CRIMINAL APPEAL NO 493 OF 2021 RECHO ABDALA OTHERS VS REPUBIC

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA J.A., MAIGE. J.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 493 OF 2021 RECHO ABDALA 1st a p p e l l a n t AZA ISSA......... 2nd APPELLANT HUSNA YASSIN. .3RDAPPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) fMonqella, J.) dated 13th day of July, 2021 in Criminal Appeal No. 179 of 2020 JUDGM EN T OF THE COURT 5th & ffh November, 2024 MASOUD, J.A .: The appellants challenge the concurrent findings of facts by the two lower courts which found them guilty as charged based on their own plea of guilty to the offence of exploitation of children contrary to section 138B (1) (a) of the Penal Code, Cap. 16. The basis of the prosecution case at the District Court of Kyela at Kyela (the District Court) was that on 2nd July, 2020, the appellants sexually exploited nine (9) victims (named in the particulars of the offence) who were then of less than 10 years old by showing them pornographic pictures which act, as a result, led the victims to engage in indecent sexual activity amongst themselves. The trial court was satisfied that each of the appellants had entered a plea of guilty to the i offence they were charged with and that the plea of each of the appellants was unequivocal. As a result, each of the appellants was convicted of the said offence and sentenced to 15 years imprisonment. The conviction and sentence imposed on each of the appellants was sustained by the first appellate court in the appeal that they preferred. In her finding, the learned Judge of the first appellate court was satisfied that the plea that was entered by each of the appellants was not imperfect and could not therefore, amount into an equivocal plea of guilty. The learned Judge was, among other things, satisfied that the imprisonment term of 15 years imposed on each of the appellants was valid since it is a minimum sentence under the law. Since each of the appellants was still aggrieved with the conviction and sentence, they preferred the second appeal on a number of grounds of appeal. When we looked at the grounds in the light of the entire record of appeal before us and for the purpose of this judgment, we were satisfied that they raise three pertinent issues for our determination. The first is, whether the plea of guilty allegedly entered by each of the appellants before the trial court, and upon which they were convicted, was equivocal. The second and third which are, respectively, incidental to the former, are whether the appellants were arraigned on a proper charge and whether the facts adduced after recording the respective plea of guilty disclosed and established all elements of the offence charged. 2 At the hearing, the appellants appeared in person unrepresented whilst the respondent Republic was represented by Ms. Hannarose Kasambala, learned Senior State Attorney, assisted by, Mr. Salmin Zuberi, learned State Attorney. The appellants adopted their grounds of appeal which, as indicated above, boil down to the above issues. They also reserved their rights to rejoin, if need be, as they urged us to allow the respondent's counsel to reply in respect of their appeal. The submission in reply by the respondent was made by Mr. Zuberi and was supported by four authorities of this Court which they enlisted to buttress the respondent case against the appeal. The said authorities, which we have painstakingly considered in this judgment, are Richard Lionga @ Simageni v. Republic [2021] TZCA 671 (11 November 2012); Chacha Makonge @ Mwansi v. Republic [2024] TZCA 587 (18 July 2024); Michael Adrian Chaki v. Republic [2021] TZCA 454 (9 September 2021); and Paskali Kamara v. Republic [2022] TZCA 631 (13 October 2022). In all, Mr. Zuberi's submission anchored on the following major premises: One, that the first appellate Judge thoroughly considered the appeal by the appellants and made a proper finding that the plea of guilty entered by each of the appellants was perfect and proper enough to ground the conviction. The learned State Attorney referred us to observations by the learned Judge of the first appellate court at page 51 of the record of appeal which, in his view, show that each of the appellants unambiguously entered 3 a plea of guilty to the offence charged. Two, that given the circumstances of the case, it was not necessary to procure as witnesses the victims to adduce their evidence as the appellants entered a plea of guilty. Three, it was not necessary for the respondent to tender documentary and any other exhibits in its bid to prove the offence. On this, reliance was placed on the case of Paskali Kamara (supra). Accordingly, it was insisted by the learned State Attorney that in so far as the appellants unequivocally pleaded guilty to the charge, that plea of guilty in respect of each of the appellants is enough to support the charge laid against them. Thus, the failure to call the children who were allegedly engaged in indecent sexual activity amongst themselves as witnesses and the failure to tender any documentary evidence, cannot in the circumstances of the case affect the prosecution case as the plea of guilty of each of the appellant was entered in compliance with section 228 (2) of the Criminal Procedure Act (CPA). We probed the learned counsel for the respondent on a number of issues which were all geared at inquiring into whether the procedure that was to be followed for the trial court to arrive at a finding that the plea of guilty of each of the appellants was perfect and that a conviction can be grounded on the offence in respect of each of them was followed by the trial court to the letter; and whether, for that matter, the finding by the first appellate court was, in that respect, justified in the circumstances. In so doing, we also wanted the learned counsel for the respondent Republic to 4 look at the charge and address us on whether the elements of the offence the appellants were charged with were reflected in the particulars of the charge, and subsequently, in the facts that were adduced by the prosecution after each of the appellants had allegedly entered a plea of guilty. We also wanted the learned counsel to consider whether those facts as they apply to a particular ingredient of the offence were on the record specifically brought to the attention of the appellants for them to respond as to whether or not they respectively admit them. In relation to those issues which we brought to the attention of Mr. Zuberi, we also invited him as he addresses us on those issues to consider our previous holding in the case of Richard Lionga @ Simageni (supra), amongst many, in which we held that: "Where an accused pleads guilty to the charge, before conviction, the law is that, the prosecution is duty bound and it must audibly and understandably narrate facts establishing the offence as alleged in the statement and particulars o f offence. That is, the prosecution must explain clearly and adequately the circumstances in which and how the offence was committed in specific and intelligible terms." We also referred Mr. Zuberi to another holding of this Court in that case in which whilst referring to the case of Michael Adrian Chaki (supra), we restated the test that a plea of guilty must pass for it to be unequivocal and valid as follows: 5 " 1. The appellant must be arraigned on a proper charge. That is to say, the offence section and the particulars thereof must be property framed and must explicitly disclose the offence known to law; 2. The court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with, otherwise, injustice may result. 3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient o f the offence. This is in terms o f section 228(1) o f the CPA. 4. The facts adduced after recording a plea o f guilty should disclose and establish all the elements o f the offence charged. 5. The accused must be asked to plead and must actually plead guilty to each and every ingredient o f the offence charged and the same must be properly recorded and must be dear (see Akbara/i Dam j i vs R. 2 T.L. R. 137 cited by the Court in Thuway Akoonay vs Republic [1987] T.L.R. 92); 6. Before a conviction on a plea o f guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclosed or establish all the elements o f the offence charged". 6 In his response, Mr. Zuberi agreed that the elements of the offence of sexual exploitation of the children which the appellants were charged with were not clearly reflected in the particulars of the offence. However, he was quick to say that the ingredient of mental element, or rather guilty mind, was very well captured in the facts that were narrated to the appellants after they had entered a plea of guilty as charged. However, he neither expounded on all elements of the offence under section 138B (1) of the Penal Code in relation to whether the charge was proper as per criteria 1 herein above set out, nor on whether the rest of the elements of the offence were vividly reflected in the factual materials that were allegedly narrated by the respondent in line with criteria 4 above. At least, however, Mr. Zuberi admitted that there were notable discrepancies in the names of the victims who were, allegedly, sexually exploited by the appellants in that, there were names in the facts narrated to the appellants which were not anywhere in the particulars of the offence in the charge sheet. Having asked Mr. Zuberi to, particularly, consider criteria 4 and 5 above, he was quick to refer us to page 18 to 21 of the record of appeal where the facts of the case were narrated to the appellants, drawing our attention to the record showing that the appellant admitted to those facts having said that they had no any objection to them. On reflection, after being probed further by us, he agreed eventually that each of the appellants was not taken through, and asked to plead to, each and every ingredient of the offence in relation to specific facts disclosing and 7 establishing specific ingredient of the offence charged. He was, nonetheless, of the view that in as much as the appellants plea were unequivocal, such omission did not affect their plea of guilty in anyway. With those submissions, Mr. Zuberi urged us to dismiss the appeal. The appellants did not have anything substantive in their rejoinder. They unanimously maintained that the plea was equivocal, they did not understand the charge that was read over to them, and they invited us to consider resolving their appeal in the manner that would release them from prison. They claimed that they have been imprisoned for not less than four good years. They added that one, Jenifer Yassin, a co-accused at the trial and second appellant in the first appeal, and who was then pregnant, had already been freed. Based on the foregoing submissions, the question for our decision in this appeal is whether the plea that each of the appellants entered was equivocal and whether the appellants were arraigned on a proper charge. The offence which the appellants were convicted of reads thus: Section 138B.-(1) Any person who- (a) knowingly permits any child to remain in any premises for the purposes o f causing such child to be sexually abused or to participate in any form o f sexual activity or in any obscene or indecent exhibition or show; commits an offence o f sexual exploitation o f children and is liable upon conviction to 8 imprisonment for a term o f not less than fifteen years and not exceeding thirty years without option o f fine. [Emphasis added] The charge sheet in respect of which the appellants were charged with the above offence reads thus: Statement o f Offence Sexual exploitation o f children contrary to section 138B (1) (a) o f the Penal Code [Cap. 16 R.E 2019] Particulars o f the Offence That Recho d/o abdalla, Jenifer d/o Yassin, Aza d/o Issa and Husna d/o Yassin are jointly and together charged on the 2ndJuly, 2020 at Mbugani area within Kyeia District in Mbeya Region, for the purpose o f causing child to be sexual abuse did show pornographic pictures to [ names o f 9 children withheld] children under 10 years old, act which is contrary to the dictates o f the law in Tanzania Mainland". We recalled the fact that when probed by us, Mr. Zuberi could neither tell us all the ingredients of the offence nor could he show us that the ingredients of the offence were captured in the particulars of the offence of the charge sheet, though he was quick to say that the ingredient of mental element was covered in the facts that were narrated by the prosecution after the appellants had entered their respective plea of guilty. 9 We have considered the provision of the offence in relation to the formulation of the particulars of the offence in the charge sheet. We are not in doubt that the offence has the following ingredients; One, the suspect must have permitted a child to remain in a premise where sexual activity, indecent exhibition or show is being carried out; two, the purpose behind such permission must be either to cause such a child to be sexually abused or participate in such sexual activity, indecent exhibition or show and; three, the suspect must have knowledge. In our scrutiny, we were satisfied that none of above ingredients was disclosed in the particulars of the offence in the charge sheet other than showing pornographic pictures to the named victims. In respect of what we have found herein above, we are satisfied that the offence of sexual exploitation of the victims provided for under section 138B (1) of the Penal Code which the appellants were charged with and convicted of was not properly reflected in the particulars of the offence in the charge sheet. It follows, therefore, that the appellants were not arraigned on a proper charge. Accordingly, we find that criteria 1 as per the principle enunciated in Michael Adrian Chaki (supra) and restated in Richard Lionga @ Simageni (supra) was not observed for the respective plea of guilty entered by each of the appellants to be unequivocal and valid. As to criteria 4, 5, and 6 as per the above authorities, it is not in dispute that the appellants were not addressed on specific facts disclosing specific ingredients of the offence charged, notwithstanding that the 10 ingredients were not, as shown above, disclosed in the charge. It is clear at page 18 through 21 of the record of appeal that the facts were generally narrated by the prosecution and the appellants were recorded to have generally entered no objection to the adduced facts without being referred to specific facts disclosing specific ingredients of the offence charged. It is, likewise, at page 20 of the record of appeal where the appellants were generally asked to respond to the facts narrated and state whether they are true or not without being specifically referred to specific facts corresponding to a particular element of the offence. In the end, the trial court made a finding that the appellants are guilty of the offence based on their respective plea of guilty. Clearly, the trial court did not, in its finding, consider whether the facts adduced by the prosecution disclosed and established all elements of the offence charged as per criteria 6. Thus, contrary to criteria 6 which requires the trial court to satisfy itself without any doubt that the facts adduced disclose and establish all elements of the offence charged, it made a finding which has no bearing on the adduced facts and elements of the offence charged. This is particularly apparent in the trial court's finding at page 21 of the record of appeal which reads: COURT FINDINGS Accused persons namely Recho d/o Abdallah, Jenifer d/o Yasin, Aza d/o Issa and Husna d/o Yassin pleaded guilty to the charge when the same was read over and properly explained to ii them. They have also pleaded guilty to the facts narrated to them by the Public Prosecutor. In the premises, I therefore find them guilty and accordingly convicts the accused persons, Recho d/o Abdallah, Jenifer d/o Yasin, Aza d/o Issa and Husna d/o Yassin o f the offence o f sexual exploitation o f children contrary to section 138B (1) (a) o f the Penal Code [Cap. 16 R.E 2019] on their own piea o f guilty. We have had time to consider the facts narrated by the prosecution in the light of what we held in Michael Adrian Chaki (supra) that the prosecution must narrate facts correctly, clearly, and sufficiently enough to support the offence charged as the said facts are in lieu of the otherwise evidence that the prosecution would have been required to adduce; and as we also further clarified in Richard Lionga @ Simageni (supra) where we held that: "The prosecution must detail the substance o f the evidence and where applicable tender documentary and any other exhibits, all meant to ensure that the accused clearly understands without any doubt, what is it that he is alleged to have done wrong and contrary to law". [Emphasis added] The said facts which were narrated to the appellants are found at page 17 through page 18 of the record of appeal and they consist of item 1 12 to 12. Apart from providing for the personal particulars of the appellants in item 1 through item 4 of the said facts, item 4 is merely a repetition of the statement of the offence that the appellants stood charged. Item 6 merely restated the particulars of the offence in the charge sheet which do not disclose the ingredients of the offence charged as we have already shown herein above. The names of children listed in item 6 of the facts are however not consistent with those mentioned in the charge sheet. Items 10 and 11, provide for how the alleged incident was reported to the police and how investigation leading to the arrest of the appellants was mounted. The remaining items 7, 8, 9 and 12 which to us appear to becritical to the charge levelled against the appellants read thus: 7. That the said pornographic pictures were shown to the said children by the accused persons white they were at the house o f the J d accused, Aza d/o Issa. 8. That the accused persons stored the said pornographic pictures in a USB flash drive and inserted in the Television in order to show that pornographic pictures/video to the above-named victims. 9. That, the incident was discovered by the natives or civilians o f Mbugani area after found the children having carnal knowledge each other against the order o f nature and upon being asked they stated that they knew upon being shown the 13 pornographic pictures/video by the accused persons. 10. ... 11.... 12. That the victims were also sent to Kye/a Police and given the PF3 for examination and treatment The victims were treated and their PF3s' were filled. The same shows that the victims were penetrated in their anus parts. We pray to produce PF3s o f the victims (five o f them names withheld) as exhibits. We are, consequently, satisfied that the above facts did not disclose the ingredients of the offence highlighted herein above and substance of evidence amplifying the ingredients. For example, the substance of the alleged pornographic pictures was not part of the adduced facts. Although it was alleged that the pornographic pictures/video were stored in USB Flash drive which was being inserted into the television for display, the substance and nature of the alleged pornographic pictures/video in the said USB Flash were not at all described and tendered in evidence although the nature of the offence required the alleged pornographic pictures/video to be produced in evidence as they were the basis of the case against the appellants. It is only two PF3s of the alleged victims and two other children who were not disclosed in the particulars of the offence and in the facts that were tendered in evidence in a bid to support the allegation that the said children engaged in indecent sexual activities after being sexually 14 exploited by the appellants. There was, however, no substance facts connecting the alleged pornographic pictures/video with the said children and their PF3s. After paying due attention to the record of appeal before us in the light of the rival submissions and the procedure that has to be mandatorily followed for a plea of guilty to be unequivocal and therefore valid, we are of the settled finding at this juncture that the relevant procedure was flawed. We are of settled mind that the charge which the appellants stood charged was not a proper one as it did not disclose the offence known to law and the appellants did not plead to facts disclosing the ingredients of the offence. It is unfortunate that the first appellate court did not notice that the procedure was flawed. Had it closely looked at the procedure that the trial court had to abide by, it would have reached the findings that we have arrived at in this appeal. In the circumstances, we are, as we are going to do so shortly, entitled to nullify the proceedings of the trial court and the first appellate court. As to the way forward, we think ordering the appellants to stand trial would not be the best option in the circumstances regard being had to the shortfalls in the prosecution case that we have noted and the period of more than four years that the appellants have been in prison. We are in this view guided by the principle that for the court to order a retrial, it should ensure that the prosecution is not going to utilize the order as an 15 opportunity to mount a better case against an accused person by filling in the gaps in order to achieve a conviction. See for instance, Fatehali Manji v. Republic [1966] 1 EA 343; D.P.P v. Owden Kasanja and Others [2011] TZCA 50 (18 November 2011); and John Julius Martin and Another v. Republic [2022] TZCA 789 (8 December 2022). Although the principle relates to considerations for making an order for a retrial or otherwise, we think it is as well applicable in the circumstances of the instant case. We are of the above view because the charge that was laid against the appellants might be amended by the prosecution to address the omissions found therein in the event trial of the appellants is ordered. Similarly, the inconsistencies in the names of the victims contained in the charge sheet and in the adduced facts might be eliminated by the prosecution to mount a better case against the appellants if we order the appellants to stand trial as there would be nothing to prevent them from doing so. Likewise, the substance of the evidence and the contents of the alleged pornographic pictures/video which are missing in the adduced facts would possibly be introduced by the prosecution if trial is ordered. Equally, the USB flash, allegedly, containing the pornographic pictures/video which were not tendered might also be produced in due course if an order for the appellants to stand trial is made. Additionally, considering that the alleged victims were said to be under 10 years old when the alleged incident occurred, we think it may not 16 serve any useful purpose to make them revive what had happened when called as witnesses which may also make trial of the appellants difficult on the part of the prosecution- see, Juma Mhagama v. Republic, Criminal Appeal No. 71 of 2011 (unreported); Alkard Mahai vs Republic [2013] TZCA 186 (29 July 2013); Barnabas Leon vs Republic [2015] TZCA 23 (8 October 2015); and Yohana John vs Republic [2021] TZCA 619 (29 October 2021). In our resolve, therefore, we allow the appeal. Consequently, we nullify the proceedings, quash the convictions and set aside the sentences meted out to the appellants. In the circumstances, we order the immediate release of the appellants from prison if they are, or any one of them is, not otherwise retained for some other lawful cause. DATED at MBEYA this 7th day of November, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 8th day of November, 2024 in the presence of the appellants in person and Ms. Atuganile Kaponda, learned