20181114 TZHC Dodoma

- IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC. CRIMINAL APPEAL NO. 63 OF 2018 (Original Criminal Case No. 14 of 2018 the District of Mpwapwa at Mpwapwa) BASILIANA Sb PPELL.ANT GR'YSOF1 MASUMESA.......................................... VERSUS THE REPUBLIC.......................................................... RESPONDEN1 )UDGMENT 711112018 & 1411112018 KITUSI,). Basiliana Said and Grayson Masumega the first and second appellant respectively appeared before Mpwapwa District Court for two identical counts charging them together and jointly for cruelty to Children contrary to section 109A (1) and (2) of the Penal Code, CAP 16 read together with section 13(1) and 14 of 'the Law of the Child Act, 2009. In the first count it was alleged that the two appellants between 2015 and 2017 at about 09.45 hours at Mafene Village, Mpwapwa District Dodoma Region caused one Deborah Masumega a girl aged 9 years to 1 undergo female genital mutilation. In the second count it was alleged that the appellants around the same years at around 10.00 hours within the same area caused one Judith Masumega a girl aged 11 years to undergo female genital Mutilation. The appellants are recorded to have pleaded guilty to both counts upon the charge being read over to them. They were accordingly convicted and sentenced to five years imprisonment for each count same to run concurrently. They now appeal hereto against both the conviction and sentences. The law under section 360 of the Criminal Procedure Act, CAP 20 is clear that no appeal against conviction shall lie when the said conviction had proceeded upon a culprit's plea of guilty. In this appeal the appellant's major ground is that they did not plead guilty to the charges and/or that the said pleas were not unequivocal as they should have been. At the hearing of the appeal the respondent Republic represented Ms Neema Taji, learned State Attorney readily gave in and supported the appeal citing quite a few flaws in the manner the appellants' pleas were recorded and faulting the trial court's conclusion that the same were unequivocal. The learned State Attorney referred to statements such as; "it is true on everything Prosecutor said that I caused cruelty to il" 2 and submitted that the statement is general and ambiguous such as not to qualify as unequivocal. She cited the case of Laurent Mpinga V. Republic [1983] TLR 166 for guidance on what an unequivocal plea should be like. The appellants, unrepresented, scarcely submitted anything substantial apart from stating that they were forced to confess. In the Petition of Appeal the appellants have raised issue with the facts that were recorded by the trial court. It is contended that the court conducted a Preliminary Hearing, which presupposes that the accused persons before it (the appellants) had pleaded Not Guilty. Before I consider the main point on the nature of the appellants' plea I am anxious to shed light on the procedure obtaining in the case where an accused pleads guilty after which the facts constituting the offence are read out, as opposed to the procedure when one pleads not guilty necessitating the conducting of a Preliminary Hearing under section 192 of the Criminal Procedure Act, CAP 20, hereafter the CPA. There is a fine line between the two procedures but I have seen many instances in which learned Magistrates fail to tell one from the other. The difference between the two was well articulated in the case of Adan V. Republic (1973) EA 445, cited with approval by the Court of Appeal of Tanzania in Athuman V. Republic Criminal Appeal No. 103 of 2005, CAT at Arusha (unreported). The relevant passage goes like this; "When a person is charged, the charge and the particulars should be read out to him, so far as possible, in his own language, but if that is not possible, then in a 3 I language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must of course, be recorded." Sadly what the learned trial magistrate, did was hardly consistent with the procedure stated above, such that both the plea and what followed thereafter cannot be sustained. U This appeal is allowed. The conviction and sentence purportedly entered on the appellants' plea of guilty are quashed and set aside. Given the period of nine (9) months the appellants have served in prison, I am not inclined to order a retrial. The appellants are to be set at liberty forthwith unless they are otherwise lawfully held. !-Q L USI JUDGE I 14/11/2018 5