Q&A – 15 November 2021

Wife and a child called to testify against husband

My husband is charged with rape of our housemaid who is below the age of 18 years. My 11 year old son and I have been given a summons by the police to attend Court for the purpose of giving evidence for the prosecution. We don’t want to give evidence that may cause my husband to be convicted and sentenced to 30 years imprisonment. Can we refuse to go to Court? Or can we go to Court and refuse to give evidence or lie to Court and give evidence that is favourable to my husband?
KJ, Mtwara

As a general rule of criminal trials, a wife is competent but not a compellable witness against her husband meaning that a wife can testify against her husband only if she wishes to but cannot be forced to do so if she is unwilling. However, this discretion given to a wife by section 130(1) of the Evidence Act [Cap.6 R.E 2019] is lifted by subsection (2) of the same provisions where the husband is charged with a sexual offence under Part XV of the Penal Code [Cap.16 R.E 2019]. Since your husband is charged with rape, your choice to not testify against him is extinguished by the law.

The law does not give the same choice to a child as it does to a spouse to decide whether or not the child is willing to give evidence against a parent. A child is both competent and a compellable witness against a parent. Your child aged 11 years is both competent and compellable witness to testify against his father who is charged with rape of a housemaid. Since the child witness is under the age 14 years, prior to giving evidence, he will be required under section 127(2) of the Evidence Act to promise the Court to tell the truth and not to tell lies.

Refusal or failure to attend Court as a witness without lawful excuse after being duly served with a summons is an offence under section 147 of the Criminal Procedure Act [Cap.20 R.E 2019]. However, before a witness is convicted of willful refusal or failure to attend Court as a witness, the Court shall first and after being satisfied that the witness was properly served with a summons, issue a warrant to the witness to show cause, why the witness should not be arrested and compelled to attend Court. Where the Court is satisfied by evidence on oath that the witness will not attend the Court unless he/she is compelled, the Court may issue an arrest warrant to compel the witness to appear before it under arrest.

Because you and your child were properly served with a summons, should you refuse or fail to attend the Court without a lawful excuse, the Court may issue a warrant to compel you to appear before it on the next date to which hearing shall be adjourned. However, if it is proved to the Court by affidavit that you are unwilling to attend the Court for the reasons you have given, the Court may issue an arrest warrant to compel you to appear before it while you are under restraint of the police.

A witness who goes to Court in obedience of summons but refuses or neglects to testify or produce an exhibit without offering sufficient excuse, may be declared by the Court a refractory witness as per section 199 of the Criminal Procedure Act and committed to prison for 8 days. If the witness still refuses to testify he/she will be remanded in custody for a further 8 days until he/she consents to do what is required of him/her. Hence if you attend the Court but refuse to give evidence, you will be dealt with as a refractory witness under section 199 of the Criminal Procedure.

Lying in Court in the course of giving testimony is an offence under section 102 of the Penal Code [Cap.16 R.E 2019] called perjury. If the Court finds a witness to be lying, the witness, at the instance of the prosecutor, can be declared hostile and thereafter charged with perjury. The offence of perjury attracts a sentence of imprisonment for up to a maximum of 7 years.

Access to child born out of wedlock

I have a 4 year old child born out of wedlock. Her mother has been denying me access to her. What options do I have?
KJ, Mbeya.

A person who claims to be a parent of the child can move a Juvenile Court by filing an application to the Juvenile Court seeking to gain access to the child. The application for access to the child should be made by filling JCR Form No.8 set out in the Third Schedule to the Law of the Child (Juvenile Court Procedure) Rules, 2016. However, since the child was born out of wedlock, you need to make an application for confirmation of parentage as well. The Court may in the same proceedings for the confirmation of parentage, determine and grant application for access to the child on such terms and conditions as it may deem fit.

You should bear in mind that once the Court confirms parentage, it will also order you to contribute towards welfare and maintenance of the child to supply the necessities of survival and development of the child. An order for access to the child shall set out the days, hours and place of accessing the child as well as the picking up and dropping off the child before and after the access.