000 I 15
91
.
ln the instant case, the Applicant alleges that Sections 130(2) (e) and 131(2)(a)
of the Tanzanian Penal Code2o breach Articles 13(2) and (5) of the Tanzanian
Constitution, which enshrines the right to equality and equal protection of the law
essentially in the same terms as Article 3 of the Charter.2l lt is thus incumbent
upon this Court to ascertain whether such sections of the Penal Code contravene
Article 3 of the Charter, which states that "Every individual shall be equal before
the law [and] ...the right to equal protection of the law".
92. The Court notes that Sections
130 (2) (e) and 1 31 (2) (a) of the Penal Code define
the material scope of the offence of rape in the Respondent State with the penalty
its commission entails. The Court also observes from the file that the national
Courts convicted and sentenced the Applicant on the basis of these provisions in
accordance with established domestic procedures and there is nothing manifestly
erroneous in the process.
93.
For the Court, the Applicant's contention that the said sections of the Penal Code
contravene the constitution is a mere general allegation which remains unproven.
ln this vein, the Court recalls its established jurisprudence that "general
statements to the effect that a right has been violated are not enough. More
substantiation is required".22
94.
ln view of the foregoing, the Court holds that the Respondent has not violated the
Applicant's right to equality and equal protection of the law under Article 3 of
Charter.
20
Section 130(2) (e) of the Penal Code provides that "A male person commits the offence of rape if he
has sexual intercourse with a girl or a woman under circumstances falling under any of the following
descriptions:
(e) being a religious leader takes advantage of his position and commits rape on a girl or woman.
Section 131(2)(a) of the same stipulates that "Notwithstanding the provisions of any liw, where the
offence is committed by a boy who is of the age of eighteen years or less, he shall: if a first offender,
be sentenced to corporal punishment only;"
2lArticle 13(3X5) of the Tanzanian constitution provides that "All persons
are equal before the law and
are entitled, without any discrimination, to protection and equality before the law. For the purposes of
this Article the expression "discriminate" means to satisfy the needs, rights or other requirements of
different persons on the basis of their nationality, tribe, place of origin, pol itical opinion, colour, religion
or station in life such that certain categories of people are regarded as weak or inferior and are subjected
to restrictions or conditions whereas persons of other categories are
opportunities or advantage outside the specified conditions or the
22 Alex
Thomas Judgment v. Tanzania Judgment, op. cit., para. 140
or are accorded
ry qualification."
22
Yh..,a
v