there in her present predicament.

As for the children, Ms Ali argues that there do not exist any exceptional
circumstances so as to justify giving their custody to the father. She
contended that to separate them from their mother will make them suffer
psychologically and emotionally thereby causing them irreparable loss
and damage.

We have no hesitation in holding that the intended appeal is arguable

and not frivolous. The ruling of the Learned Judge, on its face, smacks of
insensitivity and total inconsideration of the facts presented before her.
It is not denied that the wife is 50% holder of the entire property and
that her salary services the mortgage. It is traumatising and dehumanising
to order her to live in the servants quarter of her own house. We agree
with Ms Ali that in such conditions her health is likely to be adversely
affected.

It is trite law that, prima facie, other things being equal, children of tender
age should be with their mother, and where a court gives the custody
of a child of tender age to the father it is incumbent on it to make sure

204
that there really are sufficient reasons to exclude the prima facie rule. See
Re S (an infant) [1958] 1 All ER 783 at 786 and 787 and Karanu v
Karanu [1975] EA 18. The Learned Judge, in our view, did not correctly
direct herself on the principle that in cases of custody of the children the
paramount consideration is their welfare. Moreover, as the record shows,
there were no exceptional circumstances shown to justify depriving the
mother of her natural right to have her children with her.

The husband in countering the application maintains that he cannot live

together with his wife under the same roof as she poses a grave risk to his
life. We sympathise. The wife is still working and servicing the mortgage.
She avers that she is still strong and healthy despite the fact that she
was diagnosed HIV positive about five years ago. Until the Court decrees
otherwise the husband should not desert his wife. Presently it would be
morally wrong.

If anything is done to upset and alter the state of health of the wife,
substantial harm may be occasioned and the intended appeal will be
rendered nugatory.

We allow the application and grant a stay of execution. We order that the
wife be put back in the matrimonial home forthwith. The costs of this
application shall be in the intended appeal.

205
Lawrence Mtefu v. Germana Mtefu

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM

CIVIL APPEAL NO. 214 OF 2000

(Appeal from the judgment and decree of the

District Court of Ilala at Samora Avenue,
Dar es Salaam in Matrimonial
Cause No. 6 of 1995)

LAWRENCE MTEFU …………….…...........……. APPELLANT

VERSUS

GERMANA MTEFU ……………………......….. RESPONDENT

JUDGMENT

KIMARO, J.
This is an appeal which was heard by my Sister Judge – The Late
Muro. Unfortunately, she passed away before preparing the judgment.
Fortunately however, she had ordered the hearing to proceed by way of
written submissions. Mr. F. Mbuya, the learned Advocate appearing for
the appellant and the respondent with the assistance of the Women Legal
Aid Centre have complied.

The parties were united by a Christian marriage contracted in 1979. It

was dissolved on the ground of adultery and cruelty allegedly committed
by the appellant. The matrimonial proceedings were initiated by the
respondent. Consequent to the granting of the divorce, the trial magistrate
ordered division of three houses equally among the parties together with
sixteen sewing machines. An order for maintenance at Tshs 10,000 per
month effective from the date the case was filed was also made. The
appellant was aggrieved by the decision of the trial court. It is now being
challenged. There are four grounds of appeal. In the first and second
ground, the decision of the trial court is faulted for an error in law and

206
fact for holding that the marriage was irreparably broken on an account of
adultery committed by the appellant while the respondent had condoned
it and also for holding that the appellant was cruel.

Regarding the third and fourth grounds, the trial magistrate is faulted
for having erred in law in ordering the appellant to pay the respondent
maintenance at Tshs 10,000/- per month without ascertaining the
appellant’s income and for ordering equal distribution of all houses and
sixteen sewing machines.

During the trial, the appellant did concede having resided with one
Domina Lawrence Msoka for years in adulterious association. Mr.
Mbuya’s submission is that the issue of adultery should not have formed a
ground for breaking the marriage because the respondent had been aware
of it since 1983 but she did not complain. This means that she condoned
it. Mr. Mbuya said the respondent went to the extent of even facilitating
the adultery by taking care of Domina and her children fathered by the
appellant. The respondent on the other hand refuted having condoned the
adultery and denied having been aware that the appellant was committing
adultery with the said Domina. According to the respondent, Domina is
a close relative. She is her niece.

The first ground of appeal has no merit. Given the close relationship
between the respondent and the said Domina, it was hard for the
respondent to suspect the adulterious relationship between the appellant
and Domina. If she had condoned the relationship, there was no reason
for the respondent to complain before the elders about the adulterious
relationship between the appellant and Domina. The complaint by the
respondent signifies that she never condoned the behavior. It is on record
that the parties had a Christian marriage. A Christian marriage is a union
of one man and one woman. The relationship lasts forever. It is ridiculous
and indeed absurd for the appellant to justify the adultery and then claim
that the respondent never protested it. The type of the marriage which
appellant had with the respondent, is in itself an answer that adultery was
prohibited. He cannot now justify it while he himself knew that it was
prohibited. Since the adultery was admitted by the appellant and given
the circumstances under which it was committed, the trial magistrate held,
quite correctly that it was one of the ground which broke the marriage. It

207
is also on record that a protest by the respondent against the adulterous
association between the appellant and the said Domina, led her being
arrested and detained at a police station for three days. The appellant was
not bothered by the arrest. It was one Siril Martin who bailed her out.

As for the second ground of appeal, there is no reason for wasting time.
The ground has no merit. There is abundant evidence that the appellant
was cruel. First and foremost, the act of committing adultery with the
respondent’s niece w as in itself cruelty. It caused a lot of mental torture on
the respondent. There was also evidence that the respondent was arrested
and detained at the police station at the instance of the appellant. For
three days the respondent remained in police custody and the appellant
did nothing. The worst side of the whole matter is the fact that the arrest
was prompted by the respondent’s protest against the adultery. Given this
analysis I find Mr. Mbuya’s submission evasive of the real question. His
submissions is a reflection of the stereo types where a man would never
admit a wrong. The wrong is given an interpretation which shows that it
is the woman who has to be blamed for a wrong committed by the man.
Mr. Mbuya has also submitted that the respondent failed to prove that
the appellant did not maintain the respondent. I do not quite agree with
Mr. Mbuya. If the appellant says that he was maintaining the respondent
then he should have shown how much he was supplying. But whether
the appellant was supplying maintenance or not the fact remains he was
cruel to the respondent particularly in his adulterous association with the
said Domina Msoka who was a very close relative of the respondent. The
association made the respondent suffer mental torture. It was sufficient
cruelty to break the marriage. The respondent did testify that the appellant
sent her home since 1981 and no maintenance was sent to her.

The third ground of appeal is that the assessment of maintenance at Tshs

10,000/= per month was arbitrary and was made without ascertaining
the appellant’s means of income. The case of Jereme Chilumba Vs Anna
Adamu [1989] T.L.R. 117 was cited in support of the argument.

Indeed the law regarding assessment of maintenance is as per Mr. Mbuya’s

submission that the assessment must be based on the income of the person
who is ordered to pay maintenance. However, in the circumstances of the
case, it cannot be said that the assessment is high. The respondent gave
evidence that the appellant is an employee of the bank. He has a grinding
208
mill. He has sixteen sewing machines and one half acres of coffee estate.
For a person with such properties an amount of Tshs 10,000/- cannot be
said to be high. The income realized from such property can enable him
pay the amount of maintenance ordered by the court.

The last ground of appeal is on the division of the matrimonial assets.

The submissions by Mr. Mbuya is that according to Chagga custom,
the respondent should not have been given a share in the two houses
built in Moshi because they are built on a clan land. It is not allowed to
alienate such property. Mr. Mbuya said this is the spirit in section 114(2)
of the Law of Marriage Act, 1971 which requires the court to put into
consideration the custom of the community to which the parties belong.

Regarding other properties that is the house at Tandika and the sewing
machines, Mr. Mbuya submitted that the respondent was an unemployed
house wife who earned no income and could not contribute anything in
terms of money or property towards the construction of the house. That
the only contribution made is “house keeping” which amounts to a purely
conjugal obligation which does not entitle the applicant to the division of
the house in Tandika. As for the sewing machines, the submission was
that they were acquired before the marriage and therefore the respondent
never contributed towards their acquisition.

The submission by Mr. Mbuya to say the least, is a clear reflection of

the violence and discrimination which a woman has lived with in the
society for years. Services by women which require recognition and
compensation are termed conjugal obligations on the part of the woman.
This is so even where they are not reciprocated and the woman ends up
in being exploited and a looser. In this case the respondent did testify
of being sent to Moshi to take care of the appellants grandmother who
was old. She stayed with her until her death. She also used to take care
of the appellants “kihamba’s and cows” and the income was used for the
development of the houses in Moshi. Definitely the respondent made
contributions towards acquisition of the properties.

The case of Bi Hawa Mohamed recognizes housekeeping as services

requiring compensation. As was observed by the Court of Appeal, the
rendering of such services make the other spouse stable and enhances the
ability to concentrate on development of properties.
209
From the submission made by Mr. F. Mbuya, he appears to suggest that
despite the years the respondent spent in the matrimonial life with the
appellant, she should leave bare handed and leave the appellant with all
the properties at Moshi and Dar es salaam. That on the years she spent
with the appellant, she was fulfilling her conjugal obligation how was this
obligation reciprocated? Commission of adultery by the appellant and
being thrown out without anything?

Will such a decision be fair? With greatest respect to Mr. Mbuya such a
decision will be discriminatory. The Constitution of the United Republic of
Tanzania 1977 Article 13(1), bars discrimination. All persons are required
to be protected equally before the law.

Article 9(f ) of the Constitution requires State Authorities and all its
agencies to direct their policies and programs towards ensuring that the
human dignity is preserved in accordance with the Universal Declaration
of Human Rights which is the source of human rights law. This means
that policies and programs of the courts must be geared towards ensuring
preservation of human dignity.

While the Convention on the Elimination of all Forms of Discrimination

Against Women was ratified by Tanzania since 17th July, 1980, Article 15
requires State Parties to accord women equality with men before the law.
The women should not be discriminated simply because of being women.

Since there was evidence that the respondent did contribute towards the
acquisition of the properties, it was not wrong for the trial magistrate to
grant her a division in the matrimonial properties. The only thing which
I fear may make the respondent fail to get the remedy, is the grant of the
division in the houses at Moshi. Customary rites may be an obstacle toward
realization of what was granted to her. Under such circumstances I quash
and set aside the order of the trial court on the division of matrimonial
assets. Instead, I will replace it with an order that the respondent is
given the house at Tandika as her share in the matrimonial assets. The
appellant to remain with all other properties. In this way the remedy to the
respondent will be more effective than the remedy granted to her by trial
court. The appeal is dismissed.

No order for costs. Each party to bear own costs.

210
Elizabeth Mtawa v. Hassan Mfaume Risasi

IN THE HIGH COURT OF TANZANIA

AT DODOMA

(PC) CIVIL APPEAL NO. 12 OF 2001

(From the decision of the District Court of Dodoma
at Dodoma in Civil Appeal No. of 2001

ELIZABETH MTAWA …………………..……….. APPELLANT

VERSUS

HASSANI MFAUME RISASI ………………….. RESPONDENT

----------
JUDGMENT

KILEO, J.
This matter between Elizabeth Mtawa and Hassani Mfaume Risasi has
its origin in the Primary Court of Dodoma. The matter started as probate
cause No. 7 of 1997 in the Primary Court.

At the center of dispute is a house situated in Area C within the

municipality of Dodoma.

The deceased Mwinjuma Mfaume Risasi and the appellant Elizabeth

Mtawa lived together as husband and wife for a period of about nine
years. The deceased died in 1996.

Initially the appellant filed an application for letters of administration of

the estate of the late Mwinjuma Mfaume in the Primary Court. Later
on it appears that the matter was remitted to the clan for ‘appointment
of administrator’ whereupon one Ahmed s/o Mfaume was appointed by
the clan. Basically Elizabeth did not object to the appointment of Ahmed
Mfaume as administrator. She however asked that distribution of the
deceased’s estate should not be done in accordance with Islamic law as
the parties had not married under Islamic rites. It was not disputed that
the deceased was survived by two children as well. These children were
born out of wedlock.
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The present respondent Hassani Mfaume Risasi also appeared and
testified in the Primary Court. This Hassani, like Ahmed s/o Mfaume
was the deceased’s brother. Hassani Mfaume in testifying before the court
alleged that the deceased had, during his life time asked him among other
things, to sell the house and that he had two children, Saidi Mwinyijuma
and Habiba Mwinyijuma. Hassani claimed that the appellant was not the
deceased’s wife but just a concubine and as such was not entitled to a share
in the estate of the deceased. Hassan also in an answer to a question put to
him by the assessors stated that at first he had intended to give Elizabeth
shs 200,000/= so that it “could help her” but after misunderstandings he
discarded the idea.

Halidi Mfaume Risasi also deceased’s brother testified in court. He told

the court that Elizabeth did not deserve to stay in the house but she ought
to have left immediately after the burial.

When she testified in court the appellant asked the court to order her
brother in law to get her an alternative house incase they wanted her to
vacate the disputed house.

In its decision the trial court held that Elizabeth and the deceased’s
relationship fell under presumption of marriage as stipulated in the
Law of Marriage Act. The court appointed Ahmed Mfaume Risasi as
administrator of the deceased’s estate. At the same time it ordered that
Elizabeth should stay in the disputed house. It also gave terms under
which she could continue staying in the house. These terms were:

1. Till her death or until such time as the deceased’s relatives obtained
for her another house.

2. In case she got married then she should vacate the house and should
not bring another man into the house.

The respondent was not satisfied with the decision of the Primary Court
and he appealed to the District Court. His main grievance was that it
was not proper to allow Elizabeth to benefit from occupation of a house
to which she contributed nothing in its acquisition. The appeal in the
District Court was decided in the respondent’s favour. The District Court

212
decided that the appellant was a mere concubine. The appellate magistrate
also held that the appellant (then respondent) could not be entitled to a
share in the disputed house as it was not built by the joint efforts of the
deceased and herself.

Being aggrieved by the decision of the District Court the appellant has
come to this court. She enjoyed the legal services of Mrs. Soka of Women’s
Legal Aid Centre in the pursuit of her appeal. There are four grounds of
appeal.

1. That the learned Senior Resident Magistrate (Awasi Esq.) erred in

law and in fact in holding that the interpretation of section 77 of
the 1st Schedule of the Declaration of the Local Customary Law
(Law of Persons meant that the appellant was not entitled to claim
any right in the property of the deceased.

2. That the Senior Resident Magistrate erred in law and in fact

in rejecting the findings of fact and law of the Primary Court
Magistrate that there was a presumption of Marriage between the
deceased and the appellant entitling the appellant some rights in
the property of the deceased.

3. That the Senior Resident Magistrate misdirected himself in law

and in fact in ordering that the appellant vacate from the house
totally disregarding the appellant’s rights as stipulated in Section
77(3) of the Declaration of Customary Law – GN 279 of 1963.

4. That the Senior Resident Magistrate misdirected himself in law

and in fact in reversing the correct decision of the Primary Court
Magistrate.

Parties were granted permission to argue the appeal by way of written

submissions. The respondent was late by one week in filing his submission
but the record shows that extension of time was granted by the District
Registrar. In the circumstances the objection raised by Mrs. Soka that the
respondent’s submission should be rejected for being time barred cannot
be sustained.

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Now from the grounds of appeal filed and submissions filed the following
matters need consideration by this court.

(a) Was there a presumption of marriage between the appellant and

the deceased Mwinjuma Mfaume.

(b) If there was a presumption of marriage what law is applicable in

the distribution of the deceased’s estate.

(c) Is the appellant entitled to any share in the deceased estate and
did she make any contribution?

(d) In case the presumption of marriage is rebutted would the

appellant be entitled to any share at all in the estate/property of
the deceased in dispute.

In his written submission the respondent argued that the appellant was
a mere concubine and not a wife. Mrs. Soka for the appellant asserted
however, that there was ample evidence to establish that the appellant
and the deceased lived together as husband and wife for over two years
therefore they could properly be presumed to be married in terms of
section 160 of the law of Marriage Act which provides that:-

“where it is proved that a man and a woman have lived together

for two years on upwards in such circumstances as to have acquired
reputation of being husband and wife, there shall be a reputable
presumption that they were duly married.”

I agree with Mrs. Soka that there was ample evidence given at the trial
court which showed that the deceased and the appellant were actually
staying together as husband and wife and were considered to be such by
those surrounding them. Even the respondent himself conceded as much
when he stated in his evidence as follows:-

“1995 mwishoni nilikuja kumuona kaka yangu nikamtuta anaishi

na SM2 (Elizabeth) na marehemu akanijulisha kuwa huyo ni
shemeji yako ndiye anayeniangalia)”

214
The respondent admitted in effect that his brother introduced the
appellant to him as his sister in law and actually went further to say that
she was the one who was taking care of him. Ahmed Mfaume who was
appointed administrator of the estate informed the court in his testimony
that the deceased was survived by a widow and two children (marehemu
ameacha mke ana watoto wawili). Though later on in their testimonies
the deceased’s brother tried to retract their earlier statements to make it
appear that they considered the appellant to be a mere concubine however
on consideration of the whole circumstances of the case there is sufficient
material to establish that the deceased and the appellant had lived together
for not less than five years and they had actually acquired the reputation
of being husband and wife. I, in the light of the above considerations find
substance in the second ground of appeal – that the appellate magistrate
erred in fact and in law in rejecting the findings of the Primary Court on
the issue of presumption of marriage.

Now, having found that there was a presumption of marriage between the
deceased and the appellant, what is the law applicable in the distribution
of the estate? Another question which will also need consideration
is whether it can be said that the appellant made any contribution to
acquisition of the property in issue. This is relevant because in the event it
is found that the appellant made any contribution, then her contribution
as a matter of equity and justice has to be set aside and the remainder to
be distributed to lawful heirs.

The Primary Court found as a matter of fact that the deceased was a
Moslem in name only and did not profess Islam. It considered the fact
that the deceased had children out of wedlock. The fact also that the
deceased lived with a Christian woman with whom he did not contract
a formal marriage further shows that he did not really profess Islam and
in my considered opinion it would not be proper to find that Islamic
law is applicable under the circumstances. It is my view that given the
circumstances of the case and bearing in mind that the matter was
originally filed in the Primary Court and having found that Islamic law
was not applicable, then customary law would be the law to be applied as
long as it is not repugnant to the principles of natural justice and equity.
Paragraph 77 of the 1st schedule of the customary law Declaration Order
provides as follows with regard to childless widows:-

215
“77. 1. Vitu vyote vinavyoweza kuchukulika na visivyoweza kuchukulika
vilivyochumwa wakati wa ndoa vitagawanywa katika sehemu
mbili sawasawa baada ya kulipa madeni yote ya marehemu.
Mjane atapata sehemu moja ya ishirini ya nusu moja kwa kila
mwaka tangu waoane. Kwa vile vitu visivyoweza kuchukulika
mjane atapata sehemu ya ardhi kwa kufuata masharti kama yale
yale na atakuwa na haki ya kutumia shamba kwa njia bora wakati
wote mpaka aolewe tena au kufa kwake.

2. Kwa mazao ya daima, atapata sehemu yake kwa masharti yale yale
na ataweza kupata faida yake mpaka aolewe au afe.

3. Mjane aruhusiwe kukaa katika nyumba mpaka aolewe au afe

4. Mali yote isiyochukulika itarudi mikononi mwa ndugu wa

marehemu mara tu baada ya mjane kuolewa au kufa.

(“77. 1. All movable and immovable properties which were acquired during
the substance of the marriage shall be divided into two equal shares
after paying all debt of the deceased. The widow shall get 1/20 of
one half for each year of marriage. For the immovable property the
widow shall get a portion of land in the same proportion and shall
have the right to use the land in a diligent manner all the time until
her remarriage or her death.

2. In the case of permanent crops she shall get her share in the same
proportion and may get its interest till she remarries or dies.

3. The widow should be allowed to stay in the house till she remarries or
until her death.

4. All immovable property shall revert to the deceased’s relatives

immediately upon the widow’s remarriage.”)

I find the above provision to be problematic in various respects. In the

first place and particularly in para. 3 and 4 it rules out the possibility of a
married woman asserting ownership rights over real property. She is given
only usufruct rights. There is no doubt that the provision discriminates

216
against the woman on the basis of her sex. This contravenes Article 2 of
the Universal Declaration of Human Rights as well as Article 17.

Article 2 of U D HR provides as follows:-

“Everyone is entitled to all the rights and freedoms set forth

in this Declaration, without distinction of any kind, such as
race, colour, sex language, religion, political or other opinion,
national or social origin, property, birth or other status.

Article 17 provides:-

“(1) Everyone has the right to own property alone as

well as in association with other.

(2) No one shall be arbitrarily deprived of his

property”

Under paragraph 77 of GN 279 of 1963 the same consequences of a

surviving partner do not apply in the like manner for the man as the
woman. It is therefore discriminatory and in contravention of basic
human rights principles.

Paragraph 77 of GN of 1963 also contravenes the Constitution of the

United Republic of Tanzania which prohibits all forms of discrimination
and it also contravenes provisions of the Land Acts which give the same
rights to women to own real property as given to men. The Land Act,
1999 provides under section 3(2) as follows:-

(3) The right of every woman to acquire, hold use and

deal with, land shall to the same extent and subject
to the same restrictions be treated as a right of any
man.”

Paragraph 77 is also problematic in that it does not take into account

a childless widow’s contribution to the property acquired during the
marriage. The paragraph only gives the widow 1/20 of ½ of the property
for each year of marriage. Now, we know that in practice women contribute

217
a lot to matrimonial assets though their contribution most often is not
easily ascertainable in monetary terms. It is very unfair, I think to state
that the widow should be entitled only 1/20 of ½ of the property for each
year of marriage without first ascertaining her contribution and setting
it aside because obviously her contribution cannot be said to form part
of the estate of her deceased husband. I do not think that it is right, nor
is it fair to mix her contribution with the estate because by doing so it
amounts to saying that she has no right to own property alone. As I
have elaborated above to say that the widow can only use the property till
she marries or dies has the effect of interfering with a woman’s right to
ownership of property which is guaranteed both by International Human
Rights Instruments and by our own Constitution and the Land Act. In
the circumstances I find it proper to disregard GN 279 of 1963 and I
draw guidance from Human Rights instruments, our Constitution and
our Land Acts.

Now, going by the evidence adduced in this case it is clear that the
appellant was taking care of the deceased – in fact, as already pointed out,
the respondent admitted as much when he stated in evidence that the
deceased told him that Elizabeth was the one taking care of him. “Taking
care of him” no doubt included taking care of the house also.

There is also evidence from the deceased’s son Saidi Mwinyijuma that the
appellant raised him between 1992 and 1994 as well as raising his step
sister Habiba. There is further evidence (which was not controverted)
from the appellant herself that she nursed the deceased until he died.

There is nothing to suggest that the respondent or his other brothers ever
assisted in caring for the deceased. I think it is unfair and infact repugnant
to justice to appear at the death of the deceased and assert rights to his
property without giving regard to the contribution which was made by
the appellant.

The case of Bi Hawa Mohamed V. Ally Sefu (1983) TLR 32 gives

directions concerning contribution of a spouse to the welfare of a family.

Though that case concerned division of matrimonial assets upon

dissolution of marriage, nevertheless I find the principle laid down in that

218
case to be relevant also when considering distribution of a deceased’s estate
where he is survived by a widow.

In that case it was held that:

(i) “Since the welfare of the family is an essential component of the

economic activities of a family man or woman it is proper to consider
contribution of a spouse to the welfare of the family as contribution to
the acquisition of matrimonial or family assets.

(ii) The “joint efforts” and work towards the acquiring of the assets’ have to
be construed as embracing the domestic efforts or “work” of husband
and wife”.

In the present case it is established that not only did the appellant care
for and nurse the deceased till his death but also she raised up two steps
children during her life with the deceased. In my considered opinion it will
be just, fair and proper to consider her contribution to the welfare of the
deceased and his children as contribution to the acquisition of the family
assets, notwithstanding the fact that the house, the subject of dispute
was built prior to the marriage between the deceased and the appellant.
Considering her contribution to the welfare of the family I would find the
appellant to be entitled to a half share in the house. The other half should
be distributed to lawful heirs as it has been established the deceased was
survived by two children, Saidi and Habiba. In my opinion these are the
lawful heirs. The appellant in the trial court sought for an alternative house
but I think this was a prayer which though granted would raise difficulties
in implementation.

Before putting this matter to rest I need to make certain observations. In

the first place I note that the administrator of the estate himself did not
appeal against the decision of the Primary Court. The respondent who was
one of the witnesses in the trial court and also the deceased’s brother did
not in my opinion establish what exact interest he had in the deceased’s
estate so as to give him the right to challenge the decision given by the
trial court.

219
The second observation I need to make concerns the orders which were
given by the Primary Court. After the appointment of the administrator
the trial court made the following order.

“That the respondent to live in the house in the following terms.

1. Until she dies or until the deceased’s relatives get her another house
to live in.

2. If Elizabeth gets a husband then she must vacate the house

immediately and she must bring no man into the house”

Firstly, allowing her to live in the house till her death interferes with her
right to own property and deal with it as she deems fit.
Secondly telling her to vacate the house if she gets a husband and not to
bring a man into the house is interference with her right to own property
and her right to privacy. Such terms are in my opinion violative of Article
16 of our Constitution which provides as follows:

“16 – (1) Every person is entitled to respect and protection of his person,
the privacy of his own person, his family and his matrimonial life, and
respect and protection of his residence and private communications”.

The District court ordered the present appellant to vacate the dispute
house immediately. At the same time it had found that it was “upon
the administrator to decide what to give to the respondent as one of the
beneficiaries” I think it was uncalled for to order the appellant to vacate
the house without first ascertaining what the administrator would have
distributed to the appellant.

In the circumstances I allow the appeal by Elizabeth Mtawa in the

following terms:

I find that Islamic law is not applicable in the circumstances of the case. I
find Elizabeth to be entitled to a half share in the disputed house by virtue
of her contribution to the welfare of the family. This half is not subject to
distribution and she can do with her share as she pleases. The other half is
to go to the deceased’s heirs who appear to be his children.

The appeal is allowed with costs.

220
Ephraim v Pastory

Ephraim v Pastory (2001) AHRLR 236 (TzHC 1990)

High Court of Tanzania at Mwanza, 22 February 1990 (Civil Appeal no
70 of 1989)

Mwalusanya J
Previously reported: (1990) LRC (Const) 757
Resolution of conflicts between customary law and the bill of rights and court’s
powers on constitutional interpretation

Constitutional supremacy (17, 38)

Interpretation (interpretative powers of courts, 11-14, 16, 35; customary
law, conflict with the Bill of Rights, recognition clause, 19, 29, 32; statutory
interpretation, purpose of the legislation, 20-22, 24-28, 34)

Equality, non-discrimination (discrimination on the grounds of sex,

inheritance, 7, 8,10,42)
Mwalusanya J

[1.] This appeal is about women’s rights under our Bill of Rights. Women’s
liberation is high on the agenda in this appeal. Women do not want to
be discriminated against on account of their sex. What happened is that
a woman, one Holaria d/o Pastory, who is the first respondent in this
appeal, inherited some clan land from her father by a valid will. Finding
that she was getting old and senile and had no one to take care of her, she
sold the clan land on 24 August 1988 to the second respondent Gervazi
s/o Kaizilege for Shs 300 000. This second respondent is a stranger and not
a clan member. Then on 25 August 1988, the present appellant Bernardo
s/o Ephrahim filed a suit at Kashasha Primary Court in Muleba District,
Kagera Region, praying for a declaration that the sale of the clan land by
his aunt, the first respondent to the second respondent was void as females
under Haya Customary Law have no power to sell clan land. The Primary
Court agreed with the appellant and the sale was declared void and the
first respondent was ordered to refund the Shs 300 000 to the purchaser.

[2.] Indeed the Haya customary law is clear on the point. It is contained
in the Laws of Inheritance of the Declaration of Customary Law, 1963,
which in paragraph 20 provides:
221
 Women can inherit, except for clan land, which they may receive in
usufruct but may not sell. However, if there is no male of that clan,
women may inherit such land in full ownership.

[3.] In short that means that females can inherit clan land which they
can use in usufruct ie for their lifetime. But they have no power to sell
it, otherwise the sale is null and void. As for male members of the clan
the position is different. Cory and Hartnoll in their book on Customary
Law of the Haya Tribe tell us, in paragraph 561 and 562, that a male
member of the clan can sell land but if he sells it without consent of the
clan members, other clan members can redeem that clan land. The land
returns to the clan and becomes the property of the man who repays the
purchase price. It will be seen that the law discriminates against women as
Hamlyn J was heard to say in the case of Bi Verdiana Kyabuje and Others
v Gregory s/o Kyabuje (1968) HCD no 459 that:

Now however much this court may sympathise with these very
natural sentiments it is cases of this nature bound by the Customary
law applicable to these matters. It has frequently been said that it is
not for courts to overrule customary law. Any variations in such law
as takes place must be variations initiated by the altering customs of
the community where they originate. Thus, if a customary law draws
a distinction in a matter of this nature between males and females, it
does not fall to this court to decide that such law is inappropriate to
modern development and conditions. That must be done elsewhere
than in the courts of law.

[4.] The Tanzania Court of Appeal some 13 years later nodded in

agreement with the above observations in the case of Deocres Lutabana
v Deus Kashaga (1981) TLR 122 as per Mwakasendo JA. The rule that
females in the Bahaya community do not have the rights to sell clan land
was affirmed by the Tanzania Court of Appeal in Rukuba Nteme v Bi
Jalia Hassani and Another (supra) as per Nyalali CJ and later in Haji
Athumani Isaa v Rweutama Mituta (Court of Appeal of Tanzania, Civil
Appeal no 9 of 1988, unreported) as per Kisanga JA. It appeared then that
the fate of women as far as the sale of clan land was concerned was sealed.
The position was as an English novelist Sir Thomas Browne (1605-1682)
had pointed out in his book Religio Medici where he said:

222
 The whole world was made for man; but the twelfth part of man for
woman. Man is the whole world, and the breath of God, woman
the rib and crooked piece of man. I could be content that we might
procreate like trees, without conjunction or that there were any way
to perpetuate the world without this trivial and vulgar way of union.

[5.] However the Senior District Magistrate of Muleba, Mr LS Ngonyani,

did not think the courts were helpless or impotent to help women. He took
a different stand in favour of women. He inter alia, said in his judgment:

What I can say here is that the respondents’ claim is to bar female
clan members on clan holdings in respect of inheritance and sale.
That female clan members are only to benefit or enjoy the fruits from
the clan holdings. I may say that this was the old proposition. With
the Bill of Rights of [1984] female clan members have the same
rights as male clan members.

[6.] And so he held that the first respondent had the rights under the
Constitution to sell clan land and that the appellant was at liberty to
redeem that clan land on payment of the purchase price of shs 300 000.
That has spurred the appellant to appeal to this court, arguing that the
decision of the District Court was contrary to the law.

[7.] Since this country adopted the doctrine of Ujamaa and self-reliance,
discrimination against women was rejected as a crime. In his booklet
Socialism and Rural Development, Mwalimu Julius K Nyerere states:

Although every individual was joined to his fellow by human

respect, there was in most parts of Tanzania, an acceptance of one
human inequality. Although we try to hide the fact and despite the
exaggeration which our critics have frequently indulged in, it is true
that the women in traditional society were regarded as having a
place in the community which was not only different, but was also to
some extent inferior. This is certainly inconsistent with our socialist
conception of the equality of all human beings and the right of all to
live in such security and freedom as is consistent with equal security
and freedom from all other. If we want our country to make full and
quick progress now, it is essential that our women live in terms of full
equality with their fellow citizens who are men.
223
[8.] And as long ago as in 1968 Mr Justice Saidi (as he then was) pointed
out the inherent wrong in this discriminatory customary law. It was in the
case of Ndewawiosia d/o Mbeamtzo v Imanuel s/o Malasi (supra). He
inter alia, said:

Now it is abundantly clear that this custom, which bars daughters

from inheriting clan land and sometimes their own father’s estate,
has left a loophole for undeserving clansmen to flourish within
the tribe. Lazy clan members anxiously await the death of their
prosperous clansman who happens to have no male issue and as soon
as death occurs they immediately grab the estate and mercilessly
mess up things in the dead man’s household, putting the widow and
daughters into terrible confusion, fear, and misery. It is quite clear
that this traditional custom has outlived its usefulness. The age of
discrimination based on sex is long gone and the world is now in
the stage of full equality of all human beings irrespective of their sex,
creed, race or colour.

[9.] But the customary law in question has not been changed up to this
day. The women are still suffering at the hands of selfish clan members.

[10.] What is more is that since the Bill of Rights was incorporated
in our 1977 Constitution, see Act no 15 of 1984, by article 13(4)
discrimination against women has been prohibited. But some people
say that that is a dead letter. And the Universal Declaration of Human
Rights, 1948, which is part of our Constitution by virtue of article 9(1)
(f ) prohibits discrimination based on sex as per article 7. Moreover
Tanzania has ratified the Convention on the Elimination of All Forms of
Discrimination Against Women, 1979. That is not all. Tanzania has also
ratified the African Charter on Human and Peoples’ Rights, 1981, which
in article 18(3) prohibits discrimination on account of sex. And finally
Tanzania has ratified the International Covenant on Civil and Political
Rights, 1966, which in article 26 prohibits discrimination based on sex.
The principles enunciated in the above-named documents are a standard
below which any civilised nation will be ashamed to fall. It is clear from
what I have discussed that the customary law under discussion flies in the
face of our Bill of Rights as well as the international conventions to which
we are signatories.

224
[11.] Courts are not impotent to invalidate laws which are discriminatory
and unconstitutional. The Tanzania Court of Appeal both in the case of
Rukuba Nteme (supra) and Haji Athumani Issa (supra) agreed that the
discriminatory laws can be declared void for being unconstitutional by
filing a petition in the High Court under article 30(3) of the Constitution.

[12.] In the case of Haji Athymani Issa (supra), Kisanga JA pointed out
that the constitutionality of a statue or any law could not be challenged
in the course of an appeal by an appellate court. He said that the proper
procedure was for the aggrieved party to file a petition in the High Court
under article 30(3) of our Constitution. Equally here, as there is no petition
under article 30(3) of the Constitution and so the question of deciding
any constitutionality of a statute or any law does not arise. When the issue
of basic rights under the Constitution is raised or becomes apparent only
after the commencement of proceedings in a subordinate court, it seems
that the proper thing to do is for the subordinate court concerned to
adjourn the proceedings and advise the party concerned to file petition in
the High Court under article 30(3) of the Constitution for the vindication
of his or her right.

[13.] One more observation before I leave this topic. In the Haji Athumani
Issa Case (supra) Kisanga JA seems to suggest that rules of the court’ must
first be enacted under article 30(4) of the Constitution before a citizen
can file a petition under article 30(3) of the Constitution. However, that
was just and obiter dicta as the decision of the case did not turn on the
point. I wish to make certain observations on the point. It will be recalled
that article 30(4) states that the authority may’ make rules of the court
and does not say it must’ make them. That appears to envisage a situation
whereby petitions may be filed without rules of the court made for the
purpose. That is not a new phenomenon. Under section 18 (1) of the
Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance,
1955, as amended by Law Reform (Fatal Accidents and Miscellaneous
Provisions) Ordinance (Amendment) Act, 1968 it is provided that:

The Chief Justice may make rules of the court prescribing the
procedure and the fees payable or documents filed or issued in cases
where an order of mandamus, prohibition or certiorari is sought.

225
[14.] It is now 22 years since that provision was made and yet the successive
Chief Justices have yet to make rules of the court for the purpose. But
that has not prevented nor deterred litigants from filing the necessary
applications under the law. By parity of reasoning, when article 30(4) of
the Constitution states that the authority may make rules of the court for
filing petitions, in the absence of those rules of the courts it does not mean
the courts are impotent to act. The High Court will invoke its inherent
powers and use the available rules of the court. After all, the Rules of
Procedure are the handmaidens of justice and should not be used to defeat
substantive justice - see Biron J in General Marketing Co Ltd v AA
Shariff [1980] TLR 61 at page 65. Therefore, failure to invoke the correct
rules of the court cannot defeat the course of justice, particularly when
human rights are at stake. In other words, wrong rules of the court may
only render the proceedings a nullity when they result in a miscarriage of
justice.

[15.] That was a conclusion reached by the Supreme Court of Mauritius

in Noordally v Attorney-General and Another [1987] LRC (Const)
599 (Mauritius, SC) which was a petition under the Constitution. What
happened in that case is that the applicant did not apply in person as
required by the Constitution, and the proper respondent was not cited
and the application was not made according to the correct procedure
as prescribed. Delivering the judgment of the court, Moollan CJ held
that, notwithstanding all those procedural irregularities, the court would
disregard the errors since the case raised matters of great public interest
and no useful purpose would be served by insistence on form other than
to delay a decision on the merits. The court cited the decision of their
earlier case where they had said:

It is the Court’s duty to determine the validity of any statute which

is alleged to be unconstitutional, because no law that contravenes
the Constitution can be suffered to survive, and the authority to
determine whether the legislature has acted within the powers
conferred upon it by the Constitution is vested in the Court. The
Court’s primary concern, therefore, in any case where a contravention
of the Constitution is invoked is to ensure that it be redressed as
conveniently and speedily as possible.

226
[16.] That approach was also made by the Privy Council in the case
of Mariapper v Wijesinha [1967] 3 WLR 1460. It is a commendable
approach which I hope will be adopted by the High Court of Tanzania
as well as the Tanzania Court of Appeal. The primary concern of the
court should not be as to whether the correct rules of the court have been
invoked, but rather to redress the wrong as speedily as possible.

[17.] If the Tanzania Court of Appeal is to regard the decision in Haji

Athuman Issa case (supra) as the last word on the matter, then it is only
hoped that their conscience will be tempered by what the former Chief
Justice of Botswana, Aguda CJ had said in the article The role of the
Judge with special Reference to Civil Liberties’ (Vol 10, no 2 East African
Journal, 1974, page 158):

If the Constitution entrenches fundamental rights, these must be

regarded as the basic norm of the whole legal system. Therefore all
laws and statutes which are applicable to the state must be subjected,
as the occasion arises, to rigorous tests and meticulous scrutiny
to make sure that they are in consonance with the declared basic
norm of the Constitution. It is clear from this that there is no room
here for a rigid application of the common law doctrine of stare
decisis. It is submitted therefore that a court can refuse to follow the
judgment of a higher court which was given before the enactment of
a Constitution if such a judgment is in conflict with a provision of
the Constitution. Also the final court of the land must regard itself
absolutely bound only by the Constitution and not by any pervious
decision of the same court.

[18.] If the Haji Athumani Issa case (supra) is to be regarded as binding

authority and not just an obiter dicta then the hopes of the masses of
Tanzania that they would be saved by the Bill of Rights have been dashed.
This is because the rules of the court may not be enacted for years on
end.

[19.] It has been provided by section 5(1) of the Constitution

(Consequential, Transitional and Temporary Provisions) Act, 1984 (Act
no 16 of 1984) that with effect from March 1988 the courts will construe
the existing law, including customary law with such modifications,

227
adaptations, qualifications and exceptions as may be necessary to bring
it into conformity with the provisions of the Fifth Constitutional
Amendment Act, 1984, ie the Bill of Rights’.

[20.] All courts in Tanzania have been enjoined to interpret that section
in the course of their duties. And I think it is the section which the Senior
District Magistrates of Muleba had invoked in hearing this appeal. In the
book Law and Its Administration in One Party State by RW James and
FM Kassam, the former Chief Justice of Tanzania, Mr Georges, says:

Apart from judicial review, the Courts can usually be depended upon
to be astute in finding interpretations for enactments which will
promote rather than destroy the rights of the individual and this is
quite apart from declaring bad or good.

[21.] The shape in which a statute is imposed on the community as a

guide for conduct is that statute as interpreted by the courts. The courts
put life into the dead words of the statute. By statutory interpretation
courts make judge-made law affecting the fundamental rights of a citizen.

[22.] Prof BA Rwezaura of the Faculty of Law of University of Dar es

Salaam in his article Reflections on the Relationship between State Law
and Customary Law in Contemporary Tanzania: Need for Legislative
Action?’ (Vol 2 no 1 Tanzania Law Reform Bulletin, July, 1988, page
19) holds the view that courts in Tanzania can modify discriminatory
customary law in the course of statutory interpretation. He says:

It is also anticipated by section 5 (1) of the Constitution

(Consequential, Transitional and Temporary Provisions), 1984, with
effect from March 1988, courts will construe existing law, including
customary law, with such modifications, adaptations, qualifications
and exceptions as may be necessary to bring it into conformity with
the provisions of the Constitution.

[23.] Now how should section 5 (1) of Act 16 of 1984 be interpreted by

the courts? That is the big question.

228
[24.] Lord Denning MR (as he then was) in the case of Seaford Court
Estate Ltd v Asher [1949] 2 KB 481 (CA) tells us what a judge should do
whenever a statute comes up for construction. He says:

He must set to work on the constructive task of finding the intention

of Parliament, and he must do this not only from the language of the
statute, but also from a consideration of the social conditions which
gave rise to it, and of the mischief which it was passed to remedy and
then must supplement the written word so as to give force and life’
to the intention of the legislature. That was clearly laid down by the
resolution of the judges in Heydon’s Case (1584) 3 Col. Rep. 7a and
it is the safest guide today. Good practical advice on the subject was
given about the same time by Plowden.

[25.] In two more cases Lord Denning MR (as he then was) had to
repeat his warnings as regards the use for the courts to invoke a purposive
approach of interpretation which is sometimes referred to as the schematic
and teleological method of interpretation. The two cases are Buchanan
& Co Ltd v Babco Ltd [1977] QB 208; [1977] All ER 518 and the
case of Nothman v Barnet London Borough Council [1978] 1 WLR
220 (CA). In the latter case he emphasised that the days of strict literal
and grammatical construction of the words of a statute were gone. He
continued:

The method is now completely out of date. It has been replaced by the
approach which Lord Diplock described as the purposive approach
(in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay)
Ltd [1971] AC 850 at p 881). In all cases now in the interpretation
of statutes we adopt such a construction as will promote the general
legislative purpose underlying the provision.

[26.] The Tanzania Court of Appeal has adopted the above purposive
approach as shown in the case of Bi Hawa Mohamed v Ally Sefu
(supra) as per Nyalali CJ. In there the High Court took a narrow view
of a statutory provision with the result that the meaning attributed to
the relevant part of the statute excluded the wife’s domestic services in
computing her contribution in building her husband’s house. By applying
the purposive approach the Court of Appeal of Tanzania arrived at a

229
different conclusion. And ex cathedra in a paper delivered to the first
Commonwealth Africa Judicial Conference in The Gambia on 6 May
1986 entitled The Challenges of Development to Law in Developing
Countries Viewed from the Perspective of Human Rights’, Chief Justice
Nyalali cited with approval the purposive approach of interpretation
enunciated by Lord Denning MR (as he then was) in Buchanan and Co
v Babco Ltd (supra) and stated:

By failing to give due weight to the reasons and objectives of a

statute, this methodology (the literal construction), commonly used
in common law countries, misdirects the courts into a position
where they end up applying the intention of the Parliamentary
legal draftsman instead of the presumed intention of the Parliament
concerned.

[27.] Now what was the intention of the Parliament of Tanzania to pass
section 5 (1) of Act 16 of 1984 and what was the mischief that it intended
to remedy?

[28.] There can be no doubt that Parliament wanted to do away with all
oppressive and unjust laws of the past. It wanted all existing laws (as they
existed in 1984) which were inconsistent with the Bill of Rights to be
inapplicable in the new era or be treated as modified so that they would be in
line with the Bill of Rights. It wanted the courts to modify by construction
those existing laws which were inconsistent with the Bill of Rights such
that they were in line with the new era. We have had a new Grundnorm
since 1984, and so Parliament wanted the country to start with a clean
slate. That is clear from the express words of section 5 (1) of Act 16 of
1984. The mischief it intended to remedy is all the unjust existing laws,
such as the discriminatory customary law now under discussion. I think
the message the Parliament wanted to impart to the courts under section
5(1) of Act 16 of 1984 is loud and clear and needs no interpolations.

[29.] If Parliament meant otherwise it could have said so in clear words.

Many countries in the Commonwealth which had to incorporate a Bill of
Rights in their Constitutions have expressly indicated what they wanted
to be the position of the existing law after the introduction of the Bill of
Rights in their Constitutions. For example in Sri Lanka article 18(3) of

230
their 1972 Constitution clearly states that all existing law shall operate
notwithstanding any inconsistency with the provisions of the Bill of
Rights’. See the case of Gunaratne v People’s Bank [1987] LRC (Const)
383 at page 398 (SL, SC).

[30.] In Trinidad and Tobago their 1976 Constitution in article 6 (1)

clearly states: Nothing in the Bill of Rights shall invalidate the existing
law’ - and so in Attorney-General v Morgan [1985] LRC (Const) 770
at pages 783-984 Melsick CJ held that the Rent Restriction Act was
protected from challenge by the above section. Other cases from Trinidad
and Tobago on the same point are De Freitos v Benny and Others; [1976]
AC 239 (PC) and Maharaj v Attorney-General [1979] AC 385 (PC).

[31.] The Constitution of Jamaica states: Nothing contained in any law

in force immediately before the commencement of the Constitution
shall be held inconsistent with the human rights provisions in the said
Constitution.’ And so the then existing law, even if it was oppressive,
was saved as indicated in the two cases from Jamaica: Director of Public
Prosecutors v Patrick Nasralla [1967] 2 AC 238 (PC) and the case of
Riley and Others v Attorney-General of Jamaica and Another [1982]
3 All ER 469 (PC). And from the Cook Islands in the case of Clarke v
Karika [1985] LRC (Const) 732 (Cook Is, CA), Speight CJ of the Court
of Appeal held that the human rights provisions in their Constitution only
declared rights already afforded by the existing statutory and common
law, and so all the existing law had been saved intact.

[32.] But we in Tanzania did not want to adopt the above provisions which
saved’ the existing law operating prior to the introduction of the Bill of
Rights. We wanted to start with a clean slate, a new Grundnorm. That
was nice for the people. The people of Zimbabwe did the same when their
Constitution came into effect on 18 April 1980. And they had a similar
provision like our section 5(1) of Act 16 of 1984 and theirs is section
4(1) of the Zimbabwe Constitution (Transitional, Supplementary and
Consequential Provision) Order, 1980 and provides: That existing laws
must be so construed with such modifications, adaptations, qualifications
and exceptions as may be necessary to bring them into conformity with
the Constitution.

231
[33.] In Zimbabwe in 1987 a certain provision in the Criminal Procedure
and Evidence Act, chapter 59, restricting the right to bail came into
question as to whether it should not be construed as modified for being
inconsistent with the right to liberty in the Bill of Rights. The case is
Bull v Minister of Home Affairs [1987] LRC (Const) 547. In the High
Court, Sansole J agreed with the applicant that if indeed the provision
in the Criminal Procedure Act restricting bail was inconsistent with the
right to liberty prescribed in the Bill of Rights, then it would be taken to
be modified such that it did not exist but was void. But the learned judge
found it as a fact that the section in question was inconsistent with any
provision in the Bill of Rights as article 13 of the Constitution allowed
pre-trial detention without bail subject to the limitation that the period of
detention was reasonable. And so the question of construing the section
in the Criminal Procedure Act as modified did not arise. The Supreme
Court of Zimbabwe (as per Beck JA) agreed with that reasoning.

[34.] The above case from Zimbabwe is persuasive authority for the
proposition of law that any existing law that is inconsistent with the Bill
of Rights should be regarded as modified such that the offending part of
that statute or law is void.

[35.] The reception clause of section 5(1) of Act 16 of 1984 has its parallel
in the reception clause of the English common law introduced by the
Tanganyika Order in Council of 1920. Both clauses give the mandate
to the courts to construe the received law with some modifications and
qualifications. The reception of the English common law said:

The received law was subject to the qualification that it be applied

so far as the circumstances of the territory and its inhabitants permit
and subject to such qualifications as local circumstances may render
necessary.

[36.] Mfalila J (as he then was) very correctly lamented in his paper The
Challenges of Dispensing Justice in Africa According to Common Law’
of the second Commonwealth Africa Judicial Conference in Arusha,
Tanzania, 8 - 12 August, 1988, where he said:

232
 If these colonial judges had wished they could have developed
over the years a version of the common law relevant to Africa as
the reception statutes themselves stated. They could have done this
by construing the reception statutes strictly, for instance in East
Africa where only the substance’ of the common law and equity was
received the colonial judges had even greater scope of creativity. They
could have proceeded to create a body of laws responsible to the
emergent demands of each territory. As one writer put it, the colonial
judges never approached the problem as one calling essentially for
the exercise of a policy making legislative power’. This was a pity
because in West Africa they had the power to determine whether
the limits of the local jurisdiction and local circumstances permitted
the application of the received rules and to what extent. In East
Africa they had the further power to decide whether a specific rule of
English law was part of the substance’ of the common law and in all
the territories they had the power to determine whether the statutes
were of general application.

[37.] It is for this reason that the colonial judges in criminal trials held
that a customary law spouse was not regarded as a wife or husband for the
purposes of evidence rules and as a result she or he could be compelled
to testify against her or his spouse whereas the common law counterpart
could not be so compelled. That was so in the case of Rex v Amkeyo
[1917] 7 EALR 14 (by Hamilton CJ) and the case of Abdulrahman Bin
Mohamed and Another v R [1963] EA 596 (Uganda) by Sir Ronald
Sinclair P.

[38.] But even under the reception clause of the English common law
there were judges who liberally construed the provision under discussion.
For example Sir Udo Udoma, then Chief Justice of Uganda, in Alai v
Uganda [1967] EA 596 interpreted the phrase any married woman’ from
the reception clause to include a wife of common law marriage as well as
a wife of a customary law marriage, contrary to the stand of the previous
judges discussed above. But the hero of the construction of the reception
clause of the English common law is Lord Denning MR (as he then was)
who in Nyali Ltd v Attorney-General [1955] 1 All ER 646 (CA) (see also
[1957] AC 253 (HL) said:

233
 This wise provision should, I think, be liberally construed. It is a
recognition that the common law cannot be applied in a foreign land
without considerable qualification. It has many principles of manifest
justice and good sense which can be applied with advantages to
people of every race and colour all the world over. But it also has
many refinements, subtleties and technicalities which are not suited
to other folk. These offshoots must be cut away. In these far off lands
the people must have a law which they understand and which they
will respect. The common law cannot fulfil this role except with
considerable qualifications. The task of making these qualifications
is entrusted to the judges of these lands. It is a great task. I trust that
they will not fail them.

[39.] The issue in the above case was that by the English common law
applicable to Kenya, the Kenya government should be exempt from payment
of a bridge toll at Mombasa. Lord Denning MR rejected that argument,
holding that the common law rule that the Crown had a prerogative not
to pay tax was not applicable to Kenya as local circumstances did not
permit.

[40.] I am inclined to think that if Lord Denning MR was confronted with

the present problem now at hand he would have unhesitatingly said:

This wide provision should, I think be liberally construed. It is a

recognition that the law existing before the introduction of the Bill
of Rights cannot be applied in the new era without considerable
qualification. It has many principles of manifest justice and good
sense which are not suited to a country with a Bill of Rights. Theses
offshoots must be cut away. The people must have a law which they
understand and which they will respect. The law existing prior to the
introduction of the Bill of Rights cannot fulfil this role except with
considerable qualifications. The task of making these qualifications is
entrusted to the judges of Tanzania. It is a great task. I trust that they
will not fail therein.

[41.] Therefore Lord Denning MR (as he then was) will wriggle in his
chair to hear that some judges interpret the reception clause in section 5
(1) of Act 16 of 1984 as not to affect the content and the quality of the law
existing prior to the enactment of the Bill of Rights. However, it should
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be noted that the reception clause in section 5 (1) of Act 16 of 1984
affects only statutes and customary law existing prior to 1984, but does
not affect any later law. And the position is understandable because for
three years, from March 1985 to March 1988, the government was given
a period of grace to put its house in order i.e. to amend all laws that were
inconsistent with the Bill of Rights. And so the statutory interpretation
that we have adopted here need not raise any eyebrows.

[42.] I have found as a fact that section 20 of the Rules of Inheritance of

the Declaration of Customary Law, 1963, is discriminatory of females
in that, unlike their male counterparts, they are barred from selling clan
land. That is inconsistent with article 13 (4) of the Bill of Rights of our
Constitution which bars discrimination on account of sex. Therefore
under section 5(1) of Act 16 of 1984 I take section 20 of the Rules of
Inheritance to be now modified and qualified such that males and females
now have equal rights to inherit and sell clan land. Likewise the Rules
Governing the Inheritance of Holdings by Female Heirs (1944) made
by the Bukoba Native Authority, which in rules 4 and 8 entitle a female
who inherits self-acquired land of her father to have usufructuary rights
only (rights to use for her lifetime only) with no power to sell that land, is
equally void and of no effect.

[43.] Females just like males can now and onwards inherit clan land or
self-acquired land of their fathers and dispose of the same when and as
they like. The disposal of the clan land to strangers without the consent of
the clansmen is subject to the fact that any other clan member can redeem
that clan land on payment of the purchase price to the purchaser. That
now applies to both males and females. Therefore the District Court of
Muleba was right to take judicial notice of the provisions of section 5(1)
of Act 16 of 1984 and to have acted on them in the way it did.

[44.] From now on, females all over Tanzania can at least hold their heads
high and claim to be equal to men as far as inheritances of clan land and
self-acquired land of their fathers is concerned. It is part of the long road
to women’s liberation. But there is no cause for euphoria as there is much
more to do in the other spheres. One thing which surprises me is that it
has taken a simple, old rural woman to champion the cause of women in
this field and not the elite women in town who chant jejune slogans for

235
years on end on women’s liberation, but without delivering the goods. To
the male chauvinists they should remember what that English novelist
John Gay (1685-1732) had said in The Beggar’s Opera:

Fill every glass, for wine inspires us. And fires us, with courage, love
and joy, women and wine should life employ. Is there aught else on
earth desirous? If the heart of a man is depressed with cares, The mist
is dispelled when a woman appears.

[45.] It is hoped that, from the time the woman has been elevated to the
same plane as the man, at least in respect of inheritance of clan land, then
the mist will be dispelled.

[46.] At the hearing of this appeal, Mr Jacob Lazaro Mbasa who held the
special power of attorney of the appellant, argued that the District Court
was wrong to hold that the purchase price was shs 300 000 and not shs
30 000. However, upon perusal of the evidence on record, I find that the
District Court was right. The record of the Primary Court shows that,
besides the vendor and purchaser, there were two independent witnesses
who witnessed the sale and these were Mr Abeli s/o Byalwasha (DW
4) and Mr Eliyeus s/o Balongo (DW 5). Both these witnesses testified
that the purchaser paid out shs 300 000. The evidence of the only other
witness who witnessed the sale, that of Mr Francis s/o Joseph (DW 3),
was very suspect. He conceded at the trial that he belonged to the clan of
the appellant and that he was not happy with the sale of their clan land by
the first respondent. When pressed to state what amount was paid by the
purchaser, he said it was shs 30 000. You will note that Francis s/o Joseph
(DW 3) as a clan member had an axe to grind as he was not happy with
the sale of their clan land. Therefore his evidence concerning the amount
of purchase price paid was suspect and was rightly ignored by the District
Court. Like the District Court I hold that the clan land in question was
sold for shs 300 000.

[47.] Like the District Court I hold that the sale was valid. The appellant
can redeem that clan land on payment of shs 300 000. I give the appellant
six months from today to redeem the clan land, otherwise, if he fails, the
land becomes the property of the purchaser - the second respondent. The
appeal is dismissed with costs. Order accordingly.

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Naftal Joseph Kalalu v. Angela Mashirima

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM
P.C. CIVIL APPEAL NO. 145 OF 2001

NAFTAL JOSEPH KALALU ………….......……..APPELLANT

VERSUS

ANGELA MASHIRIMA …………………….. RESPONDENT

---------------
JUDGMENT
KIMARO, J.

This appeal arises out of administration proceedings originating from the

Primary Court. Angela Mashirima, the respondent in this appeal had
petitioned for grant of letters of administration in respect of the estate
of James Naftali Kalalu. She was duly appointed an administratrix, after
hearing some of the beneficiaries and after an assessment by the court
on her suitability for the appointment. According to the evidence on
record, the respondent had presented herself before the court as the wife
of the deceased. She testified that she had a customary marriage with the
deceased. Their marriage was blessed with three children.

Naftali Joseph Kalalu is the appellant. He is the father of the deceased. He

was discontented with the appointment of the respondent. He filed an
objection in the District Court disputing the suitability of the respondent
for the appointment. He raised two grounds:-

(i) The appointment was made in his absence.

(ii) The respondent was not a legal wife of the deceased.

The appeal was dismissed by the District Court. The District Court
observed that the appellant was not a party to the administration
proceedings and so he had no right of complaining that he was denied
natural justice. The District Magistrate found out that a citation of 90
days was issued and published in the Daily Paper of Majira and the
appellant became aware of this. However, he raised no objection. That, in
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addition to the citation, summons were also sent to the appellant and all
other clan members. The appellant is also said to have made appearance
in court but left before the trial of the case.
Regarding the second ground of objection, the District Magistrate said
there was evidence of a marriage but there was no evidence of a divorce
and so the respondent was a legal wife of the deceased.

The appellant was aggrieved and that is why this court has this appeal
which is a second one.

The parties are represented. The appellant is represented by Mr. Kalolo,

Learned Advocate, from MS M.A. ISMAIL & CO. ADVOCATES.
The respondent on the other hand is a beneficiary of legal aid services
rendered by the TANZANIA WOMEN LAWYERS ASSOCIATION.
Ms. Vupe Ligate, learned advocate is representing her.

The petition of appeal alleges error by the District Magistrate in

various areas of the law such as holding that the respondent was a
wife of the deceased, that the appellant was dully served and that the
fifteen years of cohabitation with the deceased entitled the respondent
to the administration of the estate of the deceased. The other areas are
the requirement for production of a divorce decree to prove that the
respondent was no longer the wife of the deceased, misapplication of the
Law of Probate and Administration and the Law of Marriage Act and for
not considering the provisions of Probate Rules for the Primary Courts.

The hearing of the appeal proceeded by way of written submissions. Both

advocates complied, and within the timeline set. I thank both advocates
for their commitment as reflected by their submissions. Their submissions
are quite useful for the disposition of this appeal.

The submission made by Mr. Kalolo in support of the first ground of

appeal is that the respondent was appointed administratrix of the estate
of the deceased because of staying with the deceased for fifteen years.
However, there was no evidence before the Primary Court showing
that the respondent was still the wife of the deceased at the time of his
death. That the only evidence on record is that of cohabitation but not
of a marriage. To fortfy this point, Mr. Kalolo made reference to types of

238
marriages namely a Christian and customary marriage saying that non-
production of a certificate of marriage is proof that there was no marriage.
If there was a customary marriage, there should have been evidence of
payment of bride price and consent from elders. Mr. Kalolo said a mere
cohabitation and living in concubinage did not entitle the respondent
to being a wife of the deceased. He reminded this Court that the law
which is applicable in administration matters in the Primary Court is
either Customary Law or Islamic Law. Since both the deceased and the
respondent are of a Chagga origin, para 20 of Laws of Inheritance GN
436 of 1963 is applicable:-

A Chagga widow cannot inherit the estate of deceased

husband unless clan members do not survive the deceased
and the widow has only usufructuary rights over the
deceased’s properties.

To counter the two grounds of appeal, Ms. Ligate submitted that a

customary marriage existed between the deceased and the respondent for
15 years. That even under the Law of Marriage Act 1971, a presumed
marriage existed between the deceased and the respondent. The case of
John Kirakwe vs. Iddi Siko [1989] TLR 215 was cited to augment this
position. In the said case it was held that a presumed marriage exists
where:-

i) Parties cohabit together for over two years

ii) Parties have acquired the reputation of husband and wife
iii) There was no formal marriage between the parties.

Ms. Ligate said all the three elements were proved in evidence and so if
a customary marriage is disputed, there was a presumed marriage. It was
further submitted by Ms. Ligate that the respondent properly petitioned
for appointment and after the statutory notice of 90 days, there was no
objection and so she was appointed.

I have gone through the evidence which was adduced in the trial court
thoroughly. The evidence which was tendered by the respondent was
that she was married to the deceased. However, there was no evidence
showing that at the time the deceased met his death, he and the

239
respondent were divorced. The Learned Advocate for the respondent has
correctly submitted that if the deceased and the respondent did not have
a customary marriage, there was a presumed marriage which fits in the
provision of Section 160 of the Law of Marriage Act 1971, as well as the
case of John Kirikwe vs Iddi Siko (supra).

As regard the submission by Mr. Kalolo that the law on presumed marriages
is not settled, the two decisions which are cited are not binding on me.
For subordinate courts, they can opt to use any of the two authorities and
any magistrate cannot be said to have faulted for standing by one of the
authorities.

The two grounds of appeal have no merit.

The third ground of appeal regards service of summons. It appears to

me that Mr. Kalolo is contending that there was no service of summons
simply because there is no affidavit of the process server showing that
the appellant was served and how he was served. Ms. Ligate on the other
hand replied that apart from having this citation for 90 days, the appellant
was duly served. Mr. Kalolo has also submitted that the citation of 90 days
is not statutory requirement but a practice and so the geographical area of
clan members ought to have been taken into consideration.

Regarding this ground of appeal, it must be stated that the proceedings in

the Primary Court show conspicuously what happened. It was brought
out in the evidence of the respondent herself and that of Anna Malisa
that the appellant was aware of the administration proceedings. The
respondent in particular pointed out that the appellant did appear in
court on 4/9/2000 but the case was adjourned because of sickness of the
trial magistrate. Similarly, Anna Malisa confirmed the evidence of the
respondent that the appellant had come but left, saying he was leaving
the administration proceedings to the respondent, herself and one Anna
James Naftari, daughter of the deceased. Such evidence is sufficient to
prove that the appellant was aware of the proceedings. There was no need
for an affidavit of the process server under the circumstances.

Ground number four is concerned with a decree of divorce which I have

already touched on, when addressing the status of the respondent vis-à-vis

240
the deceased. That there was evidence of marriage. If not a customary one,
then a presumed one. Not all parties secure certificates for such marriages.
It is wrong for Mr. Kalolo to assume that a decree of divorce is not required
if such marriages break down and parties opt to have the marriage ended.
Much as a marriage can be celebrated in various forms like religious, civil
and customary by person specifically licensed to celebrate such marriages,
it is only the court which can declare a marriage dissolved and issue a
decree of divorce. Under such circumstances, any person who claims that
a customary marriage or a presumed marriage ended, a decree of divorce
must be produced for proof that the marriage ended.

As for grounds five and six which are concerned with misapplication of
the law and lack of consideration of law, Mr. Kalolo’s submission is that
the presumption of a marriage is rebuttable. That since the appellant was
not heard, that presumption is invalid because it has not been tested. That
since the customary marriage was not registered, the respondent was not
entitled to be appointed the administratrix of the estate of the deceased
because of paragraph 20 of GN 436 of 1963.

Mr. Kalolo said since the law which is applicable in the Primary Court is
either customary or Islamic law, the trial court was bound to apply Chagga
customary law related to administration, succession and inheritance
because all the parties were Chaggas. Mr. Kalolo concluded that the trial
magistrate erred in appointing the respondent.

The response by Ms. Ligate is that under the Fifth Schedule Part I, Section
2 of the Magistrates Courts Act 1984, a primary Court has jurisdiction to
appoint a person having interest in the estate of the deceased. Likewise,
the District Court has the same jurisdiction, so, it was not wrong for the
Primary Court to appoint the respondent. It was equally not wrong for
the District Court to confirm the decision of the Primary Court because
the respondent, being the wife of the deceased was an interested party.

Alternatively, Ms. Ligate submitted, that the respondent filed the petition
after failure by her brother in law fulfilling his responsibilities thus
making the deceased’s children suffer for non-payment of fees and other
necessities.

241
It is my strong feeling that it is very important for me to mention what
guides the court in performing its duty of dispensing justice. Article 107 B
of the Constitution of the United Republic of Tanzania requires the Court
to put into consideration the Constitution and the law in determining
issue brought before the Court.

Part II of Chapter I of the Constitution of the United Republic of

Tanzania embodies the Fundamental Objectives and Directive Principles
of State Policy. One of the objectives contained in article 9 is facilitation
of building of the United Republic of Tanzania as a nation of equal and
free individuals enjoying freedom, justice, fraternity and concord. In
particular the State authority and all its agencies are obliged to direct
their policies and programmes towards ensuring among other things that
human dignity is preserved and upheld in accordance with the spirit of
the Universal Declaration of Human Rights. This is what is contained in
Article 9(f ) of the Constitution. The Universal Declaration of Human
Rights is a foundation of International Human Rights Law. The Universal
Declaration of Human Rights lays down the minimum standards of
Human rights to be observed by the nations.

The Constitution of the United Republic of Tanzania 1977 recognises and

incorporates the Bill of Rights under article 12-29. Among such rights is
equality of all human beings and equality before the law – (Article 12 and
13 of the Constitution). In other words discrimination is barred by the
Constitution. This means customary practices which discriminate women
have to be discouraged completely.

The Chagga customary practice contained in paragraph20 of the Law of

Inheritance in GN 436 of 1963 which does not allow a widow of the
deceased to manage the estate of her deceased husband and instead requires
male clan members surviving the deceased to do so is discriminatory.

Tanzania is a party to the Convention on the Elimination of all Forms of

Discrimination Against Women (CEDAW). It ratified the convention
on 17th July, 1980. The convention requires state parties to abolish
discrimination against women by embodying the principle of equality
between men and women in the National Constitution and this has been
done by Tanzania.

242
The term discrimination against women is defined in Article 1 of the
Convention. It is:-

Any distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women irrespective of their marital status,
on the basis of equality of men and women of human rights and
fundamental freedoms in political, economic, social, cultural, civil or
any other field.

Under Article 15(2) state parties are required to accord to women, in civil
matters a legal capacity identical to that of men and same opportunities
to exercise that capacity. In particular state parties are required to give
women equal rights to conclude contracts and to administer property and
to treat women equally in all states of procedure in courts and tribunal.

If a husband is allowed to administer the estate of his deceased wife without

any conditions whatsoever, there is no good reason why a surviving wife
should be denied such a right. It is gender discrimination which is barred
by the Constitution of the United Republic of Tanzania.

The evidence which was given by the respondent in the trial court
shows that the man who was proposed by the clan member to take the
responsibility of administering the estate of the deceased did not perform
his duties. Much as the deceased left behind properties, the properties
have not been used for the benefit of the beneficiaries of the deceased.
School fees and other necessities were not being supplied to the children
of the deceased.

The Primary Court did point out quite correctly that duty of the
administrator is to make a collection of the deceased’s property and
distribute it to the heirs. An administrator is not appointed for converting
the properties of the deceased into his/her own. The court should never
allow the death of the deceased to be used as an opportunity for people
other than the beneficiaries of the estate of the deceased to benefit
from such estate, under pretext of discriminatory customary practices.
243
Customary practices which create such opportunity should be completely
discarded. If the deceased never disowned his wife during his lifetime by
taking the proper procedure allowed by the law, the court can not sanction
his death to be used as an opportunity by other people for doing so, for the
sole purpose of benefiting from the estate of the deceased at the expense
of the real beneficiaries suffering.

Following the observation made in respect of the grounds of appeal,

the record of the District and the trial court as well as the Constitution
of the United Republic of Tanzania and International Human Rights
Instruments ratified by Tanzania, this appeal must and has to fail. It is
accordingly dismissed with costs.

244
SENTENCING
Republic versus Elvan S/O Cyprian Luvindu

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM
ORIGINAL JURISDICITON
CRIMINAL SESSIONS CASE NO. 48 OF 2003
REPUBLIC
VERSUS
ELVAN S/O CYPRIAN LUVINDU

PROCEEDINGS 15/4/2005
CORAM: N.P. KIMARO, J.
FOR THE REPUBLIC – MISS CHOMA – STATE ATTORNEY
FOR THE DEFENCE – MR. KIRIWA
ACCUSED – PRESENT UNDER CUSTODY
CC: JULIUS

Miss Choma: The case was coming for trial. The Republic has four
witnesses and we are ready to proceed with the trial.

Mr. Kariwa: The defence is ready to enter a plea of guilty to a lesser

offence of manslaughter c/s 195 of the Penal Code.

Miss Choma: The Republic is ready to accept a plea of manslaughter:

Court: Information of Manslaughter c/s 195 of the Penal Code is read
over to the accused and explained and he is asked to plead thereto.

Accused: it is true I killed accidentally.

Court: Entered Plea of Guilty.

Facts by State Attorney:

Your ladyship the accused is charged with manslaughter c/s 195 of the
Penal Code. The accused unlawfully killed one Paulina Peters Beatus on
16/4/2001 at Mbagala which is at Temeke District, Dar es Salaam.
245
The accused and the deceased were lovers and they were cohabiting
together. On the date of the incident (16/04/2001) the accused and the
deceased left their house together at the evening. At about 9.00 p.m. they
returned together drunk. The accused was seen kicking the deceased and
the deceased fell down. The neighbours and other tenants – among them
being Elizabeth Kanika and Julian Daudi Mrope requested the accused
not to beat the deceased. The accused obeyed and stopped beating the
deceased. The neighbours carried the deceased to her room where she was
living with the accused. They placed her on the floor and left her in the
company of the accused.

On the next day 17/4/2001 in the morning hours the accused left his
room and went to inform the other tenants – among them being Yovina
Daudi Mrope that he tried to wake up the deceased, but the deceased
was not responding. The neighbours went with the accused to his room
and found the deceased on the bed and she was motionless. After seeing
the situation, relative of the deceased were informed. The police was also
informed on that very day.

The sketch Plan was also made. I tender the same as exhibit. Court: Sketch
Plan exhibit P2. The accused was then charged for the unlawful killing.
Accused: the facts are correct.

Court: The accused is convicted on his own plea of guilty and admission
of the fact leading to the commission of the offence.

State Attorney: No previous record

Mitigation by Mr. Kariwa

I pray for leniency because he is a first offender. The accused is a young

person and he was involved in the commission of the offence because of
drunkenness. He has pleaded guilty and so he has saved the court’s time
and costs. The accused has been in remand for more than four years. He
has already served part of his sentence. He has dependants. I pray to the
court to take into consideration all the above factors and exercise leniency
on the accused.

246
Sentence

While I accept that under normal circumstances the factors given by the
Defence Counsel are good mitigating factors, in this case the accused
deserves a severe punishment. This is because the offence was committed
in the course of domestic violence. The deceased is one of those women
who have lost their lives because of domestic violence. The Constitution
of the United Republic of Tanzania safeguards the rights to life. No one
is allowed to take away the life of another person without a lawful cause.
Domestic violence is not a lawful course. Besides, the Convention on the
Elimination of All Forms of violence against Women (CEDAW) requires
that violence against women should be eradicated. Tanzania is a party to
the convention. There has been a lot of public outcry to stop domestic
violence. In this case apart from the accused kicking the deceased, he
strangled her. This court cannot accept the excuse of drunkenness because
the accused was once warned not to kick the deceased and he stopped.
Later on he strangled the deceased to death. Considering this fact that
the offence was committed in the course of domestic violence, I sentence
the accused to an imprisonment for twenty years. Right of Appeal is
explained.

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