Kaunda wa Kaunda
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- Jul 17, 2012
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LEGAL PAUCITY IN LULUS CASE IN A FATMA A. KARUMES ORACLE
By
Kaunda Paul
In an article published on June 17, 2012 in the Guardian on Sunday, the litigation partner at IMMMA Advocates, Miss Fatma A. Karume asserts among others that the Director of Public Prosecutions (DPP) is inclined to prosecute the Bong movie celebrity Elithabeth Michael Kimemeta LULU as an an adult for an an alleged offence of murdering his fellow Bongo movie celebrity and purportedly his fiancée, the deceased, Steve Kanumba on April,7[SUP]th[/SUP] 2012.
The article bearing the title Did the Parliament intend to hang children, the author tried to wear the gloves of the LULUS defence counsels by wooing inter alia that, the ratification of the children international instruments by the government of Tanzania makes it obligatory and duty bound albeit softly and persuasive to protect the rights of children in their best interests yardstick.
One may be tempted to ask, what should be the role of the Director of public prosecutions (DPP) especially in this Lulus case which is pregnant with suspense, emotions and sensations from the political pews to the wretched corners of this country?
Happily this question was answered 57years ago by Mr. Justice Rand in the case of Boucher vs The Queen, he said, ..in the administration of justice, the prosecutor is said to be a minister of justice. Not representing any special interest as Fatma Karume wants us to believe but having the single goal of assisting the court in determining the truth. His Lordship Rand continued at page 23 that The purpose of a criminal prosecution is not to obtain convinction; it is to lay before the jury what the court considers to be credible evidence, relevant to what is alleged to be crime. Counsel has a duty to see that all available legal proof of facts is presented. The role of the prosecution excludes any notion of winning or losing
Given the blitz of publicity of this case, the learned counsel Fatma A. Karume appears to be convinced that the Director of public prosecutions (DPP) intends to persecute rather than to prosecute the accused in contravention of Article 37(a) of the international cove\nant in the Rights of the child and article 17(3) of the African Charters on the Rights and welfare of the child, which inter alia prohibits the imposition of capital punishments to children .i.e. below 18 years of age.
Ex facie, the learned counsel, Fatma A. Karume wants the public and the DPP to believe religiously that the accused Lulu is a child and she should enjoy unquestionably the four corners of her rights enshrined in section 4(2) and section 119(1) of the Law of the Child Act no 21 of 2009 and Internatinational Instruments enunciated above which provides inter alia that the accused child be tried in camera (in exclusion of the public) and if found guilty of the penal offence they should be rehabilitated, reformed and re-intergrated with their family as opposed to corporal punishment (deterrence).
But my question is in regard to the best interests of the child, if logic and prudence were to prevail, is there any watertight reason to try the accused behind closed doors given the fact that the accused, the purported child has a well chequered history of enjoying the gleam and beam of the of the public eye?
Lord Shaw of Punfermline (as he then was) helped me to answer this question albeit it was 1913 in scott vs scott, he held inter alia that, It is needless to quote authority on this topic from legal, philosophical or historical writers. It moves Bentham over and over again. He continued, In the darkness of secrecy, sinister interests and evil of every shape have full swing. Only in proportion as publicity has a place can any of checks applicable to judicial injustice operates. Where there is no publicity there is no justice.
His Lordship continued further, Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial. His Lordship concluded by saying that, security of securities is publicity.
Yes I can hear you whispering that, can I borrow a leaf from the East African Member states, yes I can. The Court of Appeal of East Africa (as it then was) in its erudite pen made it clear in 1970 in Mussa vs Republic, that .Justice is not a cloistered virtue: It is a tree under whose spreading branches all who seek shelter will find. It is a tree which flourishes only in the open, in the glare of public scrutiny, the cynosure of the eyes of each member of the community who wishes to see the actual administration of justice. If it is kept in the darkness of secrecy this tree will wither and its branches will become deformed.
On the flip side of the coin, the learned counsel Miss Fatma A. Karume in her article, makes a clarion call to the state to provide an avenue for reformation, re-integration into his or her family and social rehabilitation for children found guilty of infringing the penal law within the meaning of Article 17(3) of the African Charter on the rights and welfare of the child and Probation of Offenders Act CAP 243 {R.E 2002} [Emphasis supplied].
Although rehabilitation has been accepted as one of the main purposes of punishment, until now iam puzzled just to know how it can best be effected, what type of criminal children, so to speak, can most easily be rehabilitated and indeed certain classes of offenders can be rehabilitated at all.
Certainly it seems that in many countries with relatively sophisticated rehabilitation system, the whole process has hardly proved an unqualified. If prison officers and social workers concerned with the reformation of offenders experience difficulty in determining when a prisoner or criminal child so to speak is suitable for rehabilitation, imagine the difficulties of the poor magistrate who has to guess at a persons character on the basis of his demeanor in court, shaky inferences from the nature and circumstances of the crime and whatever scanty information is provided by the prosecution or defence before sentence is imposed.
Is it any wonder that a magistrate, no matter what his intentions, is often quite unable to fix sentence on the basis of the capacity of the criminal child to reform for he has little sound idea just what that is
One of the doyen of Criminal Law, Prof Brian Slattery in his book, The Handbook on Sentencing, has another reason why the concept of rehabilitation cannot withstand the test of time. He says, If the main purpose of a sentence is to rehabilitate a criminal child so to speak, it would seem to follow that Murderer and Rapists children who are repentant and unlikely to commit such crimes again could be left off on probation and re-integration with their families, while street pauper children who commit a petty pickpocketting theft at Kariakoo but is highly likely to do it again on release could sent to prison and social centers to rehabilitated for indefinite periods. [Emphasis supplied].
It is my clarion call that, although the age of a child may qualify him or her to be treated with leniency, that does nor entitle him or her to be so treated, nor necessarily guarantee that he or she will be.
The Court is free to ignore facts in mitigation when the gravity of the crime is so great that the individual circumstances of the offender are of little or no importance by comparison.
Pending the ruling of the finding of the age of the accused Lulu come Monday, 25th of June, 2012, Sir Alfred Denning affably best known as Lord Denning in famous book, The Road to Justice reminds Counsels of their duties. He says that, The Advocate has a duty to his or her client no doubt; but he has a duty to the court which I take to mean a duty to the cause of justice itself. He must never suppress or distort the truth. This essential qualification was never best expressed than it was in 1864 by Lord Justice Cockburn: An Advocate must be fearless in carrying out the interests of his or her client: but I couple that with this qualification and this restriction that the arms which he wields are to be arms of the warrior and not the arms of the assassin. It is his duty to strive to accomplish the interests of his or her clients per fas and not per nefas. It is his duty to the utmost of his power to seek to reconcile the interests he is bound to maintain and the duty it is incumbent upon him to discharge with the eternal and immutable interests of truth and justice
Lord Brougham was present on that occasion and nodded his assent-when he was 86 years old.(Emphasis Supplied)
Kaunda Paul
Jurista Sans Frontieres
Phone: 0713-995209
E-MAIL: paulkaunda92@yahoo.com
By
Kaunda Paul
In an article published on June 17, 2012 in the Guardian on Sunday, the litigation partner at IMMMA Advocates, Miss Fatma A. Karume asserts among others that the Director of Public Prosecutions (DPP) is inclined to prosecute the Bong movie celebrity Elithabeth Michael Kimemeta LULU as an an adult for an an alleged offence of murdering his fellow Bongo movie celebrity and purportedly his fiancée, the deceased, Steve Kanumba on April,7[SUP]th[/SUP] 2012.
The article bearing the title Did the Parliament intend to hang children, the author tried to wear the gloves of the LULUS defence counsels by wooing inter alia that, the ratification of the children international instruments by the government of Tanzania makes it obligatory and duty bound albeit softly and persuasive to protect the rights of children in their best interests yardstick.
One may be tempted to ask, what should be the role of the Director of public prosecutions (DPP) especially in this Lulus case which is pregnant with suspense, emotions and sensations from the political pews to the wretched corners of this country?
Happily this question was answered 57years ago by Mr. Justice Rand in the case of Boucher vs The Queen, he said, ..in the administration of justice, the prosecutor is said to be a minister of justice. Not representing any special interest as Fatma Karume wants us to believe but having the single goal of assisting the court in determining the truth. His Lordship Rand continued at page 23 that The purpose of a criminal prosecution is not to obtain convinction; it is to lay before the jury what the court considers to be credible evidence, relevant to what is alleged to be crime. Counsel has a duty to see that all available legal proof of facts is presented. The role of the prosecution excludes any notion of winning or losing
Given the blitz of publicity of this case, the learned counsel Fatma A. Karume appears to be convinced that the Director of public prosecutions (DPP) intends to persecute rather than to prosecute the accused in contravention of Article 37(a) of the international cove\nant in the Rights of the child and article 17(3) of the African Charters on the Rights and welfare of the child, which inter alia prohibits the imposition of capital punishments to children .i.e. below 18 years of age.
Ex facie, the learned counsel, Fatma A. Karume wants the public and the DPP to believe religiously that the accused Lulu is a child and she should enjoy unquestionably the four corners of her rights enshrined in section 4(2) and section 119(1) of the Law of the Child Act no 21 of 2009 and Internatinational Instruments enunciated above which provides inter alia that the accused child be tried in camera (in exclusion of the public) and if found guilty of the penal offence they should be rehabilitated, reformed and re-intergrated with their family as opposed to corporal punishment (deterrence).
But my question is in regard to the best interests of the child, if logic and prudence were to prevail, is there any watertight reason to try the accused behind closed doors given the fact that the accused, the purported child has a well chequered history of enjoying the gleam and beam of the of the public eye?
Lord Shaw of Punfermline (as he then was) helped me to answer this question albeit it was 1913 in scott vs scott, he held inter alia that, It is needless to quote authority on this topic from legal, philosophical or historical writers. It moves Bentham over and over again. He continued, In the darkness of secrecy, sinister interests and evil of every shape have full swing. Only in proportion as publicity has a place can any of checks applicable to judicial injustice operates. Where there is no publicity there is no justice.
His Lordship continued further, Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial. His Lordship concluded by saying that, security of securities is publicity.
Yes I can hear you whispering that, can I borrow a leaf from the East African Member states, yes I can. The Court of Appeal of East Africa (as it then was) in its erudite pen made it clear in 1970 in Mussa vs Republic, that .Justice is not a cloistered virtue: It is a tree under whose spreading branches all who seek shelter will find. It is a tree which flourishes only in the open, in the glare of public scrutiny, the cynosure of the eyes of each member of the community who wishes to see the actual administration of justice. If it is kept in the darkness of secrecy this tree will wither and its branches will become deformed.
On the flip side of the coin, the learned counsel Miss Fatma A. Karume in her article, makes a clarion call to the state to provide an avenue for reformation, re-integration into his or her family and social rehabilitation for children found guilty of infringing the penal law within the meaning of Article 17(3) of the African Charter on the rights and welfare of the child and Probation of Offenders Act CAP 243 {R.E 2002} [Emphasis supplied].
Although rehabilitation has been accepted as one of the main purposes of punishment, until now iam puzzled just to know how it can best be effected, what type of criminal children, so to speak, can most easily be rehabilitated and indeed certain classes of offenders can be rehabilitated at all.
Certainly it seems that in many countries with relatively sophisticated rehabilitation system, the whole process has hardly proved an unqualified. If prison officers and social workers concerned with the reformation of offenders experience difficulty in determining when a prisoner or criminal child so to speak is suitable for rehabilitation, imagine the difficulties of the poor magistrate who has to guess at a persons character on the basis of his demeanor in court, shaky inferences from the nature and circumstances of the crime and whatever scanty information is provided by the prosecution or defence before sentence is imposed.
Is it any wonder that a magistrate, no matter what his intentions, is often quite unable to fix sentence on the basis of the capacity of the criminal child to reform for he has little sound idea just what that is
One of the doyen of Criminal Law, Prof Brian Slattery in his book, The Handbook on Sentencing, has another reason why the concept of rehabilitation cannot withstand the test of time. He says, If the main purpose of a sentence is to rehabilitate a criminal child so to speak, it would seem to follow that Murderer and Rapists children who are repentant and unlikely to commit such crimes again could be left off on probation and re-integration with their families, while street pauper children who commit a petty pickpocketting theft at Kariakoo but is highly likely to do it again on release could sent to prison and social centers to rehabilitated for indefinite periods. [Emphasis supplied].
It is my clarion call that, although the age of a child may qualify him or her to be treated with leniency, that does nor entitle him or her to be so treated, nor necessarily guarantee that he or she will be.
The Court is free to ignore facts in mitigation when the gravity of the crime is so great that the individual circumstances of the offender are of little or no importance by comparison.
Pending the ruling of the finding of the age of the accused Lulu come Monday, 25th of June, 2012, Sir Alfred Denning affably best known as Lord Denning in famous book, The Road to Justice reminds Counsels of their duties. He says that, The Advocate has a duty to his or her client no doubt; but he has a duty to the court which I take to mean a duty to the cause of justice itself. He must never suppress or distort the truth. This essential qualification was never best expressed than it was in 1864 by Lord Justice Cockburn: An Advocate must be fearless in carrying out the interests of his or her client: but I couple that with this qualification and this restriction that the arms which he wields are to be arms of the warrior and not the arms of the assassin. It is his duty to strive to accomplish the interests of his or her clients per fas and not per nefas. It is his duty to the utmost of his power to seek to reconcile the interests he is bound to maintain and the duty it is incumbent upon him to discharge with the eternal and immutable interests of truth and justice
Lord Brougham was present on that occasion and nodded his assent-when he was 86 years old.(Emphasis Supplied)
Kaunda Paul
Jurista Sans Frontieres
Phone: 0713-995209
E-MAIL: paulkaunda92@yahoo.com
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