NA TZCA Dar es Salaam

I I I IN THE COURT OF APPEAL OF· TMJZAI'HA AT DAR ES SALJ\AM (CORJJK: Nyalali, C.J., Mustafa, J.A. and Kisanga 2 J.A. CRD/IINl\L APPEAL NO. 13 OF 1981 BETWEEN 1. ELIAS KIG.ADYE 2. ERNEST SAIDI 3• SALVA'IORY,GANG.l\.Til. 4. L. G. MDJ, U · .APPELIJ.NTS .5. J. B. KALINDAGA 6. D. KINONG'O · 7. S. A. KITtmffiO 8. ABB/1.S TUNGUJA . THE REPUBLIC ••••••••••••• • • • • • • •.• • RESPONDENT (Appeal from the.conviction o:f the High Court of Tanzania at Shinyanga (Lugokingira, J.) dated the 11th day of March, 1981, itl .............. ..,.~ ..,. -~- ,-r;~ ~? ,,t • ~· Criminal Sessions Case N.o. 85 of 1980 MUSTJi.Fl\., J .A. ,The seven,appellants, together with another person who has since withdrawn· his appeal, we~e charged jointly in the H1gh cow:;,t with two count·s'. of murder, one of ·Twiga., Nindw~ Em.d orie of lu:inedtibe KalijL The 1st appeliant Elias t the Regional· S~curi ty Officer of . . ~ Shinyanga, was. ponviCtf:)d _of aiding· and abetting in the manslaughter of the two deceased and was sentenced to 5 years imprisonment on each count, concurrent. The 3rd appellant Gangata, the o.C,D. Bariadi, was convicted of complicity in the manslaught~r of Twiga Nindwa, but was acquitted on the·count'~t murderihg Kangombe, and • w~s sentenced to 8 years imprisonment. The 4t~ appellant, Mdnchi, the 5th appellant Kalindaga, both security off'ic 7rs :from D~r es Salaam, the 7th appellant Kitumbo, R.c.o. Kigoma and the 8th appellant Tu..Y1guja, n.c.o. Coast, were ali found guilty of complicity in manslaughter on both counts and .each .w~s. _sentence:c1 to 8 years imprisonment on each.. count, copcurrent. ,.._ . ___.._.,.,.,.. ••"''• , ,..,.__ .,,., __ The 6th appellant IlinoJ16l Oj n.c.o. C.I.D. Shi~yanga was found guilty of aiding and abetting in _tll~.-~nsl91,!ghter on both counts, and was sentenced to 5 year~ imprisonment on each count, concurrent~ The 2nd appell~t withdrew 2 The seven appellants have appealed against these convictions and were represented by Mr. Lakho. The brief bac~round tp the incidents which gave rise to the trial is as follows: In 1975, there was a spate of unsolved- killings in the Shinyanga . . and Mwanza Regions. a The situation became very grave andL,)oint meeting of the Shinyanga and Mwanza Regional Defence and Securit;y- Committees was held at Shinyanga on 24th January, 1976. It was a very high level me~ting and was chaired by the then Prime.Minister and 2nd Vice President. It was decided at that meeting that all suspected murderers, together with witchdoctors and habitual criminals v,ere_to be apprehended and interrogated, and that the Security Service was to assist the Police in the operation. The Shinyanga arrests began on 21st F8 bruary and ended on 3rd March, 1976. In all 523 suspects were· arrested in the Region. At the request of the 1st appello.nt Elias, the then Inspector General of Police arranged for E\:nd sent an interrocation team • const-s.ting of Security and Police Officers to Shinyanga. The team included all the present appellants, vd th some other members.. On 5th March, 1976 the interrogation team met with all the appellants, except for 3rd appellant Gangota, present. The prosecution had alleged that the Mnrch meeting decided on the strategy method and manner of interrogation to be used, whereas the appellants alleged .that at tlwt meeting all they did was to introduce thm:aselvee to one another and did nothing else. The interrogation began on 8th March and went on for 10 days. About 50 suspects were interrogated each doy. The inteiTOiation site chosen was at Mwangh 1 olo, some 15 miles from M'aswo township, at an abandoned cotton buying centre, away from humru.1 habitation. There was tight security around the are,a, and all unnuthorised persons were kept away by police cordons. There was a large force of police at the site. The abandoned cotton buying centre consisted of 3 buildings. - The smallest one was used as an office and the other two used for interrogntion purposes. There wns ample evidence which established that the interrogation proceeded as follows. The 500 odd suspects had been remanded in custody by the courts at the Shinynnga, Mnswa and Malyn prisons. The suspects, who consisted of men and women of all ages, v1ere taken in tipper lmrries ·each-day and deposited outside one of the two sheds. The suspects were \. 3 a pepper cum lemon solution was brewing in the shed infront of which the suspects had squatted. The naked suspects were then ordered . I into the shed. As they entered 9 they were beaten with sticks on their backs. Inside the. shed they were made to lie on their backs. Then one of the suspects would be made to stuff the pepper cum lemon solution in the eyes, nostrils, mouth, anus and genitals of the suspects. The suspects in the meantime would remain lying on their backs, with one leg raised, awaiting their turn to be called to the other shed for interrogation. The suspects would be called out in ones or twos. The route from the pepper cum lemon solution brewing' shed to the interrogation shed was lined with policemen on both aides and the: suspects would be beaten with micks all the way ns they travelled to the interrogation shed. The suspect in the interrogation shed was made to lie on a stone, and then he would be beaten. The sticks used for the beating were of all sizes, some thin, some thick. · The beating administered I in this shed was very severe and brutal. / The suspect was then returned to the pepper-cum lemon brewing ~hed and would be beaten along the route on the way back, The beating was on the body, the chest and back, but it would appear that the head of the suspect was exempt. After this interrogation, 10'9 susp,~cts were recommended for detention, 10 suspects had died and the rest released. Twiga and 11 ~ ,I Knngombe were nmong those who died. The first and possibly the most important ground of appeal raised by Mr. Lokha was whether the two deceased could have died from natural causes. On the evidence adduced Twiga could have suffered from tuberculosis and Knngombe obviously was suffering from that disease, It was submitted that.both could hcve died from bleeding due to tuberculosis, i.e. from notural ca~ses. As regards Twiga, the medical evidence concerning his condition was given by P.W.5 Dr. Nkwera., Ono~ about 16th Morch, Twiga was seen by Dr. Hkwern at a hospital ward. P.W.5 .said Twiga was in a critical condition and was coughing blood and·his chest was swollen both front and book. Twiga died an hour later. We will not refer a to ruiy more evidence of Dr. l'J:kwera, ,' who waslself-confessed liar in that he had submitted a false post mortem report on Twign, at the instigation so he alleged, of the .Are8 Commissioner, in order to conceal any criminal nets on the part of the interrogation team. Por the benefit of the oppellants we will accept thot Twiga was 4 I ,/ coughing blood before he died 9 and coughing blood could be an indication that Twiga was suffering from T~B. · I/ . lliere was evidence from P. Y! .19 Dr. Lembariti who performed a postmortem on Kangombe that Ka:ngombe 1 s llmgs were afflicted with . I T.B. He found blood in Kangombe 1 s lungs,.: P,W.19 stated that it was not possible to differentiate between/bl~eding due to T.B. and bleeding due to other causes. He said, inter alia, 11 .1\nd considering 1/ I the state of the lungs as I saw theyµ, even a.· violent assault on the back could cause the same result, In thi~· case it was the large blood vessel which was ruptured. A rupture _of the large vessel followed by haemorrhage would normally terminate life in a short ./ Ii time if no immediate medical attention is available. '/ ·i DW.3 Dr. Shaba gave opinion egiden<?e 8S n medical expert. He stated:"••• external fracture of ribs can cause haemorrhage I in luncs, can be caused by crash, wall or tree falling on person or / I any gr,_-•at force. Severe beatinz :nay cause haemo~_--_,hage but not inside lungs. J3lood would go in pleural sac 11 • Again 11 /i. T.B. patient 1/ may be made to cough blood if he is beaten or chased about if the T.B. has started to erode on the vein ,-ihat. would accelerate rupture of the vein"o And again 11 I agree a T.B. patient with ~roded blood I I veins may have rupture of veins and haemorrhage 0cceleroted by assault due to rise in intra-pulmonary ,pressure. J\n eroded wall fnlls more easily them a strong one;'. lmd lastly 11 A severe beating to cause ' I rupture of internal large vessels would be something approximating a '/ crash. If blood is found in both lungs and a person has T.B., primarily I the bleeding is caused by T.B. 11 • He will now briefly examine eye witp.ess accounts of the deaths of Twiga and Kangombe, of their condition I and state of health immediately before and after the beatings. P.W.4 Silas, an arrested I suspect, testified that he saw Twiga entering the shed where beatings were administered and when he came out Twiga was in a terrible condition, could not talk, his scrotum swollen ahd bleeding and had to be helped on to a motor vehicle and died later the_ same day. P.Vl.5 Jackson, a frienc_ of Twiga, who was arrested because he tried to bail out Twiga after Twiga 1 s arrest, stated iL evidence that he:.,-:./?/ Twiga lying naked on a stone in a shed and being very severely beaten with heavy sticks from the back down to the legs. Twiga was then removed and P.W.5 1 s a turn came to be beaten. He said Twiga was_eiealthy person when arrested. Twiga died about 9 hours nfter the beating, I • \. 5 As for Kangombe, PTT.13 Inspector Vincent testified that he was one of those who took Kangombe from Shinyanga prison to Mwangh 1 olo for interrogation. He said Kangonbe was in ,,goo_d henl th. He saw I Kangombe enter the shed wbere beating took p1ace; ,, he did not see the beating but heard Kangombe cry out. iie sa.w)K:mgombe 1/ come out of the shed after the beating. He said that KangoBbe was swollen 011 the back r ,I and buttocks and thighs and his condition \Vas critical. He learnt that ,,I evening that Kangombe had died. It would seem that Ki:lngombe died 5 to 7 4ours after he was beaten. PW.16 James stdted ,, that he met Kangombe I, at Shinyanga prison and was in the group with Knngombe taken to Mwangh'olo i on the JJ1."l terinl dny. He said thn t after the beating, Kangombe was in I a crticial condition and bad to be helped ,:to board a lorry and that 1/ ' Kangombe died on the way back to Shinyang~ p:i:'ison. PH.18 Bulungu also met Kangombe in Shinyanga prison ,:md stated .tbD. t Kangombe was youthful ,1 and healthy. After the beating Kangombe was in a critical condition. , ·I 1 PW .18 and his co-suspects helped Kangombe on to the vehicle which was •I , taking them back to Shinynnga prison, but tfut Knngombe died on the way. 'I i ,,,J ! The judge in his judgment st2ted, in reference to the death of Twiga: I 11 Admittedly, the defence had no obligation to prove positively I I that Twiga died of n8tural causes. They h'1d only to raise the possibility I of it, in other words,.to show that death by natural causes had not ',I ' been excluded. 11 Mr. Lakha criticised this' proposition. \7e agree it is a misdirection; it is for the prosecut~on to exclude the possibility of I) death by natural causes. The defence :bas no onus pl::iced on it. However, II the judge held there was direct eye witness evidence linking the 'I '. beating to the ·denth of Twigo.. He was 1 in good health at one time; he I , wns critical (sic) in the next. So ev·cn assuming for interest thn t I Twiga had T.B. and that it had causative I effects, the direct linkage between the beating anglthe death removes•· the case from the realm of natural causes 11. He the ref ore found I,'-h,..fl t Twigo. clied ns a result of the beatine he bnd received. Sioilariy he,foui1d that Kangombe was of was , apparent good heal th until ~J;.c L beaten at Mwnngh olo fror,,1 which he ' I I never recovered, but died a few hours lnter and he concluded that Kangombe also died from the beating. 11 __ ii It is clear to us that the judge _if not expressly then impliedly and implicity substruhtially nccepted ,i the prosecution evidenoe about I the nature of the beating administered . ' I to both Tvviga and Kangombe, and 'i the result arising thereout. ••• /6 .• 1 l.. I ...... ") '-..._, ...,, • , : 6 ' We~ like the judge, think that the evidence adduced nt the trial i clearly established tbat the beating cert~inly ·contributed to and/or accelerated the death of both Twiga nnd Kangombe even if they were suffering from T·.B. Like the judge, we are i:iatisfied tbn t the deaths, were a direct result of the beatings. He do not think that the medical evidence adduced in this case which was on the whole unsntisfnctory, can in any caused I way raise a doubt tlm t the deaths could bave beenbtherwise than by the severe physical beating administered to both Twign and Kangombe. We have not dealt with the issue of the identity of ~angombe or the showing of ! bruise marks on the dead bodies, ns we ar'e of the clear view that the body of Knngombe was properly identified and the br:.J.i.se r;mrks or the • I lack of them are of no significance in the circur11Stances. The next substnntfal ground of appepl is about the nnture of the 5th March, 1976 meeting. PW_.2 r,'Iart:lJ;l,a s_enior Police Officer was sent ll'V from Dar es Sqlo.am to assist Athe interrogation operation. He drew up an operation order. He attended the 5th M~,)ch,' 1976 meeting. All the appellai ,s, apart from appellan-'· 3 Ganga ta, were ti1re. He stated that •! it was decided at the meetine that the interrogation operation would require pepper, ler:1ons, sticks., b J.ckets of water etc. 1 He said PY/ .8 Mfundo, a security officer took minutes of the meetins. PW.2 Martin i said he did not ask why those items were /needed for the interroeation. 'i He later visited Mwangh 1 olo and saw the 'suspects being beaten, He left for jar es Salaam shortly thereafter. PW.8 M£undo, a security officer, attended the March r:1eeting and took minutes., of thafeeting. However, the minutes could not be produced as he Jlleged he had handed them over I to one of the appellants. He said it wa~ decided at thnt meeting that a suitable site be found for the interrogation and that pepper, lemon, i sticks, water and so on were to be prc~i.;:~f'::d ·for the operation. He vis:i ted ~~vangh 1 olo during the interrogation once.and saw the suspects being bea ttno Both P\l. 2 Mnrtin nnd FV!. 8, were bot· very satisfactory witnesses, both were obviously trying to mnioise their ow..:-1 part in the operation, but their evidence that the 5th r/isrch meeting devised the method of operation and the implements used strikes us as substantially true. Both circumstances precedent and subsequent support their evidence. The , ' 24th January meeting presided over by the then Prime Minister had decided I that all suspected killers were to be arrested and interrogated, and the appellm,ts formed the team set t-:;i :i:'or the purpose. There was evidence ' that the appellants and other team members met together only on the 5th March, there was no evidence 0f any ether meeting. :a ±s :ui the nature of . 'I things that the teem must meet to ~lan strategy before the operation ...' . 7 and the evidence of PW .2 and PV! .8 that the team met on 5th March for that .. purpose was inherently probable and true, Again pepper, lemon and sticks etc. were µsed during the interrogation of the suspects when information was being extracted from them by torture. That was confirmation of the evidence of PW.2 and PW.e. Like the judge, we are . satisfied that a:t the 5th March meeting, the appellants had met to decide the method to be used in the interrogation proceedings, and that the same was duly carried out at Mwangh 1 olo. We reject as false the appellants' allegation that they had met at that meeting only to introduce themselves to one another and nothing else. Vie will now deal with the appeal of' each appellant. Incidentally, all the appellants had made unsworn statements at their trial. 1st Appellant Elias was involved in and attended the 5th March meeting which we have found decided the strategy and method of interrogation carried out at Mwangh 1 olo. He attended evening teview meetings and obviously was fully aware Of 1i~t was happening at Mwartgh 1olo. Similarly 6th appellant Kinongo was involved in and attended the 5th.March meeting, was present at Mwangh'olo when Bariadi suspects were being interrogated and attended the evening review meetings. He must heve lmown what was happening there.; Both these appellants alleged that they were unaware of what was taking place at Mwangh 1 olo. The judge rejected their protestation of ignorance. We think that they were properly-convicted of aiding and abetting in terms of section 22 of the Penal Code. 3rd appellant G8 ngata played an active role at Mwang 1 olo when Bariadi suspects, and especially when Twiga, were under interrogation. A number of prosecution witnesses had testified to that effect. He was rightly convicted of complicity in the manslaughter of Tvliga in terms of section 23 of the Penal Code. 4th appellant Mdachi and 5th appellant Kalindaga were members of the 5th J.\i"Jarch meeting. They attended the incerrogation session at Mwr!ng 1 olo throughout the 10 day· period. They alleged that their role consisted only of r~cordi:ng statements of the suspects or such innocuous clerical duties, and that they had nothing to do with the beating. The judge concluded that they were lying, and found t?"'..2.t they, the special emissaries from the Dar es Salaam Security Branch, were actually involved in the interrogaion proceedings at Mwangh 1 olo. We think that they were rightly convicted on the basis of common intention in terms of section 23 of the Penal Code. -• .-./8 •• 8 ... /ii We will deal with the 7th appellant Kitumbo and 8th appellant TW1guja together. Both attehded the 5th March meeting and remained throughout the 10 day period at Mwang'olo. There was credible evidence that both were seen at the interrogation shed when s.uspects were being beaten. They attended the evening review meetings and they could not but have known of what had happened at the interrogation sheds and of the deaths resulting from the beatings. They pleaded unawareness of what was happening at · Mwang'olo. The judge rightly rejected that defence and was justified in finding them guilty on the basis of common intention in terms of sec.ti on 23 of the Penal Code. We feel constrained to make some' observations which are not directly concerned with the determination of these appeals, but vv:1ich nevertheless do arise from these proceedings. V!e think that some, if not all the appellants, could have been convicted of murder. We also think that some parties involved in the operation not charget. before the Court could perhaps have been successfully prosecuted for the deaths of Twiga and Kang'ombe. This was a disgraoeful episode which we trust will not be repeated. The appeals of these appellants are dismissed. DATED at D.AR ES SALAAM this •••••••• day of March, 1983. I F.1. Nyalali CHIEF JUSTICE A. mustai'a JUSTICE OF.APPEAL R.H. I<isanga JUSTICE OF APPJJAL I certif';• that trJ s is a true copy of the original. '! ' ' h·, ... -\ ._,.,, s.J':. :awa:rm .ACT!N'G SENIOR DEPUTY REGISTRAR