REPUBLIC v NDIMI MAGETA 1983 TLR 64 (HC)

REPUBLIC v NDIMI MAGETA 1983 TLR 64 (HC)

Court High Court of Tanzania - Mwanza

Judge Korosso J

May 19, 1983 H

CRIMINAL REVISION 5 OF 1983

Flynote

Criminal Law - Impregnating a school girl - Contravention of the National Education

Act, I 1978 - Meaning of school girl - Primary School Compulsory Enrolment and

Attendance Rules, 1978.

1983 TLR p65

-Headnote

The record had been called to the High Court for the purpose of review of the order

A made by the District Court of Magu convicting the accused of the offence of

causing the girl not to attend primary education contrary to s.2 (4) of Act No. 25 of

1978 and Government Notice No. 129 of 1979. The main issue for consideration was

whether the impregnated girl in the instant case was a girl within the meaning of the

aforementioned legislation. B

Held: According to the record of trial court the impregnated school girl is said to be

aged 17 and she is therefore beyond the prohibited ages which are between 7 and 13

years; under the circumstances the accused cannot be said to have committed any C

offence known to law.

Case Information

Order accordingly.

No case referred to. D

[zJDz]Judgment

Korosso, J.: This record has been called to this court for the purpose of review of the

order made by the lower court convicting the accused of the offence of causing a girl

not to attend Primary education c/s 2 (4) of Act No. 25/78, Government Notice No. E

129/79. The accused was upon conviction sentenced to a fine of Shs. 1,000/= or 7

months' imprisonment in default.

The facts of the case are briefly as follows. The accused and the girl called Martha d/o

Ludalula (P.W.2) both pupils of a certain Primary School became friends some time in

F 1978. Their friendship apparently grew stronger and more intimate until they

forgot all about their being pupils and resorted to sealing their friendship by sexual

intercourse. The girl became impregnated by the accused. The girl having been

pregnant was expelled. Her father P.W.1 reported to the police station. The accused

was consequently arrested G and charged.

In the first place I would point out that the appellant was charged under a wrong

section. Section 4 of the National Education Act No. 25/78 is only an empowering

section under which the Minister for National Education may make regulations or

rules for the better H carrying out of the National Educational Policy. In the exercise

of the powers vested on him under section 4(1) of the National Education Act No.

25/78, the Minister for Education made the Primary School Compulsory Enrolment

and Attendance Rules 1979 published by Government Notice 129/79. Under rule 2 of

the I

1983 TLR p66

KOROSSO J

aforesaid Rules, the word child is defined as any child who on the effective date has

A attained the age of eleven but not attained the age of thirteen. Under Rule 4(2) of

the aforesaid rule it is laid down thus:

Any person other than a parent who under any circumstances causes a child

not to attend B school regularly until the completion of Primary Education shall be

guilty of an offence and shall be liable on conviction to a fine not exceeding three

thousand shillings or to both such fine and imprisonment (sic.) (ed).

It is obvious that the accused should, on the basis of the particulars of the charge,

have C been charged under the provisions of Rule 4(2) of the Primary School

(Compulsory Enrolment and attendance) Rules 1979.

The order question is whether the said Martha d/o Ludalula (P.W.2) was a girl as D

defined under the provisions of Rule 2 of the aforesaid rules. The answer is an

emphatic "No". According to the record of the trial court the said Martha d/o Ludalula

is said to be aged 17 years. She is, therefore, far above and beyond the prohibited ages

which are between 7 years and thirteen years. under the circumstances the accused

cannot be said E to have committed any offence known to the law.

The result of this case is, however, very saddening because the Primary Education of

the girl Martha d/o Ludalula has been interrupted and shortened. Apart from herself

losing the vital education, the National Education policy that every Tanzanian youth

should F receive at least a Primary School education is being defeated. This is all

chiefly because the word 'girl' has been improperly or unsuitably defined to include

only the girls aged between 7 years and 13 years. There is a real need to redefine the

word 'girl' under Rule G 2 of the Rules so that it includes girls aged up to 16 years

when it is reasonably hoped that by then every girl will under normal circumstances

have completed her primary education. Alternatively, the word "girl" should be

redefined so that it means any girl who has not completed a primary eduction. The

redefinition of the word "girl" will be H brought into harmony with the wording of

Rule 4 (1), (2) of the aforesaid rules, 1979 in which the phrase "completion of Primary

Education", is deliberately made prominent. Leaving the definition of the word "girl"

as it is, would definitely only serve to defeat and frustrate the national education

policy popularly and formally referred to as Universal I Primary Education (U.P.E).

1983 TLR p67

With the above digression I conclude by saying that the proceedings were a nullity

and A conviction illegal.

I quash the conviction, setting aside a sentence of Shs 1,000/= fine imposed on the

accused. The said fine should be restored to the accused.

B Order accordingly.

1983 TLR p67

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