ARE BABU SEYA & SON NOT VICTIMS OF CELEBRITY BACKLASH?
(By Rutashubanyuma Nestory- A public policy analyst based in Arusha.)
Am emboldened by what Nyerere once said about our jurisprudence: Better allow nine criminals out rather than wrongfully convict one innocent person. Our criminal system endears painstakingly to protect the innocents even if criminals benefit, as well. In the Babu Seya Court of Appeals decision the gist is not whether the convicts had committed rape but rather whether there was sufficient and unambiguous evidence to condemn them into life of confinement without parole.
In a 55 pages narrative, the three justices unanimously made their compelling case of convictions and acquittals. For me, the evidence spoke with clarity that there was insufficient evidence to convict and some of it was outrageously contradictory that I was flabbergasted that the justices decided otherwise. On page 46-47 of the verdict, it is where a red herring of celebrity backlash reeled its monstrous head when Justice Kimaro queried...The question we ask is if PW8 was able to mention the names of the 1st and 2nd appellants why not the rest of the appellants? The 3rd and 4th appellants are given the benefit of doubt on this offence and they are acquitted.
The celebrity stature of Babu Seya and Papi Kocha was not at par with other appellants because the former were megastars in the public eye while the latter were not. The justices should have taken a deep breath and ask themselves why the trial Magistrate failed to factor in this celebrity albatross which had undermined Nguza & Papii defence rather than upending this factual inconsistency in favour of prosecutors. The most controversial evidence came from the star witness PW2 whose hospital diagnosis established she had contracted gonorrhea.
Nowhere in the evidence submitted by the prosecution case, it was alleged there were other witnesses who had contracted that excruciating STD. That blatant inconsistency should have pricked the consciences of the justices to dismiss outright all offences of gang rape. Gonorrhea is an infectious disease which; if the alleged victims were telling the truth, should have ravished most of them! Surely, from the evidence on record, PW2 contracted STD from other sources but not from Babu Seya. This fact alone was sufficient on its own to uphold the appeal. The justices inadvertence ricocheted more loudly on collaboratory evidence of Nguzas room.
All the evidence cited by the justices heavily relied on the alleged victims description of the room after they had seen it when under polices escort. Justice demands fairness and I could not sniff it! The justices had no business to permit that kind of police coerced evidence to stick knowing the alleged victims were privy of the room as a result of police supervised inspection. The evidence volunteered by alleged victims in the police statements prior to that Nguzas house police visitation should have been compared with the facts collected after that inspection to establish whether the complainants really knew the contours of the room.
Unfortunately, the nature and extent of evidence in the room was transfixed upon movable evidence of two mattresses and a bed which could easily have been tampered with! The alleged victims who had adduced evidence of oral sex should have revealed descriptions of the anatomy of the pudenda of their alleged perennial pedophiles rather than specifying numbers and locations of a bed and mattresses in the room. Complainants should have blabbed whether the appellants were circumcised or not and pinpoint other genital marks; if any, to tighten their case knowing the offences involved daylight, frequent attacks. The judicial bombshell was nowhere but on Babu Seyas defence of impotence which was treated surprisingly with utmost disgust!
The fact remains since Babu Seya was in police custody when he learnt of the offences he was charged of, the Appeals Court was wrong to regard a remanded suspect could discharge that burden of impotence proof without police cooperation: How could Babu Seya go to hospital and verify his virility while in custody if the police refused him to? Gang sodomy offences were thrown out because the law is silent: We urgently need a law to criminalize them
What a flub dub!