republic vs anjero mangwata others 2005 tzhc 288 8 march 2005

IN THE I IICj 11 COURT OF TANZANIA AT IRING A ORIGINAL JURISDICTION (Mbeya Registry) CRIM INAL SESSIONS CASK NO. 74 OF 2001 Till- REPUBLIC VERSUS 1. ANJERO M AN G’VVATA ' 2. DOTTO MATUTULI 3. KESSI S/O MGOMATI 4. BONIFACE S/O MGOMATI 5. MAKOLI MATUTULI 6. MB A VILE M A N G ’WATA 7. FEDINAND S/O KAHEMELE R U L INc M ACKANJA.J. The accused person stands trial on a charge o f the murder o f one Chumacharangi s/o Mela, late of Kipera village, in Iringa District. It is alleged by the Republic that the accused killed the deceased with malice aforethought on the m 16lh day .of April, 1999. One of the witnesses, C.8647 D/Stn. Sgt. Nieholaus (PW.4), has testified that in the course o f the investigation, o f which he was in­ charge, he recorded a confession of the accused in a caution statement. Mr. Mkwata, learned defence counsel, rose to register the accused’s objection to the effect that he (the accuscd) did not make any such statement. So a trial-within a trial was conducted. In the course o f tlu: irial-within-a trial 1)/Sln. Sgt. Nieholaus (P W .l) testified as1 to how the accuscd was arrested by members o f the public who delivered him to the Iringa Central Police Station in the night o f 16th/ 17th April, 1999. That in a brief interrogation at 5.00 a.m. on 17lh April, 1999, the accused admitted criminal responsibility in which he named his accomplices. Instead of recording the accused’s statement under caution PW.l decided to pursue the accused’s accomplices and the gun they used in the commission o f the crime lest ' •* ‘V f i 1V ’" ' v • ' ; h e 'lo s t track of both the suspects and the gun. He recorded the"'accused’s 51 T ■ 1' ; statement on 19lh April, 1999, commencing at 10.19 a.m. and endedjattfl.OO a.m. The accused had denied that he made any caution statement. 1H e testified if that he was beaten repeatedly by PW.l in a bid to sign a document he never authored. That he signed it by thumb-printing it to avoid further beating. The accused went on to testify that he asked PW.l to read the document*ovei to him »■» because he never went o school, so he cannot read. That his request to have a relative attend the interview was ignored when one Zakayo did not attend to the request seriously. Basically, the foregoing was the evidence. In my assessment the gravemen , o f the matter rests on two issues, namely, credibility and the legality- o f the jl document which it is contended contains the accused’s confession. *will 41 [;> . . .i *teSte? ^•‘determine the'second issue first. v W ' * ' •• f “ i . . In order for a confession to be legally obtained it must be Q t^j^etf in j, conformity with law. As PW .l has correctly stated, a confessional s t a t ^ ^ , | i i i u s t , 1: be'recorded within the first four hours o f the arrest o f a suspect. That;isiexactly Ijwhat s.j 50 o f the Criminal Procedure Act, 1985, provides for. I will'regroduce , IJjpart o f it,for ease of reference. 1 :j " “50. (1) For the purpose o f this Act, the period available for interviewing the person who in restraint in respect o f an offence is - (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say the period o f four hours commencing at the time when he was taken under i re strain t in respect o f the offence; (b) if the basic period available for interviewing the person . 11 i 1’ r is extended section 51 the basic period so extended. r| ?■)}]>■ ! ^ v. . According to the law as it stands, it is mandatory that the intervi^mbe'/ . ’ V>i; conducted within the first lour hours. Urgcncy of investigative action lis not a justification. If D/Stn. Sgt. Nicholaus wanted more time for fu rth e j^ te rv ie w in g the accused he could have an cxicniion given him by the Police Offjc'pr in-charge o f investigations under s. 51 o f ihc said Act. The extention will be made if, for 1 . . reasonable cause, it is ncccssary that the suspect under restraint be further interviewed. The said Police OlTiccr may, under section 51( 1) o f the said A c t - “(a) extend the interview for a period not exceeding eight hours, and inform the person conccrned accordingly. (b) either before the expiration o f the original period or that o f i . j the extended period, make an application to a magistrate for a further extention o f that 1period.” »fi; 'fin• 1 ; By their very nature* these provisions are intended to protect the rights o f j the suspect so that restraint should not be used capriciously or vexatiously in order : •I; i to intimidate the suspect or in order to coerce him into makings an untrue confession o f guilt. And in order to underscore the importance o f the individual’s i ; - u i.; t ■ . :• . I ; -Jlj k k ■* freedom of movement, subsection (2) o f section 51 provides t h a t - “(2) A Policc Officer shall noi frivolously or vexatiously extend the basic period available for interviewing a person, but any person in respect of whose interview the basic period is extended pursuant to i, * subsection (1) (a), may petition for damages or compensation against i ! < ; - 1 frivolous or vexatious extention o f the basic period • I r ’5 An action which is punishable by damage is illegal. So the? Jprolonged !■ •! Mp ! restraint o f a criminal suspect and thereafter being interviewed] contrary the statutory procedure are illegal. , • | : IH ? i ! I have held elsewhere thai unjustifiably prolonged restraint ^amounts to psychological torture which, in my opinion amounts to an inducement .which is ■v f j likely to cause an untrue admission o f guilt. Interpreting these provisions eusdem generis, a confession which is obtained by contravening the law is equally inadmissible under s. 29 o f the Evidence Act, 1967. It follows that the caution statement which D/Stn. S’g t. Nicholaus (P W .l) recorded in contravention the clear and mandatory provisions o f the Criminal Procedure Act, 1985. is inadmissible in evidence. Hence the first issue has been I’ pi;e-empted. . . Delivered Sgd. J. M. MACK AN JA JUDGE 8/3/2005. *: i1 ■ Mr. Nyenza, S.A. for Republic * Mr. Mkwata, Advocate for Defence Accused: Present in the dock. Certified true copy o f the original Ruling. V V ^ 55S? DISTRICT REG) ■IIGH COURT OF TANZAK MBEYA