20100325 TZCA Zanzibar

1

IN THE COURT OF APPEAL OF TANZANIA

AT ZANZIBAR (CORAM: RAMADHANI, C. J.; MSOFFE, J.A; And LUANDA, J.A.) CRIMINAL APPEAL NO. 83 OF 2009

BETWEEN BASHIRU RASHID OMAR ••• APPELLANT AND S. M. Z . .. RESPONDENT (An Appeal from the Decision of the High Court of Zanzibar, at Zanzibar) (Mshibe Ali Bakari, J.) dated the 4 th day of January, 2008 in Criminal Sessions Case No. 3 of 2006 •••••••

RULING OF THE COURT 3 December 2009 & 25 March 2010 RAMADHANI, C. J.: I The appellant, Bashiru Rashid Omar, was convicted of murder contrary to I ss. 180 and 181 of the Penal Decree Cap 13 of, the Laws of Zanzibar, and l was sentenced to suffer death. Aggrieved by that decision he has filed this ~· appeal and was represented by Mr. Usi Kham is Haji, learned counsel, while / JI the respondent/SMZ had the services of Mr:' Suleiman Masoud Makar-/ Mr. Ali Mlali Vuai and Ms. Sabra Mselem Khais, learned State Attor?/, Mr. Usi had one ground of appeal and thatfas that there was no ~· up to the assessors and, therefore, he arued, the trial was a ?' that there should be a new trial. Mr. Suleiman, the lead Stat~0 conceded that there was no summing uJ but objected to a ret 1 . / f 2 he suggested that we quash the judgment and order the learned judge to proceed to sum up to the assessors. That was resisted by Mr. Usi. We do not agree with the SMZ that this omission is curable under s. 394 (1) (a) of the Criminal Procedure Act which provides as follows: (l)Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account - (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or

during the trial or in any inquiry or other proceedings under this Act; In Andrea s/o Kulinga And Others v. R. [1958] E. A. 684 the East African Court of Appeal was faced with a similar issue confronting us: the failure of the trial judge to sum up to assessors. The Court held: Whilst under s. 283 ( 1) of the Criminal Procedure Code there is no obligation on the trial judge in Tanganyika to sum up the evidence for the assessors the court endorsed the view expressed in Washington s/o Odindo v. R (1954), 21 E. A. C. A. 392 that "it is very sound practice ... to do so except in the very simplest cases". We may as well point out that that is the position in Zanzibar. Section 278 of the Criminal Procedure Act, Act No. 7 of 2004, merely provides for delivery of opinions by assessors. Like on the Mainland Tanzania or Tanganyika, as was in that appeal of Andrea s/o Kalinga, there is no provision requiring a Judge to sum up to the assessors. 3 We concur with the view expressed by the East African Court of Appeal. Besides this Court also has taken a serious view on matters regarding assessors. In Laurent Salu and Five Others v. R, Criminal Appeal No. 176 of 1993 (CAT) (unreported), this Court gave detailed requirements of a trial by assessors which, if followed, many shortcomings would be nipped in the bud. We are of the decided view that we better recapitulate that.

1) The court must select assessors and give an accused person an opportunity to object to any one of them.

2) The court has to number the assessors, that is, to indicate who is number one, number two and number three, as the case may be.

3) The court must carefully explain to the assessors the role they have to play in the trial and what the judge expects from them at the conclusion of the evidence of both sides.

4) The court to avail the assessors with adequate opportunity to put questions to the witnesses and to record clearly the answers given to each one. If an assessor does not question any witness that, too, has to be clearly indicated as: "Assessor 2: Nil or No question".

5) The court has to sum up to the assessors at the end of the submissions by both sides. The summing up to contain a summary of facts, the evidence adduced, and also explanation of the relevant law, for instance, what is malice aforethought The court to point out to the assessors any possible defences and explain to them the law regarding those defences. 4 6) The court to require the individual opinion of each assessor and record the same. The only issue for us to determine then is simply what is to be done since it is agreed that there was no summing up to the' assessors. We understand the fears of the SMZ that it might be extremely difficult for them to find the witnesses for a retrial. At the same time the submission of Mr. Usi is also valid that if we are to order the resumption of the proceedings from the stage of summing up, what follows is going to be a proforma affair since the learned judge has already formed his opinion as to the appellant's guilt. In Fatehali Manji v. R. [1966] E. A. 343 at p. 344 the East African Court of Appeal made the following exposition as to when a retrial could be ordered: ... in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at

the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blam,e, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and and circumstances an9 an order for retrial should only be made where the interests of justice require it• ' J_ 5 For that reason we are of the decided opinion that for justice to be done, and to be seen to be done, there has to be a retrial befor~ another judge and as soon as possible. We so order. I We may as well say it here that we deliberately avoided 'dealing with the evidence and what was said to have happened so as not, to prejudice the retrial. DATED at DAR ES SALAAM this 02 nd day of March, 2010. , A. S. L. RAMADHANI

CHIEF JUSTICE J. H. MSOFFE

JUSTICE OF APPEAL B. M. LUANDA

JUSTICE OF APPEAL 6 I certify that this is a true copy of the original. ,,,,---·-• E--- ll c::::::::::§~I J.

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