Drifter
JF-Expert Member
- Jan 4, 2010
- 5,122
- 5,104
Impressive work. Congratulations. BUT what’s the merit of all this? Why the study? - In a country where the rule of law is elusive and the politics twisted. Corruption and patronage are the norm. Who are you particularly targeting?View attachment 3015535
Dr. Yahaya Ismail Nawanda, Former Simiyu RC
1. Introduction
This week, the media has repeatedly alleged that, on 02 June 2024, the Simiyu Regional Commissioner, one Dr. Yahaya Ismail Nawanda, committed anal rape against a SAUTI female student, one Tumsime Mathias Ngemela (21), a division one of 12 points scorer from St. Mary's Mpanda Secondary School in 2018 (FTNA); where the alleged crime was committed inside a car, in Mwanza REgion.
It is further reported that, on 03 June 2024 the rape victim reported the matter before the Sexual Torture Monitoring Desk in Mwanza Region, which recorded her statement, and then escorted her to hospital for medical investigation and rehabilitation.
On 11 June 2024, the Mwananchi newspaper, reported the incident under the heading, “RC adaiwa kulawiti mwanafunzi” (p.1), while complaining that relevant investigation information was not forthcoming from the spokespersons of law enforcement organs in Mwanza Region. On the same day, a hand written letter, allegedly written on 06 June 2024, by Tumsime Mathias Ngemela, and addressed to the Mwanza RCO, was leaked to the social media by an anonymous police officer. The letter indicates that the rape victim had voluntarily withdrawn the case from the police offices. This withdrawal has happened at a time when some social media are alleging that she withdrawn it under pressure from Mwanza RC Mr. Mtanda, who has facilitated her being paid TZS 65,000,000/= as compensation.
On 11 June 2024, the Simiyu Regional Commissioner, one Dr. Yahaya Ismail Nawanda, was removed from office by President Samia, without stating reasons, but presumably following the public outcry concerning the sexual scandal that had gone viral on the social media. Until 12 June 2024 law enforcement organs were still refraining from commenting on the event, according to the Mwananchi newspaper, the 11 June 2024 issue.
Given the master-slave relationship that obtains between the alleged Regional Commissioner and a first-year student aged 21, it is undeniable that, if the alleged anal sex took place, then it was indeed coercive sex, in this case violent pedication.
She is a victim of anal sexual torture who needs physical and psychological rehabilitation and her college peers are survivors of sexual torture, who need state protection. For these two reasons, the question is not and cannot be closed cheaply. And thus, the silence of law enforcement organs is disquieting. It is in response to which I am writing this policy brief.
2. Background: What is at stake?
What separates consensual just sex from sexual assault is a matter of just consent. In consensual just sex, both parties agree to what's happening by choice, and have the freedom and ability to make that choice, from which it follows that their subsequent bodily movements are the autonomous control of their minds.
For this reason, all types of sexual rape, including anal rape, are forms of sexual torture, and sexual torture is one of the most egregious harms because it is a form of torture that intrudes into our psycho-somatic integrity, by frustrating the autonomous control of the mind over one’s bodily actions, hence introducing body-self dualism, subsequent to which bodily integrity is violated by coercively attacking specific bodily orifices, such as the mouth, vagina and anus.
Specifically, sexual rape includes such acts as sexual assault by touching intimidate parts of the body, forced masturbation, forced insertion of an object into the vagina or anus, oral rape, anal rape and vaginal rape, urination onto the victim, forced pregnancy, forced nudity, verbal sexualized threats, sexualized degrading or humiliating mocking and other verbal or physical treatments.
Impunity for such crimes is everywhere. Rape and sexual torture have been weapons of warfare by invading armies and hordes for millennia, and they are still regrettably commonplace in modern day armed conflicts.
Sexual torture is the ultimate expression of power over another, placing the victimized in a position of great vulnerability and powerlessness. Sexual torture involves both physical and psychological pain or suffering, with scars that can last a lifetime requiring specialist rehabilitation.
Given the continuing pervasiveness of these crimes, the Special Rapporteur is of the view that there is a need to rethink how these crimes are considered and addressed.
Undoubtedly women and girls bear the greatest brunt of such crimes, being crimes historically and predominantly committed on women’s bodies by male bosses, politicians, soldiers and other perpetrators.
Men and boys are also subjected to such crimes, for many of the same reasons, such as to humiliate or punish them, to exercise power over them, to strip them of their humanity and dignity, for recreational purposes or for reasons of superstition.
Sexual torture occurs inter alia within places where persons are deprived of their liberty as well as anywhere an official has control over a person, including in cars, homes, hospitals, fields, bomb shelters, or during transport.
Legal protections addressing sexual torture have been long established within international law, as well as in many national jurisdictions. However, and despite the national and international consensus on the illegality and severity of crimes of sexual torture, many legal, procedural and practical challenges remain in identifying, documenting, investigating and prosecuting crimes of sexual torture committed officials, and rehabilitating victims and protecting survivors.
It is against this background, that a study was conducted with a view of preparing a policy brief that looks at the alleged sexual torture by the former Mwanza RC, one Dr. Yahaya Ismail Nawanda, against a SAUTI student, one Tumsime Mathias Ngemela, and its implications on the required reforms in our public policies, if any.
3. Study approach
This study was conducted through desk research, during which newspaper articles, books and online publications were perused. One discussion was held with an expert in education psychology who has good knowledge and experience in investigating the problem of sexual assault in our schools. I am grateful for his willingness to share his experience. During literature review, I was particularly interested in collecting information on the following questions as they relate to sexual torture in Tanzania:
(a) The realities and prevalence of anal sex in Tanzania: How prevalent is anal sex, when sorted by age and gender?
(b) Regulatory frameworks: Does the national legislative framework properly accounts for sexual torture inflicted through anal and oral sex? How is “sexual torture” prohibited and criminalized in national legislation; Is “sexual torture” defined explicitly in national law? if it is explicitly defined in national law, is it a separate offence? if it is not explicitly defined in national law, does the general crime of torture include the sexualized nature of the torture as an aggravating factor that may increase any criminal penalties? Are there examples of national laws, or leading judgments, that criminalize sexual torture and the penalties applied?
(c) Challenges, impediments and obstacles to effective identification, documentation, investigation and prosecution of crimes of sexual torture: What are the main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture? Are there political-cultural-leadership, institutional, sociological, psychological, practical, forensic, legal gaps, as key challenges?
(d) Victim protection during investigation and prosecution: What special arrangements such as procedures, standards, protocols, good practices are there to protect the victims of sexual torture when they approach the police offices?
(e) Evidence collection and documentation: What are the practical, logistical or other challenges in evidence collection of sexual torture in police quarters? What good practices are used to address such challenges? Are there specialized policies, protocols and practices used to identify, document and secure evidence collection in respect of crimes of sexual torture and the damages caused to individuals, families, and communities? What specialist skills sets or interviewing techniques are applied by designated police officers?
(f) Rehabilitation: What specialist rehabilitation approaches and services are provided to victims, witnesses, families and communities that have been impacted by sexual torture? How do these relate to the provision of other forms of reparation such as compensation, restitution, satisfaction, and non-repetition?
4. Study findings
4.1 The realities and prevalence of anal sex in Tanzania
The alleged crime of anal sex between the Simiyu Regional Commissioner, one Dr. Yahaya Ismail Nawanda and one Tumsime Mathias Ngemela, which reportedly may have happened on 02 June 2024, if confirmed, will not be an isolated incidence of anal sex in Tanzania.
According to NBS (2023), in their report entitled “Tanzania in Figures,” between 2018 and 2022 there were 6,771 instances of “un-natural offense,” which is another name of anal sex. The picture below shows the numerical realities by year.
View attachment 3015530
NBS (2023) statistics do not disaggregate her figures by sex. But, The Chanzo (2023) has done that. According to The Chanzo (2023) website, between 2016 and 2021 about 5,716 children were subjected to pedication, including 5,034 boys and 683 girls. The matrix below shows the realities by sex and year.
View attachment 3015532
These figures tell us one thing: despite the existence of criminal laws prohibiting anal sex, the crime still happens year after year. This means that, laws are not effective in combating the vice of anal sex. Something more must be done.
4.2 Regulatory framework
Under our civil and criminal law, legal expectations related to sexual behaviors can be grouped under five main headings, namely: marital sex, anal sex, heterosexual rape, sexual harassment, bodily assault and cohabitation, where marital sex is not for discussion here. Each of the others is described briefly below.
Anal sex: In Tanzania “to have [rectal] carnal knowledge” with “any person,” be it a man or woman, is prohibited by section 154(1) of the Penal Code (CAP 16, RE 2022), because it is “against the order of [procreative] nature.” The phrase “to have [rectal] carnal knowledge” means having anal sex or performing pedication.
Thus, consensual pedicative sexual acts between homosexual and heterosexual adults are criminalized. But consensual non-pedicative sexual acts between heterosexual adults, such as fornication, adultery, fellatio, armpit sex, intercrural sex, breast sex, and thigh sex, are not a crimes in Tanzania.
Heterosexual rape: Section 130(1) of the penal code confines an offence of “rape” between “a male person” and “a girl or a woman,” while section 130(2) defines rape as “sexual intercourse with a girl or a woman under circumstances” which show that either she is not “consenting to it at the time of the sexual intercourse”, or her “consent has been obtained by the use of force, threats or intimidation”, or “with … her consent when she is under eighteen years of age,” provided that, the two are not married to each other.
Sexual harassment: Sexual harassment is prohibited under section 138D(1) of the penal code, according to which, “any person who, with intention, assaults or by use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person, commits an offence of sexual harassment and is liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding two hundred thousand shillings or to both and may also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for any injuries caused to that person.”
However, for the purpose of this section, clause 138D(4) states that assault as here defined excludes “rape” as defined under section 130.
Bodily assault: Non-sexual bodily assault against any person is prohibited under section 241 of the penal code according to which, “any person who commits an assault occasioning actual bodily harm is guilty of an offence.” Sexual bodily assault against boys is prohibited under section 156(1) of the penal code, according to which, “any person who unlawfully and indecently assaults a boy under the age of eighteen years is guilty of an offence and is liable to imprisonment for life.”
Cohabitation: For single persons, fornication under the disguise of trial marriage is legal under section 160 of Marriage Act (1971); and for married persons who intend to be polygamous adultery is legal under the disguise of trial marriage which is allowed under the same section.
Stock-taking on regulatory framework: Our legal framework entails an inarticulateness when it defines rape by focusing on heterosexual rape and excluding homosexual rape; it embraces a confusion when it defines sexual assault by focusing on boys and excluding sexual assault among adults; and it harbors incoherence when it defines sexual harassment by focusing on non-rape sexual conduct, while serial rape can constitute sexual harassment too.
Most importantly, our criminal law embraces an unnecessary double standard when it prohibits “having [rectal] carnal knowledge” with “any person” because it is “against the order of [procreative] nature”; while it prohibits non-sexual bodily assault against any person because it occasions “actual bodily harm” against another person.
This conceptual chaos makes criminal investigators under-perform while performing their duties. I suggest that, the Mwanza investigation team are bogged down in this jig-saw puzzle of evidence collection and legal interpretation. I suggest that, had our criminal law defined “anal rape” as a type of physical “bodily assault,” instead of defining it as a “sexual act which is against the order of [procreative] nature,” their task could have bee easier. It is very easy to establish the dilation and fissure of sphincter muscles than proving an opposition to the order of procreative nature.
In other words, the national legislative framework does not properly account for sexual torture inflicted through coercive anal sex. Specifically, “sexual torture” is prohibited and criminalized in national legislation in terms of crimes against nature, which are elusive to capture. It is not defined explicitly in our national law to capture adult anal sexual torture, as a crime against the good of bodily integrity.
This is why Michel Foucault is reported by Cahill (2000) to have suggested a new approach to rape legislation. Situating his reply within a larger analysis of sexuality and power, he argued that: “there are problems if we are to say that rape is more serious than a punch in the face, because what we’re saying amounts to this: sexuality as such, in the body, has a preponderant place, the sexual organ isn’t like a hand, hair, or nose. It therefore has to be protected, surrounded, invested in any case with legislation that isn’t that pertaining to the rest of the body. But, anal rape isn’t just a matter of sexuality, it’s the physical violence that should be punished, without bringing in the fact that sexuality was involved.
4.3 Challenges to effective investigation and prosecution of sexual torture
Based on what has been prevailing since the public appearance of the bad news from Mwanza in relation to the Yahaya-Tumsime Scandal, it is obvious that, the main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture include political, cultural, political, institutional, psychological, and legal. It is impossible for the RPC to investigate the allegations agaist RC; our criminal law has framed coercive anal sex as an act which is against the order of procreative nature; politically there is a sense that an RC who is a presidential appointee needs to be somehow protected so as to save the face of his appointing authority; and culturally the society is not used to publically discussing sexual matters.
4.4 Victim protection during investigation and prosecution
The Yahaya-Tumsime Scandal has provided us with clear evidence that, there are no special procedures, standards, protocols, and good practices for protecting the victims of sexual torture when they approach the police offices. The fact that the Mwanza investigators leaked the letter written by Tumsime to RCO on 06 June 2024 is so telling. The RCO was trying to protect the RC while jeopardize the sexual torture victim, her family and relatives. Something needs to be done.
4.5 Evidence collection and documentation
Again, the Yahaya-Tumsime Scandal has provided us with clear evidence that, there are practical, logistical and other challenges in evidence collection of sexual torture in police quarters. So far the public is not informed of what is transpiring concerning the investigation of this matter. It is doubtful that there are specialized policies, protocols and practices used to identify, document and secure evidence collection in respect of crimes of sexual torture and the damages caused to individuals, families, and communities. Moreover, it is doubted whether there are specialist skills sets or interviewing techniques which are applied by designated police officers at Mwanza.
4.6 Rehabilitation
Given the secrecy that has surrounded the Yahaya-Tumsime Scandal it is not clear to figure out what specialist rehabilitation approaches and services are provided to victims, witnesses, families and communities that have been impacted by the reported sexual torture. For this reason, it is similarly difficult to know how these approaches relate to the provision of other forms of reparation such as compensation, restitution, satisfaction, and non-repetition. Something needs to be done.
5. Lessons for policy makers
In light of the above findings, there is an urgent need for policy influencers and policy makers to make sure that the following practical steps are taken now:
- The realities and prevalence of anal sex in Tanzania: The NBS statistics on “un-natural offenses” should classified by sex and age to allow meaningful interpretation of the figures. The current practice of consolidating figures by hiding sex ratios should be abandoned.
- Regulatory framework: Rape legislation should be revised to make sure that, the crime of rape is defined as an assault against bodily integrity, so that anal rape is seen as an assault against sphincter muscles; just as a punch on the chick is an assault against the victim’s lower jaw. This is the case because, the anus and other sexual organs are like a hand, hair, or nose which have to be protected, surrounded, invested in any case with legislation that pertains to the rest of the body. Coercive anal penetration isn’t just a matter of sexuality, it’s the physical violence that has to be punished, without bringing in the fact that sexuality was involved. Thus:
- the current legal definition of rape should be expanded to embrace anal rape,
- the definition of rape should be given in terms of the violation of bodily integrity as opposed to the violation of the order of procreative nature;
- the current definition of sexual assault against boys should be expanded to include sexual assault against adults;
- the phrase "[rectal] carnal knowledge" should be replaced by "anal sex" or "pedication" with a clear legal definition provided;
- he phrase "[vaginal] carnal knowledge" should be replaced by "vaginal sex" or "copulation" with a clear legal definition provided; and
- the phrase "sexual intercourse" should be defined clearly.
- Challenges to effective investigation and prosecution of sexual torture: The main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture include political, cultural, political, institutional, psychological, and legal should be removed immediately through proper legislation.
- Victim protection during investigation and prosecution: Special procedures, standards, protocols, and good practices for protecting the victims of sexual torture when they approach the police offices should be formulated now.
- Evidence collection and documentation: Practical, logistical and other challenges in evidence collection of sexual torture in police quarters should removed
- The law enforcement organs should ensure that the Yahaya-Tumsime Scanda is quickly concluded by the court of law so as to lay a solid precedence on the fact that anal rape is a serious crime in Tanzania.
6. References
- Cahill, A.J. (2000), “Foucault, Rape, and the Construction of the Feminine Body,” Hypatia 15:1, 43-64.
- URT, Penal Code, CAP 16 (RE 2022).
- NBS(2023), Tanzania in Figures, 2022.
- The Chanzo (2023), Tatizo la Ulawiti kwa watoto: Jamii Tumejikwaa wapi?
7. Pictorial attachments
View attachment 3015551
View attachment 3015552
View attachment 3015557
Authored by:
Dr. Mama Amon
"Sumbawanga Town"
P.O. Box P/Bag,
Sumbawanga
Tanzania
And if it is discovered that the “victim” was a willing pawn in a conspiracy to slander the RC taking also into consideration that she was already seasoned in the type of action and has had similar acts consensually with the RC previously (still a crime in the law of the land), what kind of rehabilitation would be appropriate for her?
