19970512 TZHC Tabora

IN THE H:fGF COl.J~T OF TANZANTA AT TA l30RAi\ • CRIM!NJ\t, At-PEAL NO. 6/97· (or:i ginating· from Tabor<ci hi strict court er • • case' NO• 56/97 . .' ' , . BARRE MOH\MED i~.-~•·· . ··••···•· APPEI I /\NT VER.SUS TBE REPUBLIC•••••••••••••••••• RESPONDENT J U. _D. _G M E N T M/,CKANJA, - J_. - The appellant is a somali national. /1.t the ti me of ~is arrest he was living in N~irobi, Kenya, as a refugee. tte was netter in the Tabora Municipal:ity in a special opera- tion on 21st January, 1997 ■ He was consequently charged of being unlawfully present i.n Tailzania c/ s_ J 1( 1) ( i) and ( 2) of the Jmmigration ACt, NO ■ 7 of 1995. When the charge was read out to him through an interpreter he said "It is truett~ Tt, e facts -were bri -ef. rt ¼-as alle ge<l that upor1 his arre- $t by '!mm:1 gratj on officers the appellant :i ntro<lucei! himself - as a somali nat:ional; that he hail come from Na~robi, Kenya, where he lived as refugee; anrl tl·at he ha<i entererl this country throtirh the SiFari entry point. He is allege~ to have ai!mi t te d tba't hi_ s presence ; n Tanzania was not a utho- ri s ed by law. After these facts were narratecJ to him he replier thus: 11It is wholly truen 1t is then that he was convicte~ on his own plea of guilty. The public prosf:cutor :impressec upon -the trial court that breaches ofthe immigrat.;on law were on the :increase~ p.cccr~ingly he prayer' for

a stiff sentence. The learnerl tri.al Magistrate grante~ the prayer after which he proc.eeded · "' to sentence the a.>ppellant to eighteen ( 18) mo:oths in Jail, observing that: "This sentence .; s it11f,1Oserl wi_ thout option to pay :fine ( sia·) n. The conviction an0 the sentence have aggr:t,eve" -1:he appellant. Mr. Mtaki, who a~vocr.ltes for h ➔ m, has lor'ge~ a•petition of appeal containing two groun~s. tte contends that the 'learne<' nesi"ent Magistrate erre~ in bol~;ng the appe 1 l0nt h~n unequivocally plea~e~ guilty to the charge an" that the prison term he was awar~e~ without an option_ of ,3 fine was errone0us. Mr .•. Mtak:i. has argued that the cha;rge, relates to the ..• ~ppel):apt_ heirl'g unlawfully present ;iil ranzania. · A~coraing ' ;' . ~ . . to. him. . : . _. tl')_e particulars are· a f. variai:ice. . wj , tr ,t hedmirrte ~ a . : . con~itioh w~ich_:c*use~ confus~on i~ t~e appellant is ~lea. Jn this connection Mr. ~taki was g1ven leave to a~grie that in thoe~ ci,rcumstan·c¢s the charge __was de(ectiv.e • . ':.. ...: I thin}.(-the particulars of offence are not at variance· with the statement of off~nce. These two elements const:itute the cha~ge. Sd ~hen Mr ■ Mtaki argues t~at the partjculars are ~{'~afi~nce ~ifh the ~barge J tih~erstan~ him as sayinF thC<t the ·,1facts11 are not in confermity w-ith the charge~ This is also ~hat ~r! Eabuguzi, l~arne~ ~tate

ttio~ney, ten~s ' '. . ? i .. to suggest when he argues that the facts as nar·rat~a co~stitutec' the offence c barges. AS Mr. Kabu @:':JZi · pointe\~ out, c orrect.1.y if think, the L:icts are net ambi gu~ris. For the appellant, s plea is not li.mite<'l to the L-~cts ,ij~:iaolation from the parti- culars cf offence.: ·Ttre facts ari? the particulars of offence ,.-: when taken together leqve no ·<'lotibt to the fact that the appellant was a<'lmitting that his immigration status fn this country was not according to our laws, This be appears to know from ~is o~n admissio~· that h~ was a refugee living in .. Keny3. Hi~ immigration status toul~ only conf~tm t~ the law if ae ha~ the t~avel rocuments referred to in the particu~ars of offence. I am satisfied,therefore~ that the facts a~e riot at var-iance with the c'J'-13rge. Tr.e appellant, s plea was uriequ:f- voo~l. The fjrst ground would therefore fail, j\S re frlrr s the sec onrl 8'rOunrl i t is Mr. Mt.:.ki Is content :I on that w~ere the 1egisl~ture makes provisjon fo~ an option of a fine the trial court shoul~ unless there are oomp'ellin 0 reasons, make thnt option accessible to the convict. T agree wj ti him entirely, for the courts shoulr not be so strict in interpreting penal pi-ov{sions as to rleny a convict a right unrer the law. I~ is in thi~ context that ram not persu~~ed by M~~ K~buguzits cortterition that this ~rincipal

of sent enctng is riot martra tory. 'the question 1- s; therefore, whether there were compel! i nr reasons which just·i ffe<'! the convicting court in rlenying the appellant the option of a fine. 3 e~for~ th~ appellant was ~entence~ the public prosecu- tor praye<" for a harsh sentence because offences of this nature were on, the': i.ncre'nse. The claim was entirely bare;· i t was not supEorte~ by any~s~atis~ics. we shoul~ not be oblivious to th(;).. fac·t·, however, that our contry is host to rlroves o:f . ~' ,.·-,. . refug~es .• · It ,dll · not be in · the publ i.c interest /,t 0 leave these people roam about at will :Jn~ in total ~ieregar<i of our laws. J, woulrt' r-"5.smi ss _the secon~ groun.4 on this latter. consi r-erati.on. The appeal against ~onviction is rlismisse~ an~ the. ~entenc~,- which is not excessive at all, is uphelrl. r;elivere<i. ,Mr ■ Mtaki, Arlvocate: For appellant J\ppellant: _(\'!:'>sent J.M. M_/\CF. \NJA 1 \ i; JUT)GE 12/5/1997 .. ' I HEREBY CERTTFY TF'\T THJS TS A TRUE COPY OF lHE ORJG.JNAL. !- l)ISTRICT REGISTRAR, T/\10RA. \