Q&A – 6 September 2010
Reconciliation in criminal matters
My son is charged with raping my neighbor’s daughter. During the pendency of the trial at the district Court, family members met and discussed the matter and reached to a conclusion that the matter be resolved out of Court in order to promote harmony and good neighborhood. The neighbor is someone I have grown up with and a close friend of mine and the elders managed to convince him to instruct the girl to withdraw the charges. Shockingly the trial magistrate has refused to accept our request without assigning any reasons. Is this not illegal? Why should my son be prosecuted when two parties have agreed to forgive each other.
LK, Morogoro
Criminal law seeks to maintain peace and harmony in society and the authorities responsible for criminal administration of justice are therefore encouraged to see as much as possible that issues are settled amicably and expeditiously. However, this reconciliation of offences does not apply to all offences. It only applies to minor offences like common assault or offences of personal or private nature. Our criminal procedure act empowers Courts to stay proceedings in a fit case depending the outcome of the settlement out of Court.
The nature of the offence your son is being charged with is not a fit case capable of reconciliation under the law. Rape is not an offence of personal or private nature; it is a serious offence in which the Court cannot promote reconciliation.
The fact that you are neighbor’s and have known each other from childhood is irrelevant. That does not give your son the right to rape your friend’s daughter. Put yourself in the shoes of the neighbor and look at it from his perspective- would you, as a father, forgive your neighbor’s son for raping your daughter.
Your ‘neighbor argument’ is dangerous, unintelligible, absurd, and has no basis.
We are glad to hear that the magistrate did not act with emotion and allow this kind of ‘off Court’ settlement in a serious offence like
rape. No where in the question have you denied what your son has done and it might be prudent to counsel him.
Forfeiture of surety’s bond
I stood as surety to secure my brother’s release for bail in a criminal case he is facing in the district Court. While on bail, the accused failed to appear in court; I did appear to inform the Court that he could not attend because of illness. The trial magistrate did not accept my explanation and instead proceeded to forfeit Tshs 500,000 that I had executed on the bond. Was this proper and fair? Is there anything I can do to get back my money?
LK, Dar
We are not sure if you have told us the entire story. In answering this question, we assume that you have disclosed all material information.
In our opinion the trial Magistrate overreacted and acted in a very biased manner against you. Generally courts have powers to take sureties to task when the accused they stand for default bail conditions, as is the case here. If there is nothing to forfeit, the Court may also send the person who stood as surety to jail.
However before invoking these powers, which are normally discretionary, Courts are required first to ascertain whether the reasons given for the accused’s default of appearance are genuine or not. In circumstances like yours, the court ought to have adjourned the proceedings and require the accused to provide evidence of his being sick. The order was hence prematurely issued.
These orders are appealable and if you present your facts properly, your appeal should be successful and you can get your money back.
Powers of criminal Courts to order compensation
In January 2009 my uncle was charged and convicted of an offence of stealing a cow. The evidence upon which his conviction was based was that he was found in possession of skin which the complainant stated was supposedly of his cow. Upon his conviction he was also ordered to compensate Tsh 700,000 to the complainant being the value of the stolen cow and costs incurred by the complainant in looking it. Was this evidence sufficient to warrant conviction? Was it correct and fair for the trial court to order for compensation against my uncle? Please advise us on the chances of success should my uncle appeal against the conviction.
CM, Arusha
We cannot give you an exact answer to the question without perusing through the Court records and understanding the way the entire case proceeded. For example we do not know what evidence was given by the complainant in identifying the skin of his cow or whether the evidence given implicated your uncle as the actual thief or merely the receiver of the alleged stolen cow and/or skin. It is also quite surprising to note how the complainant could identify the skin- we wonder what was so unique about this skin?
As to the order for compensation, be informed that our criminal Courts have powers to order for compensation depending on the nature of the offence the accused is charged with and circumstances of the case concerned. However in your particular case the Court went beyond its jurisdiction in ordering for compensation. In this instance, the jurisdiction of the criminal Court was limited to determining the criminality of the accused persons before it.
Issues of value of the stolen cow and/or costs incurred by the complainant in tracing his cow are matters of facts which need to be proved in a civil case. To this extent, we are at least sure that your uncle’s appeal will be successful; he should have appealed within 30 days from the date of judgment. In case he has not appealed, he will have to make an application to seek leave to appeal out of time citing reasons for the delay. The Court may or may not accept such reasons.