REPUBLIC vs CHUACHI MGESI CHACHA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT TARIME CRIMINAL SESSION CASE NO 62 OF 2023 REPUBLIC VERSUS CHUACHI S/O MGESI CHACHA RULING ON SENTENCE 07/10/2024 & 06/11/2024 Kafanabo, J.: On 07/10/2024 the information for the offence of attempt to murder contrary to sections 211(a) and 380(1) of the Penal Code, Cap. 16 R. E. 2022 (hereinafter the 'Penal Code') was read over to Chuachi Mgesi Chacha (hereinafter the 'accused'). The particulars of the information were clear that on the 15th day of April 2023 at Genkuru Village within the Tarime District in the Mara Region, the accused unlawfully attempted to cause the death of Kisiri s/o Gibeche Mwita (hereinafter 'the victim'). The accused, unequivocally, pleaded guilty to the said information. The accused also admitted that all the facts read to him expounding on how and when the offence was committed were true. The prosecution also tendered a medical examination report (PF3) of the victim and a sketch map of the crime scene which were admitted as exhibit Pl and P2 respectively. i Following the accused's unequivocal plea of guilty, this court convicted the accused for the offence of attempt to murder contrary to section 211(a) of the Penal Code. Having convicted the accused, the court invited counsels representing both parties to address the court on matters they consider relevant and that will be germane on the sentencing of the accused. The learned counsels assiduously made their submissions for their respective cases. Therefore, this court is required to determine an appropriate sentence for the offence committed by the accused. The relevant law on sentencing the accused is found in section 211 of the Penal Code which provides that: "211. Any person who- (a) attempts unlawfully to cause the death of another; or (b) with intent unlawfully to cause the death of another, does any act or omits to do any act which it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life, is guilty of an offence and is liable to imprisonment for life." The above section provides a punishment of life imprisonment for a person who is convicted of the offence of attempt to murder. Life imprisonment is the maximum sentence set by the law, but not a mandatory sentence to be imposed on a convict. The court upon thoughtful and prudent consideration, taking into account the circumstances and facts of each particular case, also depending on the nature and gravity of the offence, may exercise its discretion and impose a reasonable sentence on the convict. The facts of the case as presented by the prosecution and admitted by the accused, and evidence on record indicate that the offence was 2 committed on 15/04/2023 at Genkuru Village within Tarime District. In the morning hours of the material date, the victim one Kisiri Gibeche Mwita went to visit his friend namely Gichonge Mgesi at his house, where he found his friend with another person namely Mwita Kimune Masambe. Then the accused entered the same house while holding a machete, and told the victim that he will suffer the consequences for publicizing report/rumours in the village that the accused was uncircumcised and everyone in the village told the accused that it was the victim who spread the report. The actual Kiswahili version of what the accused told the victim was that ”/eo utanikoma kwa nini unanitangazia kwa watu kuwa mimi sijatahiriwa (Mrisya) na kiia mtu hapa kijijini ananiambia wewe ndio unawatangazia kuwa mimi sijatahiriwa"). The Accused then assailed and slashed the victim on the head by using the machete he was holding, as a result the victim suffered a serious injury on the head and bled profusely. The said fact is supported by a PF3 (a medical examination report) of the victim Kisiri Gibeche Mwita dated 15/04/2023 which was admitted by this court as exhibit Pl. The report indicates that the victim was severely injured on the head which caused severe bleeding due deep cut wound which was three (3) centimetres deep and had a width of ten (10) centimetres. The medical examination report indicates further that given the depth of the wound, the brain tissues could be seen. The report further indicates that the wound was too deep near the brain and could cause death. It is also indicated that the wound was caused by the sharp object. 3 The said details of the report coupled with the facts of the case admitted by the accused, make it crystal clear that the convict fatally wounded the victim's sensitive and vulnerable part of the body, the head, by using a sharp and dangerous object, the machete. The said facts establish the ruthlessness of the offence committed by the convict. As regards the aggravating factors in sentencing the accused, the prosecution, submitted that the accused be punished according to law and by the guidance of the Sentencing Guidelines of the Court. The punishment should also be a lesson to other persons with the character like that of the accused. It was also submitted that the court in imposing punishment against the accused should take into account the following factors: one, the accused used a dangerous weapon, a machette. Two, the victim was attacked on the vulnerable part of the body, that is the head and the victim had suffered permanent incapacitation. Three, the victim be paid compensation taking into account that the victim was hospitalized for more than a month after the brutal attack and the victim is unable work, and cannot get involved in the production activities because of his crippled condition after the attack by the accused. The Republic also laid bare that it has no previous criminal record of the accused, but it is the prayer of the prosecution that deserving punishment be imposed on the accused. In mitigation, Mr. Kigombe, the learned advocate submitted that the accused deserves lenient sentence/punishment for various reasons. 4 First, the accused is a first offender and that it is because there is no previous criminal record of the accused. The accused being the first offender deserves reformative punishment, citing the case of the case of Hattan v Republic, 1969 HCD 234. Second was that, the accused pleaded guilty to the offence. This served time and resources to the Court and the Republic. The accused, in that respect, is remorseful to the offence he committed. It is trite law that the accused who pleads guilty is entitled to the mercy of the Court and thus deserves lenient sentence. The case of Benadeta Paul v. Republic 1992. TLR 97 was cited in support of the submission. Third, the accused has been in remand for one year and five months since he was arrested on 15/04/2023. Fourth, the court be pleased to consider the circumstances under which the offence was committed. It was committed because of the exacerbation by the victim who spread rumours that the accused was uncircumcised. Fifth, the accused surrendered himself to Nyamwaga Police Station on 15/04/2023. This means that the accused did not run and was remorseful for the offence he committed thus served time and resources of the relevant authorities. Moreover, the accused is 41 years old born in 1983. The accused is workforce for his family and the nation as a whole. The accused has dependants, that is a wife and five children and all of them depend on him for their livelihood. After reviewing the above submissions as indicated above, the law with respect to the punishment for the commission of offence of attempt to 5 murder is provided under section 211 of the Penal Code reproduced hereinabove which provides for the maximum sentence of life imprisonment, but the minimum sentence is not stated, it depends on the facts of each case and the discretion of the court which must be exercised judiciously. See the case of Bahati John vs Republic (Criminal Appeal No. 114 of 2019) [2022] TZCA 407 (11 July 2022). Moreover, in sentencing the accused the court must assess and consider, among other factors, the level of seriousness of the offence committed by the accused. According to the Tanzania Sentencing Guidelines, 2023 the court is required to look at the nature and circumstances of the offence, the offender, and the victim to assess the following: '(a) the gravity of the offence - nature and circumstances in which the offence was committed; (b) the culpability of the particular offender - the motivation, conduct, intention, and particular circumstances of the offender; and (c) the nature and extent of harm, injury or damage that was caused, intended or might foreseeabiy have been caused to the victim or society This court, after considering both aggravating and mitigating factors stated herein above together with the gravity of the offence, culpability of the accused and nature and extent of the damage places the offence committed by the accused in the category of high level of'attempt to murder' as per the guidance provided in the Tanzania Sentencing Guidelines. In light of the guidelines, if the offence attracting life imprisonment as a maximum punishment, the sentencing of the offence considered to be that of a high level by the court could commence at a minimum of not less than ten years' 6 imprisonment. That is the custodial sentence could be between ten (10) years to life imprisonment. Under the circumstances of this case, the custodial term of the sentence would have been 13 years of imprisonment. However, the court takes into account the fact that the accused surrendered to the police after committing the offence. The accused also pleaded guilty at the second opportunity in court proceedings, that is after the preliminary hearing was duly conducted, and when the matter was set for a full trial. Thus the thirteen (13) years that the court considered imposing on the convict are reduced by three years. After the said reduction, ten (10) years of imprisonment remain. The Court of Appeal cases of Charles Mashimba v. Republic [2005] TLR 90, Swalehe Ndungajilungu v. Republic [2005] TLR 94 and Bernadeta Paul v. Republic (1992) TLR 97 are relevant. Considering other aggravating and mitigating factors, including the offensive and provocative rumours that were spread by the victim, that the convict was uncircumcised (Mrisya) and the convict's personal circumstances, i.e. the culture of the Kurya community in which the convict belong, the rumours spread by the victim constituted a serious insult to a male member of the Kurya community. The following extract of an article titled: T4 Culture of Circumcision in the Kurya Tribe of Tanzania" accessed at https://bioq.compassion.com/circumcision-in-africa-a- cuiture-of-circumcision-in-the-kurya-tribe-of-tanzania/ on 20th October 2024, gleams a light, and it partly reads: "Why Are Men Circumcised? 7 The cultural norm is that men should be circumcised. If a man dies and he is not circumcised, he will be circumcised before he is buried. Circumcision is a rite of passage from childhood to adulthood. After circumcision, the boy is no longer considered "mrisya" (a child) and has the freedom to make his own decisions. If a man is not circumcised, he is considered to be a child, even if he is over 50 years old. It is a great insult to address a man as "mrisya." It can even ignite a great conflict, leading one person to kill another person. Circumcision gives men the freedom to participate in funeral services. A man who is not circumcised is not allowed to come near a dead person. Circumcision gives men permission to participate in civil wars. And, circumcision gives a man the right to look after the family, which means he can marry. If a man is not circumcised, he does not know in which age group to belong, and no gid will agree to be married to man who is not circumcised. Women do not like to be married to a man who was circumcised in a hospital. They say they feel like they are being married to their fellow woman." In light of the foregoing excerpt, it is clear that the rumours spread by the victim were humiliatingly offensive to the accused, taking into account an objective test on the reaction of a reasonable/ordinary person of the community to which the accused belongs. Also see the cases of Alphonce Philibert vs Republic (Criminal Appeal 27 of 1979) [1980] TZCA 9 (29 March 1980) and Danford Chizuwa vs The Republic (Criminal Appeal 202 of 2006) [2008] TZCA 68 (28 November 2008). 8 Nevertheless, this court notes that the said reports/rumours did not cause immediate provocation to the accused. This is because none of reports/rumours were made in the presence of the accused. This means that the accused had time to cool off, and had taken time to think over the matter since he heard the same from the members of his community before meeting the victim on the gloomy day. However, it is incontrovertible that the said reports spread by the victim ignited the accused's anger and, as result, he committed the offence against the victim. This court also understands that insolent rumours spread by the victim were by no means a justification for the brutal attack of the victim by the accused who did not act under the heat of passion. Yet, the victim's conduct of recklessly spreading insulting rumours painting the accused a 'Mrisya' in a Kurya community, in which the victim is also a member, contributed to his victimization, and has to some extent himself to blame. Therefore, by considering the accused's personal circumstances and circumstances under which the offence was committed as expounded above, the remaining ten (10) years are reduced further by two (02) years and therefore, eight (08) years of imprisonment remain. The court also takes into account the time spent by the accused in remand since his arrest on 15/04/2023 to date (06/11/2024) which is more than one (01) year and six (06) months. Hence, the remaining eight (08) years are thus reduced by one year and six months being the approximate time spent in remand by the accused since his arrest (see the case of Swalehe Ndungajilungu v. Republic 9 [2005] TLR 94). After the said reduction Six (06) years and six (06) months remain. Therefore, this court sentences the accused to serve six years and six months of imprisonment from the date of this order. Moreover, in terms of sections 25 and 31 of the Penal Code and section 348(1) of the Criminal Procedure Act, Cap. 20 R.E. 2022, the accused shall pay the victim (Kisiri s/o Gibeche Mwita) a compensation of Tanzania Shillings Two Million Only (TZS 2,000,000/=) for the lethal injuries suffered. It is so The ruling was delivered today in the presence of Mr. Davis Julus Katesigwa, State Attorney, representing the Republic, and in the presence of Ms. Lilian Makene, Advocate for the accused. The accused was also present and in custody. , K. I. Kafanabo Judge 06/11/2024 io