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Child of tender age can give evidence in court
2007-09-24 08:41:54
By Keregero Keregero
There are views that a person can commit an offence in the presence of a child and do away with it simply because such a child cannot give evidence in court as a witness.
With due respect, the views in question may be dangerous and could lead an accused person to a surprising end-conviction basing on the child's evidence if proved valid.
In Tanzania, the law on whether a child of tender age as defined in Section 127(5) of the Evidence Act,1967 can give evidence, is long settled. That law is provided for under Section 127(2) of the Evidence Act, 1967.
The provision enacts for the procedure in receiving evidence of the child of tender age in criminal cases or matters.
It reads:
`Where in any criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceeding, he is possessed of sufficient intelligence, and understands the duty of speaking the truth.`
This provision imposes a duty on a presiding judge or magistrate, when confronted with a child of tender age as a witness, to investigate and satisfy himself whether the child understands the nature of an oath.
If the investigation reveals that he does not understand the nature of an oath, then he should investigate the intelligence of the child to justify the reception of such evidence and also whether the child understands the duty of speaking the truth.
If the finding is positive, then he can proceed to give the evidence. Precisely, that is what is exactly stated in Jonas Raphael v Republic, C.A.T, Criminal Appeal No. 42 of 2003 (unreported).
The above legal position is also restated by author H.F Morris in his book Evidence in East Africa at pages 180-181, where he says:
`When a young child appears as a witness, the presiding Judge, before hearing his evidence, has a duty upon himself to discover whether the child understands the nature of an oath: If he does, then the child may be sworn or affirmed,` he says adding.
`If, however, it is found that the child does not understand the nature of an oath, then the Judge must satisfy himself that the child is of sufficient intelligence to justify the receiving of his evidence and that he understands the duty of speaking the truth. The record must make it clear that this has been done.`
With regards to the investigation into whether the meaning of an oath is understood by the child, Wyndham, J.A states in Kibangeny Arap Kolil v R (1959) EA 92 that:
(This) need not be a lengthy one but it must be made and when made the trial Judge must record it.
The investigation should precede the swearing and evidence should be directed to a particular question whether the child understands the nature of an oath rather than to the question of his general intelligence.`
In other words, the law requires that a voire dire examination shall be conducted preferably in the form of question and answers, which requirement must be reflected in the record.
Thus, where a true voire dire examination is not conducted in the course of the case proceedings, the provisions of Section 127 (2) of the Evidence Act, 1967 are breached.
It is a settled law that the omission to conduct voire dire examination of a child of tender age brings such evidence to the level of unsworn evidence of a child which requires corroboration (supporting evidence).
This legal position is reiterated in a number of cases, including the one of Dahiri Aly v.R(1989)T.L.R 27.
This means the child's evidence could land someone in prison in case it is found valid and also followed all the procedures for admission as shown above.
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