20021101 TZHC Mbeya

.. lN THE m:G~ OOURT o; TANZANIA lf/cou--;f: /vJlfXl-,1 "' .. 1 ' AT MBEYA APPELLATE JURISDICTION · . · ~ (Moeya Registry) ,, ' .CRIMINAL APPEAL NO. 105 OF 2002 OON~LIDATED WITH •'cRiMINAL APPEALS NO. 98/2002 1 102/2002 1 103/2002 •. ' AND 104 OF 2002 ., . (Originati~g from Mpanda District Court Criminal I Cases No,, 374/2002, 370/2002, 373/2002, 375/2002 · and 372 of 2002) 1 c:,. SENA K.I\NAYI ) 2,. SHIJA !Lll(IAYI- 'L ) 3o HAMBUYA MADU.SH[ ) 4e- MASELE M.ADUSHI : · ) 5 ,J ,c:oo MADU .SR[ ) 6 • E.\RANI· LU.3I!J-JDEKA ) ••• 0 •••••• APPELLANTS 7 o !JUGWESA KADELE ) · 8., ~ UPOLO Kl\DELE ) 9!) .·,T.l!NGWE SARANI 10 • . MASA3I 'SJUWIT . 1': . . · <UV A SARANI ~ LUCHAGULA) 1 ~ .. VERSUS . THE REPUBLIC ••• ,••• "" ••••• o. ·• •••••• • ••• • •. ~Sl?ONDfflT ' .1 ..._ ___ JUD3MENT .!1!\CKANJA 1 Jc, The appellants in Criminal Appeal Nos. 98, 102 1 103, 104 and 105 of 2002 have been consolidated in, order to expedite their disposal. In each of the • • 1 . appeals the appellants were•convicted on their. own plea of ~lty on the.kindred offences of unlawful entry into a game reserve c/s. 7 ( 1) of thQ Wildlife •· Conservation Act, No. 12 of '1974; unlawful destruct.ion of vegitation a game reserve c/s<> 12 of the sa.id_Ac~; and unlawfully grazing in a game reseiye c/s 12 (1)~ (2) of the same Act. • It seeins that· the appellants were netted and were ,charged 1::x:i, a crack- •· down on illegal entrants into the game reserve. As a result all the I C'l, appellants were arrested antl were charged ac~ordingly. According to the •••/2 - 2 - facts Game Rangers assisted by Police Officers, ·combed the Rukwa/Lukwati Game Reserve for illegal entrants. As a result they found th• appellants therein grazing their herds of cattle_ and that they had cut down trees with which they had constructed their kraals. Apart from the herds, some of the appellants had bicyc,ies and -spears. It was ~so, s,tated iri the facts that the appellant~ knew thqt they haa ~een ordered out of the_ game reserve. In some of the I cases the appellants were called upon to comment on the facts and said "It is true", as they had reacted to the·charg$s. Mr. Mbise 1 learned counsel :J:ortl:}~ appeilants, has submitted that the trial court erred in convicting the appellants because the procedure it followed was flawed. In any case, he said, the particulars did.not disclose tlle ingredients of the offences charged. For instance they do not state catego- rically that the area was declared to be a game reserve b~fore the alleged illegal entry. _ In some -o:f .the cases the facts were not read out to the , appellants, nor were the appellants asked·to react on them,. Mr. Mbise cited a number of cases in which the correct pr~cedure to be applied when an accused person pleads guilty to a charge. , . Mr. Mbago, learned Princip;tl State -Atto_z:ney, was at one with Mr. Mbiee. In particular he state'd that th~.- facts were omnibus, without giving due regard to the :i.ngredients of each count charged. Similarly, both learned counsel of the same view that the sentences were manifestly ex_cessive~ ' ~o·r whereas ,the appellants were demonstrably first ·offenders, they-received six months.imprisonment on the count of illegal entry b'ecause,' in the.unsolicited opinion of the.trial court the herdsmen required a stiff sentence-because they do not seem to-care when sentenced 'to a fine. · Tc 'me this was a.,,--1 erroneous erroi- which was b•ased on the unproven. opinion of the l~arned·±rial magistrate. Central to these appeals are two matters of procedure, in dealing with pleas ·of guilty ~d_in sent~ncing first offenders. I have, as relat~s t• the first part of the proc~dure, been invited ~o consider several decisions. ♦ o•/3 0 I . ,, 4 - 3 - . The one z:ea:dy at hand is the decision .of this Court in ~~c~}rir_.~J;~. B!g!,.._! .5•..9.~~.~.,.Y$•...!~~l?..~.J..ic 1 (DC) Criminal Appeal No. 61 of 2002. The proced~e .as outlined at .Pages 2 and 3 of the typed copy oJ judgment. is as follows:'"'! n1. The 'cl;large is read over and explained to the accused · in a language with which he is qpriversant. The ~r~al.. court must ensure that.the accused has understood the charge be fore it proceeds to record a plea from the •,: - .... • I accused-. If the acc'used· does not 'Understand the language of the court an interpreter ~ust b~ sought. and be sworn as was d.onJ b"1fore the trial court. 2. After the trial court has satisfied itself that the . . .. .accused has understood· the charge it will then proceed. to record the plea in the accuseds own words. In the instant case each accused is -recorded t~.have pleaded that · ... ,, These three ~ords are not enough. The accused must ellaborate the plea by say what actually is true. . . ! . 3. If the trial court is satisfied that the accused ha.s understood the charge 'it will then enter into the· words - 11 Entered as a plea of guilty." .. :4 •.. There wiil then follow the facts. The p.ublic prosecutor shall be called upon to adduce a detailed ' . t'. •• I account of the facts upon which the charges or charges are founded~ In the instant case the public . ' 'prosecutor had to adduce facts how the accused •· persons entered th~ cpuntry; absence of travol documents . . . . which made . . the entry :unlawful; the point of entry if' d:i.scevered in, the colll:'se of the investigations; and • what in fact made the entry unlawful •. 5. The accused person will then asked if he underst~od tll,e. facts·and if they are true and correct. It is when he admits the truth and correctness of the facts that a conviction . . on ' a plea . of guilty ft . will be entered again~t him." · · · - .•••/4 • . • l -.■ ,'·,, 4 - · It was important to follow the procedure outlined or something akin to it tCi ensure tp.at the appellants und?rstood the charges. For ~xample,_and as Mr. ~~se has submitted, it was vital: that.- the appell,ants be t?ld that the area was de_clared a game reserve before they entered therein. I,. no_w come to the sentences. '11he appellants we·re ·charged under sections 7, 9 and 12 of the ·Act. The punishment for an offence committed under s.7 is a fine not exceeding five thousand shillings or to six months impriS¢,llllle~t or to both sentences. Unders. 9 the alternative sentences a.re five thousand shillings or imprisonment not exceeding two years; and under s. 12 the punishment is term not exceeding two years. Of course the sentence under e. 12 is not a statutory minimum; there is still room for a fine. i It ,ts ·established pra,ctice in pus country that where penal provisions gives an aiternative of a fine, the convict should be sentenced to a fine unless there exist circumstances which will negate the effect. of such sentence. The learned trial magistrate thought that a fine was not appriate. '· What strikes me is how he got to know that such was the case with herdsmen without anyone having given evidence to that effect.· In fact the public • prosecutor did not. even ask f9r a stiff sentence. In _these circu.11stances .. an '' it was unfair for the trial court to deny the appellant opportunity to pay a 'fine. :The appeals succeed upon the observations and reasons I have canvassed in this my judgment.· Accordingly, the appeals are allowed; convictions are quashed; sentences.and forfeiture orders are set -~ide. It is directed that the bicycles which were ordered to be confiscated to the 0-.vernment b~. restituted to their respective owners. All appellants be discharged -. forthwith from :prison ·un1ess further -held on account ~f other legally justified _considerations •. Sgd. J.M. MACKANJA JUDGE 1/11/2002 original Judgment. 'll . f\ (' ~~C,,. ,-'..\:, DI STHI CT REGISTRAR ,. .... ! ) --"'"'"' _._,__ _ MBEYA