Court/Judicial body: Court of Appeal of Tanzania
Date: November 20, 2009 CRC
Provisions: Article 3: Best Interests of the Child
Domestic provisions: Evidence Act, Section 127
Background: A man found guilty of sexually assaulting a child appealed his conviction, alleging that the trial judge should not have allowed the victim or another witness, also a child, to testify without taking an oath.
Issue and resolution: Child witnesses; violence against children. The Court agreed that the trial judge had failed to adequately assess the children’s ability to give evidence and overturned the conviction. The Court also declined to order a retrial, noting that it would not be in the best interests of the child.
Court reasoning: Under Tanzanian law, judges may only allow children to testify without taking an oath where they are of “sufficient intelligence” and “understand[ ] the duty of speaking the truth.” Here, the judge failed to adequately establish these factors before permitting the children to give evidence, and, given that the children’s testimony was uncorroborated, the conviction must be overturned. Moreover, the case should not be retried now five years after the alleged assault as doing so would retraumatise the child victim and run against his best interests in line with the Convention on the Rights of the Child.
Excerpt citing CRC and other relevant human rights We have, furthermore, carefully considered the prayer for a retrial of this case. The sodomy was committed on the victim when the victim was nine years old. We are doubtful whether it will be in the best interest of the victim who is now aged 14 to put salt on the old wound and trauma the small boy suffered mentally and physically when the appellant sodomized him. We are fortified in our view by the provisions of Article 3(1) of the United Nations Convention on the Rights of the Child (CRC), 1989, which Tanzania has ratified. Article 3(1) of the CRC places an obligation on courts of law to give the best interests of the child paramount importance in child matters by stating: Article 3 (1) In all actions concerning children, whether undertaken by Public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary consideration.
CRIN comments: CRIN believes this decision is inconsistent with the CRC. Children have the right to participate in proceedings that affect them under Article 12 of the Convention, and States should make every effort to facilitate this right. As such, children’s testimony should never be disallowed merely because it is given by children, nor should evidence given by children require corroboration. In addition, although the Court notes that the risk of retraumatising child victims in legal proceedings should be considered under Article 3 of the CRC, proceedings involving children should be handled without delay and reach final resolution in a timely manner to ensure that offenders are held to account for committing acts of violence against children.
Citation: Davis v. R,  TZCA 2 (20 November 2009) Link to Full Judgment: http://www.saflii.org/tz/cases/TZCA/2009/2.html