the republic vs john mbatira mtuke 3 others 2023 tzhc 21436 27 september 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY)

AT MUSOMA

ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No. 181 OF 2022 THE REPUBLIC v.

1. JOHN MBATIRA @ MTUKE 2. SADICK SHABANI @ YOHANA 3. MANGA MGONOKI 4. STEVEN AUGUSTINO @ ODIERO RULING [TRIAL WITHIN TRIAL] 27.09.2023 & 27.09.2023 Mtulya, J.: During hearing of the instant case, Police Officer H.83 D/Cpl. Onesmo (PW6) prayed to tender a cautioned statement allegedly extracted from Mr. Steven Augustino Odiero (the fourth accused) to substantiate that the fourth accused had confessed in the killing of Mr. Rashidi Ally Hassan (the deceased) that had occurred on 9th April 2022 at Mwanzaburiga Village within Butiama District in Mara Region. However, the prayer was protested by Mr. Baraka Makowe, learned defence counsel for the fourth accused and the protest received support of the other learned defence attorneys, Mr. Daud Mahemba, Mr. Amos Wilson and Mr. Victor Kisaka, for the first, second and third accused persons, respectively. According to Mr. Makowe the enacted procedure of extracting confession breached the provision of section 27 (3) of the Law of Evidence Act [Cap. 6 i R.E. 2019] (the Act), which requires a confession to be voluntarily produced without any threat or promise. Following the protest, the case had changed its course to a trial within trial in order to abide with the directives of the Court of Appeal in Paulo Maduka & Four Others v. Republic, Criminal Appeal No. 110 of 2007. In the trial within trial, PW6 (TWPl) was marshaled by the Republic to

appear and testified that on 25th July 2022, he went at Kiabakari Police Station to take the fourth accused around 17:00 hours and ferried him to Butiama Police Station for cautioned statement recording, which started at 17:40 hours and ended at 19:00 hours on the same day, 25th July 2022. According to TWPl, the interrogation and recording of cautioned statement was not associated with any torture, threat or promise and was conducted in a special interrogation chamber, which had three (3) tables, six (6) chairs and a bench. In the opinion of TWPl, the exercise moved very smooth as the accused was explained all of his necessary rights before recording of the cautioned statement and finally, he signified the statement by placing his signature. The cautioned statement was admitted in the trial within trial as exhibit TW1 for scrutiny purposes. The defence side on the other hand had called the fourth accused (TWD1), who admitted being arrested at Mwanzaburiga Village within Butiama Village and was brought before Kiabakari Police Station at around 17:00 hours and before Butiama Police Station at around 20:00 hours without passing-by any other places. 2 According to the TWDl, he was interrogated in circumstances of torture and threat accompanied with hot charcoal stoves, arranged in upright chairs and Rungu in a room which contained blood stains in its floor tiles. According to TWDl,

even the police officer who interrogated him was called Mnyama Onesmo assisted by Peoples' Militia called Mataro. Apart from TWP1, other police officers were beating him with Mabanziwx both sides of ears to feel evil and others called him Msenge, which was very bad word to him. Following the threats and tortures, he confessed the offence to save his life and that the recording exercise took place on the second day of detention, 26th July 2022, around 08:00 hours. According to the defence the statement was prepared by Onesmo as he had in his possession of statements of Ms. Neema Rashidi, Mr. Sadick Shabani (second accused), and John Mbatira (first accused), which mention the fourth accused. On my part, I perused the law regulating confession and time limitation in recording confessions of accused persons enacted in section 27 (3) of the Evidence Act and section 50 (1) of the Act. Section 27 (3) of the Act prohibit threats, torture and promise. It requires confession to be voluntarily extracted. Similarly, section 50 (1) requires cautioned statements to be recorded within four (4) hours, unless there are good reasons to stretch the limits. I have scanned the testimonies of TWP1 and TWDl and exhibit cautioned statement of the fourth accused in TW1 and noted in 3 totality of materials presented, the accused was arrested at Mwanzaburiga in evening hours of 25th July 2022 and was

brought at Kiabakari Police Station around 17:00 hours for police custody and details of his arrest. I also believe the accused person was interrogated at Butiama Police Station between 17:00 hours and 20:00hours, which is within three hours as per requirement of the provision in section 51 (1) (a) of the Act. Again, the detailed information displayed in TW1, cannot be produced by any other person, than the fourth accused person. In any case, the complaint on torture and threats lacked any physical evidence on the record. The same to the cautioned statement of the fourth accused in police custody, the record shows that the time taken by TWPl did not violate the law in section 50 (1) (a) of the Act. On the same note, reading the details produced in TW1 on the historical background of the fourth accused, plans for killing of the deceased and reasons of the killing. In the final analysis I am persuaded to believe that, in totality of the evidences produced on record, to hold that there is no any breach of section 27 (3) of the Evidence Act and section 50 (1) (a) of the Act. In that case, I overrule the raised points of objection, and hereby order the exhibit be admitted in the main case. 4 This Ruing was pronounced in open court in the presence of the accused persons, Mr. John Mbatira @ Mtuke, Mr. Sadick Shabani @ Yohana, Mr. Manga Mgonoki, and Mr. Steven Augustino @ Odiero, and their learned Defence Attorneys, Mr. Baraka Makowe, Mr. Daud Mahemba, Mr. Amos Wilson and Mr. Victor Kisaka and in the presence of Mr. Tawabu Yahya Issa and Ms. Evangelina Ephrahim Mukarutazia, learned State Attorneys for the Republic. Judge 27.09.2023