Court name
High Court of Tanzania

Republic vs Njani Hassan () [1981] TZHC 3 (15 December 1981);

Law report citations
1983 TLR 238 (TZHC)
Media neutral citation
[1981] TZHC 3

Lugakingira, J.: In Criminal Case No. 40/81 before the Primary Court at Paranga the G accused, a juvenile, was sentenced to an aggregate of nine (9) strokes in two counts.  Before the same court in Criminal Case No. 42/81, the same accused, on the same day, was sentenced to a total of nine (9) strokes in two other counts.  It meant that he was to H undergo corporal punishment of 18 strokes in the two cases.  The trial magistrate was quick to forward the record to the District Court, Kondoa, for confirmation of sentence.  The District Magistrate, after examining the first medical report, which stated the accused was between 12 and 13 years and emaciated, and after seeing the accused, I whom he adjudged "really a child of tender age and physically weak", revised the sentence and substituted an omnibus sentence of four

(4) strokes for both cases. A
Before the new sentence was carried out, however, the accused underwent another check up at Kondoa Government Hospital. The doctor reported and said that the accused was anaemic and had an abnormally large spleen.  He certified that he was unfit to undergo even the four strokes except after treatment which could take three to four B months.  Faced with this report and certificate, the District Magistrate forwarded the record here for the appropriate revisional order as he was of the view that he was precluded from interfering in the order made by himself.
After examining the case and the law respecting this matter, I have reached a view different from that of the learned District Magistrate.  I think that ss. 15 and 16 of the C Corporal Punishment Ordinance, Cap. 17 are relevant.  Section 16 states in part:
   15.-(1) No sentence of corporal punishment shall be inflicted until a medical officer ... has, after examination of the offender, certified that he is physically fit to undergo the sentence D imposed upon him....
And section 16 states in part:
   16. In any case in which under section 15 a sentence of corporal punishment is wholly or E partially prevented from being executed, the offender shall be kept in custody until the court which passed the sentence can revise it; and the said court may in its discretion either remit such sentence or sentence the offender ... to imprisonment .... F
In this case, the doctor has certified that the accused is physically unfit to undergo the four strokes.  That certificate falls under section 15 and, in effect, wholly prevents the sentence from being carried out.  In that case, under section 16, the sentence falls for G revision by the court which passed it.  The four strokes were ordered by the District Court.  It follows that the District Court has power to revise that order.  Considering the facts and circumstances of this case, the District Court could remit the sentence and discharge the accused.  It is advised to proceed accordingly.
H Order accordingly.