20190418 TZHC Dar es Salaam

iN TH.E HIGH COURT OF TANZANIA coA\AEs SALAAM REGISTRY) '-.__/ T DAR ES SALAAM . CRIMINAL . SESSIONS . CASE NO 123 OF 2015 REPUBLIC .· ·VERSUS· ' '. .· 1~ MOHAME:D NU · . 2~ BASHIR YUS . 3i MUHSIN ------------------s. FA . 6 \ The me . ohamed Nuru Adam, Bashir YusuphRooble, Muhsi aid1 · · hamani, Farahani Ali Abdul, Ally Nur Ally and Oma hee are charged as l5t, 2nd, 3rd , 4th , 5th , 6th ·and . ctively with the offence of piracy contrary to Section 66{1}{a}{1 '}_.of the Pen_al Code/ CAP. 16 as amended by the Written Laws {Misceh neous Amendment) {No. 2) Act No. 11 of 2010. It was. alleged before this Court that, on 3rd day of October, 2011 within Tanzanian Exclusive Economic Zone (EEZ) in the Indian Ocean using a skiff boat and fire arms, all the accused person did an act of violence against a ship known as Sams-All goodfor their private ends. Page 1 of 61 '' During -Preliminary Hearing, the following facts were not in dispute: one; that the accused persons are Somali nationals. Two; that the accused persons are charged with the offence of piracy. Three; the accused do not deny that they were arrested. Four, the accused admits that they are arraigned before the Court charged as presently. During trial, the Republic was represented by MsMkundeMshanga andCecilia Shelly, all Senior State Attorneys and r. George Barasa, State Attorney while Mr. AloyceKomba, Mr. Domi · Nkwera, Mr. Abraham Rupia, Mr. OmaryMsemo, Mr. Dennis Tu . Benedict Pius and Mr. Gelas Severine who was later replaced Kulita represented the 1stI 2nd, 3rd I 4th I 5th I 6th and 7th respectively. Mr. HassanJuma, Ms. MwadawaSele emawere un- objected selected to serve as Court a ole trial. In this judgment in the fir . briefly an overview of the Maritime Piracy at an inter al arena as well as the jurisdictional basis t rial of t' the second part, I will revisit and anal g the trial. I will then proceed to gi . limina objections raised over admissionof vario d reserved. Lastly,I will conclude the ju e adduced and exhibits before rend As bri ccu ersons are charged of piracy contrary to Section of the Penal Code, CAP. 16 as amended by the us Amendment) {No. 2) Act No. 11 of 2010. ection 66 of the Penal Code, CAP. 16. Section 19 of the Written Law. -Miscellaneous Amendment} {No. 2) Act No. 11 of 2010redefines piracy under Section 66 of the Penal Code that: (1) A person who: (a) Does any act of violence or detention, or any act of degradation, committed for private ends by the crew or the Page 2 of 61 passengers of a private ship or a private aircraft and directed - (i) Against another ship or aircraft or against persons or property on board such · ship · or aircraft; or (ii) Against a ship, aircraft, persons or property in a place outside the jurisdiction of a tate; (b) Participates in the operation of . r of an aircraft with knowledge of facts making i (c) Does any a.ct of inciting_ ·n --an-aEt:C----- referred to paragraph (a) iracy. (2) A person who doe mm its ffence of piracy and on con · nment for life. ·,. The new Section ship or aircraft under the or aircraft for piracy; or ship or aircraft for piracy, so long nder the control of that person and "priva or private aircraft" means a ship or aircraft t at is not owned by theGovernment or held by a person on behalf of or for the benefit of the Government. At international arena, piracy offence attracts universal jurisdiction. This point is captured by Andrew Palmar in his his book. The New Pirates: .··. ';.;· : . :•i} Page 3 of 61 .--?l ..,·,. ·: .. .t ;; . -:::?:,. ... . "{ ·::.~ ' " Modern Global Piracy from Somalia to the South China· Sea. 1In other jurisdictions too as indicated by my learned brother Burhan, J. of the Supreme Court of the Seychelles in Republic v. Al/quoted with approval the Privy Council decision inre Piracy Jure Gentiuni3where the Privy Council had this to observe with regard to the municipal law and the international law applicable to piracy: With regard to crimes as defined by international law, that law has no means of trying or shing . them.The recogni_tion of them as constituting and the trial and punishment of the criminals, are unicipal law of each country.But whereas ac ,1 ·onal law the criminal j~_ri~di~tion __of m~mJ · - crimes committed on its terra r its own ships, and to , · by ever committed, it is al to piracy committed on the hig n any ship because a guilty ced himself beyond ofa er a national, but hostl · usticiable by any 1 New td., 2014. See also Akiyama, Masahiro, "New Approach· ping Piracy and Terrorism," in Van Dyke, Jon M. et al(eds.), G ources: New Challenges and Emerging Regimes, Leiden and Boston: Publishers, 2013, p. 375; Tuerk, Helmut, "Combating Piracy: New App Ancient Issue," in Castillo, Lillian Del (ed.), Law of Sea: From Grotius to the ional Tribunal for the Law of the Sea, Leiden and Boston: Brill Nijhoff, 2015, p. 4 · , Del Vecchio, Angela, "The Fight Against Piracy and the Erica Lexie Case," in Castillo, Lillian Del (ed.), Law ofSea: From Grotius to the International Tribunal for the Law of the Sea, op. cit. p. 397; and Nanda, Ved P., "Maritime Piracy: How can International Law and Policy Help Address this Growing Global Menace?" in Van Dyke, Jon M. et al (eds.), Governing Ocean Resources: New Challenges and Emerging Regimes, op. cit., p. 345. 2(2010) SLR 341. 3 [1934] AC 586 at 589. Page 4 of 61 . state anywhere: ·Grotius (1583-1645) "De Jure Belli ac Pacis," Vol. 2, Cap. 20, - 40. (emphasis added) The Privy Council in re Piracy Jure Gentium,. supra) meant that the trial and punishment of pirates is left to any state provided the offence was committed in high seas. The defence of nationality of the pirate offence accused person or of the piratic ship does not stand in the eyes of the law. InRepublic v. Alf(supra)Burhan, J. went on t te inter alia,Halsbury's Laws of England ( 4th edition) as 977 at 787 paragraph 1535which states: By customary -·~g_eneris and_i_s_s_ubject_to_unL , In the modern era, the sta · tely recog , g piracy is I the United Nations Con aw of the Sea, 1982 (UNCLOS)Nhich came into for 1994 after the required 60 Party States de their as also been termed the Constitutio UNCLOS 'O to 107 and 110 provides for framew,, · er international law. The United Nati. 897 adopted on 30th November, 2009 international law, as reflected in UNCLOS, sets the combating inter alia piracy and armed robbery at t 4 (2010) SLR 341. 5See Bendera, Ibrahim Mbiu, Admiralty and Maritime Law in Tanzania, Nairobi: Law Africa Publishing (K) Ltd, 2017, pages 45-46). 6Ibid. 7 See Kateka, James L., "Combating Piracy and Armed Robbery off the Somali Coast and the Gulf of Guinea," in Castillo, Lillian Del (ed.), Law of Sea: From Grotius to the International Tribunal for the Law of the Sea, Leiden and Boston: Brill Nijhoff, 2015, p. 456. Page 5 of 61 ~ ~ - = ; - ; : :.• ;=•-~J.lt.·.-·......._;..,...,::.-"_~-;; .....~-...:..~~ ~.'.,;.. : --... _,;. ........ ~~;,,~:~.;..:_ -.:~--!:'.~" :- -,:.-::,,:-~---- ~ ·_·- ~:.t...:t~·-,.) - -· ~-~-;.~~~~'"Jw'"~!-;:."'~ - .. ~ ~- - . Article 101 of UNCLOS defines the offence of piracy to consists of any of the following acts: (a) Any illegal acts of violence or detention, or any act of depradation, committed for private. en.ds by crew or t_he passengers of a "privat~ ship o'r a private aircraft:, and dfrected; - (i) On the high seas, against another ship or aircraft, or against persons or property on prd such ship or aircraft; ·, ... (ii) Against a ship, aircraft outside the jurisdicti - - - - -(Q) Any-9ct of voJunta or of an aircraft. irate ship or aircraft; (c) Any act of cilitating an act describ ,u . g ·:. h (ii). Essentially; the r · UNCLOS gives five ingredients of piracy: . , . s of use of violence, detention or •.. . '·:·,,, 2. mmitted for private ends; ·..' ! 3. mmitted using a private ship; 4. The attack must be directed against another vessel; and . '.'•: 5. The act must take place on the high seas and other places outside jurisdiction of any other state. That means, it must be committed in the high seas or in the Exclusive Economic Zone (EEZ). Page 6 of 61 -.-- - -~ ..,,.--- Euro Just reports that the Piracy definition above has been accepted as a· reflection of customary international law meaning that even States that are not parties to the UNCLOS are bound by that definition. 8 The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation/ 198~hereinafter · to be· refereed as · The SUA Convention) does not define Piracy but gives a broader definition of violence at sea to include Piracy, armed robbery ommitted at sea and ship hijacking within the scope of its application, committed outside the high seas, acts where only one vessel ed and acts where the motive of the attack is not limited to pri Article 3 ofSUA covers the followin 1. Any person commits intentionally; (a) Seizes or e ip by force or threat or an (b) again person on board a ship nger the safe navigation of that r- caus s damage to a ship or to its cargo - 1 anger the safe navigation of that ship; or se to be placed on a ship, by any means evice or substance which is likely to destroy the ship, , use damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or 8 See Maritime Piracy Judicial Monitor A EURO Just Report, September, 2013 at page 6. _ Page 7 of 61 ~~~~~"·=•:f-~=~ L-----,..~~.....;-' " ". " )" -~---- ,:._.,..,•-~,~-'~1•~•.-~--;:.~-~. ..t. .. ••••,r,:,•~· - ,il'.*•~; - 7,,,-,(-j ·\:. f!_;.;t, -~1-.l"· ------- - - ___ --~ - .,.. ('- I -. (e) Destroys or seriously damages maritime navigational facilities or seriously interferes with thei_r operation, if any such act is likely-to-endanger the-safe-navigation--of a-ship;- or - I . t (f) Injures or kills any person, in connection with the ComMsion ---- -- -·or·the-attempted· comMsion~of~any-of the--offences--set forth-in subpragraphs (a) to (f). 2. Any person also commits an offence if (a) Attempts to commit any of tb e set forth in paragraph 1; or (b) Abets the comMsio para_graph 1 per - an accomplice ; or (c) Threatens, ition, as is provided for und · : g physical or juridical ct, to commit any of ragr (b) (c) and (e), if that the safe navigation of the ship in ship or aircraft as follows: : ?: ·:i:.= · cons red a pirate ship or aircraft if it is ·1\f i' .--. inten sons in dominant control to be used for the purp , mitting ~:me of the acts referred to in article 101. ~ me applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that Act. ,. ·t :;. Therefore, not all ships are deemed to be pirate ship. For the ship to : • _., ~•1 be considered a pirate ship it must be a ship in dominant control by a person or persons and for the purpose of commiting an illegalact of Page 8 of 61 _..,.-- •r• ..----• ---•,• - ----••- • • --••- • ••---..--~- - . , ... - • • ... . ~~ • L ~ --~~ • ~- -- - ..,/ - - --- .L•-~- ~- ~ - - - ... .._ ~ - l l - - • - ~---•...----~- ~--~=--- violence or detention, or any act of depradationon the high seas, against another ship, or against persons or property on board such ship against a ship, persons or property in a place outside the jurisdiction of any State. Article 105 of UNCLOS and Artcle 4 paragraph 1 of the SUA Convention · provides for jurisdiction to apprehend pirates, the later with a broader scope of application of universal jurisdiction over aritime crimes. WhileSomalia on its part ratified UNCLOS July, 1989; the United Republic of Tanzania ratifed UNCLOS September, 1985 and incorporated into the Municipal law 5 Territorial Sea and Exclusive Economic Act 1989 The. - - - Exclusive Economic, 1989 ( supra) re An Act to provide i · the Sea Convention, to "torial sea and to establish an Exclusive . United Republic adjacent t , xercise of the sovereig ake provisions for the explor ervation and management, related matters. Sect1i an . Exclusive Economic Zone Act;. 1989 Exclusive Economic Zone for Tanzania. It (1) d contiguous to the territorial waters, a marine n as the ExclusiveEconomic Zone. (2) Subject to subsection (3), the Exclusive Economic Zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the Territorial Sea is measured. 9 Act No. 3 of 1989. See BENDERA, Ibrahim Mbiu_ Bendera, Admiralty and Maritime Law in Tanzania,op. cit. Page 9 of 61 ---~~- ·(3) N/A ( 4) -N/A (emphasis aE1ded}. The United Republic also acceded to the SUA Convention by depositing the --- ,nsfrument-on l lth May,-2005. -The- ~at~ of-entry· into~ force was 9!~ August, _ 2005. Furthermore, Section 23 of the Penal "" of Tanzania Cap 16 (R.E.2002Jprovides for offences committ y joint offenders in prosecution of common purpose. It says: when two or more persons intention to ------pr:osec;ute-an_uolawful_p_u with ·one - -anot-her:,_.and-ir:1-the_prosecutio ~ _·, "· committed of such n re that i -.. l. consequence of the them is deemed to hav Section 301 nzania Cap 20 . i (R.E.2002Jpro ·arged with offence to be con · an offehce, he may be · ttemp to commit that offence . . ..: with the attempt. ... ~ ·. ~~ . =·) .t~ aritime piracy offence clearly set out, I will now .. ~ ~~:. ·-·~ venture into rt of this judgment, that is, the analysis of the -'• evidence adduce the Court by both sides. In establishing their case against the accused persons, the prosecution .;: . ~; inviteda total of fourteen (14) witnesses that is; PWllieutenant-Colonel ' :t;. Jones SamwelMwangiga, PW2 Staff Sergeantlusekelo George Mwambaja, PW3Lieutenantlddi Haji Mwazini, PW4 Captain Hamad JumaKipango, Page 10 of 61 PWSinfantry Remand Level 1Alubinus Julius Kasore, PW6 Assistant Superintendent of police John SangijaMayunga, PW7 Deputy Commissionerof Police Ahmed Msangi, PWB Captain Sylivanus Joseph Peter, PW9 Ikbary Dini Khalfan, PW10 Assistant Superintendent of policeShagihiluRufulondamaNteminyanda, ~Wl 1 Inspector Omary Wawa, PW12 Assistant Commissioner of Police Japheth Ezekiel Mabeyo PW13,Lieutenant-Colonel Nicolaus BenardNagunwa and PWl 4 Superintendent of policeAntony Mwita. The prosecution tendered six (6) exhibits ·s, Exhibit "Pl"comprising of: (a) A letter dated 23/11/2011 with HQ/114/11/VOL. V/86 from Director of Criminal Investi investigation Laboratory, - (b)Investigation/exa 1 1 -exhibits - of DC/IR/4048/2011 Concerning Pira lnvestigatation Departmen r Notes of Exhibits letter with Ref FB/B · 3/201 collectively. Exhibit "P2" compri · 2 mm marked TA-1- TA,;.3 enclose B/BALL/LAB/06/2012 CD/IR/4048/20 enclosed in an envelope marked FB/BALL/ 8/11, (c) 13 Bullets in order CAL 7.62 ,ii marked FB/BALL/LAS/ 06/2012 CD/I ullet 62 MM Exhibit "C" in an envelope D/IR/4048/2011 collectively. er Note dated 3/10/2011- while Exhibit "P4" comprised of f Stephen Antony Stockton and the Incident Report recorded o 1 • ober, 2011 at 20:10 at Petrobras Drilling Project -- Tanzania written by , um Cussac Petrobras Support Team. 11 Exhibit "PS covers statement of Christopher Roy Lamb made under Section 34 B (2) of the Evidence Act 1967at Mtwara Port on 10th October, 2011 at 18:08 hrs before E. 9920D/Sergeant Omari Wawa also a Report signed by Christopher Roy Lamb on 06/10/2011 which werecollectively Page 11 of 61 ---- admitted as exhibit "PS". Another prosecution exhibit •is exhibit "PG", a statement of the interpreter one Abdul Ali Mursali. On the defence side, all the accused persons testified as sole witnesses that is,DWl Mohamed Nuru Adam, DW2 Bashir YusuphRooble, DW3 Muhsin Haji, DW4 AddulwaidAbdalahaman, DWS · Farahan Ally Abdul, DW6 Ally Nur Ally and DW7 Omary Mohamed @ Mudhee who have been charged as ist, 2nd , 3rd , 4th , 5th , 6th and 7th ace sed persons respectively. Notably; on part of the defence, no document ,: reduced as exhibit. ,,ii All the accused persons are Somali d!: 111,f,. whomsome possess knowledge in Kiswahili language nt while in remand custody. Basically, for the inter ice a the sake of fair hearing, most of the proceed· i re conducted through interpretersone A med raleke who intepreted from Somali I · and vice versa.However, DW6 Ally Nur Ally and D Mudheeat their own free will proceeded without a need of interpreter. D a ·ufficient command of Kiswahili lang The ev· • · he prosecution goes that; on 23/0 tai · t Kigamboni Navy Headquarters. · the Indian Ocean where there was an oil and gas on. e exploration ship was called Ocean rig (Poseidon). gas exploring crowbar was stationed at 150 Neutical Miles Mtwara Harbour. The Latitude was 07 Degrees and 49.4 Minutes ongtude was 04 Degrees 14.3 Minutes East. The total guarding crew eluded guarding FrobishetShip with 80 metres in length. Other involved vessels were: Dampier, Monck and Sams-All good. Also; a local boat called TNS MchomvUNhichjoined later. The guarding crew included other soldiers with guns and ammunitions in discharge of the duty. The assignment started with journey from Dar es Salaam to Ocean Page 12 of 61 • rig (Poseidon) oh 23/8/2011 at 6:00pm. By using Costa bus, they arrived at Mtwara Town at 2:00 am. On 24/8/2011 in the afternoon, the crew of Frobisher ship met a team leader of Drum Cussac (a company which was guarding the area) to agree on how to execute their duty. The convoy also involved foreign guards and other retired army officers from the Netherlands. On 27/8/2011, the second group arrived from Kigamboniwith 8 sol iers making a total of 22 soldiers. On 03/10/2011 at around 8:06pm, in his room PW1 was informed by the team leader (Mr. Anto kton- overall European leader) that they were under attack. Th I has been provided to Mr. Antony by PW2 Staff Sergeant · all boat was sailing fast behind FrobishetShip (the shi crew). PW2 saw the invaders through Night Vision .·ty of seeing something up to 200metres · After the said inform ti uarding crew met at the bridge in Frobis ound signal indicating that they we ated with Tanzanian Peoples Defe rd, swI ed on search-light aiding vision o er, PWl saw movements of black peo PW1 roped o Sams-All good shipwhich in most casesis .rati rks in big ships. Having suspected that the ship to piracy, PW1 commanded lieutenant Mwanzini who was in o go near to Sams-All goooShip which was attacked. After ta ncknear Sams-All good, a lot of shots were fired towards MonckShip 1ch was then perforated with 3 big holes. PW1 then told Lieutenant Mwanzini to concentrate on their work, that is, being ready for everything. Thereafter; PW1 went and joined second Lieutenant Kipango - PW4 ( now a Captain) in the back of the ship to motivate and encourage _him not to be Page 13 of 61 scared by the shots. He also gave him instructions. About 3 shots were fired towards them. PWl then went back to the bridge and switched on the Search light. He also told Lieutenant Mwanzini to destroy engine of the skiff boat so that it could not be used by the pirates to escape. Lot of ammunitions were shot to facilitate the order. The testimony went further that; PWl commanded his soldiers to desist from more shooting after destroying the engine of the skiff boat in which one of the pirates was in and who jumped n his co-pirates in the attacked Sams all - Good The shot s : t started sinking. PW1 informed his fellow soldiers that they h ( o · trate on the pirates in the attacked_ Sams all - Good leavi 1 Ocean I oseidon) valued at billons of Dollars. PW1 then comm zini to leave the pirates in the Sams all - Good and g, idon) leaving the rest to deal with the pir During the incident, ier were at Mtwara port meaning that, at th "the attacked Boat", Frobisher and · 11 Ships for security). Lieutenant M ip wh, Captain Peter was in the Boardin seidon) was just stationed. The , irates through FrobishetShip by t to be switched on and directed towards . PWl noted that, the crew had rushed to the s channel ten. The engineers switched the ship off. The sh ging direction as per the wind movement. PW1 wanted to use n dealing with the pirates. In this he cooperated with a Poland Guar Drum Cussac They left the Ship Captain at the Bridge and headed to the upper side mounted with medium machine guns. PWl switched on the manual search light towards Sams-All gooaShip where the pirates were. For about 10 minutes, it was silent with no movements. PW1 left the Polish Guard at the upper side of the Ship to the Page 14 of 61 Bridge where the ship was· operated. PWl thereafter took a microphone and made a call to the pirates to surrender on condition that they would not be harmed. Thereafter, PWl ordered the Captain of the shipcommanding him to go 100 metres fromSams-A/1 gooc6hip. He ordered the Navigation Officer to run the Ship 100 metres near Sams-All good. All the time, other ammunitions were been fired. The Polish Gu, rd who was at the top (upper) side was worried to be a target to th tes, hence, he switched off the search light. PWl commanded the Guard at the upper to switch covering shot to make them wort"~~~ about 20 shots in the air. After the -covering shol:s, -silence - red the- Polish Guard to switch on these ~ams-All · . PWl then went to the bridge and rea ' er in Kiswahih and English. The Polish Guard informed irates had indicated the desire to surrender PWl saw one of the pirates doing th shipto the back open space and raise urren at a place they could be seen. Upon counti ven in number. PWl commanded them t PWl seven and if true, whether the weapons nly e which they had. In order to pick the surrendere ure t e attacked ship (Sams-Allgood) is safe, a search and res done, that is, to go and inspect the ship to see if the same was s PWl assigned Lieutenant Peter (PW8)-now a Captain and three other soldiers to inspect the ship through some given procedures. They used ruber boat which is a big boat than the skiff filled with pressure. The distance from PWl's ship to Sams all- Goodwas between 100-150 metres by then whereas the Boarding Party had four people. PWl commanded Page 15 of 61 them to inspect the attacked Ship to see if there were other pirates, if yes, to take all of them to Frobisher. Thereafter, they took the Boarding Party to Sams all-Good. All the four Boarding Party members were armed and one had a robe. After entering the ship; one from the guarding crew had to- guard the seven (7) surrendered pirates. The Boarding Party was communicating with PW1 through UHF Radio Channel Ten. Upon ent ring the pirates' ship, the Boarding Party team leader told PW1 that t ms-All good was safe. They also found apart from the 7 surr d pirates, there was a magazine cover, 16 ammunitions in gre ch & pain killers. After getting that information, PW arty team leader to take to him both-the pirates and- ipt of all these items, PW1 cross checked 1racy of the information. The said e ed over to he Military Intelligence. After the pirat 1, one of them had a wound on his leg was bl 1 mg ,:' y gave him First Aid .meIud"mg oxyge l es we h,, m · refreshing drinks and sat with them i Mohamed@Mudhee (DW7) told ·. mg him as to why, he responded that, that leg, what would he do? It is better to· throw be .'111)111'n by fish. PW1 directed DW7 to be taken 1 • not jump into the Sea. After all those 1 gave information to Navy Headquarters in Kigamboni, Dar es m. Notably; PW1 was able to identify the pirate who jumped from the skiff to Sams-All good one Mohamed Nuru Adam (DWl). Thereafter, on 05/10/2011, the Navy Headquarters sent a small boat ( Gayogayo) to pick both the pirates and exhibits. Page 16 of 61 PWl was then summoned to Navy Headquarters where he was informed by Brigadier Mwinjudi that a special task force had been formed to investigate the event. The task force comprised of security officers from Police Headquarters, Tanzania Peoples Defence Force and others. PWl sailed with this group toOcean rig (Poseidon) to show them whe~e the incident happened. Upon arrival at Ocean rig (Poseidon), the team also visitedFrobishe,ship where they asked some questions of w · they were answered. Thereafter; the team went to Sams-All goa ter left the same day. The evidences by PW 1 was corrobor 3, PW4, PWS and PW8. It was further testimonies PW8 that they were all in tRe- Frobisher ship w fateful aa-te. PW4 testified to be the ad by the pirates. At the dock, PW 3, 4 and DW7 to be among the a ent. The involved ammunitions were · given proving that they were am and exhibits "P2" collectively). The evi corroborated by the evidence of PW8 c1 no) dated 03/10/2011 presented by P as "bit P3. The evidence of PW1 was further corrobor t is 0 who recorded statement of Stephen Antony Sto, Manager) and the incident report 20: 10hrs dated 3rd Oct etrobras Drilling Project Tanzania written by pport Team. (Exhibit "P4" collectively). The evidence of PWl was further corroborated by PW11. It is PW11 who recorded the statement given by Christopher Rayland, a British national who was the ship master. The same was made in terms of Section 34 B {2} Page 17 of 61 . of the Evidence Act 1967 at Mtwara Port on 10/10/2011 at 18:08 hrs before E. 9920D/Sgt Omari Wawa and Report signed by Christopher Roy Lamb on 06/10/2011. (Exhibit "PS" collectively). It was the testimony by PW14 that; on 18/10/2011, he recorded the statement of Abdul Ali Mursar {interpreter) who told him how each of the accused admitted to have participated in the piratic incident. The said interpreter made the interpretation for all the 7 accused. After recording the interpreter's statement, the same signed as discharged. The said statement of Abdul Ali Mursali was admitted In defence; it was the testimony by rsons throughout that they were on the way to So ., a better living --· - - - opportunities following drought and year 2011. They all denied to have en ged the t they first met an interpreter at Kibah . Coast the re charged with piracy during committal All the accused p he exchanging of fire on the fateful 1 DW2 & DW3 that they heard firing of bu plained that they had no travelling docume · S~malia capable of issuing such dotu ere arranged through travelling .broke ey was paid by themselves, their parents, They explain at after leaving Raskamboni, Somalia; they travelled for so and nights before being accosted by a boat broadcasting using ·i · 1crophone in unknown/foreign language to them. They testified further that, due to longevity of the journey, they were not in good situation as they were hungry and tired with safari. They testified further that on departure their boat had more than 100 people but the majority lost balance and fell into the ocean. The rest struggled for survival Page 18 of 61 and the seven accused persons wererescued· by a small boat and finally shifted into a big boat that shipped them to the Mainland. DWl denied to have thrown himself into the ocean. It was a specific denial by all accused persons that they were arrested with bullets and magazine. It was also their testimony that after their arrest, they were blind folded and led to some places where they were unfolded and given some human needs such as shelter or something to eat and drink. It was further testimony by DW7 that fateful date, he and a certain woman with a child fell in the where a revolving iron knocked his leg. Thereafter, a small boat rescue bleeding and he was unconsciou e room of the boat/ship to find his both r two days, he was brought to the Mai e da was taken to hospital at night wher ed. After a day, he was taken to Ki re read through an interpreter. DW7 g that enabled PW7 to identify him , any confession regarding comMsion of the o , In fi cjpersons submitted that; there is no e e accused persons attacked Sams-All good vessel a esti :es by PW2, PW3, PW4 and PWS. They argued that, of the alleged vessel has not been proved. They added tha , . y the prosecution to describe and identify their attire on the fatefu 1 'discredits their case against the accused persons. Furthermore; they discredited PW4's testimony that the accused persons spoke Somali and that he managed to identify four pirates (2nd, 3rd , 4th and 7th accused persons) contrary to what is written in his statement to the police that he managed to identify more than four accused persons. Reference was made to the case of EvaristKachembo& Others v. Page 19 of 61 .. Republic1°'Nhere the Court held that when such · differences arise, such evidence cannot remain unshaken. 11 The defence stressed on the issue of visual identification as held by the Court of Appeal in Raymond Francis v. Repub/ic12t.hat: It is elementary that in a crimina1 case where determination depends essentially on identificat1on .evidence on condition favouring a correct identification is of ut importance. Besides, identification of attire, descriptio the earliest time possible as held by t peal in the cases of Abdallah Ramadhan v. The DPP. 13 Tney went~fuftner ro discreaTt the ams-All good which was never accounte r by PW• , and PW8. They argued that there ar shi of pirates where PW2 testified to have from Sams-All good to Frobshe1Ship wi pirates shifted from Sams-All good shifted from Sams- All good to ged for this Court to rule out in favour of the precepts of the contradictions as hel Said Matula· v. Republic. 14 wever not provided by the Counsel citing it. 11 See Court of Ap in the case of Michael Haishi v. Republic[1992] T.L.R. 92. 12 [1994] T.L.R. 100. 13 Court of Appeal of Tanzania, Criminal Appeal No. 219 of 2009 (Unreported). Also referring the case of Republic v. Mohamed Bin Akui [1942] 9 E.A.C.A 72 and the case of Ibrahim Songoro v. Republic, Court of Appeal of Tanzania, Criminal Appeal No. 298 of 1992 (Unreported). 14 [1995] T.L.R. 3. Page 20 of 61 The accused ·persons through their Counsels also argued about the the skiff been destroyed by gun shots while others arguing the same to have been taken away by strong waves after loosing control. Besides; the statement by Michael Vicent Mountford given at Police was that no pirate who entered into Sams-All good and there was no excha_nge of firearms between Tanzanian soldiers and the pirates thus contradicting with the testimonies by PW1, PW2, PW3, PW4 & PWB. Furthermore, they argued that, no evidence w duced to establish that accused persons were as such present in ged invading boat. The defence argued against existence of t · ood that no evidence has ever been given to establish its · leave alone the referred invasion. They also refute and documents that the accused persons "confesse · committing piracy. On their part, the learned Senior State Attorneys submitte were arrested in the Indinian Ocean · ued that, the act of violence was in · ' con of threatening through fireams shots that of fireams with Tanzania Security Office ith the same incidents resulting into i led into amputation of his leg. sed cartridge) proved that the kind of ammunition by Tanzanian army through colour differentiation. ............... r~ ; during interrogation, all the accused persons confessed to hav ed the charged offence of Piracy. They argued that, the accused pe ns were unknown to Tanzanian army forces, hence, no possibility of grudges or ill motive leading to malicious prosecution. The Prosecution argued that the evidence bythe interpreter (Abdul Ally Mursali), now deceased, which was admitted under Section 348 of the Evidence Act forms a critical part of evidence establishing confession of the Page 21 of 61 . accused persons.- They argued that; the fact that there was no warrant for search and seizure cannot defeat validity of the said search and seizure under Section 38(3) of the Criminal Procedure Act CAP. 20 for the law caters for circumstances where search and seizure can be conducted without such compliance. The prosecution side argued that they managed to prosecute the case and proved beyond reasonable doubt leave aside he few areas regarding bringing the skiff in Court which was badly de ed during the incidents. In such few areas, they argued reliance to was held by the Court of Appeal in Magendo Paul and Another v. ... The law would f~il to pr it admitted . -- fanciful possibility -to de If the evidence is strong ote possibility in his ed the sentence of cours probable the They added th ered in evidence as the r the exploration exercise. Hence . cannot at any rate ·discredit the They a evidence is no else than a "coached or concocted ··ich should be discounted as held by the Court of App of Manju SalumMsambya v. Attorney General and KifuGulamu · ifu. 17 Besides, accused persons telling lies should them guilty as held by the Court of Appeal in the 15 [1993] T.L.R. 220. 16 See High Court decisions in the cases of Edward Petro v. Republiq1967] H.C.D. No. 296 and Julius Bilile v. Republic, [1981] T.L.R. 333. 17 Court of Appel, Civil Application No. 2 of 2002 (Unreported). Page 22 of 61 case ofMohamed Haruna @ Mtupeni and Another v. Republic, 18 and in the case of Paschal Mwita& Others v. Republic. 19 The above marks both the evidence by the prosecution and defence on one part and respective submissions by counsel for both defence and prosecution .sides. Consideration to the above takes -this Court into its deliberations regarding the charged offence of piracy against the accused persons. In criminal cases, one is held crim,inally esponsible upon proof of the essential ingridients of the preferred against the accused person(s). Notably, this case is old referrin offence that occurred on 3rd October, 2011, that is, its prosecuti .ce after lapse of about 7½ years. According to the testimonies b ar that on the 3rd October, 2011, a bo ded in the Indian Ocean by some in mall t known as skiff (invaders boat . It w ution side that while on their guard i boat running in the direction of communicated to S. Antony who s PW4 were to the effect that the inva in the vessels involved in oil explo. nia forces to respond in retaliation. The incidents an .nt of the said invaders entering into the guarding b , 'Ood). The exchange of fire was tense thatthe Army Officers t to the engine room of the Sams-All good in salvage of the da ugh exchange of firearms. According to PWl, the involved diplomatic measures in hand with the effected retaliation as strategies facilitated the said invaders (the accused persons) to surrender to the Tanzanian Peoples Defence Forces. At that 18 Court of Appeal of Tanzania, Criminal Appeal No. 259 of 2007 (Unreported). 19 [1993] T.L.R. 295. Page 23 of61 ---·--------~--- point, it was proved beyond reasonable doubt that violence was involved in manifestation of the planned invasion. Furthermore, proof of use of violence was through the found used cartridge made of gold colour unlike the colourused by the Tanzanian Armed Forces. Going through the. tendered Exhibit "Pl" and "P2" collectively, the same established clearly the use of firearms in violence in manifestation and execution of the planned Piracy. As narrated in evidence, there was exchan ire betweenthe Tanzania army and the attackers to an extent hitting PW4 on the head.Considering that the said boat w recovered, the same could not be tendered in Court · ly submitted by learned Senior State Attorneys fa ailability could establish perforation of t · arms ex , e. Indeed, the oral evidence of PWl- ntary reports as not been discreditedby the defence s dow of doubts. In that regard, this Court r that th firearms between the invaders and o a ing the oil and gas exploration faci I .Sams-All good were seized in a (the pirates). Indeed, it was the testi an PW4 which established how the pirate aid boat. Such pieces of testimonies by the pros who did not know the accused persons before giving evi e lightly faulted. The accused persons' journey to South Africa in a better living due to drought and starvation in Somalia, as they tes · 1ed, could in no way turn into a piracy charge. It, therefore, follows that the defence of going to South Africa was an after thought following the failing of the piracy attack and arrest. The defence side have disputed chain of custody in the course of tracing link between the referred firearms and the whole piracy offence. In : ~ ~ . ;·, -.~ Page 24 of 61 compliment to the cited case laws, in crim·inal cases, Search Warrants and Seizure Certificates are crucial documents which have to be considered in terms of Sections 38 and-45 of the Criminal Procedure Act CAP. 20. For instance, inMakoyeSamwel @ Kashinje& 4 Others v. the Republic,2f>r.he Court of Appeal observed that: .. .In more than one occasion, this Court has underscored the dire need, at the level of investigations to abide by the provisions of Section 38(3) of the Cr" I Procedure Act, which stipulates: Where a11ything is se· of the powers conferred by --------:seizing-tne1Jni~ -.. - the seizure of owner or occu , his near relative or other being in and the ith, a full proof "chain of ,e set in motion. As was , rted Criminal Appeal No. ers v. Republic- 1 : "chain cust · y~' we have in mind the · togica ocumentation and/or paper trail, showi.i eizure, custody, control, transfer, analysis disposition of evidence, be it physical or electronic. The ·idea behind recording the chain 2 ° Court of Appeal of Tanzania, Criminal Appeal No. 32 of 2014, (Tabora Registry) (Unreported). 21 Court of Appeal of Tanzania, Criminal Appeal No. 110 of 2007, (Unreported). =:t : <;~ ·_ : _:_\,. ·. ::: .:1-'. Page 25 of 61 .- . l. custody, it is stressed, ls to establish the alleged evidence is in fact related to the alleged crime- rather than, for instance, having been planted fraudulently to make som_eone appear guilty. -· Regarding importance ·of -exhibits; the Court of Appeal inMashakaPastory · Paulo Mahengi@ Uhuru v. The Republic, 22observed that: · Police General Order 229 underscores exhibits are vital evidence, and it specifically provides: "Classification of Exhibits 1. Exhibits for the Qur12oses of (a) Stolen property and any pr• 1 may be the su 1 (b) Objects hi offence or in · ·nts, foot prints~ p , hairs and fibers; ence is committed, such as or each exhibit from the time it f the poliice, until such time as it is in evidence,· or returned to its owner, or according to instructions; (b) The prope ntiftcation and safe custody of an exhibit is initially the responsibility of the officer-in-charge of the investigation. The chain of evidence as to. its discovery and subsequent custody will be reduced to as few persons as 22Court of Appeal of Tanzania, Criminal Appeal No. 61 of 2016. Page 26 of 61 possible and the police officer who· first obtained possession of the exhibit will produce it in Court: ... 3. Exhibits on which there may be fingerprints shall be handled ·with the greatest careiEmphasis added). As to the contested seizure and handling of exhibits, the Court of Appeal of Tanzania had opportunity to account for the necessities in conducting search. In the case of OnesmoM/wilo v. The Re · t;.23 underscored that: In the absence of proper explanatli custody of those exhibits, we find that there was idence to prove the authenticity of such case of - - IfuminatasMkoka -v. -Republic, atsome-- - point -of custody of-exhibits an whose custody thos ibits w . so s Shirazi Mohammed d Mi. an Suleiman v. ·.tant case, we are a , nee of a proper account o P3 and P4 leaves open the being concocted or pl it is r th-at; circumstances of the case necessi sea without the known or customary Search Warrant a Seiz, · e. For instance, it was the testimony by PW1 and PW erpowering the pirates, they had to inspect the pirates' boat for sons to see to it whether or not there were no other pirates hiding for the sake of seiizing anything linked with the offence. 23 Criminal Appeal No. 213 of 2010 (Iringa Registry) (Unreported). ·:::··/i, :; .. ,.i-?1 24 1:!{.1~ [2003] T.L.R. 245. 25 [2000] T.L.R. 427. · 26 [2005] T.L.R. 236. Page 27 of 61 Under the circumstances and in an incident that took place in the night in the water and which lasted for about two hours involving shot of firearms in exchange, it is obvious that embarking into such exercise was a resultant security concern and evidentiary measure. Furthermore, in the inspection conducted by PWB and other army officers, they managed to seize a magazine cover, 16 ammunitions green ·in colour, a torch and pain killers. Furthermore, in the light of the decision of the Court of Appeal in MashakaPastory Paulo Mahengi@ Uhuru v. l>f?epublic (supra), Police General Order 229 concerns with police o ly. It does not cover or regulate ceisure done by TPDF officer ere is no law, to my knowledge, which mandates TPDF ceisure note of objects found after exchange of fi n that regard, I hold that the ceisure note is not in proving comMsion of piracy offence at matt v, e at remains unshakened to the effect t objects hered a he piratical scene. Essentially; the · e prosecution did not tender some of d, it is a well-established principle in law th discretion of choice as to whom and w f ould tender provided it worth esta ught remedies. In other words, veled charges, it was unnecessary for the prosecuti e a ed pain killers, bucter or the like in establishing piracy. It is from the ·above it is unworthy to argue that the had ill motive to have such items tendered in Court in evidence a the accused persons. Following the said search, whatever was seized was handled over to the responsible officers for further necessary actions. This forinstance is through Exhibit "P3" which is a handing over letter establishing chain of custody and handling of exhibits.Besides; according to PW8, the seized items in the conducted search were handled over to the military Page 28 of 61 intelligence which as said earlier and considering the roles and nature of the case, were properly handled and channed accordingly. Regarding the argument by the defence that the statement by Michael Vicent Mountford given at Police was that no pirate entered into Sams-A// _ good and there was no exchange of fire between Tanzania armed forces in the fateful incident thus contradicting with the testimonies by PWl, PW2, PW3, PW4 & PW8, I find such allegation to ave no weight because contradiction by any particular witness or witnesses cannot be escaped or avoided in any case. It must b led from the prosecution evidences that Michael Vicent who alle ot heard any gun fire he was at the engine room rescuing · rd alarm of distress from. the ship master Christopher cktonoffshore manager who were at the position to e ship and there was gun shots. In t · ase of 't3 ublic27 the Court held that: Good reason the witn le evidence or the evid · ed by a witness or Ase· ng:ine room. In that aspect,there was , hear gun fire. Therefore, any inconsist ictio •· y Miohael Vincent was not material. Furthermor the case of Elia NshambaShapwata and another v. Republic, a 28 e of Edson Simon Mwombeki v. Republic,29t.hus when the contra minor the Court has to disregard it. I therefore find the contradicti . of the statement of Michael Vincent with the prosecution whole evidence to be minor because the defence side considered such statement in isolation of the entire prosecution evidences. 27 Court of Appeal, Criminal Appeal No. 62 of 2004 (Unreported). 28 Criminal Appeal No. 92 of 2007. 29 Criminal-Appeal No. 94 of 2016. Page 29 of 61 Apart from the afore findings, on myriad dates of this proceedings, the Defence Counsels and the Prosecution Attorneys raised a number of plea in limine 1itis. The same were overruled and wpheld respectively. It suffices at this juncture to record the rieserv~d reasoning of the Court. At th~ heart of the legal objections there are inter alia seven legal issues; - 1. Whether a Ballistic expert (PW6} is a competent witness to tender bullets and catridges ceased in the H. seas by TPDF officers without ceisure note; 2. Whether proof of death is only Ii 3. Whether the electtonic_Trans· 4. Whether admissiono land dated 1Qth day of October ion (3) of the Criminal 02); ,anzanian Laws; 6. Whether gation officers to record ',.·. ,•i . ;i.:•/ 7. een a "notice to produce" and a I As rega~ds whet er a Ballistic expert {PW6}- is a competent witness to te 11d catridges ceased in the High Seas by TPDF te. On 18th February, 2019 while PW6 (ASP John SangijaMayunga) w estifying in Court, all defence Counsel raised an objection against PW6 in tendering exhibits "Pl" and "P2". Both Mr. Komba . ,'·: and Mr. Rupia submitted that, under the governing principles regarding chain of custody, the witness ceased to have control of the catridges, spent bullets and the ammunitions thus an imprope:r witness to tender the said Page 30 of 61 exhibits. They rather argued that, the proper person was the one who collected the objects from the scene of crime unlike PW6. On their part, Mr. Nkwera, Msemo, Mr. Dennis, Mr. Benedict and Mr. Kulita argued that; letters dated 23/11/2011 and 23/3/2012 do not form part of exhibits in the proceedings and that the accused ·were not served with the same contrary to Section 249 of the Criminal Procedure Act, CAP. 20. With regard to the exhibit Pl, Mr. Nkwera ·•. emo, Mr. Dennis, Mr. Benedict and Mr. Kulita argued that, there seizure note contrary to Section 38 (3) of Criminal Procedure A · ,. hence fatal as held by the Court of Appeal in the case of Ma ashinje& 4 Others v. the Republic(supra). Mr.. Nkwera Ballistic Report arguing that the Chain of custody h · h. The learned advocate added that, there is lack o e Court of Appeal in Paul Maduka an v. Rep ence, orth to be admitted as evidence in law. In response, Ms. rney submitted that; they complied , on f Criminal Procedure Act, 1985 for the sa, · to the defence side adding that, · itness seized the objects, rather, ns t · the same in evidence for the of the investigation report. r sut> sion that there is no existent law barring the witness ndering the exhibits underSections 62 (1) (a) and (c) of Evid CAP. 6 is to the effect that evidence can be tendered directly b rson who have seen, trust and who perceived the same. In this regard, PW6 is the one who received, seen and made analysis thus ~·· competent to tender the same. With regard to chain of custody, .· ·,·, ·,,,~ ..-~.·, ' .. ', ·. Page 31 of 61 Ms. Mshanga argued that, the surfaced objection is premature for the prosecution has not closed her prosecution case. She argued that, admissibility of evidence differs from relevancy of a piece of evidence, hence, inapplicable. In the matter at hand, PW6 received the exhibits, authored the report and has knowledge of the investigated objects. Furthermore; as the possessor, he has the capacity to tender the exhibits as un erscored by the Court of Appeal in the case of DPP v. MirzaiPir:dakh adji and 3 Others. 3°In rejoinder; Mr. Nkwera insisted that the ob· centred on the fact that the two letters are not part of the Com· ings. He stressed that, the letters should not be admitted in charged offences. Having gone through the respe · ned friends as well as the position of th f this Court in disposal of the raise issionof some documents forming part of the colle ". As correctly submitted by the learned ctions 62 {1} {a} and {c) of Eviden be endered by a person who has dire ceived the same. . e objected pieces of evidence, auth w:ledge of the same. From the petent witness in law to tender the said long-standing position of the law that, essential rd and fast rule as to who and only one who should tend vidence as exhibit in Court. Such stance was made by the C eal in the case of Majid John Vicent& Others v. R.,31where the Cou . served that: ° Court of Appeal of Tanzania, Criminal Appeal No 493 of 2016 (Dar es Salaam 3 Registry) (Unreported). 31 Court of Appeal of Tanzania, Criminal Appeal No. 264/2006 (Mwanza· Registry) (Unreported). · Page 32 of 61 -· . ~ { . 0--.. "·----• 't Th~re is no hard and fast rule as to who should produce exhibit in a trial.Each case should be treated in its own circumstances. Importantly, since among the areas of determination includes thqugh not limited to the Ballistic Report, the same tendered by PW6 who as such -received the exhibits, did the investigation and authored the report is a fit witness without much ado to tender the s .me. This is a witness knowledgeable and capable of responding to I questions with regard to the ballistic report. This is in line with what was reitera Court of Appeal in Majid John Vicent( supfta) where a there is no har<;l ___ ---,.- ·--- -- - - and fast rule as to who should pro further that: If PW4 had produce been better placed to er this was the same pist0 (2006. Indeed, that wo r -.,,,,. , ut the "chain of custody" before its production in just ,,iliary matters, not core in final determ1 ·e u scrutiny. What is essential, is the ballistic report tha led~ rges against the accused persons. In that regard, since · s are auxiliary to the ballistic report core to the contested charg , · e could to be admitted notwithstanding that the same were not liste e Committal proceedings. Above all, expert evidence is evidence differing from other pieces of evidence for it is not sole·ly based on facts, rather; on facts and expertise. Page 33 of 61 In the case of ZefelinusKumb.·@ Philimon v. the Republi~ 32the Court of Appeal had the following in arriving at its findings in deliberation: It is settled law that the duty of all experts is to furnish the court with the necessary scientific criteria for testing the accuracy of their -conclusion so as to enable the court to form its own independent judgment by the application of these criteria to the facts proven in evidence: se , CD. de Souza v. B.R. Sharma, 33 Davie v. Edinburgh Ma ·. . e~ 34 R. v. Kerstin Cameron35etc. It is not within the 's competence to imagine facts to fit his desired s was held by the Supreme Court of India i nguly v. Dr. ~-·- _____ _ Sukumar.Muck/Jeljee&-GJttle The scientific opinion tested becomes a Notably, it is a is associated with the core listed ex , dered even if the same lis ·eedlngs. The situation could be 1least weighty piece of evidence , e; even if the same was not read gs, the same is curable upon reasonable notice i ,f the Criminal Procedure Act which as 32 Court of Appeal of Tanzania, Criminal Appeal No. 243 of 2013, (Unreported), (Mbeya Registry). 33 [1953] K.L.R. 34 1953 s.c. 34. 35 (2003] T.L.R., 84. 36 AIR 2010 sec 1001. Page 34 of 61 ---~-- underscored to that effect by the Court of Appeal in the case of Asael Mwanga v. the Republic. 37 The above found, I will now turn to the second issue on;whether proof of death is only limited to Death Certificate. On the same date, that is on 18th February, 2019 while PW6 (ASP John SangijaMayunga) was testifying in Court, Ms.Mshanga, Senior State Attorney prayed to the Court to adduce evidence in terms of Section 348 of Evidence Act CAP 6 with further prayer to issue notice to that effect as the · ed witness appears to have passed away as per the summons affi n 24th January,· 2019. Ms.Mshanga added that; the sa,id wit rpreter whereas the same was killed by thugs with bur· · utuCementry Dar es ·Salaam. The learned State Att leave under Section 289 of Criminal . mmissioner Ahmed Msangi as witness. ' On their part, th ers. In addressing the Court, Mr. Ko ar , advocates submitted that; they do additional witnesses but on the issue that there must be further proof on th On t earne vacates Nkwera, Rupia and Msemo argued 11 ire· er Section 348 {e} of the EvidenceActto comply w1 ·, ent o ten days notice from the service of the copy of the s e objecting party. Furthermore; death is proved by a Death Certi urial permit whereas "SerikaliyaMtaa Chairman' ' f has no power to e death. In terms of Section 289 of Criminal Procedure Act CAP. 20, qualifications are given to form grounds for the death allegations and that the said notice must be reasonable and in writing. On his part, Mr. Dennis submitted that; the law requires under 37 Court of Appeal of Tanzania, Criminal Appeal No. 218 of 2007, (Arusha Registry) (Unreported). Page 35 of 61 Section 11 O of the Evidence Act for whoever alleges to prove existence of such assertions. In reply; Ms.Shelly, Senior State Attorney and Mr. Barasa, State Attorney argued that; it is under Section 289(1) of Criminal Procedure Act that the witness will substantiate on -how they were received at Navy. Thus, considering the objection to have been prematurely raised adding that death Certificate is not the only evidence to prove death. MsMkundeMshangaadded; it is the Court th · es summons and it is such summons which suffices to be a proof eath. In determining the above objectio start with the argument raised by Ms.Mshanga , urt that issues summons, hence; issuance of the s ·, ·any, though summonses are issued by t Court, t. egarded as proof for the Court just by plied by parties. Otherwise; the Court knows of the witnesses nor has personal inter st of justice to the parties and to t In other wo e the Court being aware of the wher ses in reliance to the fact that it is th the said witnesses in Court. Regar interpreter, this Court agrees with the learned a that the prosecution side is duty bound to· prove deat reter but is also in agreement with the learned Senior State Att the same can be substantiated by either Death Certificate of the al · deceased person or bring a witness to prove the alleged death under oath/affirmation. Indeed, in this case the defence side has not shown any shadow of doubts as regards the death of the interpreter. The accused ended up asking for the proof of death. The mere questioning of death certificate in itself is equated to admissionthat the interpreter died. The Court of Appeal of Tanzania in the case of Page 36 of 61 TabuNyanda @ Katwiga v. The Republic, 38 · underscores the point that cause of death may be proved by other evidence. It is from such premises this Court is of the considered view that the first prayer lack merits in its disposition. With regard to the second prayer in ter!ms of Section 289 of Criminal Procedure Act the law does not bar additional witnesses to be brought for the prosecution and the notice can either be in writing or oral. Such position was explicitly derived by the Court o "eal in Asael Mwanga v. the Republic(supra) to that effect. Notabl,· Court fully subscribes to the immediate above cited decision. It is on that footing that this Court in advance to_be_ _ _ __ - - -- -- reasona61e and ~here is no good rea The afore findings takes whe dmissionof statement of one Christoph - obe1; 2011 complied with the provisions of Section 1 Procedure Act Cap 20 {R.£ 2002). On 22nd PW 10 ASP . Shagihilu ng his testimony in Court, Ms.Ms eave of the Court to show the 1 witn report. PWlO further prayed for the evidence. That prayer as to the report was o · te (for the 1~ accused) under Section on Act 2015 particularly part IV on ground that the same nic evidence. ......,' ,. On his part, Mr. Nkwera advocate (for the 2nd accused) based his objection under Section 249 of the Criminal Procedure Act CAP. 20 on the same 38 Court of Appeal, Criminal Appeal No. 220 of 2004. Page 37 of 61 basis· that the said p:iece of evidence is an electronic document, hence, not a competent person to tender the said evidence. Reference was made to a High Court decision (Mwanza Registry) made in Criminal Appeal No. 349/2017(anonymous). The above submissions were seconded by Mr. Mr. Rupia, Mr. Msemo, Mr. Tumaini, Mr. Pius and Mr. Kulita for the 3rd , 4th , 5th , 6th and 7th accused persons respectively. In reply,Ms.Mshanga, learned Senior State ii .orney prayed for the provisions of Section 348 of the Evidence 67to be complied with. She added that, the same· is not new as the same has been stated in preliminary hearing as we mittal proceedings. Ms.Shelly added that though the ill 1., ~t~~re _i~ nq b~·tr . to app]icabTlity 6( the pr.ovis,ons ufr . tion Act 2015. Furthermore, under the pro eAct CAP. 6, the same allows admiss ence. Besides, the issue before the Court is on admis not relevancy of the document. Hence ent witness to tender the same. The 1 Havin m:issions by the learned friends, the g of the Court in disposal of the afor ,itted by Ms. Shelly learned Senior State is aw which says procedural law have retrospect, r no w that bars procedural laws from been applied retros Furthermore, even .· ing the same to fall under substantive law thus barred under non app 1cability of the principle of retrospective operation of laws, yet; considering that the incident occurred in 2011, the Evidence Act under Section 40A as argued by Ms. Shelly learned State Attorney wasfull fledged operational in 2007. History of electronic evidence can be traced ·~ .--, .-·.. i Page 38 of 61 ·,'t,, .•. -· ~- • ~·i t,. ,. ·.· .!• vide amendments to the Evidence Act, ~CAP. 6 R.E, 2002] by virtue of the Written Laws (Miscellaneous Amendments) Act; No. 2 of 2007 for provisions for the reception of electronic evidence in Courts in criminal matters. Significantly, amendments were effected to Section 40 of the Evidence Act (supra) by introducing sub-sections including Section 40A. Other amended Sections of the Evidence Act (supra) include Sections 76 and 78 amongst to mention but a few. Development vide am ents to the law did not y . end there as through Written Laws (Misceh Amendments) Act No 3 of 2011 Section 3 of the Evidence A; as amended to allow presentation of evidence to cou conference and · -· - - -teleconferenGe.-To date, the long-j he enactment of · the Electronic Transactions Act 201 Section 64A of the Eviden by 5 1/7 46 of the Electronic Transactions Act ( regarding admissionof electronic evidence 64A (1) In ·. ht of electronic evidence shall pliescribed under Section 18 of ct, 2015. ose , his Section, electronic evidence means ormation stored in electronic form or electronic eved from a computer system, which can be evidence.[Emphasis supplied] Section 18 of the Electronic Transactions Act(supra) provides that: (1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibHity of data message on ground that it is a data message. i_ ·.·A Page 39_ of 61 '·] ,4• -~ !.·~it·.....~ "'. '), :_ ,~~• I •. 4.•· ' ' ·: ·1 (2) In determining admissibility and evidential weight· of a data message, the fol'lowing shall be considered- ( a) The reliability of the maraner in which the data message was g~ner~ted, stored or co:mmunicate~; (b) The reliabmty of the manner in which the integrity of the data message was maintained; (c) The manrie:r in which its ortg1inat (d) Any other factor that assessing the weight of evidence. (3) The authenticity of an . wnicn an electronic record · · • sence of evidence to the co (a) -(c) N/A (4) N/A Besides, "data", '~ .ctrronic record" are defined under Section :re ·-. {supra) that: nted· in an electronic form." ; enerated, communicated, received or agnetic optical or other means. in a computer n from one c:omJi)uter system to another". eans a record stored in an electronic form" Regarding "eledtron ic communication", Section 3 of theE/ectronic Transactions Act ( supra) provides that: Electronic commu1nication" means any transfer of sign, signal, or computer data of any nature traAsmitted in whole or in ........ _ - - -· -- -- -- -- -·· - --- Page 40 of 61 part by a wire,· radio, electromagnetic, photo electronic, photo optical or in any other similar form. Regarding "record" in general, bearing in mind "electronic record"Black Law Dictiona!J{Bth Edition) at p.1301 defines it as: 1. A .documentary account of past event designed to memorialize those events; 2. Information that is inscribed on a tangible medium or that, having stored in an electronic or other medium, is retrievc;1 · perceivable from; 3. Minutes; 4. The official repo roceedings in a case ... In view of the foregoing, it foll idence through · computer innovations is admissible a portant, the Electronic Evidence Act of has no · he incident that happened in 2011. From the above in vidence is admissible in evidence. credibility of the said evidencecouple me has een tempered with. It is unfortuna hat ton, the offshore Manager who prepa owever, PWlO reliably testified befo· gi such report by Stephen Antony I f various photographs taken by the ship system wi ein. In my found view such report _is like an expert e ich Stephen Antony Stockton as an offshore Manager who co ter alia,Sams-A/1 good was not barred to add his analysis therein. As ed earlier on,expert evidence is based both on on facts and expertise. 39 Above all, there is no fixed position in Court as to who should produce exhibit in a trial.Each case should be treated in its own circumstances. 39 See Zefelinus Kumb. @ Philimon v. The Republic {supra}. Page 41 of 61 - - - - -- - ~ - - - - -- - - - - - ·-- - -- In this case, PW10 a duly ·comMsioned Police Officer who recorded the statement of the Stephen Antony Stockton told the court that the report was given by Stephen Antony himself to form part of his statement. So, there is no good reason for this Court to deny admissionof the same on the ground that it must be tendered by electronic expert. 40It is from that findings I will now· turn to give reasoning on the adlliiss·ionissue of statement of Christopher Roy Lamb. The fourth issue is on; whetheradmissionof s t of one Christopher Roy Lamb dated 1(1h day of October, 2011 with the provisions of Section 293 (3) of the Criminal Procea , (R.E. 2002). on 8th March, 2019 while PWll one Insp was testifying in Court, the defence advocates obje ent made by one Christopher Roy Lamb dated 10 ument that the same was not part of proceed · 249(3) of Criminal Procedure Act;. CA . Advancing their gr ce advocates centred their subMsion e ocument offends the provisions of Act;. . 6 for not being part of the co . Section 249(3} of the Criminal Pro have such documents stated in the possibility of falsified evidence. In respo suo · d that; on 30/11/2015 of the committal proceeding ction 249 (3) of Criminal Procedure Act was full complied with ement read over though the said statement by Christopher Roy C rked number 7 was not given at the committal proceedings. She th urged for the raised objection to be overruled with the statement admitted and form part of the prosecution evidence. In rejoinder, the defence counsel (Nkwera, Rupia, Msemo, Dennis, Kulita) stressed that there is no justification as to why the witness could not be 40 See Majid John Vicent & Others v. R. (supra). Page 42 of 61 - - - - - - - - - - - - - - - - - - - - --- .. ~ . '---:- .............. ' - .... traced hence, calUng for reliance to Section 348 of the Evidence Act They stressed that the objection centres on the report which is not on record unlike the statement which is on record. As earlier pointed out; the objection centres on the fact that the report sought to be tendered· in Court in evidence do not form part of the committal proceedings. All the defence counsel went further to argue that there is serious need f0>r the same to have forme part of the record so as to negate any possibility of falsifying the e · e through intrusion of false evidence. Essentially; it is a cardinal principle o enshrined in the ________ _c_onstitution for fair heari119 in ter , e Constitution-------...-:--- of the United Republic of Tanzan ' there are circumstances Which can be accommo., issuance of notice despite the same ha captur mitt oceedings. This takes us t - riminal Procedure Act; the law does n ht for the ·prosecution and the notice ,.ch position was explicitly ••• 11 derived by the C · Mwanga v. the Republic( supra) to that en -· br , ·sari bes to the immediate above e fifth issue on whether interpreters are recognize -ania ws. On 8th March, 2019 when PW14 one Antony Mwita ' is testimony, prayed to tender a statement he recorded on 10 or an interpreter named Abdul Ally Mursali on grounds that the 1·ent has already been given notice under Section 348 of the Evidence Act 1967. Admissionof the statement was objeated by the accused persons.To buttress their objection, Mr. Komba submi~ed that; the interpreter was ·~ .:=-i~ . I r., ;, ;,_ forced to do that work iby a team from Zonal Crime Office adding that the ·-~- ·.; ,_:.: Page 43 of 61 ••-- - - •-• ---•- -••--r---•-- • . 1st accused did not consent as the interpreter belongs to a clan that is an enemy to his clan. Secondly, the witness admitted to be part of investigation thus unfit to record the same. The argument was supported by Mr. Rupia, Mr. Msemo, Mr. Dennis, Mr. Benedict & Mr. Kulita, advocates. On his part, Mr. Nkwera learned advocate submitted that; the contested statement of Abdul Ally Mursal does not show if he as such interpreted the accused's statement. Under the circumstances, it is undoubtedly clear that the provisions under Section 249 (3) of Cri · Procedure Act CAP. 20 requires for the defence to be supplied he copy. Likewise; the provisions of Section 348 of the Evidenc ot complied with. Mr. Dennis learned advocate add of Section 348(2) of the Evidence Act 1967are a · . in the case of interpreters. He added th rent from that of an advocate addin cog under the Tanzanian laws. The lea 1 v. Uganda41where the defunct Cou trial Courts of their duty to be satisfi · and revolved danger. 1 In the alternati constested statement does not men o ·1 ment arguing that lack of pages • • as r nds an avenue for loophole in adding or reduc1 was duty of the one who recorded the statemen ill, negligence or ill motive, the interpreter did not do so. In reply, the nga submitted that; the defence counsel have misconceived basis of their subMsion by submitting on contents of the document instead of admissibility of the same. She stressed that the interpreter is dead adding that even the law allows adducing of evidence 41 [1967] 1 E.A 84. Page 44 of 61 ' .J ·,1 :- -~...- .... - -~--,. - • under the soughtprovisions whereas the provisions of Section 127 of the .._.-, Evidence Act do not bar an interpreter firom giving testimony. The learned State Attorney added tJhat; the provisions of Section 131 of Criminal Procedure Actprovide for the persons who should caution the suspect. On her part, Ms.Shelly, Senior State Attonney,argued that; there is no law· -which bars a Police Officer or detective officer to record statement of a witness adding that the constested statem·ent i not a new fact as the same was read in the Committal Proceedli . s features at Page 7. Besides; the accused ought to have told t · ·ce Officers that they had eriemity with the interpreter. In rejoin~er, all the defence advoc ·r earlier stance to have the said statement be rejecte argument that _ ~the_same-was-reGGrded-ih-ce · traventio .., . .- Having gone through the re by the learned friends as well as the position of the la e findings of this Court in disposal of the, 1ectio To start with, i here t at two avenues revolves around a ·odul Ally Mursal. One, that the .'48 ·of the Evidence Act; CAP. 6 , ul Ally rsal cannot be called to appear in ·v; the sa'id statement was not given under y by e 1st accuse9 person. this avenue cannot stand considering that the . '. ··1 ,- very maker of the .. hat is, Abdul Ally Mursal is beyond reach of this Court. Furthermorie; t e referred statement under contest is not that of the 1st accused of which its volunterariness could have been put to test under Section 27 of tne Evidence Act CAP 6 through test of the alleged confession, unlikely; it 'is that of someone else hence unfit for the Court to have conducted trial with'in trial to establish iits voluntariness. 1 ·f'.f .- ~ .' Page 45.of 61 . :_ :·.- ., As to the first limb, the argument centres on adMsibily of the statement under Section 348 of the Evidence Act of which the same covers both witnesses and interpreters unlike as argued by the defence advocates. Importantly, an interpreter is a person who interpretes a statement from one language to another. As to the contested statement under scrutiny, the said Abdul Ally Mursal is expected to state on his role in interpreting the said statements/testimony given by the 1st accused person or else. In the circumstances, it makes him not differen any other witness anyway. In the first place; at page 7 of the C · edings, the same is clear thaf the constested statemen ed part of those proceedings. That alone suffices c hus rendering the raised objection unworthy to be r In any aspect, Section 21 (s carters for right of interpretation i nee is given in a language not u right is enshrined under Article United Republic of Tanzania, 1977. eedings, where necessary, was zania in the case oQaitiHawai& curt said: oba6 true, as earlier _initimated by Mr. Lukosi, nd appellant is conversant with a bit of Swahili a ~ s why he defended himself on the above date. Howev at will be far from saying that he was fully conversant with language as to be able to understand and appreciate everything that was going on at the trial ... 42 See Julius lshengoma Francis Ndyanabo v. Attorney Genera/[2004] TLR 14. 43 Court of Appeal of Tanzania at Arusha, Civil Appeal No. 292 of 2008. Page 46 of 61 '~..Jl~,.,--" "'~-;'---~,Ir,, ..-~:.·~1~-!,:~ r . ~ ordinarily it is trne.. duty .of the Court-to-look-for an -interpreter. Section 12,8 of the Evidence Act, 1967 provides: '· "·•::'" . \"!./ :, . ., .. ,.. '__ 128(1) A witness who is unable to speak may give his ·,' -·-· evide-nce in any other ;manner in which- he can make it intelligible, such as by writing or signs but such writing must be.wtFitten, .and the signs made in an open Court. (2) Evidence given in acco~dan ·• sub-section (1) shall be deemed to be o Also, in Mpembt,Mponeja v. the urt of Appeal of Tanzania emphasised th¢ importan the person who does not have a good command of th • -•-• - - - • -• - ••- •- ~ . -"""'-;•r, ~~~we-start by consiitt ialofa--fafr ·-i:1earing. - This claim Ori ina I' ·pellant, who did not unde ·t well, was at times interpreter from ersa. W ·have perused the ·at at times an interprester 'e consider this to be a tlant's rights. to understand s of the case against him. It was As a rule, the ,eal of Tanzania in SalumNhumbili v. The Republic'5 underli~ · . i "An interpreter must be sworn." From the above, it is clear from both the law and jurisprudence of our country that the :presence of an interprester during court proceedings 44 Court of Appeal of Tanzania at Mwanza, Criminal ~ppeal No. 256 of 2009. 45 Court of Appeal of Tanzania at Mwanza, Criminal Appeal No. 120 of 2009. p_age_~_~_of 6.1 _____ _ - ·-- ·- ·- .1 ·• where the -accused or any of-the witnesses-do not posses -~nowledge of the · court language is fundamental. In case of use of interpreters during police interrogation or interview with 1 the accused person the relevant authority is Tanzania General Police Orders- whose Order 236(6)(b) provides inter alia, that: Where an •interpreter has been used, his signature will be appended to the end of the statemen mediately below that of the person making it tage h a note of the language or dialect used. Therefore, the law is not silent on law and fair trial. 46 ' - - - - - - - - - - - - - - - - --- - - - - - - - - - - The sixth_ issue _is_ on;_ w_h . vesligatlorT -- -- I officers to record stateme court in Crimina{Session case No. 22 of 2015 in the c ulkefly Awadhi Abdallah @ Dully Awadhi, 47 brothe . oted the decision of Njuguna s/o Ki, - '9in which the court held: It . . ·or bhe Police Officer who is ase to charge and. record )ect. J. went further to refuse the caution stiga br was the one who recorded statement. ion is that the Police Officer investigating an 46On practice elsewhere on this issue see Wakefield, Shelle, Police Use of Interpreters: Understanding Police Perception, Recognising Current Practice and Informing Best Practices, Ph.D Thesi$, Griffith University, Queensland, Australia, December, 2014. 47 High Court of Tanzania (Dar es Salaam Distridt Registry), Criminal Sessions No. 22 of 2015. 48 (1954) EACA 316, at page 14. - - - Page 48 of 61- - - - offence may, record the statement of that person. This is well ·provided for under Section 15 (4) of Misc. Amendment Act No. 3 of 2011 which amended S. 58 of Criminal Procedure Act 1985. On the other lineage of reasoning, in terms of Section 289 of Criminal Procedure Act,1985 the law does not bar additional witnesses to be brought for the prosecution and the notice can either be in writing or oral. Such position was underscored by the Court of A peal in Asael Mwanga v. the Republic( supra). Notably; this Court fully 1 ibes to the above cited position of the law. It is on the above reasoning e notice given in advance to be reasonable and ther ny grant of_ the prayer. The above findings take there is a distinction between a ''not1i a ''notice to tender" an additional document.On 15t the prosecution side (Ms.Mshanga, Se · , e Atto ion in the course of DW2 giving hi The fj ction was withregardto theadmissionof VicentMountfort and PW4 Captain In h tate ney argued that, during committal proc t state that the said statements will be used as ore; 2 is not the proper witness for he is not the maker in contravention of the governing laws. In reply, Mr. Nkw. .sted the objed!ion arguing that; after closure of the prosecution case, Mr. Komba, advocate 1informed the Court that they will have seven witnesses and exhibits. He insisted that, it has been a practice during committa:I proceedings that an accused is not bound to speak everything. Page 49 of 61 . In furthering his argument, Mr. Nkwera referred the case of DPP v. Mirza Pirkakhishi @ Hadji and 3 Others {supra} in which the Republic tendered a document on basis that the witness was knowledgeable of. He thus stressed that DW2 is a proper witness to tender the document as he is knowledgeable of the same. He added that, they issued notice to produce in terms of Section 68 of the Evidence Act CAP. 6. In rejoinder, MsMkunde reiterated her earlier subMsion adding that, "Notice to produce" is not synonymous to "Notice ·ender". She vigorously argued that, if the defence wanted to con prosecution document, they ought to have done so during cros in purview of Section 154 of the Evidence Act 1967. MsM d the cited Criminal Appeal No. 493 of 2016 on the- · not refer to a - document. Iri the said case, one "bit, touched, possessed, exam,ined and , · · te the like in the , , esent case where the witness did not, ocuments warranting him knowledge of the same. Besi ot the custodian of the documents. Having gone IssIon y the learned friends as well as ing are the findings of this Court in di 111pdtnissionof statements made by : 1 the Ahmad JumaKipango. : ,.." As right Ms. , II ~nga, there is a remarkable distinction 1 between " uce' and "Notice to tender an additional document' in , the differences is that "Notice to Produce" is provided for und '17 68 of the Evidence Act CAP. 6 catering for situations where the _ ferred document is under power or control of the opponent amongst. On the other hand, "Notice to tender an additional document" is governed by Section 289 of the Criminal Procedure Act; CAP. 20 catering for Page 50 of 61 situations where statements ·or substance of evidence was/were not read over during committal proceedings upon communication of a reasonable notice. It is upon such situations one may seek refuge under the law in redress. In the matter under scrutiny therefore, the defence avered to have produced a notice to produce and not that for additional witness or document worth to be accommodated under S 'Ction 289 of the Criminal Procedure Act in purview of what was obse:rv , the Court of Appeal in Asael Mwanga v. the Republic( supra). The above marks reasoning of the C of raised objection against admissionof statements m Mountfort and of · Ahmad JumaKipango-in evidence. Needless reserved reasons lingering is is; whether or not, the accused persons , ed piracy.Essentially, it is undisputed fact that all the a . testified to have been rescued from the , on the fateful date. Though the pr , , le to see the assailants while in the inva ., s not suffice disassociation of the fro The, clear he saw the 1st accused person jumpin - All good. The accused persons failed to cast shad _ stimonies by PW2 and PWB regarding shifting of pir Sams-All go0dto Frobsher. Importantly, there was no contradic ged as to shifting of pirates from Sams-Al/ good to Frobisher. Notably; the only difference in the asserted contradiction is that PW2 testified to have seen all the seven been shifted (without grouping them) whith PWB accounting for the same by putting them into groups. Thus, Page 51 of 61 that on the face of it cannot be a contradiction, rather; a difference which though cannot be argued to have caused any miscarriage of justice on the accused. It is unworthyor rather unacceptable for one to expect the army officers who were sent to the .ocean to guard the ship undertaking exploration of oil activities in the Exclusive Economic Zone of Coastal State to carry with them search and seizure Certificates for that sake Additionally, army forces are not respons'ible for such business of ch and seizure which customarily, are duly vested to the Police F Regarding identification of the accuse, the defence counsel during subMsion and DW7 during t ised an issue that PWl manged to i~entify DW7 for in · ce due o the t at his leg had been amputated hence, e ily to be espect, the evidence by PWl (among witnesses) was clear and managed to identify DW2, . If at all amputation of DW7's leg was the expected PWl and or the rest been ab a he dock despite lapse had introduced the issue of ctiv submissions, the said issue is ircumtsnaoes of the case at hand with the reasons · Vspeaking, according to the evidence on 11111 record, the _esses had the opportunity to engage into direct shootings with hereas at last, they overpowered them leading them to surrende anzania Army Officers. After surrendering, they were led into the ;ere and taken to the Mainland under strict surveillance and security. In what the Court called a la~e Pirate case of Shamir s/o John v. The Republic, 49 the Court of Appeal of ianzania disMsed the appeal '. .. · 49 Court of Appeal of Tanzania, Criminal Appeal No. 166 of 2004 (Unreported). Page 52 of61 basing on the quality of identification. At page 14 the Court observed; - . the quality of the identification was impeccable and remained so at the close of the appellant's case. Remarkably, there was no pqint that the said pirates escaped and _later rearrested or rather that they were arr,ested later after escaping from the battle field regarding the incidents happening in the Indian Ocean on the fateful date. In other words, there was ak of chain of events between invasion, fighting, arrest, seizure ndling the pirates to the respective autho~ities including the Court imately, they are facing their trial. Most importantly, the evidence of icate that they · coa-ched each-other-on-what to say be sserted that they were on the way outh A , tter living opportunities. But all the ac mentioned the name and the registration number of th using.They all asserted that they were a -peopl . asserted further that 11, their boat lost e e ocean. All accused persons alle by good Samaritans they were blind ' ·ir,ed. How can a good Samaritan ·who eral, the whole evidence of the evidence. In the case of Manju vrn ,·eneral and l<ifuGu/amhusseinKift.J....supra), ania observed-: ... wherea eplication of evidence could suggest coaching ... It is from the afo~e accused persons' evidence, I find the accused persons have used well the.ir remand custody pertod and the Court attendances dates in coaching themselves about the evi.dence to give in Court. The Page 53 of 61 • couching solidifies the prosecution evidence· that it is the accused persons who jointly committed the charged offence of piracy. Furthermore, the allegations by all the accused persons that they were travelling to South Africa impliedly means the defence of the international acknowledged right of innocent -passage in the territorial sea and international waters in general. However, the accused person failed to cast doubt on the prosecution evidence for the ski navigating through ·the Tanzania Exclusive Economic Zone within 17 . tical Miles area. There was no shadow of doubt on the distance in · he skiff boat cruised. Indeed, according to the evidence ad and PWB as well as the coachin used persons, it follows very clearly that the accuse intention, they acted under common design e common intention here means a sha ore ence was committed and thereafter. The accused pe t parts of Somalia, planned togeth t Raskamboni, travelled together in a pira and number was concealed by all the accu the Tanzania navy forces despite of h. me , ots, and couched themselves on ey were apprehended. All these overt acts per •. had com,mon intention to commit piracy. The provisi . of the Penal Code- was applied by the Court of Appeal in the ohamed Mwaya v. Republic, 5°where it was held that: It is settled that when two or more persons form an intention to prosecute an unlawful purpose or jointly, and in the prosecution of such purpose or jointly and in the prosecution so Court of Appeal of Tanzania, Criminal Appeal No. 214 of 2011 (Unreported). Page 54 of 61 ·~ ~- . - . \-".=#fr.~ • • · of which an offence is committed of such a nature that its comMsion was probable consequence, each of them is deemed to have committed the offence. The Court of Appeal of the Seychelles in the case of Mohamed Shire and 6 Others v. The Republicf1when ana:lyzingSection 65 {4} {b} and 65 {5} {b} of the Penal Code of the Seychelles which are in parimateria to Section 66{1)(b} and (c}of the Penal Code of Tanzania, underscored the importance of establishing voluntary particip in the operation of the piratical ship. At page 3 Para 7 of the type · nt the Court observed: Even if it could be assumed d knowledge that the_ ship had been or w urpose of committing acts · of untarily - participated-in- the-o - oala -- - notbe liable;-·· Also, even · · rticipated in the operatic · that the ship had be se of committing se:rve as to when one becomes y stated:. , ·ust also bear in mind as to when a per are of facts making it a ·pirate ship, was it before time he joined the ship or only in the middle oft n when possibly he had no other option but to continue remaining in the ship ...There should be direct or circumstantial evidence to establish voluntary participation and knowledge. 51 The Supreme Court of the Seychel'les, Criminal Appeal SCA 31 - 3712014 (A. Fernando, J.A.; M. Twomey, J.A.; and J. Msoffe J.A.) -Page 55 of 61 In the instant case the direct and circumstantial evidence is very clear that all the Accused person had intention of committing a piratical act. The presence of exhibits P~ and P2 collectively· in Sams-All good shows were suitable piratical implements used by allaccused persons, lack of legal travel _documents to South Africa, the couched similar evidence clearly demostrates that all the accused persons had common knowledge of the skiff being a vessel with a purpose of committing piratical act. All the accused persons voluntarily participated in the ration of the destroyed skiff and all the accused persons were awar Raskamboni the vessel they boarded was a pirate ship. Further, all the accused person's int he piratical act can be established through the fire ex orces despite of - the-warning-shots fired, by_tbe_ Fl."obi _ In the light of Section 65 oft NCLOS and Article 3 (1) and (2 is apparent from the prosecution witness 4, PWS and PW8 the · intention of all endanger the safe navigation of t ert act of the accused persons to board 1 ,1 hipwith firearms gunshot (AK47) caused e engine room, thereby making Sam ction. exchange of fire with navy armed forces wa regarded a legal act or act of nonviolence. It was a-, · terc - board and take control of Sams-All goodship. In whatever the items found in the Sams-All good which did not belong to that ship n ely inter alia the magazine, spent bullet and the live ammunitionsimplicate all the accused persons to the charged piracy offence. To that effect, the prosecution has proved their case beyond reasonable doubt. In R. v.Houssein Mohamed Osman and 1 O OtherS'2my 52 2011 SLR 345. Page 56 of 61 ~,~~~,;,c-1_.. ~--~J~liJ:.:..:·~ ,, -. prother Gaswaga, J_._, of the Supreme Court of _Seychelles· faced almost a similar case, statated the following about the accused persons: ...They are Somali immigrants who had paid a sum of money between 400 USO and 800 USD to the boat owner · to transport them to South Africa where they were going to look for a_ work ... They denied having been in possession of any weapons or having fired at the Draco a d that they never · threw any weapons into the water ... In dismissing the evidence of the accuse ·n that case, my brother Gaswaga, J. underscored the importa mn.. cution case to prove their case beyond reasonable do iction cannot be based on the strength or weakness _____wilLquote_his_findir:igs:~ ~-- - = - - - - -----·- Be that as it may obligation for the prosecution to prove. be . t that each one of the ac o .' e charged. It o , f is in respect of eve · e:ry element of crime. The ngth or weakness of the · itled to be acquitted even atisfie that his story is true, so long :hat his story might reasonably be tr waga, J. when I take the accused's evidence in this case in conjun with the evidence of the prosecution evidence in particular of -PWl to PW14, the evidence of all accused persons becomes an improbability and falsehood. In that regard, the prosecution case remains proved beyond reasonable doubt. Page 57 of 61 Before reaching decision, two lay members out of three who presided over this matter throughout namely; Mr. Hassan Jumaand Ms. MwanahawaSelemaniunanimously discharged their duties laid under Section 265 of the Criminal Procedure Act (supra) and were of divided opinion. Mr. Hassan Jumaopinied for the accused. In his reasoning, all the accused person admitted to had Hlegally passed in the· Tanzania n's Ocean water ~ut they never committed piracy offence. Ms. MwanahawaSelemani on her part opined for the Republic. She wa f the view that all the accused person are guilty of piracy offence arged for two reasons; first, they illegally entered into Tanza · water; second, the prosecution witnesses gave strong evi were invaded by the pirates using fire guns. Upon bei , sed persons were arrested and charged of the piracy - - - -T-he~ -third- -1ay member o-,-. Jane- · grandmother on lhe day s being a sufficient reason, in te Act(supra), the q m unis , I agree with the opinion emani that the republic proved its , this Court finds the .charges h, Gt , ]th accused persons in light of the proved beyond reasonable doubts to be criminally harged count of piracy contrary to Section66{1 f the Penal Code, CAP. 16 as amended by the Written Laws ~ . . ,rs Amendment) {No. 2) Act No. 11 of2010. Consequetnly, all.the · ven (7) accused persons i.e. 1st, 2nd,.3 rd , 4th , 5th , 6th and ]th are all hereby convicted of piracy contrary to the provisions of Section 66{1}{a}{i} and (2) of the Penal Code, CAP. 16 as amended by the Written Laws {Miscellaneous Amendment} {No. 2) Act No. 11 of2010. Page58 of61 ... Before I pen off, let me note that this is a very dynamic area of the law where municipal law meets and harmoniously works with international law. Therefore, the interests of justice in piracy cases would be best served if the Penal Code of the United Republic of Tanzania Cap 16 (R.E 2002) . would be amended to catch up with the developments at international level an·d particularly Article -3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation/ 1988. which Tanzania is a Party. Y.l. MLYA JU .lSf',1 Judgment delivered in O ay of April, 019 in the presence by Ms.Mshang · . ior State Attorneys, Mr. Barasa, State A a, S . ttorney trainee while Mr. Benson N cused; Mr. Dennis for 5th accused; ing . Rupia, Mr. Msemo, Mr. Tumaini ented the 2nd, 3rd , 4th , 6th and ]th e presence of Mr. Hassan Juma .Y.J. MLYAMBINA JUDGE 18/04/2019 MITIGATION Mr. DOMINICUS NKWERA, ADVOCATE (On behalf of all accused persons) .:, My Lord, the offence which all the accused persons are convicted is their _ fi est_ Qff_e11ce _a_s p~r_ the instructions I got. Page 59 of 61 ~~~,~~~fa-~ "" - --- ---- - - - - - - - - - My Lord, all the. accused persons-are~aepenaaoleto- their-families--ln-- - Somalia. To-add~- in practice the object of mitigation is to lessen the sentence to the accused. My t:brd, di.le to the~weakries·s of the charged provision, the sentenc;;e-is_life imprison_ment. We pray for an amendm~ntof the law.·. Section .66 _{1) {a) (1) and (2) of the Penal Code, Cap 16 as ain.. d by the Written Laws {Misc. Amendment) {No. 2) Act No. 11 of 2 lessen the sentence. MS. MSHANGA, SENIOR STATE ATT My Lord, we pray for a strong sent ---beeemes-a-lesscm-to-others~contem . offence. We have the following reasons: 1. The act of piracy j . and economy of the Country; 2. 3. er Countries; and My Lor , te that piracy cannot be condoned by any peace-lovi nger _s to all human beings. We therefore pray. that sentence per the law. My Lord, the act the pirates should be deterred by all States. If Tanzania could not ta e action, other Countries could do so. Piracy cal1s for . universal jurisdiction. That is all . I SENTENCE I have considered the submissions made by Mr. Dominicus Nkwera, Advocate on behalf of all accused person and of Ms. MshangaMkunde · on behalf of the prosecution. Page 60 of 61 ' ·,· ...-- ----~--. - - ---, ·-·