Court name
High Court of Tanzania

Republic vs Ndimi Mageta () [1983] TZHC 16 (19 May 1983);

Law report citations
1983 TLR 64 (TZHC)
Media neutral citation
[1983] TZHC 16

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

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).

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.

C