Robber, rapist set free over poorly prepared charges

Dar es Salaam. A poorly prepared charge sheet turned into a blessing for a previously ‘convicted armed robber’ when the Court of Appeal overturned his 30-year jail sentence after confirming he was charged under a law that doesn’t exist.

Ezekiel Kwihuja - who was arraigned before the Shinyanga District Court in July 2012 and jailed in 2014 allegedly for robbing Sh512,000 and two mobile phones worth Sh100,000 - had lost his initial appeal in the High Court in 2016.

The apex court sided with a state lawyer, Nassoro Katuga, that his conviction was based on an incurably defective charge.

This time, Chief Justice Ibrahim Juma and two other Court of Appeal judges - Augustine Mwarija and Rehema Kerefu - ordered immediate release of the convict from Shinyanga Prison because he was charged under a section of a law that had been deleted and replaced by a new provision.

While Mr Kwihuja allegedly committed the crime on July 12, 2012 at Mwamanyuda Village in Shinyanga Region, the charge sheet was anchored on section 287A of the Penal Code that had been deleted and substituted with a new law in 2011.

“Therefore, the section quoted in the charge sheet at the time the appellant was arraigned was nonexistent,” said the judges in their recent decision. The court stressed that a charge is the foundation of any criminal trial.

“Those who are responsible in formulating charges must ensure that charges are drawn in compliance with the law. Likewise, any court - before acting upon a charge - must first consider if the same is crafted with the requirement of the law,” they said.

“It is our considered view that the failure by the prosecution to cite the correct provisions of the law which created the offence had occasioned injustice to the appellant as he could not understand the nature of the offence he was facing to properly prepare his defence,” said the court.

Lebi Mwajeba and his wife were sleeping in their house on July 19, 2012 when two men broke the main door of their house and asked Mr Mwajeba to surrender the money he obtained from selling cows.

Mr Mwajeba told the court that he recognized Mr Kwihuja whom he knew before and had interacted with as a photographer who visited his home frequently. He alleged that Mr Mwihuja attacked and wounded him as they stole Sh512,000 and two mobile phones.

His wife told the court during the trial that the robbers intended to rape her - but failed because she was in her menstruation period.

In a similar development, last week, a convicted schoolgirl rapist Charles Kakubo - who was jailed for 30 years in 2004 - walked free after the same court nullified his conviction, citing incurable defect in the charge sheet in which the accused was charged with non-existing provisions of law.

It emerged that the age of the victim did not fall under the category of the offence of rape under which the appellant was charged.

Mr Kakubo was charged under section 131 (3) of the Penal Code which says “whoever commits the offence of rape on a girl under ten years shall on conviction be sentenced to life imprisonment.”