republic vs seleman so athuman another 2006 tzhc 146 10 march 2006

IN THE HIGH COURT OF TANZANIA

AT BUKOBA

ORIGINAL JURISDICTION (BUKOBA Registry) HC. CRIM INAL SESSION CASE NO. 76 OF 2003

THE REPUBLIC Versus 1. SELEMAN s/o ATHUMAN 2. GOSBERT s/o LEONIDAS 3rd March & 10th March 2006

RULING RWEYEMAMU J : The accused in this case Selemani Athum ani and Gosbert Leonidas first and second accused respectively; advocated for by Mr. J. S. Rwevemamu and Mr. M. Rwevememu Advocates in the same order, are charged with the murder of Phillibert Bakobi on 25/8/1997. The Republic is represented By Mr. Kahangwa state attorney. At the close of the prosecution case, the defence team led by Mr. J. S. Rweyemamu has made a submission of a no case to answer under s. 293 (1) of the CPA in respect of both accused on grounds that; and I paraphraze: , a) There are material contradictions between thejprosecution witnesses. b) The evidence of confession (the only evidence) is discredited for reason that it was obtained by torture. I c) The prosecution evidence is unreliable ana/or fabricated therefore worthless. , d) The case was poorly investigated; leaves a lot io be desired and leads to a conclusion that the police were out to protect some individuals. Mr. Kahangwa disagrees and submits that a case was made out sufficiently enough to require the accused enter their defence. I find it appropriate to begin by examining the law and practice governing the issue. The submission is made under section 293 (1) of the CPA which states: "S.293 (1) When the evidence o f the witnesses for the prosecution has been concluded\ and the statement, if any, o f the accused person before the

committing court has been given in evidence, the court, if it considers after hearing the advocates for the prosecution and for the defence, that there is no evidence that the accused or any one o f several accused committed the offence or any other offence o f which, under the provisions o f section 300 to 309 o f this Act he is liable to be convicted, shall record a finding o f not aui/tv." (Emphasis mine) A no case to answer exists when the court at the close of the ' prosecution case, finds that a prima facie case has not been made out against the accused.| now when is a prima facie case made out? This question has been considered in our Jurisdiction. See among Others: R Vs Makuzi Zaidi & another, 1969 HCD 249; R V Lucas Manyiiizu Cr. Sess. 20/1992 (MZA registry at Geita - unreported); Sunderji v r 1971 HCD 316. In these case> the 'court quoted with approval a passage' derived from the judgment of the defunct Court Of Appeal of East Africa in Ramalal Trambajdal Bhatt VR (1957) EA i 332, at 335 ( a copy of the judgment whicjh I am grateful to have received from Counsel for first accused), thatj; "it may not be easy to define, what is meant by a prima facie case, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. In that case the court went on to hold

that: •" The question whether there is a case to answer cannot depend only on whether there is some evidence irrespective o f its credibility or weight sufficient to put the accused on his defence. A mere scintilla o f evidence can never be enough; no can any amount o f worthless discredited evidence " (Emphasis mine) Both the late Georges C.J., AM s/o Mohamed V. R. Criminal Appeal Case No.38/1966 (Dar es salaam Registry unreported) and Nsekelab. I as he then was, in Lucas Manyilizu, among others cite with approval a persuasive passage from Practice Note (1962) I WLR at p. 227 that: "A submission that there is no case to answer may properly be j made and upheld: (a) " When there has been no evidence to prove an essential element in the alleged offence; (b) When the evidence adduced by the prosecution has been so discredited as a result o f cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it - standing in mind, I; proceed to evaluate the prosecution evidence in light of the grounds raised by the defence. To make the arguments comprehensible, I shall begin by summing up the facts which the prosecution set out to prove. The murder itself occurred on 25/8/97 in Bwanjai but no one was immediately apprehended. On 15/10/^8 almost a year later, the two accused were apprehended in a different village of kyazi- kitobo i allegedly

while attempting to commit another offence. The first accused who was a stranger in that village was first apprehended by villagers (or Pw1) at about 11.00 pm at night, after suspecting him 3 following what they found to be suspicious conduct. He was interrogated following which he allegedly confessed to the villagers that; he was there on a surveillance mission of the house/shop of Mswadiki which they intended to invade that night; that he had a group of other bandits who were still in hiding and armed with a gun; that the second accused was their contact person i.e, he was their host. He is alleged to have also confessed to previous robberies and murder the group had committed in: Bwanjai where they killed the deceased in this case; Bugandika where they also killed a watchman and stole coffee, and yet another in Muleba. It is also alleged Suleiman led the villagers to Gosbert the second accused's house who was apprehended, and following interrogation and torture by those villagers he confessed to everything Suleiman had told them. Three of those villagers testified in this case as PW 1, 2 and 3. In the alleged confession to villagers, elaborate information was given of a criminal racket involving the police officer named Charles and a known business man in Bukoba town named Amasha. The information went thus: The accused operated with a group of criminals - The group involved

a policeman named Charles, stationed at the Bukoba bus stand police post, his role was to hire them his 'official' gun. They had committed several offences in this mode. Places where such offences were committed are mentioned. Regarding the offence in issue it was disclosed that Charles's gun was used as per practice, after killing the deceased -a watchman of Bwanjai co-operative they stole a large amqunt of coffee. The coffee was transported in their colleague one 'Amasha' (apparently a known businessman of Kashai locality in bukoba township)'s vehicle; as they 4 had done on other occasions. Then the stolen coffee was sold at Mafumbo, co-operative society. That society is located in the outskirts of Bukoba Township and near Kashai. According to the three prosecution witnesses, that information was reduced in writing, signed by the two accused and handled over to the police with the accused. It is important I point out that this information, regarding existence of a bigger criminal racket; was not according to the whole record, (including at the PI stage) pursued and/or investigated by the police. This fact is of some relevancy as I shall later demonstrate. Following that, the accused made cautioned statements. (CS) Suleiman made his to Pw4 but it was ruled inadmissible in a ruling dated 6/3/2006; on grounds that it was not recorded according to legal procedures and was

involuntary. The CS of Gosbert, admitted in court for evaluation under section 34 of TEA, suffered from the same procedural irregularity. The relevant part of my reasoning rejecting Suleiman's CS was as follows; "The disputed statement was submitted to court giving me opportunity to go through it. I have to state at the outset that the manner it was recorded indeed contravenes the requirement of section 58 of the CPA. The statement is recorded in a question and answer form. This is contrary to the Tanzania Court of Appeal (TCA)'s interpretation of the required format of recording accused statements under that section. According to the TCA, the question and answer form of recording the accused's statement makes it an interview and not a cautioned statement. - (See Ramadhani JA in Seko Samwel Vs Republic, Cr. App. 7/2003 (Appeal from HC decision in Cr. Sess. 6/99, atTabora; unreported) 5 In the present case, the first accused's cautioned statement recorded by Pw*1 is in a question and answer form - the accused was being led by the recording witness. A methodology invalidated by the TCA as described above. On this ground alone I find the first accused's cautioned statement inadmissible. It would suffice to discard the disputed cautioned statement and stop there, but I find it necessary for reasons to be stated later on, to examine the second leg of counsel's objection, namely

that the 'cautioned statement' was involuntary and contained untruths. In view of the contradictions in Pw1#s testimony; his manner of recording the statement; his doubtful credibility and admission that the accused was severely wounded/tortured before he took him from the RCO's office to 'record' the disputed cautioned statement, it is hard to find that the statement was voluntary. Even if the torture was not done by the police, in the circumstances described it is hard to find that the earlier torture (which the prosecution admits) was not of such a nature as to operate on the mind of the 1st accused when the disputed statement was recorded.” With that CS evidence discarded, all that remains of t prosecution case is the testimony of Pw1, Pw2 and Pw3. Now let see how,the above story was told to the court by the said prosecuti< witnesses with view to evaluating the defence submission ai i prosecution reply regarding the |issue in question i.e., if or not, prima-facie case has been made |)ut. It is easier to examine the evidence of the three under the grounds raised by the defence. I begin with ground (a) Materi contradictions in the prosecutiop case. The contradictions in evidence relate to who arrested Suleiman; where he was arrested; how Gosbert was arrested; and whether the two were tortured by the villagers or not. Pw1 testified that he was the one who arrested Suleiman

near the shop of Pw2, about 9.00 pm at night. He raised an alarm, villagers turned up, and then Suleiman mentioned Gosbert by name as their host. Yet according to Pw2 and Pw,3 Suleiman was arrested by villagers at a different place, about 11.00 at night in a pombe shop; where he had been drinking. The villagers in the pub found his conduct suspicious; he was a foreigner, gave an unbelievable story that he was looking for work yet he had nowhere to sleep. On being interrogated, he admitted that he was there on a criminal mission, that he had another group of armed bandits, and they had a host, who he did not know by name, but knew his house. He then led them to Gosbert's house. The two said when Suleiman was arrested, Pw1 was not there. He turned up later. Continuing with the story, Pw1 said when he raised alarm villagers turned up unarmed and never beat or tortured the accused. A version contradicted by Pw2 and Pw3 who testified that the two accused w ere beaten into admission. Mr. Rweyemamu submits that the above evidence contains material contradictions but Mr. i Kahangwa SA refuses. He submits that; the contradictions are normal i to be expected when witnesses give atcount of a similar incident observed by each; but that their versions were fundamentally similar. I believe facts speak for themselves. My duty is to 'address the above contradictions and decide whethe * they

are minor or they go to the root of the matter' as per TCA decision in Mohamed Said 7 Matula v Republic 1995 TLR 3. Now, was Suleiman arrested in a pombe shop at 11.00 pm by Pw3 and his colleagues or on the way side near Pw2's shop by Pw1. Did Suleiman mention the other accused to the villagers by name as per Pwl7s testimony or only say he knew his face and home as per Pw3s version. These contradictions, except may be the last one; are not minor, they can not be ignored - they may be a signal that none of the versions are true. Or that the story is fabricated as submitted by Mr. Rweyemamu counsel for the' defence. Further, whether the accused were tortured into admission or not is a fundamental question, it goes to the determination of the value of the confession so derived, and therefore goes to the root of the case. I accordingly accept the defence submission that the contradictions in the testimony of the prosecution witnesses are fundamental and 'go to the root of the matter/ Ground (b) is the retracted confession of the accused to villagers discredited for reason that it was obtained by torture. Counsel has submitted that, while the retracted confession may be relied on to convict, the court could convict without corroboration if. ' fully satisfied that the confession is trud but that where a confession is extracted by torture, it becomes inadmissible under s. 29 of

TEA. That indeed is the legal position. See iRichard Lubilo & Ano. V Republic, Cr. Appeal 10/95 (Mwanza registry unreported) Now, the Tanzania Court of App eal has held that for a confession to be admissible, it must be voluntary: That the confession is not voluntary where; "any prtywise or threat was held out to induce the confession and the court finds that the accijsed person was induced by such a promise or threat to make such a confession". The test of whether Or not the promise or threat has operated on the mind of the accused is a subjective one, to be decided on peculiar facts of the case. There are no hard and fast: rules. For example where threat and confession are for apart, the confession may be admissible. See Maziku Vs. Republic (1992) TLR 2/17, cited with approval in Richard Lubilo. But in the case of izengo Vs Republic 1982 TLR (237) (also cited with approval in the Lubilo case), a confession made after the appellant had been severely assaulted was rejected by the court which observed that "if it was ever made - it was made in such circumstances and was o f such a nature as was unlikely to be a true admission o f guilty. See also the same court in Steven Jason and Ano. Republic, Cr. Appeal 79/99 (MZA registry unreported)). In Richard Lubilo the court makes an instructive observation inter-alia that; "section 29 mentions promises and threats only but not actual

torture. Where torture is alleged, this court has taken a more serious view and has implicity presumed an associated ccnfession to be vitiated and incapable o f admission under section 29. " As rightly put by the defence counsel; that the accused were tortured into admission is clear from the evidence of Pw1 & Pw2. Signs of torture were also noticed by Pw4,( when he found the two accused in the RCO's office, before he took Suleiman to record the discredited CS. In my opinion, the effect of torture in this case was as found in the ize n g o case referred to ajbove. That evidence of confession by the accused to villagers can hot be relied on, because it was obtained by torture, apart from the fact of the three prosecution witnesses contradicting themselves on the issue. 9 Counsel submits also that (c) the prosecution evidence was unreliable and/or fabricated and therefore useless. I agree, for one, that is a logical conclusion of my findings on ground a, and b above. But two, a conclusion that the case is fabricated can not be escaped when one considers the following Facts: It was part of the prosecution evidence that the accused's confession to the villagers was recorded, signed by the accused and handed to the police, but there is no mention of it, where did it go and why? . The defence rightly notes that the disappearance of that written information (record) is suspicious.

That written confession, if it indeed existed and was given to Lhe police, was a valuable hint to a serious investigator. It was a hint that the accused were ready to confess and the appropriate course of action would have been to take the accused tc a Justice of Peace. The TCA reminded investigators again that; "upon o.i accused person intimating to make a confession, the safest course to y / is tc have him repeat his statement before Justice o f Peace." See Bushin m.sshakn and 3 others v R, Cr App. 45/1991 (DSM registry unreported). Three according to the witnesses the information therein disclosed existence of a criminal racket. If the police received such information,. ' ;hy did they not act on it;- there was disclosure of two murders, ;-igan;:lika and Bwanjai ,- why |was the murder in the former p l r n o t followed up; they learnt that a police officer one Charles \-n:' i.i on the criminal racket, Why did the police not investigate; ' hey ha'.i information that Amasha a business man was in the gong jnd in this case he carried the stolen coffee which he sold at MafiJMbo (in the vicinity of Bukoba town), why did they not 10 make a follow up. It was counsel's submission that they must have known the facts to be fabricated/untrue therefore unreliable and worthless. Part of the reasons in my ruling rejecting the cautioned statement recorded by Pw"1when he admitted to have

learnt about existence of a criminal racket was that; "- T h e reasonable and comprehendible conclusion of why the p c ;ice took no action is that they knew the statement was invokj!,.:ry and -u n tru e , as submitted by the learned counsel for the f.rsi rxcu se J." And tha!: "The other possibility explaining police failure to act on the more .‘•■'irious contents of the (information regarding existence of a :mina! racket) would in fact open a Pandora's Box for-, who trust the word of a police (or the investigators that the xused made a voluntary confession to villagers when '-‘ iey are shown to have closed eyes to such serious inforr --Tion received) The defence counsel submits (d) the case was poorly investigated, leaves a lot to be desired, and leads to a conclusion that the police v-xre out to protect some individuals, Such a possibility is too frightening to contemplate; at this stage speculative such that I am not prc* ^red to go that far. ■ But U e facts that'; the police failed to act on the more serious information from the confession given to villagers if indeed it was made; the .dice having had a hint that the accused were ready to 11 confess failed to take them to the justice of peace; having so failed to act they proceeded to take a cautioned statement, and record it un procedurally; all go to show and support the defence submission that the prosecution case was not

seriously investigated. And as a result is not worth of belief. Before I conclude I wish to point out that the cursory investigation in this case leaves a lot to be desired. This is a matter with serious consequences in the administration of justice. Where critical information is ignored; procedures flouted; leading to acquittal of may be guilty persons, victims and society at large loose faith in the machinery of justice. In this case Pw3 among the villagers of Kyazi, expressed surprise during cross examination that, the information they supplied was not acted on- he responded that 'our duty ended with informing the police it was not up to us to investigate' To him and his colleagues what went on in this case must be a let down. This is very unfortunate. We are all too aware of the consequences there from. For one, this may be one of the factors fuelling a resort to vigilantism and persons taking the law in their own hands. This rising phenomena serves neither the victims, suspects nor society at large. On the other hand, obvious defects can not be ignored because; failure to adhere to law and procedure in evaluating evidence submitted by the prosecution, may lead to conviction of innocent persons. Either way, justice would not be served. Now coming back to this case, I accept the defence submission that the prosecution evidence is contradictory in material particulars; unreliable; discredited; and worthless; such that no reasonable tribunal would act on it. I accordingly find that both the accused have no case to answer and hereby acquit them. R. M. RW EYEMAMU

JUDGE 10/03/2006 13