Ushahidi wa kesi ya babu Seya

[Mtoto wa Kishua]

IN THE RESIDENT MAGISTRATE’S COURT OF DAR ES SALAAM​

AT KISUTU​

CRIMINAL CASE NO. 555 OF 2003​

​

REPUBLIC​

Versus​

NGUZA VICKING @ BABU SEA & 4 OTHERS​

​

​

JUDGEMENT​

A. Lyamuya PRM
The four male accused persons: Nguza s/o Vicking @ Babu Sea 50 Years, Papii s/o Nguza 22 years, Nguza s/o Mbangu 27 years and Francis s/o Nguza 17 years are charged jointly for ten counts of Rape Contrary to Section 130 (2) (e) and 131 (A) (1) of the Penal Code as Replaced by the Sexual Offences Special Provision Act No. 4 of 1998 Section 5 and 6 respectively and eleven counts of Unnatural offence contrary to Section 154(1) of the Penal Code as Repealed and Replaced by the Sexual Offences Special Provisions Act No. 4 of 1998 Section 16. All the offenses are alleged to have taken place between April and 11 October 2003.

I will refer to the alleged victims by their names and in brackets their acronyms once, and the accused persons by their numbers.

The first, third, fifth, seventh, tenth, twelfth, fourteenth, twentieth, and twenty second counts respectively are alleged rape, while the second, fourth, sixth, eighth, eleventh, thirteenth, fifteenth, seventeenth, nineteenth, twenty one and twenty third counts are unnatural offence termed sex against the order of nature. These alleged offences were said to have been committed on the 10 children in 2003 as follows:

The first and second counts on Aza Hassan (A/H) PW 12 aged 6 on 11 October
Third and fourth on Rehema Mgweno (R/M) PW 5 aged 7 between September and October
Fifth and sixth on Alisia Longino Muta (A/L) PW 3 aged 8 on unknown date in October
Seventh and eight on Isabela Angomwile (A/L) PW 9 aged 8 on known date September
Counts ten and eleven on Juliet Mbazek (J/M) PW 8 aged 8 between September and October
Counts twelve and thirteen on Dei Jafary (D/J) PW 13 aged 7 between September and October
Counts fourteen and fifteen and seventeenth on Gift Kapapwa (G/K) PW 2 aged 7 on unknown date in October and between April and 8 October Counts eighteenth and nineteenth on Yasinta Mbele (Y/M) PW 11 aged 8 between April and 8 October
Counts twenty and twenty one on Amina Shomary (S/K) PW 15 aged 7 between April and 8 October
Counts twenty two and twenty three on Agneta Sia commonly known as Sia (A/W) PW 14 aged six years between April and 8 October.

The fifth accused a female, Sigirinda d/o Ligomboka, 47 years old and a teacher at the alleged victims school is charged of two counts of Aiding and Abetting the commission of two of the above offenses contrary to Section 22 of the Penal Code Cap. 16 Volume 1 of the Laws. Counts nine and sixteenth for aiding and abetting the first accused in the commission of rape and unnatural offences on Isabela (PW 9) and Gift (2) respectively, between April and 11 October 2003. All the accused persons denied all the charges.

All the accused persons were represented by two advocates my learned brothers: The first to fourth accused persons by Mr. H. Nyange and at times by Mr. Ringia advocate in the office of Mr. H. Nyange and the fifth accused person by Mr. Ndolezi. The prosecution was in most times done by at least three Police Officers one of whom is a learned brother.

The Prosecution called 24 witnesses, while the first up to fourth accused persons had 35 witnesses including themselves. The fifth accused person had four witnesses apart from herself.

Both my learned brothers for the accused persons submitted in writing. Mr. H. Nyange had 22 pages, some of which it was hard to comprehend whether or not they are grounds of appeal or submissions on facts and law on the case or his thoughts for the change of some laws. Mr. Ndolezi had a short and clear one so was the Prosecution reply. The hearing was held in CAMERA.

Briefly the background of this case is as follows:
The charges arose from alleged sexual abuses by the four male accused persons in the dock, all members of one family (father and his three children), on ten female children aged between 6 and eight years, all pupils of Mashujaa Primary School Class One in Dar es Salaam.

It all came out most an expectedly. Candy PW 1 is one of the guardians of Gift PW 2 aged seven. The latter is alleged to be one of the victims. Both live in Sinza Palestina Dar es Salaam. The alleged scene of crime is owned by the first accused House No. 607 hereinafter referred to as “607” is also in the same vicinity. Candy’s house girl is called Selina John aged 16 years old who did not testify.

According to Candy PW 1, On 8/10/03 at 8.30 p.m. Gift had a foul smell like something rotten “Uvundo”. Despite the bath the smell did not end. The following day the 9/10/03 in the morning in the absence of Gift, Candy inquired from Selina about Gift’s smell. The latter told her that Gift was getting money from Babu Seya/Sea. Candy wanted to know who Baby Seya/Sea was Selina said zee Nguza the musician”. On further interrogation on Selina’s source of the information Selina told Candy that she had seen Gift with 200/= and when she asked her where she got the same Gift replied that she picked the same from the shop. Selina did not testify.

Candy interrogated Gift after school about who gives her money. Gift said “I am given money by Baby Seya/Sea”. Candy wanted Gift to tell her why Babu Seya/Sea would he given her money. Gift told her that Baby Seya/Sea saw her going to school and called her asking her where she lived with whom, and which class she was. She asked her if she was being given school money. She replied “Not everyday”.

Gift said Babu Seya/Sea told her that he will be giving her money. He gave her BigGhee i.e. chewing gums and told her to give the same to others. Candy was more curious and asked her “Is that all?” Gift said “If I tell you won’t you beat me?” Candy assured her that she won’t.

Gift went on to narrate what happened one day when she came from school. That unknown day and month Baby Seya/Sea called her and gave her soda. She called her into his room. He told her to close her eyes and she did. Then Babu Seya/Sea tied a black piec of cloth over her eyes. Babu Seya/Sea undressed her, put ointment on her private parts and “akamwingizia dudu lake na akamwambia anyonye Dudu Lake”. He had sexual intercourse and told her to suck his penis. She said his penis was emitting whitish things which he told her to swallow. “Dudu lake lilikuwa linatoa maziwa na wadudu wadogo wadogo akaniambia nimeze”.

She named Pappii identified as the s/a and others who she could identify by face, who together with the Babu Seya/Sea later identified as the first accused had sex with her and her companions Alisia, Aza, and Tabia. Gift told Candy further that at times she would be taken from the school, in the classroom or and in the toilets by the first and second accused perksons.

Gift said when she urinated she bled. Candy examined Gift’s Vagina, noting fresh blood and pus “usaha”. Candy took Gift to a private hospital called Amen at Sinza. The latter refused to treat Gift claiming it was a police matter which was beyond their powers.

Candy went to report to Urafiki Police Station around 8.00 p.m. where she got a Police Form III. She took Gift to Magomeni Hospital who referred her to Mwananyamala Hospital. After the medical examination they found out that Gift had Kisonono – Gonorrhea. She was given medicine.

The following day Friday Candy went to Gift’s School to see her class one teacher about the permit and sexual ordeal following what Gift had told her that she knew her English teacher by face only who gave her permission. Candy met the class teacher whose name she didn’t know and told her to find out about the children named by Gift as her companions to the house of Babu Seya/Sea for alleged sex.

Candy went to police the following day Saturday to return the PF III results. Led by her house girl she went with the police to show the home of the first accused because she, Candy did not know the first accused or his home. However, she did enter the house.

Candy on this Saturday left with Gift to find out the truth about what Gift had told her. Gift showed Candy the house of Alisia PW 3 who lives near their home but on another street as one of her companions to the house of the first accused. They found Alisia at home with her guardian Aisha Mrutu PW 4. Candy narrated the story f Gift to the Aisha. Alisia concurred with Gift. She mentioned about three other children who are neighbours in their sex ordeal. With the parents of Alisia, Candy went report to the police.

Finally ten alleged children victims PW were medically examined by a pediatrician surgeon Dr. Petronila PW 20 who filed their respective PF III.

Candy in the companion of the alleged victims, their parents/guardians and police, went to 607 when the alleged victims are alleged to have identified the second to fourth accused persons hence their arrests on 12 October 2003. The first accused is said to have been arrested either on 11 October 2003 or 12th. The fifth accused was also arrested and the above charges were preferred.

The ten victims and their respective parents/guardians and the police were he material witnesses for the prosecution case.
The following is a recount of the defense with my notes:
The alleged scene of crime house 607 is hereinafter referred to as “607”. All the accused persons testified on oath calling witnesses. However, the respective defense witnesses (DW), for the first to fourth accused persons were not split leaving it to the court to sift.

The first accused person testified that he changed his names several times and the last time was after 1980 when he was renamed Nguza Vickings. That his musical fans nickname him General, Marshall, Big Sound, Maquisard but he had never heard or known someone called Baby Seya/Sea.

Regarding 607, the first accused person said that it belonged to him since 1981. That 607 was his matrimonial home where he lived with his late wife, the second to fourth accused persons his children inter alia. However, in 1998 his wife passed away. Before her death she had asked him never to remarry or live with another woman in 607. He vowed to adhere to her wish.

That since 1999 he was a playboy and had female friends. To respect his late wife’s wish he stopped living in 607 since then (1999). He moved to Kinondoni B Hombus near Sabato Church Hombus Road. He was not sure who owned that house whether Juma s/o, or Maria. Nonetheless he called Juma Msangi DW 19 to support him.

In April 2003 he again moved to another residence near Kijitonyama Police station calling Mohamed Kipasu DW 15, and Farida DW 10 to bear witness. The latter has been his fiancée for the past two years now with whom he has been living. But as will be seen in due course she was of little help.
CRT: Kipasu testified to this effect wef April 5, 2003. Unlike FaridaDW 10 who rectified that they entered that house Kipasu w.e.f. April 2002
see iv 2[94-5].
He shifted again either August or September 2003 to Sinza kwa Remmy. He did not know the house number, but the house belongs to Mama Kumekucha his DW 14. When his credibility was tested by Cross examination by the Public Prosecutor it was shaken. Farida DW 10 was of little assistance to the first accused personin respect to this as will be seen in due course.
[CRT: IV2[162] [unlike Farida DW 10 who testified that they entered that house Kumekucha 2002 see iv 2 [94-95] [crt: see IV 2 [91-132 Farida]
Vol. IV 14].

When he vacated 607 the first accused person testified that he left behind his real mother Bernadette Kaji, Francis Nguza the fourth accused person, Elombee his adopted son, and their house girl named Fraless.

Later be changed his story saying that his mother came there in February 2003 and that he reported Bernadete’s presence to the District Immigration and Mjumbe wa Mtaa.

About the house girl he said that he got her before the arrival of his mother to be prepared for her mother. So she was living in the house.

He named his children and their respective ages emphasizing that it is only the fourth accused person a student who lives in 607 because the rest are old and are living on their own. The second accused he calls him also Pappii Kocha. That the fourth accused person was I Mbezi Secondary School form two so he said.

The first accused person memory about when Nugza Mbangu and Johnson vacated 607 for their own, was faddy. He was not sure if the third accused Nguza Mbangu left 607 in 1996, but he said that it was before the death of his wife the mother of the third accused person.

He was more confused about the months as it can be seen in the court record, he started by saying “the end of September, then June, then early September, then Ocober then August” that the third accused Nguza Mbangu was living with another musician called Mirey Mbombo both of FM Academia and were not marry last year 2003. That Nguza Mbangu is the in charge of the band.

The first accused person was also not sure when the second accused Johnson left 607 saying that it was either in 1992 or 1997, 1998 but it was when he joined Diamond Sounds. He did not know where the second accused person was living for the 2003 but he knew that he was living with Mariam Bonga. He knew that the second accused Johnson was an artist musician with FM Academia. iv 17

Regarding his employment the first accused person testified that he was an artist musician with Achigo Band in 2003. That Achigo band was different from the band FM Academic and that the two are not interconnected. Never had they performed together he said.

Concerning his connection to 607 after be vacated the same, the first accused person said he rehearsed music therein Mondays to Fridays when they were not performing and it was his office.
IV 19 crt: When the testimony of the first accused person was read over, his advocate was of the opinion that the first accused person did not testify that he used 607 for business contacts. Nevertheless, when the crt wanted the first accused person to clarify he said “You are right I said ‘for business contacts.

The first accused person explained what their musical rehearsal entailed. All concerned with the band would meet in 607 with their musical instruments like drums, guitars, key boards, microphones, mixers etc. and practice music. That the rehearsal would start 9.00 a.m. That at times for a whole week they would rehearse and on Fridays and Saturdays his band would perform live music elsewhere. He explained the roles of different musicians in that band. Some of them gave evidence for his defense. Himself played solo, Shomari the rhythm, while Duncan Matembe his DW 6 played tumba.

[crt: Duncan Matembe his DW 6 played tumba [crt: IV 1 [199] saw the third accused person between 11 – 12 Noon not every time iv1[202] Abdul, playing the drums, while Member played the keyboard and guitar, Kasongo did Bass who also sang with Shaibu. Others were, Muta, Augustini and Kasavubu.

Those concerned with checking the instruments (mafundi mitambo) were Kenge and Ilunga Lubaba DW 7. {iv1[216]} p. 20
Ilunga Lubaba DW. 7 in chief [220] {iv1[216} time 22 [himself go at 8.00 rest come 9 a.m. till 2 p.m. Mondays to Thursdays and Fridays 9 till 12 noon pack up ready for concerts take to respective concert places unlike first accused person Mondays to Fridays].

Place sitting room [221] xxn Ndolezi shaky about entrances to other rooms at times through sitting room [225 – 226].

No running water in toilet [224 crt: Which PW said so?????]
Says third accused person with FM Academia [226] did not see third accused person unlike Duncan said saw third accused person at 11 – 12 at times [227].

Who lives in 607 does not mention Elombee unlike the first accused, s/a third accused person and fourth accused person and Elombee did not testify. [228]
After rehearsal disperse unlike first accused person says that office [229].
Xxn the Public Prosecutor: iv1[229].
Says @ Bodwin Libaba Mzaramo mother father Congolese so not right to say he was Mzaramo.
The first accused person added that in 607 during practice his mother and the house girl would be present while Elombee would be working with the F.M. Academic band that performed at Chezhtember at Kinondoni. The fourth accused person who would be in school Mondays to Fridays and on Saturdays in school for Exams.

The first accused person attempted again to explain the whereabouts of his children the co accused persons while he rehearse in 607 saying they would be rehearsing in their respective bands. Page 21
[song Seya/Sea] The first accused person told the court that last year with his son Pappii Kocha the second accused they replayed the Song Seya/Sea a song once sang by Orchestra Marquis band. The two used the FM studio belonging to Muta in Kinondoni. The new CD Seya/Sea came out in April or May 2003.

That he performed this Seya/Sea live alone and it was the only time he performed or practiced with the second accused person.

[Erection] On the charges he said that he was not able to rape because his last born was 17 and he has not given birth thereafter “sijazaa”. That he was also not erecting – matatizo ya uumme. He elaborated that that for the past three years he could not erect properly and the situation gets worse as time passes by. Page. 23.

[Medical proof] On whether he had medical proof to this effect he blamed the court for not allowing him to be medically examined. He also complained that there was no evidence adduced by the prosecution that he was medically examined. However, he said that he had attempted to get medical aid and that his fiancée Farida DW. 10 was assisting him to see Doctors but he was arrested before he met the Doctor at Tumaini Hospital. Page. 25

[scar] Analyzing the Prosecution case the first accused person denied having a scar or piles as stated by the Prosecution Witnesses.

[Gift id] The first accused person said Gift PW. 2 did not identify him in court. The doctor’s report was that she was not raped or sodomised so was Rehema.

[Connection with 607 [Suits] He challenged the evidence of ASP Shilling PW 22 who testified that he saw suits in the alleged scene of crime. The first accused person said that he was not living in that room in 607, so there were none of his suits therein. This was because all his suits were in his home at Sinza kwa Remmy. iv 27
But, he retracted this piece of evidence when he was xxn by the Public Prosecutor as will be seen in due course.

[CRT: when he was cross examined by the Public Prosecutor [IV 47 he said “I did not move my clothes to the new place I am now living because I have lived here for 32 years and I have a lot of clothes which can’t be put in one room].

First accused “The position of the room in 607 was the same when the court visited and the police with him and victims/parents”.
[crt scene of crime: saw lots of male suits almost all the wall].

Re cross examination Nyange: iv 79 [crt: see 57 about 607 spending time rxd Nyange iv 79 says “House 607.

I left/vacated but, I locked the room that the court visited but, I was still using the same that room which the court visited: iv 79] sleep Kumekucha house and spends time from 8 – 9 a.m. in 607 [iv 56].

[search] He was fair to the police that when they searched his house at Kwa Remmy and the house of the third accused person under the leadership of PW 22, saying that they were very nice (wastaarabu tu). Page 27

[victim evidence wardrobe 607]
He said that the children were correct [concurred] with the victims evidence that they saw the wardrobe, drums big fan in 607 in chief iv 28. On xxn by the Public Prosecutor changed cupboard iv 47 ????

[inside toilet] The first accused person explaining abut the inside toilet he said that none of the Public Prosecutor W talked about the inside toilet. That even the child who accompanied the court to the alleged scene of crime 607 could not remember the toilet where they would be washed. He was concerned about the room that the court inquired about at the scene 607 that had a toilet.

• (Court: this was inside the room in 607 which the victims alleged that the sex took place. Dei when recalled showed us the same which the accused opened in person and admitted to be his personal room)

[running water] The first accused person did not talk about running water unlike the following:

• Ilunga DW 7[]
• Albert DW 8 [iv 2] [1-30] [water nil when the accused were arrested but before????? [iv 2] [10].

Running water Albert Cross examined by the Public Prosecutor: [iv 2] [21]
[Character first accused person Albert] [iv 2] [18]
Xxn the Public Prosecutor: I know Mzee Nguza. He has no friend with whom he is very close for a long time to chat with even women.[18] Unlike first accused personin chief said moved from the 607 because he started a relationship and was a playboy till three years back when he had a permanent relationship with Farida DW 10 his fiancée.

607 Room of first accused: Albert Cross examined by the Public Prosecutor: [iv 2] [21] Unlike first accused person and what PW and court saw Albert said nothing for first accused person and first accused person nothing for his own use as he shifted a long time ago.

Refuted the following facts: first accused person showed room; first accused person use rehearsal.
[first accused volunteered show 607]
The first accused person went on to testify that on 13 October 2003 was the first time the police wanted him to show them his home where he did band rehearsal and he took them to 607. The victims and parents were there.

• BUT crt fourth accused person had said police visited him with a child and girl inquiring about Babu Seya/Sea and told him to inform the first accused person to report to police and he telephoned the first accused person on the same day 11 October 2003.

[search] The first accused person was concerned that during the search there was no Raia/citizen to witness the search. There was no photography/photos or written documents showing the position of the scene of the crime. He recalled to see a photographer, and that 607 was photographed.

• [31] [BUT replying to xxn by the Public Prosecutor he changed his view about the real use of photos vis a viz the rape].

[picture] The first accused person was concerned that none of the victims testified seeing his late wife’s photograph on the wall.

• [Crt: BUT when xxn by the Public Prosecutor he felt challenged as he admitted that it was not possible to note each and everything in a room especially when one is not at liberty like himself and the victims].

That the radio in that room in 607 was his that he used but was then defective and none tested it when we visited the scene of the crime.

• [crt: to be honest I did not see the picture when we visited the scene of crime]
• since when was the radio defective???

Testifying on his relationship with the fifth accused the first accused person denied knowing her saying that he had no any connections with her. He further said that he did not know any teacher at Mashujaa Primary School.
[kidnapping from school toilet]
According to the first accused person he admitted that the MP school toilet was near the wall newly built. But he complained that there was no testimony that the victims were abducted or kidnapped from these toilets to be taken to 607 for sex.

On the proximity of the school and 607 before wall was built the first accused person concurred with the victims that before the wall was built there was a route from that school via 607. However, he said there were other houses around 607 and if anything happened therein they would have seen. BUT when Cross examined by the Public Prosecutor he agreed that the position of 607 and that room the court visited was such that if the doors were closed no one could tell what was going therein.

[id] The first accused person was disappointed that there was no identification done before they came to court like identification parade or by pointing at he accused persons. He thought that the victims identified them at the police where they were the only people handcuffed before they went with the victims/parents and police to 607. The victims booed at them at the police station.

The first accused person said further that Amina Zuberi PW 20 verified that she saw the handcuffs and the booing at the police station.

• [crt: Amina Zuberi is PW 21. On cross examination by Nyange she saw accused with handcuffs but did not mention anything about the booing at the police station]. 37 Vol. 2

Media/dock id.
According to the first accused person and his accused sons the alleged victims identified them through the media TV, photos. That also the victims identified them at the dock also because in the court room they were seated the same position therefore, easily identifiable by the victims except for one occasion when the court interchanged them. 35

[his arrest] The first accused person testified that on 11 October 2003 he got a telephone call from his house that he was being sought for by the police. He did not report to the police station because he was performing at the Lions Hotels which he did. He called DW 17 Ndanshau to support him. {iv 2 [167}
He reported to the police station the following day 12th .

• DW 17 Ndanshau support first accused. {iv 2 [167}

[Arrests first accused person mother daughter Colleta [He also referred to the on what he heard about the arrests and releases of his mother and one of his daughters called Colleta in connection to the charges. 37

The first accused person finalized his evidence in chief by disassociating himself with the crimes because he was a true Christian and that he had a grandchild who went to the same school with the victims. The grandchild he talked about he said he was not living in 607.

First accused examined in chief by Mr. Ndolezi
When examined in chief by Mr. Ndolezi he emphasized that 607 is adjacent to Mashujaa Primary School but he had never gone there for any reason. He also exculpated the fifth accused person from the crimes. iv 69

• Frame up: first accused person could not tell why he was framed up with the crimes. iv 69
• When Cross examined by the Public Prosecutor: first accused persons aid “never been friends with Candy PW1 guardian of Gift; no sexual relationship with any of wives of the Public prosecutor W; no quarrel or misunderstanding with any of the Public Prosecutor W about 607 rent/ownership etc;”
• No qualms with ASP Shilling PW 22 [iv 69]

First accused examined in chief by Mr. Ndolezi
Giving his opinion about the possibility of the occurrence of the crime the first accused person said that as a father and grand father he did not see how it would have been possible for a child like Gift PW to be raped continuously by four men to be able to be able to endure.

THE SECOND ACCUSED PAPPII NGUZA DEFENSE [iv 95]
The second accused Johnson Nguza @ Pappii Nguza I his defense also changed names. He said that he concurred with the testimony of the first accused person his father.

[s/a musical history] He gave his musical history for seven years from 1997 when he worked with the first accused person’s band Achigo. He worked with different bands and went back to FM Academia band in August 2003, where he was still working till he was arrested.

[song Seya/Sea] About the song Seya/Sea he said they used to sing old songs like that Seya/Sea when he was with the Achigo band. That the same was in a cassette therefore, when he went to re record the same with his father he did not practice earlier.

[Vacate house 607 The second accused Pappii Nguza]
Unlike his father the second accused person testified that he vacated 607 in 1998 to live on his own. He gave details of his different residences. However, for 2003 he was living at Makumbusho House Number 111 with Maryamu Bongi DW 12 with whom he has one child and the sister of Maryam called Mwajuma.

[residents of 607] He concurred with the first accused person about the residents of 607 although Albert DW 8 did not name Elombee as a resident therein. About with whom the third accused person was living, the professions of the first and third accused persons and their respective places of their band rehearsal was on the same footing with the first accused. However, he added that the third accused person was the band leader of FM Academia. The latter band performed new generation music “Kizazi Kipya”.

[Rehearsal] Further, the second accused person told the court that they would rehearse on Mondays to Thursdays, assembling the instruments till 9.00 a.m.

Each of them should be at the rehearsal room by p.30 a.m. practicing till 2.30 p.m. They resumed at 3.00 p.m. till 6.00 p.m. For Fridays they would do sound check from 8.30 a.m. till 1.00 p.m.

He added that he worked privately to promote his Albums naming some of his associates in that endeavor. [iv 98]
These included his promoters, his father the first accused person lady JD i.e. Judith Wambura DW 25 [iv 3] [68-89], Maosantiago and Gimmy amongst others.

He attempted to give an account of his where about (alibi) since August 14, 2003 till October 11 connecting the same with his private work of the promotion of his album in the regions. That with the permission of the third accused person 14 August 2003, he traveled to the Arusha/Moshi and back (Regions) using the third accused person motor vehicle TZT 773 hired and driven by Edward Masawe DW 13 his promoter. Meanwhile the rest of his co musicians used Ruge’s car. [vi 109-110]

They came back to Dar es Salaam and stayed for three to four days then left for Mwanza on a date he could not remember in September, in the companionship of Q Chief DW 26, Mandojoo DW 27, Judith Wambura DW 25, Domokaya, Ray C @ Rehema Chalamila. [iv 111]

• Crt: They came back to Dar es Salaam and stayed for three tofour days then left for Mwanza. Possibility crime????

He was not sure where they performed twice in Mwanza. From Mwanza they spent a night in Arusha and proceeded to DSM where they stayed for about six days before they left for Zanzibar Wafalme Watatu. As before he could not recount the dates but was in September.

• Crt: from MZA in DSM stayed for about six days before they left for Zanzibar. Possibility crime???????

They performed in Zanzibar once after which they went to Dodoma staying from September 26 up to 29th.

• Crt: In between possibility of crime??????????

The second accused person added that August to October 2003 he was in DSM and was a party to Mwischo Mwapamba in a “tamasha” at Changombe to congratulate the latter for joining the Big brother in South Africa from 9.00 a.m. to 6.00 p.m. [114]

• Crt: MP start classes at 6/7 a.m. possibility of crime ?????????
• The August to October ranges stretches too far.
• Recounting or just cooked up story.

The second accused person testified having recorded album with Judith Wambura in August or September 2003 on unknown dates. [iv 115]

• Crt: So what? Relevance to the charges??? [iv 114-115]? Evidence ????

The second accused person recounted that he went to Arusha and Moshi from third at the night they performed at the Vatican Hotel on 3 October 2003. That they reached Arusha the following day the 4th. They performed the same day and other places Arusha and Moshi returning to DSM on the 11 at 8.00 p.m. He attempted to recall the names of his companions and where they performed in this trip. [iv 117]
(alibi) To justify his alibi he called to his assistance his fiancée Maryam Bongi
DW 12 [iv 2] [138-148],
Edward Masawe DW 13, [iv 2] [148-160],
Ruge Mutahaba DW 16, [iv 2] [167-176], sponsored {iv 107}
Judith Wambura DW 25, [iv 3] [68-89], ----- diary D ----- [72]
Abubakari Katwila @ Q chief DW 26 [iv 3] [90-96]
Joseph Francis @ Madogoo DW 27 [iv 3] [97-101] {iv 105}
ARRESTED [iv 119]

Narrating how he was arrested on 12 October at 607 the second accused person said that he had gone there to greet his grandmother and the fourth accused. He recollected that he found the fourth accused, grandmother, house keeper, Albert Nguza the first born and Elombee Arafat, their step brother around 12 noon. [iv 120-125]

He recounted that while in 607 his grandmother told him that at night there came people looking for the first accused person. She wanted him to get the details from the fourth accused person.

The fourth accused told them that the police had been there on 11 October 2003 looking for Babu Seya/Sea. The fourth accused further told him that he told the police that he did not know Babu Seya/Sea. However, the police told the fourth accused to tell his father report to Magomeni police station.

While they were deliberating on this, the third accused person appeared with news papers Dimba. He showed it to them that read that their father first accused person Nguza Vickings was suspected – atuhumiwa – for raping three children. It was then the third accused person told them that he received a telephone call from Farida DW 10 about the arrest of their father the first accused person.

They reported the matter to the Mjumbe of the first accused person, telephoned their other brother Emanuel Mpangala and went on discussing how to bail out their father, first accused person. Iv 123]

Around 2.00 p.m. people in plain clothes stormed into the house and said “Pappii Kocha you are under arrest”. They introduced themselves as policemen ordering them not to stand up. They obeyed.

The policemen did not know Pappii Kocha. Then the children who gave evidence in court and their parents entered. The former were told to identify Pappii Kocha but, could not. They mixed up Nguza Mbangu and Fransis with Pappii Kocha and they were all three arrested. Meanwhile Eleombee and Albert were outside in the container outside. ??????///

• Court: They were discussing how to bail out their father and plain police men stormed in the house. The story that Elombee and Arafati were out does not hold water].

They were taken to Urafiki Police Station, and were sent to Magomeni Police Station the following day where they found their father.

They were taken to Muhimbili for the examination of urine and blood, but it was not done and were sent back into custody still under handcuffs.

• Court: The first accused person did not mention this.

He concurred with the first accused person about the handcuffs and the booing when they were out of the remand and going to 607. He could not remember the names of those who booed at them although they gave evidence.

He narrated their journey from the police station with the police and said the police did not go to his house. That they did not find their grandmother at home then as she was said to have been arrested too, so the house was locked. [iv 128]

Asked by his Advocate why their grandmother was not in court as an accused the second accused person replied that he did not know. She remembered that his sister Colleta was to be charged with them, but, she was not.

• Crt: Relevance in defense

[EXAM GUN POINT] He did not know why his blood and urine was taken at Muhimbili Hospital. He explained how the samples were taken although they refused to be examined in the absence of their lawyer. However, they were advised by a doctor to agree to the examination to avoid problems with the Government [iv 131], unlike the third accused person and the fourth accused person who said that examined under gun point at the instructions of ASP Shilling PW 22 [iv 1] 130.

• Crt: Why would thy refused to be examined. The first accused person did not say so

[exam penis the] Whereas he second accused person testified that the first accused person wanted the doctor to examine his penis the first accused person in khis examination in chief did not say so.

The second accused person went on to complain that there was no medical proof about their examination that connected them with Gift’s SEXUALLY TRANSMITTED DISEASE.

He repeated the evidence of Dr. Ngiloi PW 20 who said that the children were not found with SEXUALLY TRANSMITTED DISEASE and that they have not been treated for SEXUALLY TRANSMITTED DISEASE in custody.

[When Mr. Nyange showed the second accused person a letter written by Nyange he could not comprehend. This was concerned with the Advocate’s letter to the court about alibi.

• [alibi] [crt supposedly the advocates alleged notice of Alibi that did not comply with the law. See Criminal Procedure Act, 1985 Act No. 9 section 194 (4 & 5).

[s/a did not know the fifth accused] That although he studied at Mashujaa Primary School, he did not know the fifth accused the teacher neither does he know any teacher in that school from 1999-2003. He did not go to the fifth accused for children from her class neither did he kidnap the children from the school for sex.

To conclude his evidence in chief the second accused person said that he has never seen or met any of the victims. In denying the charges the second accused person repeated his Alibi. He added that he was rehearsing weekdays when the offenses are alleged to have been committed so he was not involved. That he was away coming back on 11 October so he should not be associated with the first and second counts alleged to have been committed on 11 October. The third accused person DEFENSE VOL. IV 1.

The third accused person like the first and second accused persons changed his names and like the second accused person he studied at Mashujaa Primary School class one to seven.

He left 607 in 1996 and currently he was living at Sinza E House No. 374 property of Salome Masawe DW 18 {iv 2} [183-187] since September 2003. [Vol. IV 1 page 17].

The third accused person was living with his fiancée Mirey Mbombo therein. He said he became the fiancée of Mirey Mbombo @ Miria June July 2003. His attempt to tender the purported lease agreement was over ruled for none compliance of Act 30 of 1973.

He testified on the same lines with the first and second accused person about their residences to the current, and tallied with the previous accused persons about their mother’s will on 607.

[third accused person MUSICAL HISTORY] He gave his musical history. Like the second accused he worked with the first accused person band moving from one band to another. Currently he was with FM Academia band with the second accused person. That he was heating drums and in charge of discipline detailing the discipline procedures. [28 IV 1]

He concurred with his co accused persons of their respective rehearsals, sound checks and performances, for their respective bands, including places, days and times. [iv 1]

[VISITING 607] He disassociated himself with visiting 607 for the reasons of lack of time due to his commitment to the band discipline as from 6.30 a.m. to 12 Noon he would be in the band.

However, he said that very seldom he would visit 607 when he was free in the evenings and Saturday and Sundays. Unlike their defense witness Duncan Matembe DW 6 who testified in chief that at times he saw the third accused person in 607 between 11 and 12 Noon but not as a routine. [iv 1] [202]

[Arrest/visiting 607] He narrated how he got the news about the first accused person rape allegations from Dimba News Papers and from Farida DW 10 by telephone. He explained about his errand to 607 to discuss the fate of their father the first accused person.

All the same the third accused person differed with the second accused person about what took place in 607 just before and during their arrests therein. Whereas, the second accused person said they were ambushed while discussing about the arrest and bailing out their father the first accused person, the third and fourth accused persons said two people knocked and they welcomed them in.

The second accused person said “Around 2.00 p.m. people in plain clothes stormed into the house and said “Pappii Kocha you are under arrest”. They introduced themselves as policemen, ordering them not to stand up. They obeyed. []

The policemen did not know Pappii Kocha. Then the children who gave evidence in court and their parents entered. The former were told to identify Pappii Kocha but, could not. They mixed up Nguza Mbangu and Fransis with Pappii Kocha and the three were arrested.

• {Crt: The second accused person made it to appear as an ambush}.

Contrary to what the second accused person said the third accused person said that the un uniformed policemen identified themselves and asked “Who is Pappii Kocha amongst you?” and they did not reply.

[During arrest] The third accused person said the words “Pappii Kocha you are under arrest” were said at the corridor the second accused person said in the sitting room where they were.

On the whereabouts of Elombee and Albert, the second accused person, third accused person and fourth accused person said that Albert and Elombee went out of the room, leaving them in the room just before the policemen came in.

• [Crt: They were discussing a serious matter waiting for Emanuel and according to the second accused person they were ambushed. When did Eleombee and Albert leave the room and go out. What a concidence?]

[4/a iv 125-]

[At Magomeni Police Station] The third accused person testified on the same lines as the first, second and fourth accused person about what happened at Magomeni Police Station regarding the handcuffs, and the booing.

[Going to 607 with police] Whereas, the first accused person stated that they went with the police from Magomeni to his house and then to the house of the third accused person then to 607 which they found locked, the third accused person said that they were taken straight to 607 found it locked.

Thereafter, they went to the house of the first accused person at Sinza kwa Remmy and to his residence at Sinza E House No. 374 property of Salome Masawe DW 18.

• Crt: What is the relevance to defense. Credibility of defense/consistency [AT Muhimbili Hospital] The third accused person concurred with the second and fourth accused person about going to Muhimbili Hospital and refusing to be examined. They gave a reason that their lawyer was not there.
• The first accused person in his evidence in chief mentioned nothing to this effect. But was concerned about his impotency [iv]
• First accused person “I don’t erect. I even asked the court that I be checked by a doctor, but it was not allowed. [iv 24-25].

[Gunpoint at examination AT Muhimbili Hospital]
The second accused person said they were with armed policemen even when their urine and blood samples were taken at Muhimbili Hospital hence contradicting the third accused person and fourth accused person who said they were forced to be examined under GUN POINT.

• Crt: The first accused person in chief said nothing about his examination at Muhimbili Hospital save for complaining that there was no medical exam evidence concerning him tendered although ASP Shilling and the Public Prosecutor promised the same. [iv 25]
• See Cross examined by the Public Prosecutor reply iv 69 the first accused person says about penis in letter to court but not that he asked the Doctor to examine him as said by second, third and fourth accused persons.
• Horses mouth the first accused [iv 89 Exam hospital first accused person for the first time mention].

The first accused person for the first and last time talked about being taken to the hospital on 14 October, when the first accused person was Re Examined by his advocate Mr. Nyange.

The same applies to first accused person when he for the first time also talked about they not him asking the police to have their penises checked at the hospital. [Crt: None of the other accused persons ever told court that they wanted theirs to be checked].

The third accused person told the court that they were forced under gunpoint by PW 22 ASP Shilling to be examined at Muhimbili Hospital. Howevr, the first accused person never mentioned this at all. This second accused person said did not either.

The third accused person said he heard the first accused person saying “We are charged of rape so I pray that my penis be examined” but, he did not know what he meant. ASP Shilling refused.

If the first accused person complained to court that there was no evidence that they were examined and did not raise this in his evidence other than by the way during re-examination, can the crt trust thethird accused person and fourth accused person??? 42

s/a permission out to regions:
The third accused person said further that the second accused person got his permission to go outside Dar es Salaam for the promotion of his albums. That going to and back Arusha the second accused person drove in his personal car hired by his friend Edward Masawe DW 13 as the driver and the promoter of the second accused person in this endeavor. That his friend Masawe and the second accused person traveled to Arusha after their concert at Vatican Show. He tried to recall the journeys of the second accused person outside Dar es Salaam and the payment arrangements between himself and Edward Masawe saying ach time many times Edward Masawe and the second accused person would hire his car. 47

[tap water] The third accused person is the first to raise the issue of lack of tap water in 607 saying if there was required water to wash the victims then it meant that the housekeeper would get water from outside.

• Crt: Was it impossible for the water to be put in there prior since the first accused was using the room for his business contacts?
• Bath/****** and toilets ****** are interchangeable since in most times the two would be in one.

The rest of the evidence in chief is almost identical to the rest of the so accused except that he had no grudges with the alleged victims so he said.

Like his co accused persons he met the fifth accused person for the first time in court.

• XXN PP: third iv --69

Cross examination by PP: The third accused person told police that he goes to 607 from time to time and that he could not commit the crime as each time he goes there he would be in the companionship of his wife. Contrary to what he said in chief that not commit offense as he would be in rehearsals and performances.
Scene crime
Keys of 606 scene of crime [vi 71 by grandmother
First accused by -----------]

• Grandmother would not check inside scene of crime when first accused person enters [71].
• Third accused person agrees with first accused person that 607 room office unlike Albert DW disagrees.
• Musical instruments kept in there like drums, [Crt: Victims saw drums.
• Third accused person musical attendance register kept by him accused person in home but not traced. [71]
• Dimba of 12 October would carry news of 11 the arrest of first accused person??? [74]
• Third accused person arrest 12th about seven victims PW present aged 6-8 years. Cant tell if of sound mind or not because third accused person not psychologist. [75]
• Third accused person was vague or evasive when he was asked his opinion about the alleged victim PW demeanor in court. [iv] [76]
• Asked where the parents would meet to train the PW children the third accused person said “They would know”. [iv] [77]
• s/a to Dodoma with Edward ?????? [87]
• tap water to wash the victims 91
• Pappii Dulfina came to 607 2003. Not resemble with second accused person [95]
• Penis first accused person [95]

/////////////////////////
The fourth accused person
The fourth accused person defense was on the same lines like the others. His name was also changed. He is a school boy aged 17 years. He tendered his birth certificate as Defense Exhibit 1. Complained charged with adults contrary to the law.
Crt: He was tried with the elders but in camera as per law required -----]

He testified on the same footing like the previous accused persons regarding relatives, residences and their arrests.

However he knew nothing about Achigo band although he said that the first accused person was a musician in that band and the rest of the brothers with FM Academic. He said when the first accused person shifted from 607 he locked the same taking with him the keys.

He denied the charges reasoning that because the offences are alleged to have taken place when he would be in school.

Crt: Why were the accused surprised reading Babu Seya/Sea and why did they connect him with the first accused person before the third accused person told the fourth accused person about the arrest of the first accused person???

[The threats] The threats when medical exam at Muhimbili Hospital was like the third accused person. Page 133

[Toilet] He said there was no running water in 607 and that there was only one toilet in 607. But in the room of the first accused person there is a bathroom but the house girl would not send water therein as it was not in used and was locked every time. 135

He did not know the victims before they testified and that the child who went to 607 when they were arrested did not testify.

He did not know the fifth accused person as he met her in court although he studied at Mashujaa Primary School she was not there.
Xxn the Public Prosecutor:

• Hodi [127] penis 133
• 607 scene of crime room locked permanently 135
• Xxn the Republic Prosecutor Crt: If Elombee lives in 607, a musician why not framed?
• Grandmother at house of Judy? 145

Note: Other defense witnesses for first accused person to 5/a were

• Duncan Matembe DW 6 for Achigo first accused
• Ilunga Libaba DW 7 Fundi Mitambo Achigo iv [] 216
• Albert DW 8 [iv 2] [37 – 76]
• Moule DW 9 [iv 2] [178] FM Academia
• Farida DW 10 [iv 2] [][

THE FIFTH ACCUSED PERSON DEFENSE
The fifth accused person testified that she has been a teacher since 1978 and gave her history of the previous school and the current school Mashujaa Primary School in 2002 January. That she was arrested on 13/10/2003 at her house as she was sick. She talked about her head teachers.

That at Mashujaa Primary School she taught Reading, writing, science, study za kazi in Class one B. Never had she taught English. She denied knowing the co accused in the dock who she met for the first time in the court.

Only Dei PW 13 and Amina PW 15 are in her class so she said class one B. That she was the class teacher of One B. That she does not teach the other PW children. That Kailembo was the class teacher of One A. That she has never taught English.

She called Shairi Hamza her DW 1 who tendered what she termed as Rosta as Deffense Exhibit 3, Amina Mrangi her DW 2 and Joyce Lyatuu her DW 3. [iv 3][3]

About permission she denied ever permitting any of the children to go to the 607 for sex and that Dei, Amina did not say that they asked and got permission. She analyzed the procedure for giving permission.

She said she was framed up for reasons she could not tell. But she thought that the victims were taught as the way they learnt national Anthem. 182

She claimed that she was A MLOKOLE a religion that has made her abandon all evils and that is a reason why she has never attended to the musical shows of the accused as it is forbidden by her religion.

To this she called Mrs. Alembalemba DW 4 for the fifth accused person a former co teacher and a friend sharing the same religion to verify. That she was married and as a mother who had a child it was impossible for her to send the alleged victims for sex as charged.

She narrated how she trains a class one child till it picks up.
//////////////////////////////////////////////

• DW 6 to rename as DW 1 for the first accused person to first accused person Duncan Matembe with Achigo Secretary and Musician beating drums.

Xxxxxx to give her that favour before she died in the presence of her children. Regarding his residence he said he was living at the house of Mama Kumekucha DW ------- since between August and September 2003 April 2003 he entered the house near Kijitonyama Police station where he was living before that. Since 1999 he lived in a house owned by Juma s/o or Maria. Crt. THIS IS THE END OF MY WORKING NOTES ABOUT THE DEFENSE CASE.
Thursday, June 24, 2004.


Regarding PW 12 AZA HASSANI identification of the accused persons. She named her class mates and friend friends who are Gift, Rehema, Mtabi, Yasinta, Juliet. That her English teacher was Ligomboka.

She stated “I know the accused in the dock. The first accused is Babu Sayer/Sea. I know the rest of the male accused persons by face but they were doing bad things (walikuwa wananifanyia). On how she knew the first accused she said “I used to see Babu Sayer/Sea in his home. She could recount what the inside of the 607 looked like concurring with the others: a cupboard, and a draw and a looking mirror, a bed and mattress.

She was particular as to who actually tied her face, that was Yasinta. It is reflected in Yasinta’s evidence that she took her to the first accused. Aza recounted how the first undressed her, oiled her private part so were the others. She added that anatufanya tabia mbaya having sex with her, in the front and behind after the oiling. She recalled that like others they were washed in the toilet. She was then given 200/= so were her companions and were told to go home. She recalled “I was taken with Rehema, Juliet, Tabia, Gift to Baby Sayer/Sea. It was Baby Sayer/Sea and his children at times they would sex us two or three. I got pains. I went home. I cheated my grandmother that I played “Rede” because I feared since he had threatened to kill us if we say. I went there several times. So she familiarize herself with the Male accused persons.

She recounted about Candy and the examination at home and hospital. She was sure that she never went to the 607 during classes. She said “We never went to Baby Sayer/Sea from the school/classroom. She was consisted when she was cross examined by Nyange and Ndolezi about the sex ordeal.

Even when her credibility was tested she was still sure of her testimony. She said “I am in one class with Sia. We used to go with her to Baby Sayer/Sea and would be sexed also yes. I don’t know her second name of Sia. I don’t know Neema. Yes I know Rehema, Alicia, Tabia and Gift. Yes I was covered with a black cloth, after which I was undressed. The cloth was transparent so I could see the one who undressed us. Yes it was Baby Sayer/Sea who had sex with me and other. Other days accused would call his children. We used to see the first accused’s children sexing us. Nobody told me he is Baby Sayer/Sea. He used to have sex with me at his home. I only know him that he is Baby Sayer/Sea.
Advocate Question: Unamjua yeye ni Babu Sayer/Sea kutokana na nini?
Reply: Sijaambiwa, namjua tu.
By implication she was not telling lies and therefore, she identified the Accused persons.

She even recalled the 607 by saying “I recall the home of Baby Sayer.Sea. There is a shop (container) in front of his house Yes. Yes I know the shop owner called Mangi. Yes he used to see us going with the house of Babu Sayer/Sea. Yes I recall the house of Baby Sayer/Sea and the toilet is inside. I saw a “dada” there. While the sex was going on the “dada didn’t see. I have never seen an old lady there”.

About Zizel she said “I know Zizel. I don’t know her mother. I have never seen her when ever we entered the House”. Regarding her sexual intercourse effects she said “My grandmother asked me”. “Why are you walking like that?” I said I was playing “Reddy”.
Therefore, I have doubts that she was trustworthy.

As for DEI JAFFARI PW 13 recollection and identification of the accused I find as follows:

She testified that she knew the 3 and 4 accused by faces and named the second as Pappii and first is Nguza while touching them as she explained. As to where she met the first accused she stated “I met Nguza at his home. We went there with police. I went to show them the rooms where they were sexing us – “walikotufanya” (court: She cries -) (very bitter). She repeated how she was covered by the face, undressed me and sexed including suck the penis being given money after the sex.

Like the others she recounted the period when they were ambushed and beaten while in the room in 607 the stick was mianzi.

Then there was a knock at the door. He dressed up. This lady said “Why am I hearing sounds of children crying!”. She saw us and beat us with a stick.

She concurred with the others that she was taken by her friends to 607. “Our friend whose name I have forgotten told me us “Let’s go to collect money”. True she like the others was paid money after the sex and as she said “I went there several times”. (She was still still crying). I felt pain. I didn’t tell anybody as he used to tell us not to tell anybody as he would kill us or take us to police. (Court: Still sobbing).

To show that Aza was psychologically affected by the repeated sex ordeal when she narrated the ordeal she is shedding tears and could talk and we had to pause from time to time for her to cool down. This indicated that she was not telling lies.

She recounted how Candy went to their house, her home nad hospital examination and going to the police.

She recalled that she went for sex in the 607 many times I went to have sex in the house with Babu Sayer/Sea and his children [the accuseds.
She was firm in cross examination about who took her to 607 for the sex not her name but she said “I am in B. These were three – we wear uniform – White blouse and Blue Skirt. This child with Black blouse and Red Skirt was in class One A. She was in uniform. No two in uniform. She was in uniform when she took us. Actually that child is in this court. She came today who took us. The woman of Nguza came in. So since she beat us I knew she belongs to Nguza. I can identify her if I see her. I didn’t see her there when we went with the police. She passes via our house often, going where I don’t know. I can’t describe her.

On her recollection of 607 she said “Yes outside there is a shop. It is not our shop. We buy things there. I don’t know his name (shop owner). No you can’t enter the house before the shop.

To emphasize her identity about the first and second accused I read the name of Pappii Kocha in the TV and read his name. He was singing “Sayer/Sea” Song. I saw Pappii and his father in the TV at ago. I saw them after they had sexed us in the TV. I didn’t tell anybody that I identified Nguza and Pappii from the music. I didn’t identify the accused at police.

She was true to her self by saying “I didn’t see the first accused urinating while I was with others within the first accused’s room. I didn’t see him bleeding. I don’t know if he gave us urine. Me! He has not given me urine”. This shows that she was not fabricating her evidence. Therefore, she identified the accuseds.

As for AGNETA SIA PW 14 she testified how she knew the 607. “I know a house near the school of Babu Sayer/Sea. It is near the lady’s toilet. The grandson of the said Baby Sayer/Sea used to invite us to the house of Babu Sayer/Sea for water and Uji – Mjukuu wake. Shamsa refused and said who would be beaten. I went home with Shamsa.

Her recollection of the accused was faddy at first as she was scared about the court but she described the first accused by saying “Babu Sayer/Sea I saw has black hair not white” and described the sex ordeal I felt painful kuumaa kuumaa. Her friends the co victims described the sex the same and although she could not show the assailants her compatriots did. The sexual ordeal went on many times she said and I had no reasons to discredit her either.

As for Amina Shomary PW 15, I have covered most of her identification in volume 2 suffice it to say that she described the sex ordeal at length in a bitter mood as she cried profusely.

To show that Isabela knew her duty to speak the truth when cross examined by Nyange she said “I don’t like friends who tell lies”. Aza PW 12 just said she knew Zizel while under cross examination while Dei did not know Zizel at all.

Juliet PW 8 on cross examination by Nyange who tested her credibility by twisting names was very firm about Zizel’s role in her identification of the first accused. The same twisting of names was applied to Isabela PW 9 but was firm too. She verifed about Zizel but she said that she had refused to accompany her to the house of the first accused that is near their school. Therefore the victims told the truth that they were raped by the male accused in the dock.

On the identification of the accused persons, YASINTA MBELE, PW 11 when she was examined in chief stated that she knew the accused persons in the dock and touched each accused and identifying them respectively. For the 1 and 2nd accused by names and said “The 3 and 4th Know them by face not by name.

The Counsel for the male accused persons complained that Yasinta at first she used the name Nguza identifying the first accused instead of Babu Seya/Sea like others and to him it was a fatal contradiction.

With all due respect, to the contrary. Yasinta was recounting her first encounter with the first accused when the latter introduced himself in that name. To cement that she actually remembered how she met the first accused. In her evidence she said “I saw the first accused at our school compound Mashujaa. I saw him when I was going to visit Juliet my friend. The first accused was outside a shop which was near the accused house”.

It is to be noted that while discussing Gift’s evidence above the issue of the first accused house 607 the near by shop/container and the proximity of both to the Mashujaa School was elaborated. Suffice it to say that there was a route to that school before the wall was built.

Yasinta remembered even the time 6.00 a.m. The reason to have gone so early instead of 7.00 a.m. the usual reporting hours was to get Juliet to aid her in the cleaning of the school. She says she got her and that after the cleaning they resumed classes. So she was not telling lies.

Yasinta further memory on her further encounter with the first accused was the same day hence his further identification. She said “The same day at 11.00 a.m. we were from classes with my friends. We were passing and Nguza held me and my friends. Nguza the first accused caught me. I was with my friends Gift, Juliet, Alisia Isabela, Aza”.

When Yasinta was cross examined by Mr. Nyange she was not swayed away and she emphasized “The first accused is called Nguza. Babu Sayer/Sea is the same one as Nguza”. Yasinta open up more during the cross examination about her identity of the first accused. She said “The first time I met Nguza and we talked. The first time it was Zizel who took me to the first accused. Zizel is the grandson of Nguza. She said “The time Zizel took me alone to the first accused. It was Zizel who first took me to the first accused.

Nguza told me to look for nice children”. As seen earlier Gift testified about Zizel and the first accused and about the first accused repeating the words watoto wazuri. Yasinta also, knew the first accused through Zizel.

Further identification of the first accused and 607 is seen from the evidence of Yasinta when examined in chief she said “I have not kidnapped any person to take to Nguza. My friends went on their own volition to go to Babu Sayer/Sea. I took my friends to Baby Sayer/Sea but they went there on their own volition”.

Yasinta further identification of the first accused on examination in chief Yasinta testified “One day Nguza while I went to buy a pencil near our school in a shop, he told me to go and to call my friends. I called Gift, Julient, Aslia, Isabela and Dei. I found them playing in our school compound. I told them “Let us goto one Baby called Nguza who dishes out money”. They asked me the name. I told them the first accused’s name. I took them and left them with Nguza and left”. I found them playing in our school compound ------ to buy a pencil near our school in a shop” by inference the house is 607.

Mr. Nyang did not show why Yasinta would volunteer to be the one to be play the role to be the one to be arrested in the coaching? As it real happened she was arrested in the school and was taken to Magomeni Police station in custody and was interrogated by the police about taking her friends to the first accused? In a performance or concert it is possible, but not in the real life unless there is a benefit to that. What was the opportunity cost for yasinta? Yasinta was bitter when she was testifying about her arrest. She was distraught.

All the victims testified that the first accused had silenced them into revealing the sex by telling them that should they, not only would he cut off their mouth, noses and ears, but, he would also send them to the police. They feared being taken to the police so the silence.

So what would induce Yasinta to volunteer to play this role during what the defense Counsels call it coaching/rehearsal. Assuming that the victims were coached, they must have rehearsed. Yasinta must have been the one to say that she was taking the other victims to the first accused for sex etc. Who was coaching and why? Where, when and for how long could the rehearsal take place for all the ten victims?

I have no doubt that Yasinta was a trustworthy witness and that she was telling the truth. She could even single out the first accused as the one who tied her face although she said “The first accused was with his three children in the dock”. They were taken to the room, undressed and tied their faces with black cloth. Yasinta had another chance to identify the first accused before the sex.

During the sex Yasinta says she was undressed before their faces were blind folded. This gave her as yet another chance to be acquainted to the identify the accused persons. The sex went on for long so she had ample time to identify the male accused persons.

Although Gift forgot to mention Yasinta again in her evidence, Yasinta did when she was narrating how she convinced Gift, Alisia, Juliet, Isabel and Dei to accompany her to the first accused 607. This omission to me is not fatal in that the substance i.e. identification is the key contrary to the defense submissions.

Yasinta explained what happened after classes which was the second time during the same day on their way home. The first accused got hold of her while the other male accused caught the rest of her friends Gift, Alisia, Juliet, Isabel and Dei taking them to his room 607.

After they were undressed they were oiled their private parts, and sexes both in front and the anus. Some were placed on the mattress on the bed and others on a mattress on the floor. She was put on the mattress on the floor. This piece of evidence is repeated by all the victims. She could tell the subsequent sexes who had sex with her because she said when they went there the second and the other times they were not blind folded. So she identified the four male accused who sexed her. She was more particular in saying that the first accused was the one who told her the names of the second to fourth accused person as his children.

Yasinta like her companions was paid money by the first accused after the sex. The first time she was paid 200/= (two hundred shillings) and left. Almost all the victims testified to have been paid after the sex. I have already demonstrated above when analyzing the evidence of Gift. Rehema was paid also 200/=, Julieti 400/= [four hundred shillings], Isabela 300/= [three hundred shillings], Aza 200/= [two hundred shillings], Dei, Amina and Sia did not mention the money that they were paid.

Yasinta described what was in that room in 607: wardrobes, and money drawers (madroo ya hela) tallying with the other victims.

Her description of the first accused with vipele was the same like Gift. So she identified him though this. Although her version is slightly different with the others but in substance the identification of the first accused by Gift and Yasinta is not in doubt. It can be seen that she was constant when she was cross examined by Nyange when she said “Only one time we were tied with a cloth on the face on a day I can’t recall”. She emphasized about the vipele that she had to break open. She was firm that she didn’t see a scar on the leg of Nguza. She said again that the penis had no vipele but the laps and she demonstrated. She recounts that the accused were naked. I didn’t see any special mark on kthe bodies of Nguza and Pappii. So she saw them often to know them.

To show that the victims were going to the accused often and therefore their proper identification Yasinta said “In the evening Nguza would tell us “Gift Mama, Nguza Baba na siye watoto”. We went to Nguza with Gift to collect our money”.

Therefore, Yasinta was not telling lies and she impressed the court that she was credible witness. It was during the day when she met him more that once before anything was done to her. So her identity of the first accused was water tight.

There identification about them was proper linking them with the crime. About the victims fabricating the evidence I am of the considered opinion that they did not judged from their testimonies and that of the police and their parents as seen before. I find it fantastic in the extreme to suggest that these ten victims could set up this case”.

VOLUME THREE 1 – 10 Aza, Isabela Juliet, Agneta, Yasinta identification. After a very careful consideration over the evidence above I observe as the following:

It is notdisputed that the alleged victims who are the material witnesses are females, aged between six to eight years when the alleged crime took place, therefore, they were of tender ages. That the same were residing in the neighbourhood of Palestina Sinza near their school gong to and fro the school on foot was not challenged.

That 607 belonged to the first accused was not an issue after he admitted the same in his sworn evidence. That 607 is adjacent to Mashujaa Primary School hereinafter referred to as the school is not disputed.

The first accused conceded that there was a route via 607 to the school before the wall was built to separate the two. There is no dispute that the there was a contained cum shop close to 607.

It was also not disputed that the first accused is the father of his co male accused persons.

It was certain that the fifth accused person a female, was a class one teacher in the school when the alleged crime took place. That the alleged victims’ class timetable was as early as 6 O’clock in the morning up to 11.00 a.m. was not challenged.

None of the parents/guardians of the alleged victims and the Police witnesses knew the male accused persons before the arrests for the alleged crime.

It was not an issue that Zizel who features in most of the prosecution witnesses [the victims] is the school mate of the victims and the grandchild of the first accused person. But Zizel does not reside in 607. Therefore Zizel is closely related to the other male accused persons.

That the victims were in class one in that school between April 2003 and October 2003 before the accused were arrested was settled as follows:

The alleged victims testified that they were in class one at the school meaning 2003, so were all the parents/guardians, other material witnesses. To be precise when Candy PW 1 was cross examined by my learned brother for the male accused Mr. Ringia, she said “Gift is in class one this year with effect from February. Before she was at Nursery Sinza for one year”. When cross examined by Mr. Ndolezi for the fifth accused she emphasized this point by saying “I know the class room of Gift and that is why I went to the class room”.

Although Gift PW 2, like the other victims, could not remember when she started the class one, when she was cross examined by Mr. Ndolezi advocate she stated “My name is Gift. I am at Mashujaa Class one. I started in a year “Zamani”. By inference since she was testifying on 19 November 2003 to her it was a long time ago since she started her class one. “There are three classrooms A, B, C, ----- I went to the teacher with my mother Candy to report. We went to our classroom. We found our class teacher. Her name is Mwalimu Kailembo”. The latter is conceded by the fifth accused in her defense and by her defense witnesses.

About Kailembo being the class one A teacher was affirmed by: Rehema PW 5, PW 6 Hadija mother of PW 5, Conjesta PW 7, mother of Juliet PW 8, Isabela PW 9, Mary Chitumbi PW 10, Yasinta PW 11 and Aza PW 12.

Gift clarified further about being at the school in class one, by saying that she was in one class with the first accused grandchild called Zizel. That the latter introduced the subject about Babu Seya/Sea being her grandfather, and Pappii and Chichi as her brothers. This is supported by Juliet PW 8 who said that she went inside 607 with Zizel and met Baby Seya/Sea, Pappii Kocha and others when she was cross examined by Nyange. Yasinta and Alisia PW 3 when they were cross examined by Ringia they emphasized this point.

As for Alisia PW 3 her evidence about being at the school with the rest of the victims is confirmed further when she replied Mr. Ndolezi that last year meaning 2002 she was in tuition classes. Her guardian PW 4 Aisha confirmed the evidence of Alisia PW 3 about her classroom.

Regarding the time span of the alleged crime I find that the alleged crime was committed between April and October 11, 2003 for the following reasons: As demonstrated above, the victims were in the school within this time span. All along their testimonies, they referred to {“ON THEIR WAY TO SCHOOL OR FROM SCHOOL OR AT THE SCHOOL”}. Some of the parents/guardians were called to the school where they learnt about the sex scandal. All the accused were arrested after the alleged crime and were in custody by 12 October 2003. All of the victims and their parents/guardians testified in court after 11 October 2003. This was after the arrest of all the accused persons who are in custody.

Since the alleged enterprise was smashed on or around 11 October 2003, it is safe to conclude that the alleged crimes were performed between April and October 11, 2003. See Athuman Ally Maumba Versus the R. High Court Criminal Appeal No. 95 of 1989 as up held by the Court of Appeal Criminal Appeal No. 23 of 1990 [both cases unreported].

It was a fact that the case was held in Camera as per law required therefore, as correctly submitted by the Prosecution the rights of the fourth accused were not infringed as submitted by Mr. Nyange.

The court was mindful of the legal requirements of section 127(2) of the Evidence Act, 1967 contrary to my learned brother for the male accused person submissions. The testimonies of the alleged victims were taken after the Court had conducted a short interview voire dire to find out if they were sufficiently intelligent to justify reception of their evidence and understood their duties of speaking the truth.

Through the interrogation they differentiated between telling the truth and lies and oath. Consequently the court concluded that they were sufficiently intelligent and understood their duties to speak the truth as against telling lies. All of them gave un sworn evidence. However, Alisia PW 3 who did not know the definition of oath, but, understood its moral obligation and consequences of giving false evidence testified on oath. I therefore, concur with what was submitted by the Prosecution on this issue.

The following is the account report of the parents/guardian examination in comparison with that of the examining Doctor Ngiloi PW 20 of the alleged victims in relation to the respective counts:

All the alleged victims had the examinations of HIV, VDRL, HVS and all the results were negative. The doctor recommended the tests of HIV to be done again after three months. For all the alleged victims except Rehema, they had suffered grievous harm, caused by blunt object.
The examination was done under anesthesia surgery at Muhimbili Hospital.

Starting with the first and second counts against Aza:
Aza PW 12 was examined by her grandmother who did not testify. Her father PW 17 Hassan Gamaka did not examine her either. Aza testified to have been sexed both in front and behind several times. Her medical Exhibit P3 shows foul smell, vaginal discharge, hymen was torn; Anal Sphincter was lax. Conclusion was that the victim Aza had been raped and sodomised.

Rehema Mgweno PW 5 hymen intact, anal normal.
As for the third and fourth counts concerning Rehema Mgweno PW 5, when her mother examined her she noted that her vagina was wide. Rehema on the other hand testified that she went to the first accused person and the latter put his penis “mdudu” inside her vagina and her anus, sucked his penis and licked the plies/vipele at the penis she broke open. However, the Doctor’s report Exhibit P5 showed no sign to sexual abuse because the Doctor said “hymen intact, anal normal.

Alisia PW 3 the hymen was intact lax and anal Sphincter.
The fifth and sixth counts are against Alisia PW 3. She testified that she was taken to the first accused person by Yasinta who lured her with the alleged victims to the first accused person to get money. She did and was sexed both in front and anus and the first accused person had oral sex with her. When her guardian Aisha Mrutu PW 4 examined her she noted that her vagina and anus had blood and pus with a foul smell.

Exhibit P1 the doctor’s results were as follows: Clinically she had perianal old bruises and lax anal Sphincter, hymen was intact. Conclusion was that her anal was perforated.

Isabela Angonile PW 9 torn hymen and old perianal bruises.
Counts seven and eight are against Isabela Angonile PW 9. She like most of the alleged victims testified to have been taken to the first accused person where she was sexed in the vagina and anus and had oral sex. Her evidence was supported by her mother Mary Chitumbi PW 10 who examined her on 11 October 2003 finding her vagina wide with shahawa semen. Exhibit P6, the Doctor’s report that states: She had a torn hymen and old perianal bruises. Conclusion: The child had been sexually abused.

Juliet Mbazeki PW 8 Exhibit P4: Hymen was torn. Anal Sphincter lax Counts ten and eleven concerned Juliet Mbazeki PW 8. Like the others she testified that Yasinta took her to the first accused person at 11 a.m. after school where the first accused person and his children had sex with her in her vagina and anus for three days each hour “kila saa”.

Her mother Conjesta PW 7 supported her version in that when she examined her, she found her vagina and anus were wide with foul smell. Exhibit P4 records: Her Hymen was torn, anal Sphincter lax. Conclusion is that the child had been allegedly sexually abused.

Dei Jaffari PW 13 Exhibit P9: Foul smell vaginal discharge, hyperemic Hymen, Anal Sphincter was intact.

Counts twelve and thirteen referred to Dei Jaffari PW 13. In a sobbing temper she said she went to show the police the rooms where the four male accused persons sexed “walikotufanya” her with her comrades. Brigita PW 16 examined her finding her vagina with foul smell like the doctor. Exhibit P9 record thus: Foul smell vaginal discharge, hyperemic Hymen, Anal Sphincter was intact. Conclusion: She was sexually abused in the vagina.

Gift Kapawa PW 2. Exhibit P2 Anal was perforated, hymen intact.
Counts fourteen, fifteen and seventeen referred to Gift Kapawa PW 2. Her recount starts with how Zizel the grandson of the first accused person introduced the subject that the first accused person was her grandfather, the second accused Pappii and the fourth accused in the name of Chichi. This was done while they were in class.

Later on she met the first accused person who bought her big ghee/chewing gum and did nothing else to her. The second occasion the first accused person lured her and her companions with Soda. Instead of Soda the four male accused persons had sex with her in her vagina, anus and oral sex. Her guardian Candy PW 1 backed her stating that before and after examining her she noted the foul smell. It is to be recalled that this foul smell was the key to discovery of the sex transaction. She also noted pus and fresh blood from the vagina.

However, the doctor’s report Exhibit P2 indicated that the hymen was intact. Clinical features of sodomy. Conclusion: Anal was perforated, hymen intact. The conclusion is that her anal was perforated.

Yasinta Mbele PW 11 Exhibit P10: Hymen torn, old healed perianal bruise, anal sphincter lax.

Counts eighteen and nineteenth, concerned Yasinta Mbele PW 11. Like the others she testified to have been sexed both in front and anus. Her guardian did not examine her. Exhibit P10 showed: Hymen torn, old healed perianal bruise, anal sphincter lax. Conclusion was that she was sexed in the vagina and anus.

Amina Shomari PW 15 Exhibit P7: Hymen torn and Anal Sphincter lax.
Counts twenty and twenty first, covered Amina Shomari PW 15. Her testimony was that she was sexed in the vagina and anus. When she was examined at her home the examiner found out that her vagina was abnormal. Her medical examination Exhibit P7: Hymen torn, Anal Sphincter lax. Conclusion: The child had been sexed in the vagina and anus.

Agneta Sia PW 14 Exhibit P8 torn hymen, vaginal discharge, lax anal Sphincter.
Counts twenty second and twenty third covered Agneta Sia PW 14. Like others she recounted the sex ordeal. Her guardian examined her noting nothing abnormal while the doctor, vide Exhibit P8 found out that clinically she had torn hymen, vaginal discharge, lax anal Sphincter. Hence concluding that she had been sexually abused on the vagina and anus.

The above said, on the evaluation of the evidence over all, the crux of the matter whether the male accused persons are the culprits. Starting with the PF III. Nyange challenged the some of the PF III that did not get the backing of the examining doctor, saying that the victims concerned had told the court lies.

True as submitted by Nyange that Gift’s allegation of being raped in the vagina was not substantiated by the evidence of the Doctor PW 20. But, her anus was perforated. The misgivings of Nyange to me apply to Rehema PW 5 [Exh. P. 5], Alisia PW 3 [Exh. P1] whose hymen was found intact but anus sexed, Dei PW 13 [Exh. 9] with foul smell vaginal discharge with hyperemic hymen [signs of infection detected] and the anus was intact.

The doctor in cross examination stated that Hyperemic and torn hymen showed sexual contact and that sexual act is not necessarily sexual penetration. Blunt weapons may be penis, test-tube, or fingers “vidole”. However, she zeroed in on penis or fingers – vidole. She added “I am sure hundred per cent that these were done by fingers or penis. It is not true that a babana is blunt but it is sharp. In my report I didn’t say penis or finger but blunt weapon”.

However, these victims testified in court and the record bears witness that they knew the male accused and these had sex with them both in the vagina, and anus let alone oral sex. They complained of pain except for one who said she felt nothing. The court rated them to be credible so they were telling the truth that the male accused persons sexed them. Therefore, although the PW 20 the doctor did not tell type of the blunt weapon was penis, I am inclined to hold that the victims saw the penises put in their vagina and anus.

Moreover, when the doctor was cross examined by Ringia she said that it was not necessary for virginity [I think he meant tearing of hymen] to be broken at once. The doctor went on to say that children who have been sexually abused may not show signs of abuse. This gains support from researchers like William W. Beck. He has found out that one of the basic components of rape is offender’s genitalia contact the genitalia of victim. Penetration by a penis through an elastic hymen may occur without laceration. See William W. Beck Jr., Obstetrics and Gynecology, “The national Medical Series for Independent Study at Page 244 © 4c”. He found out also that Hymen can be ruptured by masturbation. Id. 2.

For male genitalia to contact the female genitalia the former need not erect as assumed by Nyange in his submission that the first accused had no capacity to rape because he could not erect. The first accused person said his erection capacity was going down as time goes by. That did not mean that within the range of the crime he was completely malfunctioning. Even if he was, he could still penetrate slightly and that I why some of the victims above did not suffer vaginal and anus injuries under William W. Beck’s.

I will now comment that on the evaluation of the defense about the submissions regarding medical examination and the erection of the penis of the first accused. There were a lot of contradictions. For his defense in chief the first accused said that he was not able to rape because his last born was 17 and he has not given birth thereafter “sijazaa”. That for the past three years he could not erect properly and the situation gets worse as time passes by. As for medical proof to this effect he had none save that he was in the process getting medical aid assisted by his fiancée Farida DW 10 when he was arrested.

The first accused blamed the court for not allowing him to be medically examined. He also complained that there was no evidence adduced by the prosecution that he was medically examined. He never told the court in chief that he had wanted the doctor to examine his penis at Muhimbili when they were taken there by the police.

The court notes with concern how this piece of evidence caused a lot of controversy and furry to his advocate. This is evidenced in the advocate’s open letter addressed to the Resident Magistrate in charge Kisutu Court reproducing part of the court’s proceedings that were held in camera. His letter [Nyange] is dated 26 March 2004 soon after the court had finished the reading over the evidence of the fourth accused.

He rushed to his office, and wrote a long letter to the administration. He reproduced what he thought was the correct court version of the evidence, [critic] by disclosing the gist of the case held in camera in an open letter. However, in due course he attempted blame the court for his failure to represent the fourth accused properly by saying that he was not tried separately with the adults as per law required. His furry had misled him to forget his noble duties as an Officer of the court who owed a duty to his client the fourth accused person. I stand corrected that it is my considered opinion that, the proper recourse to correct court proceeding is not through the administration. Proper application should be made to the court for consideration so that both parties to the proceedings may have a fair hearing before a determination of the application. This is what was supposed of the advocate with respect to the rights of the fourth accused person and not to use the administrative authority as it followed in many other incidences in this case.

Going to as yet another way to fill in the gap, for the first accused defense, the co male accused, attempted to rescue the situation] on his behalf in their respective defenses. The third and the fourth accused persons testified that they refused to be examined at Muhimbili Hospital because their lawyer was not there. That they were examined under gun point, at the instructions of ASP Shilling PW 22. The second accused however, testified that after they refused to be examined, they were advised by a doctor to agree to the examination to avoid problems with the Government. Nevertheless, the first accused person did not say so in his evidence in chief, but he said so when he was re examined as an after thought. This is emphasized by the fact that his advocate did not cross examine ASP Shilling about his order to have the male accused to be medically examined at Muhimbili Hospital under gun point and refusing the first accused to have his examination of his penis.

Still on the issue of the examination of the first accused penis, whereas, the co male accused persons testified on behalf of the first accused that the first accused person told the doctor to examine his penis, on the other hand, the first accused person in his examination in chief did not say so. When the first accused was cross examined by the Public Prosecutor conceded that his first request for medical examination of his penis was through his lawyer’s letter addressed to the court but not that he asked the Doctor at Muhimbili Hospital after his arrest, to examine him as testified by the second, third and fourth accused persons. [There were submissions in court that followed this administrative letter, when the defense failed to get the court to react and act on the letter rather other than an application]. The first accused person for the first time talked about they and not him asking the police to have their penises checked at the hospital.

None of the other male accused persons ever told the court that they wanted their penises to be checked. The third accused person said that he heard the first accused person saying “We are charged of rape so I request that my penis be examined”. When asked what the first accused meant he replied that he did not know but this request was denied him by ASP Shilling PW 22. Again, Mr. Nyange did not cross examine Shilling PW 22 about this and the other accused persons demand to have their penises examined. Therefore, it was just an after thought.

Even if the first accused could not have full erection, there being the slightest penetration was sufficient to prove the rape as per law established. The victims proved that the first accused put his penis into their vaginas and anus and they sucked his penis.

The position of our law on penetration is clear that a slight penetration is enough to establish a crime. The virginity need not be broken to establish penetration. The Sexual Offences Special Provisions Act No. 4 of 1998 supports the above. Section 3 defines sexual intercourse “Whether natural or unnatural, shall for the purpose of proof of sexual offence, be deemed to be complete upon proof of penetration only, not the completion of the intercourse by emission of the seed. Injury means actual harm caused to a person and includes physical, mental and psychological suffering.

Section 5(4)(a) of the same Act states “For the purposes of proving the offence of rape penetration, however slight is sufficient to constitute the sexual intercourse necessary to the offence”. Section 5(4)(b) reads “evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent”. The case of FUNDI OMARI VR. [1972] HCD 98 the late Onyouke J., said: “Once penetration is established, there is no need to prove the emission of semen or even the rapture of hymen”. Supports the above.

Further guidance that a hymen can remain intact after penetration is found in England law books. Research has shown that an intact hymen can occur where there is no full vaginal intercourse or full penile penetration. See R. Versus M & Others, ALL ER 2000 Vol. 1.

Since a slight penetration suffices for completion of the crime as seen above, the submission by Mr. Nyange that what was done to the victims even adult women could not endure, and that it was impossible to have happened for the children and yet remain normal in their daily activities bolds no water. The doctor testified under cross examination by Ringia that a child whose hymen is torn can walk and do normal things un detected and that is why children who are sexually abused do not show signs of abuse. As noted that the same applied Gift [vagina] to Rehema PW 5 [Exh. P5], Alisia PW 3 [Exh. P1] whose hymen was found intact and Dei PW 13 [Exh. 9].

For the above reasons, Mr. Nyange’s submission that it was unrealistic for Amina Shomari PW 5 not to have felt anything during and after the sex in her vagina and anus by comparing her experience with that of the opinion given by Hadija PW who is a grown up mother about her first sexual intercourse does not hold.
So Amina Shomary was not telling lies in this respect.

His further submissions that it Amina Shomari should have felt pains because Dei felt pains when she was sexed and when Brigita PW 16 examined Dei with a finger, does not hold for the same reasons. As stated by the doctor PW 20 and the law if the penetration is slight it won’t be harmful as correctly observed by William Becks above. Brigita PW 16 was honest like the other parents and I have no reasons to discredit them. It is significant that Nyange concedes that Dei got pains during and after the sex and when she was examined by her mother by fingers. In so dong he has strengthened the prosecution case, and consequently conceding that Dei and Brigita did not tell lies.

It is important to note that Dr. Petronila PW 20 is a doctor specialist Pediatric Surgeon at Surgery Pediatric Unit (children) at Muhimbili Hospital Dar es Salaam, a national referral hospital. She qualified for her first decree of Medical Doctor at the University of Dar es Salaam in 1982. The second degree was in 1992 as Doctor Surgeon at the same University. Between 2000 – 2002 she read and obtained a degree in Cape Town University South Africa of Pediatric Surgeon except for the case. Rehema’s mother is Hadija PW 6. This hypothesis is not supported as he did not cross examine Candy PW 1, Aisha, Rehema PW 4, or Hadija PW 6 on this.

Gift was firm when she was vigorously cross examined by Ringia as she was when she testified in chief. She was specific about what took place during and after the sex. She said that she was put on the bed for the sex and all of the male accused would have sex with her. “Akitoka huyu anakuja huyu” she emphasized. She could name the second to be sexed as Alisia and the last one Juliet. About the cleaning she said “He cleaned us – alitunawisha siyo kutoosha. The sex process began again. There was no blood coming out the second time. This time he bath us – alituogesha. ---- Gift did not that they had a shower. [toilet].

This brings me to the submissions by Nyange regarding the toilet and water. Nyage submitted that Dei forgot the toilet when the court visited the room in 607 the alleged scene of crime, therefore, she was not a trustworthy witness. However, it must be recalled that the court visited the school without notifying the victims or the school authority. In the course of events, the court requested the teacher to call any of the alleged victims who had testified. Dei was taken out of the class without any notice as to what would be happening thereafter to he. Suddenly she saw the police in uniforms armed to ensure security and the accused were also present. To a child of her age, after all that she went through, it was as yet another retrieval of her sad memories. Any way she was stable and could assist the court to know actually what was going on. When we entered the scene of crime I could notice that she was anguished and was in a sort of panic. The same she tried very hard to compose and it is not surprising under the circumstances she panicked and could not remember the toilet. Otherwise, she led us through well.

Nevertheless, the court noticed a room inside that scene of the crime. When I asked the first accused what was in that room and wanted to open the same, the first accused asked the court not to open it as it was a toilet that was not prepared to be viewed. All the same the court viewed the same. It was a toilet with a shower. Nyange submitted that even if the court saw the inside toilet with a shower, in the scene of crime in 607, it was not shown if it was western or eastern. With all due respect to my learned brother, regardless the type of the toilet, the crux of the matter was that the victims testified to be washed and bathed inside the room 607 after the sex and the bathroom was seen therein.

That there was no running water then, as advanced by the defense, is of little significance. This is so because, the victims did not say they had a shower. They said they were bathed. As correctly conceded by the defense, the water that would have been used to bathe/wash the victims, would not have been special water that was different from the water that would usually used in 607 by other occupants. Since the first accused was using that room where the sex is alleged to have taken place, and there was a bathroom and toilet, it is reasonable under the circumstances to conclude that, the victims were washed therein with water, regardless of how the water got in there. Therefore the submission does not hold. This in turn further advances the prosecution case that the victims were not telling lies.

More identification of the accused persons and the room in 607 in connection with the sex, can be seen when the victims recounted of what was done to them as horrendous. They testified of the sex both in the vagina and anus, the oral sex, even licking the anus like was done by Gift. Even when she was testifying I could note her expression of reality of feeling nauseated. That Gift like her compatriots was also psychologically affected could be seen in the court when she was helplessly demanding for her dues.

To cement the issue of payments when the curt wanted to adjourn the case the following an expected happened in court:
Gift Witness: I want Baby Seya/Sea to give me my money today. The amount is 400/= and one thousand shillings.

Court: All the accused smile.
Court: The Witness is very serious and sweating at the head and asks: “Why isn’t Babu Seya/Sea giving me my money today?” I want the money to use – (she wants to cry). I am not leaving without my money.
Mr. Ndolezi: Subject to CROSS EXAMINATION
Court: a female Public Prosecutor comes up and takes away the witness reluctantly.
Nonetheless, she was never subjected to one on this issue. Gift’s evidence in chief lasted for about five hours and still she had the stamina and did not loose track.

Alisia vividly recollects about the insect she had to swallow and the sex both in her vagina and anus. This was but an instance that reminded her of her poverty and quest for money, and partially answers the first accused person query during his defense as to why the victims continued to go for the sex despite the torture. Alisia said “At times Babu Seya/Sea would show us a lot of money saying that he was rich and our parents were poor. That our parents could not dress us. That even the police at Sinza goes to him to beg for money”. Earlier on in her evidence in chief Alisia testified that she would be given 50/= to go to school by her guardian. This is an example, but it was the trend in the whole case for the victims except for few details. I need not over emphasize that all the victims told the court the truth.

Nyange submitted that the victims were blindfolded, and so they could not identify the accused persons. As shown above the sex took place more than once. Even when Gift for example was blind folded once according to her, she would peep. To show that she was not blindfolded all the time she could see the scar on the first accused legs and hair [manyoya] in his body and piles – vipele on his penis which they had to break open and lick”.

Nyange argued that this was not substantiated. It is true that the body of the first accused was not examined to see whether or not he had the scar. However, since the credibility of Gift and her companions is not in doubt, I believe her that she like her friends saw the scar and the vipele on the penis of the first accused. She sucked the same and even licked the anus of the first accused so she saw these. The victims say that the first accused was naked and that is how even Gift saw the body with the hair manyoya. The other victims saw them too.

The submissions by Nyange that the victims were covered, hence deterring them from identifying the accused persons does not hold. Naturally the first accused would not cover the faces of the victims outside his house lest it brings eye brows and the children could have felt suspicious then. So Gift reply to cross examination that the black pieces of clothes were tied on their faces when they entered the house appears logical. It was also logical that the clothes tied on their faces were removed kin the same room for the same reasons. “They did so after they had done the bad things” [sex] Gift insisted.

About the description and identity of the first accused person Agneta Sia did. It is recalled that when Nyange was cross examining Agneta Sia PW 7 although very young and was so terrified and was crying all along in court when narrating how she was sexed in the vagina and anus, she could not recall any of the accused persons at first. But when she was cross examined further by Nyange, she said “I have a grandfather. He is thin. He has hair on his head what colour”. Yes white. Babu Seya/Sea I saw has black hair not white”. True the first accused has black hair. Hence fitting to Agneta Sia’s description.

Consequently therefore, showing that Agneta Sia was not telling lies, but she was just scared if not petrified by the court room and the people therein due to her tender age and the terror to retrieve the whole episode. The same applied to Amina Shomary PW 15 when she narrated the sex ordeal [Amina had to be transferred to Mbagala to another school because of the episode]. She actually broke down.

Nonetheless, I am amused by the learned brother for the four male accused comments regarding the mood of Amina Shomary. Even if the rest of the victims say they were with her all along, her evidence regarding to what happened to her body is most reliable. See id. Maumba.

Amina recounted that she escorted Zizel to the first accused 607 to drink water. Recall that Zizel is the grandchild of the first accused and does not live in 607 and that is how she was pulled into the room by the first accused that molested her once. Her PF III Exhibit P15 shows hymen torn, and was sodomised as was shown above. Therefore, her testimony which was a true reflection of what happened to her coupled with her examination at home and the PF III supports her being sexed and that she was injured psychologically.

About the identities of the accused been unrealistic Nyange submitted that Amina Zuberi the guardian of Amina Shomari saw the male accused persons with hand cuffs at the police station and all the children saw and hence the identification of the accused. I find that does not hold as demonstrated above.

It is on record that, Amina went to house 607 for water. Before Amina was pulled into the 607 by the first accused, she had ample chance to identify the first accused. Even assume that she was blindfolded there after, she was washed, dresses and given money. So this gave her ample time to recognize her assailants.

That Amina was injure psychologically could be seen during the proceedings. The court had to move to the chambers because she would not want to retrieve her memory. If even in the chamber where we had to hold the session, Amina had to hide by me because she was petrified. To retrieve her memory and describe the accused room was too much for her. After all she went through during the sex ordeal and thereafter: The being called at the school when her sister Zinduna was told of her bad habits tabia mbaya na Babu Seya/Sea, taken home, examined, then taken to police, interrogated and again medically examined and finally being transferred to another school was to say be least more than enough.

Despite all this Amina was firm that she was sexed once. When she was cross examined by Nyange, she was firm on what she saw at the house 607 when she went to the first accused with Zizel. She saw an old lady who was introduced as her grandmother who held a baby. She knew she was in the class One B taught by the fifth accused but unlike others she did not mention English as the subject taught by the fifth accused.

Therefore, her memory about the first accused and 607 and the grandmother was correct. It is supported by the defense that said that the mother/grandmother of the male accused lived in 607. So Amina like her companions properly identified the accused persons.

The transferring of this witness to another school waters down the defense thesis that the parents and guardians of the victims framed up the accused. Why would Amina’s parent set up the accused by using Amina and then have the trouble of also disturbing Amina’s studies?

On the frequency of the sex ordeal Gift said “Since we started tuition the group would take us for sex. Many, many, times (Mara nyingi tu)”. Her compatriots testified about the sex taking place more than once except for Amina.

To be sure that Gift had not been coached or made to give false evidence as submitted by Nyange, her credence was finally tested by Mr. Ringia and she said “Before I came to this court I did not see the First accused and the three others. Te same test was applicable when she was cross examined by Mr. Ndolezi who tried to change names but she would not be shaken or swayed either.

The identification of the male accused was done also during their arrests in 607. The first accused was separately arrested on 11 October 2003 afternoon in 607. PW 23 PC Samwel testified that he arrested the first accused who was not known to him after he was identified by Gift PW 2. The defense submitted that there was discrepancies as to who identified the 607 for the arrest of the first accused.

As found above, the victims had visited 607 several times between April and October 2003 where they were sexed. So they knew the 607 well including Gift. Therefore, I have no reasons not to believe Samwel when he said that gift identified the first accused and consequently he arrested him. Although the first accused denied to have been arrested on this date, and that he was performing on the alleged date and called DW 17 Ndanshau to support him I still hold that the first accused was arrested on 11 October 2003 around 2.00 p.m. for the above reasons.

The identification and arrest of the second to fourth accused apart from the dock was done during their arrest while they were in 607. What so ever the reasons that made them to be in that house, they were arrested in 607. The crux of the matter is they again identified by the victims this time?

PW 24 Jordan testified that he arrested the second to fourth accused persons on 12 October 2003 in 607 as identified to him by six victims naming them as Gift, Alisia, Amina and Yasinta. The three accused contradicted themselves as to how the police entered 607 and their arrests. The second accused said it was around 2.00 p.m. when people in plain clothes stormed into the house and said “Pappii Kocha you are under arrest”. Although the third accused person disassociated himself with visiting 607 except for the weekends in the companionship of his wife/fiancée, Duncan Matembe DW 6 testified in chief that at times he saw the third accused person in 607 between 11 and 12 Noon on weekdays, but not as a routine [iv 1 [202]].

All the same the third accused person differed with the second accused person about what took place in 607 just before and during their arrests therein. Whereas, the second accused person said they were ambushed while discussing about the arrest and bailing out their father the first accused person, the third and fourth accused persons said two people knocked and they welcomed them in.

During the arrest, the third accused person said the words “Pappii Kocha you are under arrest” were said at the corridor the second accused person said in the sitting room where they were. All were for the obvious purpose indicated that Elombee and Albert went out of the room, leaving them in the room just before the policemen came in. I believe Jordan that he was telling the truth and especially that he did not know the accused prior to their arrests.

The three accused conceded in their defenses that the children who gave evidence in court and their parents entered 607. Their story that the children were told to identify Papii Kocha but, could not and that they mixed up Nguza Mbangu and Fransis with Pappii Kocha hold no water. They were identified in the presence of Eleombee and Albert because they were discussing when they were ambushed.

Further identification of the accused persons was when the victims with some of their respective parents/guardians went with ASP Shilling PW 22 to 607 after the arrest of the male accused persons.

ASP Shilling was the chief investigator of the case. He testified as follows:
On 11/10/2003 morning hours I was at Urafiki Police Station. I got a report that there was a case opened about young children who had been raped. These, we were told are from Primary School. The report was given to me by the in charge of the station. He told me that the culprits were Baby Sayer/Sea and others. I ordered him to open a file and cause the arrest of Baby Sayer/Sea.

On 12th October, 2003 I was told that the culprit Baby Sayer/Sea was arrested, and that by then seven children who were victims had reported. I ordered the file to be brought to my office Magomeni. By then 12/01/03 at 11.00.a.m. the file was brought and there were then four suspects already arrested: Babu Sayer/Sea, Pappii and others all, the 3 the children of Baby sayer/Sea. By then the victims were seven and later they increased to ten who were 6 – 8 years of age. All were in class one Mashujaa Primary School.

With ASP Kisai from the Regional CID Office we visited the scene of crime. I was with Assistant Insp. Shami and 3 others. We went with the children 10 who had named the scene of Crime as the house of Nguza Vicking near Mashujaa Primary School Sinza, Palestina area. Some of their parents/guardians were there with us on this journey. I wanted the victims to identify the house of Baby Sayer/Sea and the room where the crime took place.

The children had said that the room was big, a lot of male suits, one bed and a mattress and another mattress leaning against the wall. I wanted to prove these. By then we were on the same journey with us. The children were with us in front while the accused persons were behind us.

The children pointed at the house and we stopped. We cam down and there were civilians who were not police at the scene. One Mr. Mzava we requested him to bear witness”. Therefore, it is the victims who testified in court who pointed the 607 to this witness and that had no relevance with the identities of the accused persons who were seen at the police station under hand cuffs as submitted by Nyange. To the contrary they identified the 607 as the house where they were sexed.

I do not agree with Nyange’s submission that Gift and Candy knew 607 because she was taken there by Selina. I say so in lieu of the reliable testimony of ASP Shilling.

According to the evidence of ASP Shilling, “The children victims led us into the room which was the last room to the right. They showed us. Then the accused person four in all followed and we were with Mzavas [a civilian]. The room had a lot of suits of adult which are from wall to wall (one angle of the room to the other). I didn’t count them. I saw the mattress leaning on the wall and a bed with a mattress as stated by the victim children. There were other things in the room but my focus was on what the children had stated.

Nyange was of the opinion that the above could not be true because Mzava was not called to testify and there was no “Mjumbe Chama Ca Mapinduzi or Local government leaders” who verified the search and the events in 607 then. The court holds to the contrary because, the victims whom I found reliable had testified about what they had seen in the room in 607 and ASP Shilling verified. When the court visited the room in 607 the suits were seen. There was no reason why ASP Shilling would tell lies against the accused persons. After all he was mtaarabu tu during the search, to quote the first accused in his defense. After all ASP Shillingi only knew the first accused person after he was arrested as seen when he was cross examined by Nyange.

Consequently, lack of a civilian witness in this incidence was not an indication that the victims and ASP Shilling fabricated the evidence.

So I concur with the prosecution submissions that the victims were familiar with the accused persons, and identified them as the people who raped them. That being the case, an Identification parade would not have rescued the male accused persons either.

The defense attacked the variations in the victim’s recollection as telling lies. However, experts have found out that when the memory of a sexually abused person is retrieved, the core memory may be accurate, but not the details said Mr. 0’Reilly a clinical psychologist. See R.V.M. & Ors ALL ER 2000 Vol. 1.

For example that according to Gift, there were no other people in the 607 while the other say they saw grandmother and a baby. The defense that there were other people in 607 like the band performing and therefore, they would have seen the sex going on I far fetched. Even if there were other people in the house normally for sane people, sexual intercourse is done in secrecy as conceded by the defense.

Agree there were some discrepancies of testimony of the various children witnesses but were not on material points. I have very carefully weighed them and find that these but insignificant in substance. This is also taking into account that the offenses took place for a stretched period April to October and the victims are of tender ages.

In the case of HAMISI ABDALLAH V. SAKIRUSUNGI [1978] TLR NO. 4, held that:
“Discrepancies of testimony of various witnesses on material points must be carefully weighed but trifling discrepancies are to be ignored as they are often a test of truth. Several witnesses testifying to any event witnessed by them are naturally liable to disagree on immaterial points; it is only the material points in the evidence that must be considered kin weighing evidence”.

In this instant case, the testified children were raped by the male accused persons in more that one occasions over a period of over six months. As said earlier the key material witnesses are females of tender age. That being so it would be less than just to expect them to remember all facts, dates and time of the occurrences of incidents of similar character over a period of such time. So I concur with the prosecution submission that, the discrepancy were trifling discrepancy which the Court should ignore.

Frame up
The Counsel submitted that the children were not free witness”. I assessed these witnesses and found them credible. The victims gave evidence of the sex from time to time. There are medical exhibits PF III. I have demonstrated that even for those whose medical evidence did not reveal the signs of being raped they were in deed raped both anus and vagina and had oral sex. The victims identified the male accused persons properly.

None of the accused persons could show why they were framed up. When the first accused was examined in chief by Mr. Ndolezi he said that his house 607 was adjacent to Mashujaa Primary School but he had never gone therefore any reason. The first accused person could not tell why he was framed up with the crimes.

When he was Cross examined by the Public Prosecutor the first accused person said “I have never been friends with Candy PW 1 guardian of Gift. I have no sexual relationship with any of wives of the Prosecution Witnesses. This negates the defense story that Candy was the evil person behind their frame up. That I have not quarreled or had any misunderstanding with any of the Prosecution Witnesses including having any qualms with ASP Shilling PW 22. Actually while he testified in chief he spoke well of the ASP Shilling by saying that he was “Mtaarabu tu” during the search in 607. He admitted that he had not quarreled wit anyone about 607 regarding rent or ownership or the like.

It was only the second accused who just said that they were framed up because they were famous in music. However, his general contention that the whole episode was a mischievous fabrication due to there fame was “to say the least beyond imagination hence baseless”. See Ally Nassoro V.R. Court of Appeal Criminal Appeal 107 of 2003 [Unreported]; See id. Maumba.

I concur with the prosecution submissions that it must be taken into consideration that these offenses took place from April to October. Of course the court has demonstrated the same. Over this long period the victims whose testimonies I had no reason to doubt identified the accused persons as the rapists. These were no longer stranger, the male accused persons got so used to the victims that at one time they were chatting inside 607 “Gift mama, mimi baba, nyie watoto”.

So this is sufficient period to observe the male accused persons. They [victims and the male accused] as submitted by the prosecution were meeting during the day not night. They met outside the 607 and together went inside where the victims were sexed. Even if the curtains were pulled in 607 during the day as the court observed the day it visited the scene 607, there was still light sufficient to identify the male accused while the sex went on.

Therefore, I conclude that there was proper identification of all the male accused person i.e. The first, second, third and fifth accused persons that they are the persons who raped and sodomised the victims under the guidance of WAZIRI AMANI case cited by the PP. See WAZIRI AMANI VR [1980] TLR 250 [Court of Appeal]. The same principles were reiteratred the same Court of Appeal in Criminal Appeal No. 58 of 2003 Selemani Omari and Two Others Versus The Republic [unreported].

In lieu of the above, although the male accused persons took great pains to substantiate their alibis, their efforts were all in vain.

Therefore, I find that the prosecution has proved it case beyond all reasonable doubt. I accordingly find the first, second, third and fifth accused persons guilty as charged and I convict them forthwith.

About the fifth accused person I find as follows. On the evaluation of the evidence, I concur with Ndolezi that the fact of the matter was that the victims were not sure of who taught what in the school. Not even their respective parents/guardians. That the fifth accused taught the victims and in particular English was hazy. That she even taught Class one A where most of the victims were, was not established. Some of the victims testified that they never went out of the class to be sexed by the accused persons. The co male accused denied knowing the fifth accused person and vise versa. On the review of the evidence the defense outweighs and even shakes the prosecution case.

Isabela did not in her evidence, testify having been permitted to go out of the class to accompany the first accused the latter having sought for permission from any teacher, let alone the fourth accused person. Although Gift tried to convince the court about the first accused person going to the classroom A and sought permission from the fifth accused to take her; it was not proved beyond doubt.

It is the cardinal rule that the prosecution should prove its case beyond all reasonable doubt. If there are any doubts, the accused must be given the benefit of that doubt. Which is the case of the fifth accused person in this case.

As for the rest of the accused persons, I find that the prosecution has established its case beyond all reasonable doubt. I accordingly find them all guilty as charged. Consequently, I give the fifth accused person the benefit of doubt and I acquit her for the two counts above forth with.


Addy Lyamuya PRM

Thursday, June 24, 2004

 

[Buchanan]

Kwa hiyo ulitaka kusemaje kuhusu ushahidi wa kesi ya Babu Seya?

 

[Waberoya]

Mmh! siku nyingine weka full document kwenye word, mtu afungue anapotaka, halafu wewe summarise.

However, mambo ya sheria ni magumu sana kuelewa kwa haraka,

 

[Tigershark]

Kama kuna mtu amesoma mpaka mwisho kama mimi anishtue nimtoe bia 4

 

[Ushimen]

Kwanza hii lugha kwangu ni mtihani, alafu hii hukumu ilisha batilishwa kwa msamaha wa Rais, alafu uzi wenyewe mrefu..... hata nikitumia Dictionary nitamaliza kusoma kesho na hata nisielewe...

 

[Fideliiiz]

Mhhhhhh

 

[Yamakagashi]

Duuu hii hata ukinishikia bunduki sisomi yote

 

[1gb]

Wa vivu pita mbali..
Njia yetu hii huku________>>