IN THE COURT OF APPEAL OF TANZANIA

AT MTWARA

(CORAM: MUGASHA, J.A., MWAMBEGElE, J.A. and KEREFU, J.A.>

CRIMINAL APPEAL NO. 342 OF 2019

JOSEPH PAUL @ ALEX MAKUA APPELLANT

VERSUS
THE REPUBLIC RESPONDENT

(Appeal from the Judgment of the High Court of Tanzania,

at Mtwara)

(Dyansobera, J.)

dated the 2nd day of May, 2019

in
Criminal Appeal No. 95 of 2018

JUDGMENT OF THE COURT

20th & 25th November, 2020.

MWAMBEGELE, J.A.:

The appellant Joseph Paul @ Alex Makua was arraigned in the District

Court of Lindi at Lindi in Lindi Region for the offence of attempted rape

contrary to section 132 (1) and (2) (a) of the Penal Code, Cap 16 Revised

Edition, 2002 (the Penal Code). The particulars of the offence part of the

charge averred that on 16.12.2017, the appellant attempted to have carnal

knowledge of a girl named RHM; a pseudonym we will use in this judgment

to conceal her identity. He pleaded not guilty to the charge after which a

full trial ensues. After the full trial, the trial court found that the

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prosecution had proved the case against the appellant beyond reasonable

doubt consequent upon which he was found guilty, convicted and

sentenced to serve a statutory minimum prison term of thirty years. He

unsuccessfully appealed to the High Court, for Dyansobera, J. upheld the

conviction and sentence imposed by the trial court and dismissed the

appeal entirely. Undaunted, the appellant preferred this appeal on five

grounds of grievance which we paraphrase as under:

1. That the two courts below erred in law and fact by convicting

the appellant on believing the evidence of PW4 a Village

Chairman of Tangamano Mtwara and PW2 ZUHURA BAKARI at

Makumbika Village who testified before the trial court that the

appellant admitted to have committed the alleged offence

without the statement from the appellant and produce it before

the court as an exhibit in order to prove their allegation against

the appellant;

2. That the two courts bellow erred in law and fact to convict the

appellant because he pleaded not guilty when the charge was

read over to him;

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 3. That the two courts bellow erred in law and fact to convict the

appellant as the was not proved beyond reasonable doubt; and

4. That the two courts bellow erred in law and in fact by

convicting and sentencing the appellant while all ingredients of

attempted rape were not proved beyond reasonable doubt.

To appreciate the appeal before us and the decision we are going to

make, we find it appropriate to narrate, albeit briefly, the material

background facts leading to the appellant's arraignment as they can be

gleaned from the record of appeal. These background facts are very

simple and not difficult to comprehend. They go thus: on 16.12.2017 at

Mahumbika village within the District and Region of Lindi, RHM (PW1), her

mother Zuhura Bakari (PW2) and her brother named Adimu, were together

working in their shamba. After working for some time, RHM and Adimu felt

tired and wanted to go home. PW2 allowed them to go. Adimu went

straight home but PW1, who was five months' pregnant and craved for

unripe mangoes, went past a mango tree to pick some to quench her urge.

While there, so she testified, the appellant appeared. He approached her

and uttered to her in Kiswahili "nataka kukutomba"; literally translated: "I

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want to fuck you" or, put more politely "I want to have sex with you".

After that utterance, the appellant moved closer to her, started stripping

her clothes off and managed to pull her gown (hijabu) and a kitenge. RHM

screamed for help and PW2 heard her and went thither only to find the

appellant on top of RHM still struggling. The record is not quite clear what

transpired after that but the appellant was later arraigned for attempted

rape and sentenced in the manner stated hereinabove.

The appellant's story before the trial court was materially different on

some"material aspects. He stated that prior to the material day, PW2 had

hired him to cultivate his shamba and promised to pay him Tshs. 50,000/=.

He had accomplished the work and on the material day, he went at PW2's

residence to claim for his remuneration. Neighbours told him that she had

gone to her shamba. He decided to follow her, got PW2 but, after

examining the work done, she told him that she would pay him when they

returned home. Having been told as such, the appellant, in the meantime,

decided to cut some trees for his fence at home. While preparing a saddle

to help him carry his luggage home,PWl appeared. She moved closer to

him and cried at the top of her voice that he wanted to rape her. PW2

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then showed up in response to the alarm. It was the appellant's story that

PW1 and PW2 framed him up so that PW2 could not pay the money she

owed him.

At the hearing of the appeal before us, the appellant appeared in

person, unrepresented. The respondent Republic appeared through Mr.

Abdulrahman Msham, learned Senior State Attorney. In his submissions in

chief, the appellant opted to only adopt his five-ground memorandum of

appeal he lodged in the Court on 12.06.2020. He, however, reserved his

right of rejoinder, need arising.

Supporting the conviction and sentence imposed by the trial court

and upheld by the first appellate court, Mr. Msham submitted that the first

and fifth grounds of appeal are new; they surface in this second appeal.

He contended that the fifth ground could have been one based on law but

that the appellant has not mentioned any specific provisions of the Criminal

Procedure Act, Cap. 20 of the Revised Edition, 2002 (the CPA) he claims to

have been flouted. The learned Senior State Attorney thus urged us to

ignore the first and fifth grounds unless the appellant clarifies which
specific provisions of the CPA he has in mind in which case he would be

allowed to respond to the fifth ground.

With regard to the second ground; the complaint that the appellant

was convicted without his pleading guilty to the charge, Mr. Msham

dismissed the ground as without merit as, he argued, the appellant was

found guilty after witnesses for the prosecution testified and the trial court

found that the case against him was proved beyond reasonable doubt. It

was not therefore that he was found guilty because of his plea, he argued.

The learned Senior State Attorney, in his response, combined the

third and fourth grounds because, according to him, and to our mind

rightly so, they are intertwined. He submitted that all the ingredients

relating to the offence of attempted rape were proved. He mentioned these

ingredients as intent to procure prohibited sexual intercourse with any girl

or woman and manifesting that intention by threatening that girl or woman

and implemented his intention. The learned Senior State Attorney cited our

previous unreported decision in Edwin Thobias Paul v. Republic,

Criminal Appeal No. 130 of 2017 and implored us to find that the

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ingredients under the offence, with which the appellant was charged, were

proved beyond reasonable doubt.

When we prompted Mr. Msham on the seemingly apparent

contradictions in the evidence of the only two prosecution witnesses, he

was quick to respond that the same are minor which did not go to the root

of the offence. He added that, after all, PW1; the victim whose evidence is

the one which the court should take as bringing true evidence of attempted

rape, had already established the elements pertaining to the offence. He

added that the appellant had already told the victim that he wanted to

have sexual intercourse with her and manifested that intention by pulling

her kitenge off. He thus submitted that the trivial contradictions that may

have come thereafter should be glossed over.

Regarding the sentence imposed on the appellant, the learned Senior

State Attorney told the Court that it was the minimum provided by the law;

it should therefore not be meddled with.

In view of the above submissions, the learned Senior State Attorney

urged us to find the appeal lacking in merit and dismiss it entirely.

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 In a short rejoinder, the appellant reiterated the story he told in

defence at the trial. When we probed him why he did not cross-examine

the two witnesses on the gist of his defence, the appellant did not have

any useful response just like he did when probed on what he meant by the

provisions of the CPA being disregarded by the two courts below; the

subject of the fifth ground of appeal.

Having stated the material background facts to the arraignment of

the appellant and summarized the submissions of both parties to this

appeal, we should now be in a position to confront the grounds of appeal.

We start with Mr. Msham's contention that we should disregard the first

and fifth grounds of appeal in that they did not feature in the record.

Indeed, the subject of complaint in the first ground of appeal is not backed

by the record of appeal. The prosecution did field only two witnesses; the

victim (PW1) and her mother (PW2). The record, contrary to the

appellant's complaint, does not bear out that there testified as PW4 a

Tangamano Village Chairman before whom the appellant supposedly

confessed to have committed the offence. This is not evident on the

record of appeal. We think the appellant was carried out by some

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imaginary thinking of nonexistent facts that the Tangamano Village

Chairman was called to testify for the prosecution while in fact he was not.

We thus agree with the learned Senior State Attorney that the first ground

of appeal should be overlooked. We did so in the unreported Ramadhani

Abdalla @ Namtule v. Republic, Criminal Appeal No. 2019 when

confronted with an akin situation; a decision we rendered in the ongoing

sessions at Mtwara. We also do it. here. The first ground of appeal is

overlooked and will therefore not be considered.

The gist of the fifth ground of appeal is that the mandatory

provisions of the CPA were not complied with. This ground was raised in

the Court for the first time. Nonetheless, it being based on a legal

complaint, we would have considered it even though it was not raised in

the first appellate court - see: our decisions in Abdul Athuman v.

Republic [2004] T.L.R. 151, Samwel Sawe v. Republic, Criminal

Appeal No. 135 of 2004, Ramadhani Mohamed v. Republic, Criminal

Appeal No. 112 of 2006, Sadick Marwa Kisase v. Republic, Criminal

Appeal No. 83 of 2012, Richard Mgaya @ Sikubali Mgaya Republic,

Criminal Appeal No. 335 of 2008 and Kazimili Samwel v. Republic,

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Appeal No. 570 of 2016 (all unreported), to mention but a few. When we

asked the appellant which mandatory provisions of the CPA he had in mind

when he drafted the fifth ground of appeal, he admitted that he, being a

lay person at law, had no hunch at all. He intimated to the Court that the

memorandum of appeal was prepared by someone else on his behalf. In

the circumstances, we think, as Mr. Msham submitted, this ground, for its

vagueness and generality, cannot be entertained. We overlook it as well.

We now turn to consider the second ground of appeal which is that

the appellant was convicted despite the fact that he did not plead guilty to

the charge. This ground will not detain us. As Mr. Msham rightly

submitted, the appellant was found guilty and convicted not because he

pleaded guilty to the charge, but because the court was satisfied that the

two prosecution witnesses proved the accusations against him beyond

reasonable doubt. This complaint has no merit at all. We dismiss it

outrightly.

Next for consideration is the gist of the third and fourth grounds of

appeal. We, like Mr. Msham, will consider these grounds conjointly. Our

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starting point is section 132 (1) and (2) (a) of the Penal Code under which

the appellant was charged. This provision reads:

"132. -(1) Any person who attempts to commit rape

commits the offence of attempted rape, and except
for the cases specified in subsection (3) is liable
upon conviction to imprisonment for !tie, and in any
case shall be liable to imprisonment for not less
than thirty years with or without corporal
punishment

(2) A person attempts to commit rape if, with the

intent to procure prohibited sexual intercourse with
any girl or woman, he manifests his intention by-

(a) threatening the girl or woman for sexual

purposes;

(b) ..."

It is apparent in the above cited provision that the offence of

attempted rape is committed when a person's intention to commit the

offence of rape is frustrated before he commits it fully. Mr. Msham

submitted with. some considerable. tenacity that the two prosecution

witnesses proved the ingredients of the charge under section 132 (1) and

(2) (a) of the Penal Code to the hilt. We have serious doubts. We say so

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because the testimony of the only two witnesses for the prosecution if

juxtaposed with the appellant's defence at the trial, leaves a lot to be

desired. It lacks cogency as to attract reasonable doubts in favour of the

appellant. First, while the victim testified that the appellant fell her down

and when PW2 responded to her alarm she found the appellant on top of

the former, PW2 testified that she found the duo holding each other while

the victim remained with her undergarment only.

Secondly, while the victim testified that after PW2 appeared and

interrogated the appellant, PW2 called the Executive Officer and they went

home together where they also called the Village Chairperson who ordered

the arrest of the appellant, PW2 testified that she called the Executive

Officer but had not airtime so she went to report to the said Executive

Officer leaving behind the victim and appellant "holding each other" and

that when she reported, the appellant was arrested.

Thirdly, while the victim testified that the appellant was arrested

when PW2 reported to the Village Chairperson, PW2 testified that he was

arrested after she reported to the Executive Officer. No reference is made

by PW2 to the Village Chairperson.

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 Fourthly, while PW2 testified that she found PW1 in only an

undergarment, PW1 did not say anything about the undergarment.

Lastly, what actually transpired at the scene of crime does not come

out clearly. As we have held times and again relying on our decision in

Selemani Makumba v. Republic [2004] T.L.R. 379 that in cases of this

nature, the best evidence comes from the victim, unfortunately, in the case

at hand, the victim is not explicit on what actually transpired. Let her

testimony, as appearing at p. 18 of the record of appeal, paint the picture:

I~t the mango tree I got unripe mangoes. I started

eating them. Suddenly, I heard some footsteps. I
did turn back and saw Joseph. Then I asked why he
was coming to my back side. Joseph replied that he
wanted to have sexual intercourse with me he used
a words that "Nataka kukutomba// which means to
have sexual intercourse with me. I asked him If
such words were safe, but he told me that he
wanted to have sexual intercourse with me.
Suddenly, he touched my gown (Hijabu) and
started pulling me. I was alarming calling my
mother Zuhura Bakari. He undressed my kitenge
which I wore on that day.

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 Suddenly Zuhura Bakari came at the scene where
she found me on the ground while Joseph was on
top of me .... "

In relation to this, PW2 is recorded at p. 21 of the record of appeal as

saying:

II I rushed there and found Joseph and RHM

touched each other and Joseph had already
undressed her gown (juba) and she remained with
an underpant only. "

There could be some recording inelegancy on the part of the trial

court, for we are not sure it was a hijab or a juba. While the trial court

referred to the gown as hijabu in the testimony of PW1, it referred to the

same gown as juba in the testimony of PW2.

Be that as it may, the dictionary meaning of the word hijab, as per

Merriam-Webster Dictionary, is:

"Trsdltionsl covering for the hair and neck that is

won by Muslim women" - Merriam- Webster
Dictionary

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 If the gown referred to in evidence is the hijab as defined by the

dictionary, we wonder why the appellant who wanted to rape the victim

should remove the headcover first. Even if we take it to be a gown like

any other gown, we wonder in which category of rapists we should put the

appellant wanting to undress the gown first, not the undergarment. If this

is true, which we think is not humanly possible, the appellant must have

been a modest rapist who wanted to rape the victim but wished to undress

her headcover or gown first and later her undergarment so as to rape her.

That could have been humanly possible in a room and during an amicably

consented sexual intercourse. We entertain doubts here in favour of the

appellant.

The above discussion culminates into the conclusion that we do not

think the evidence adduced by the two prosecution witnesses at the trial

was sufficient enough to mount a conviction against the appellant. It is

elementary that in criminal cases, the standard of proof is beyond

reasonable doubt. In the case at hand, we are afraid, the prosecution did

not meet this minimum threshold. This appeal, for failure by the

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prosecution to prove the case to the required standard, that is, beyond

reasonable doubt, will not succeed.

Before we pen off, we find it irresistible to comment on the

punishment for attempted rape as juxtaposed to punishment for actual

rape. Both offences attract a sentence of thirty years in prison. This Court

has more often than not pronounced itself that the minimum punishment

of thirty years in jail for the offence of attempted rape is far on the high

side and proposed a lower sentence - see our decisions in Edwin Thobias

Paul (supra), Abas Selemani Mbinga v. Republic, Criminal Appeal No.

250 of 2008, Kalos Punda v. Republic, Criminal Appeal No. 153 of 2005

and Isidori Patrice v. Republic, Criminal Appeal 224 of 2007 (all

unreported). In Kalos Punda (supra) for instance, we observed:

"It appears to us that the Sexual Offences Special

Provisions Ac~ 1998 does not provide for lesser
sentences for attempted offences, in this case,
attempted rape contrary to section 132 (1) of the
Penal Code to differentiate attempted rape from the
offence of rape contrary to sections 130 and 131 of
the Penal Code. In practice, however, attempted
offences ordinarily carry a less severe penalty as is

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 the case with the offence of murder contrary to
section 196 which carries a capital punishment of
death but offences lesser than murder such as
manslaughter, and, or attempted murder have
lighter punishments. "

Likewise, in Abas Selemani Mbinga (supra) we observed:

"In so far as the sentence of thirty years

imprisonment (in place of the five years originally
imposed by the trial court) imposed by the first
appellate court is concerned, we find it to be the
mandatory minimum provided for under the law. It
may appear to be harsh and excessive but we
cannot rule otherwise. "

We climaxed our prayer to the law-making authority to amend the

sentence in respect of the offence of attempted rape in Edwin Thobias

Paul (supra) in the following terms.:

"", we have felt imperative to pronounce ourselves

that after carefully weighing the ingredients of the
offence of attempted rape, particularly taking into
consideration that something wi/I have prevented
the offender from implementing his plan, we think
that the minimum sentence of 30 years

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 imprisonment is on the higher side. This is
predominantly so when we take into account the
fact that in all other offences of attempts, the
sentences are fairly low. We have in mind offences
like attempted murder which has no mandatory
minimum sentence; attempted robbery which
attracts a lower sentence than that of the offence of
robbery; and several other such offences. It is
astounding therefore, to find that the offence under
consideration carries the same punishment like a
fully-fledged offence of rape in respect of victims
over 18 years. Influenced by this situation, we are
suggesting that maybe it is time the law
makers considered this point so that they can
do something about this aspect with a view
to reducing it. "
[Emphasis added].

[see also: Robert N. Mbwilo v. Republic,

Criminal Appeal No. 154 of 2017 (unreported)].

We thus reiterate that the law-making body should think of amending

the punishment for attempted rape to be commensurate with other

attempted offences. It does not make any legal sense why the punishment

for rape is the same as punishment for attempted rape.

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 For the reasons stated earher; we find this appeal meritorious and

allow it. The conviction of the trial court upheld by the first appellate court

is quashed and the sentence meted out to the appellant is set aside.

Consequently, we order that the appellant Joseph Paul @ Alex Makua be

released from prison custody forthwith unless held there for some other

offence.

DATED at MTWARA this 24th day of November, 2020.

S. E. A. MUGASHA
JUSTICE OF APPEAL

J. C. M. MWAMBEGELE
JUSTICE OF APPEAL

R.J. KEREFU
JUSTICE OF APPEAL

The Judgment delivered this zs" day of November, 2020 in the

presence of the Appellant in person and Mr. Paul Kimweri, learned Senior
State Attorney for the Respondent/Republic, is hereby certified as a true
copy of the original.

t
B. A. MPEPO
DEPUTY REGISTRAR
COURT OF APPEAL

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