Africa-Press – Tanzania. THREE youngsters, residents of Mumilamila Village in Ngara District in Kagera Region, who were facing a case of allegedly killing their mother, have escaped death row after the Court of Appeal exonerated them from the offence.
Alex Minani, Emmanuel Minani and Issaya Simon were charged for allegedly killing their mother, Gaudencia Simon, over witchcraft beliefs.
The High Court then imposed death sentence on them but they challenged the decision in the Court of Appeal which has now reversed the ruling.
Justices Jacobs Mwambegele, Rehema Kerefu and Penterine Kente found the appeal with merits and ordered the immediate release from prison of the appellants having quashed their convictions after disregarding the evidence tendered by a wife of Mr Simon, who claimed to have eye-witnessed the brutal incidence.
“We find merit in the appeal and allow it. Accordingly, we quash the appellants’ conviction and substitute it with an acquittal resulting in setting aside the sentence. We order that the appellants be released from custody forthwith unless they are otherwise lawfully held,” they declared.
During hearing of the appeal, the counsel for the appellants had complained that the trial judge misdirected herself by relying on the evidence of Nahimana to convict the appellants without complying with the provision of section 130 (3) of the Evidence Act, which governs the evidence of spouses.
He submitted that there was glaring evidence showing that Nahimana was the wife of Simon.
The counsel further contended that the trial Judge erred in fact and law by grounding the appellants’ conviction on the evidence of Nahimana, who was not a credible witness.
Deliberating, the justices noted that there was no dispute that Simon and Nahimana were husband and wife and such information regarding their status was availed at initial stages of preliminary hearing where facts of the case were submitted by the prosecution as well as when Nahimana was testifying.
Pursuant to section 130 (1) and (3) of the Evidence Act, they said, a person is a competent but not compellable witness in a case involving his or her spouse.
Therefore, the justices said, upon being informed that Simon and Nahimana were husband and wife, the trial court should have been on alert and taken the necessary precautions before taking her evidence.
However, they observed that that was not done as it is on the record that Nahimana testified against her husband without being addressed in terms of section 130 (3) of the evidence Act.
“Since (Nahimana) gave evidence against (Simon) who was her husband without being addressed in terms of section 130 (3) of the Evidence Act, her evidence was illegally obtained, hence subject to be expunged from the record,” the justices said.
After expunging the evidence of Nahimana from the record of appeal, they found no sufficient evidence which could safely be concluded that the appellants committed the offence.
“It is our further view that had the trial Judge expunged the evidence of (Nahimana) from the record and considered the above aspects, we think, she would have come to the inevitable finding that it was not safe to sustain the appellants’ conviction,” the justices said.
It was alleged during the trial that during the night on March 29, 2013 at Karamba hamlet, Mumilamila Village in Ngara District in Kagera Region, the appellants murdered Gaudencia Simon.
It was stated that on the material day at around 20:00 hours when the deceased was at home together with her daughter Nahimana Issaya, grand-daughter Furaha Issaya and her son-in-law, Issaya Simon, her two sons, Alex Minani and Emmanuel Minani visited her.
Alex accused the deceased that she was a witch and that she had bewitched his wife before he, his brother Emmanuel and her son in law Simon jointly started beating her.
In the case at the High Court Nahimana testified that as the three youngsters were beating her, the victim screamed but Simon covered her mouth and warned her not to scream.
She went on to state that Alex continued to beat the deceased and finally strangled her to death. Thereafter, the appellants threw the deceased body into the river
Nahimana added that Alex warned her not to disclose the incident to anyone and if she did, he would also throw her into the river. She testified further that she told Simon to report the incident to the ten-cell leader, who reported the matter to the chairperson of the hamlet.
On March 30, 2013, they villagers went to search for the deceased’s body and found it in the bush before notifying police the following who responded to the scene of crime.
