Edward Yusuph @ Gao vs Republic (Criminal Appeal No. 496 of 2020) [2023] TZCA 22 (17 February 2023)

The appellant, Edward Yusuph@Gao, was initially charged with the crime of incest under section 158 (1) (a) and 159 of the Penal Code CAP 16 R.E 2019. The prosecution alleged that he had sexual intercourse with his granddaughter, a 13-year-old girl, between September and October 2018. The trial court found him guilty and sentenced him to thirty years imprisonment. This conviction and sentence were upheld by the High Court.

However, the Court of Appeal found an error in law. The appellant was the paternal uncle of the victim's father, not her grandfather. Therefore, he did not fall under the categories of prohibited sexual relationships as defined by section 158 (1) (a) of the Penal Code. The State Attorney conceded that the appellant was wrongly charged and suggested that the charges and evidence were more consistent with the offence of rape, not incest.

The Court of Appeal agreed with this assessment, stating that the charge was defective and the proceedings were a nullity. The court invoked section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019, quashed the conviction and sentence, and ordered the appellant's immediate release unless he was held for another lawful cause.

The court also highlighted a law reform issue. It noted a discrepancy between the Penal Code and the Law of Marriage Act CAP 29 R.E.2019 regarding prohibited sexual relationships. The latter has broader categories, reflecting an African context. The court recommended that these categories be harmonised or that the Director of Public Prosecutions charge offenders who are distant relatives of the victims with rape in future cases. No deadline was given to Parliament for this reform. The court's reasons for this recommendation were to avoid similar errors in law and to ensure that charges accurately reflect the nature of the offence.