CRIMINA SESSION NO 212 OF 2022 ruling on no case to answer

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 212 OF 2022 (ORIGINAL P.I NO. 18 OF 2013) REPUBLIC VERSUS 1. ALLYOTHUMANI RASHID 2. FARAJI ALI RAMADHANI 3. SHABAN BAKARI WAZIRI 4. MUSSA DAUDI MTWEVE RULING 07th & 9th May 2024 I.C MUGETA, J The accused persons are charged with three counts. The first one is conspiracy to commit an offence c/s 25(l)(a) and 27(c) of the Prevention of Terrorism Act, No. 21 of 2002. It is alleged that such acts of conspiracy were committed between 1/1/2012 and 14/10/2013 at Tegeta Kibaoni, Dar es Salaam involving forming intention to become members of a terrorist group called Al-Shabaab. The second count is for the 1st accused alone. It is about recruiting persons to be members of a terrorist group c/s 21(a) of the i Prevention of Terrorism Act, No. 21 of 2002. The particulars of the offence are that between 1/1/2012 and 24/10/2013 at Tegeta Kibaoni area - Dar es salaam, he recruited the other accused persons to be members of a terrorist group named Al-Shabaab. The third count is for the 2nd, 3rd and 4th accused persons only. They are charged with agreeing to be recruited as members of a terrorist group c/s 21(a) of the Prevention of Terrorism Act, No. 21 of 2002. In the particulars of the offence, they are accused of agreeing to be recruited as members of Al-Shabaab knowing that it is a terrorist group. That the recruitment took place at different places in Hororo (sic) border, Mkinga District and Kinondoni District Dar es Salaam. Section 293(1) of the Criminal Procedure Act [Cap. 20 R.E 2022] reads: "Where the evidence of the witnesses for the prosecution has been concluded, and the statement, if any, of the accused person before the committing court has been given in evidence, the court, if it considers after hearing the advocates for the prosecution and for the defence, that there is no evidence that the accused person or any one of 2 several accused person committed the offence or any other offence of which, under the provisions of sections 300 to 309 of this Act he is liable to be convicted, shall record a finding of not guilty" This section has been partly complied with by the prosecution closing its case and I have heard arguments from both the advocates for the defence and the prosecution. For full compliance with the above law, the defence counsel team has called upon me to rule that, on consideration of the evidence marshalled by the prosecution against the accused persons, there is no sufficient evidence proving any of the said counts necessitating any of them to enter defence to disprove it. Therefore, the learned defence counsel submitted, I ought to record a finding of not guilty and discharge the accused persons. Hereunder, I shall determine if a prima facie case has been established against the accused persons. Considering the nature of the case, the prosecution witnesses testified on pseudonyms in order to conceal their identity. I shall refer to them by the serial numbers assigned to them in the order they appeared in court to testify. The facts of the case as garnered from evidence of the nine prosecution witnesses are as follows: 3 On 24/10/2013 the 2nd, 3rd and 4th accused persons were arrested by PW3 at Horohoro, Tanzania/Kenya border aboard Tahmeed bus heading to Mombasa from Dar es Salaam. By then, PW3 was a police officer of the rank of Assistant Superintendent of Police (ASP). He said on the bus arrival, passengers disembarked for border clearance but the three accused persons remained in the bus. He discovered them during his normal routine inspection and on enquiry they told him they were travelling to Somalia on photocopied emergency travel passports. He decided to confiscate those copies and prepared a seizure certificate which was tendered as exhibit P4 while the three passports were admitted as exhibits Pl, P2 and P3. For want of proper passports, PW3 took the three suspects to the Immigration Office where they met PW5. On being told the young men were heading to Somalia without valid passports, he summoned the District Security Committee to interview the suspects. They said their mission is for Somalia to fight Holy Jihad by joining Al-Shabaab. The interview was made in the presence of PW3 who heard the confession. From Horohoro, the three suspects were taken to Chumbageni Police Station by PW7 who was a policeman stationed at Mtandikeni Police Station, Mkinga District - Tanga. On arrival, PW4 admitted and 4 locked them up until on 27/10/2013 when they were transferred to Dar es Salaam. PW7 testified that in his conversation with the suspects while on their way to Chumbageni, they told him that they were heading to Somalia for a Holy Jihad after they trained at Al-Noor Mosque under Imam Ally and Kibira. The same story was narrated to PW1 who brought the suspects from Tanga to Dar es Salaam. On 31/10/2013, the first accused person was arrested by PW8 at his residence at Boko Chasimba, Kinondoni - Dar es Salaam. He did so after recording the caution statement of the 4th accused person who said their coach on terrorism was the first accused person and, indeed, the 2nd, 3rd and 4th accused persons led the police to his residence. The caution statement was recorded on 28/10/2013. During searching of the 1st accused's residence, a DVD (exhibit P6) was recovered and a seizure certificate was prepared by PW8. The search was witnessed by PW9 who said she signed the seizure certificate which was admitted as exhibit P5. The DVD was played in court. Its major content is that Muslims are being oppressed by Non-Muslims. Some incidences by law enforcing agents considered as brutally targeting Muslims are displayed. Consequently, they are urged to take action as necessary even if it 5 costs bloodshed. The speaking sheikhs also warn fellow Muslims who align with the infidels to stop lest them face similar consequences. Two Immigration Officers from Kibaha Office gave evidence to the effect that they issued the original passport of exhibits P3 which was processed by PW6 and exhibit P2 by PW2. Exhibit P2 is copy of the passport of the 2nd accused and exhibit P3 is a copy for the 4th accused. Both of them said they issued passports to the applicants as residents of Kibaha not any other place. The foregoing is the material evidence of the prosecution. It is my settled view that except for the alleged oral confession of the 2nd, 3rd and 4th accused persons, no other direct or circumstantial evidence implicates the accused persons with the offences charged. It is on that account, the defence team hold the view that the evidence is insufficient to call upon the accused persons to enter defence. Their reasons are firstly, in relation to the first count, the evidence does not prove that the accused persons met anywhere and conspired to commit any offence. Secondly, for other two counts, that there is no evidence at all which establishes that Al-Shabaab is a terrorist group and the 1st accused is either its member or agent who assisted the other accused 6 persons to join it including obtaining the passports and facilitating their travel nor that they agreed to join it. Thirdly, that the contents of exhibit P6 is unreliable and it cannot be said that it was the actual DVD found in the house of the 1st accused as it was not watched thereat and the seizure certificate is unsigned by the independent witness (PW9). The prosecution's submission is short but focused. It was argued that their case relies on the oral confession of the 2nd, 3rd and 4th accused persons which they made as free agents to PW1, PW3, PW5 and PW7. According to those witnesses, the said accused persons told them that they were going to Somalia to fight Holy Jihad through Al- Shabaab after training and facilitation by Ally who was later discovered to be the 1st accused person. That on the strength of this evidence, the accused persons ought to be convicted unless they enter defence to dislodge it so a case has been made against them. On factors to consider when determining whether a defence should be entered, several cases were cited including DPP v. Morgan Maliki & Another, Criminal Appeal No. 133 of 2013, Court of Appeal - Tanga (unreported) [cited by the defence] and DPP v. Philipo J. Mtonde, Criminal Appeal No. 217 of 2020, Court of Appeal - Zanzibar 7 (unreported) [cited by the prosecution]. Regarding the admissibility and weight of oral confession, Alex Ndenya v. R, Criminal Appeal No. 207 of 2018, Court of Appeal - Iringa (unreported) and Posolo Wilson @ Mwalyego v. R, Criminal Appeal No. 613 of 2015, Court of Appeal - Mbeya (unreported) were cited by the prosecution. For clarity, I shall start by pronouncing myself on the position I take in deciding whether the accused person ought to enter their defence. I do so because the two above cited cases on this issue are in conflict with each other. The prosecution has urged me to take the position in DPP v. Philip Joseph Ntonda (supra) where the Court of Appeal held: "The issue of credibility and weight are matters that ought to be determined at the end of the trial but not at the stage of determining whether an accused has a case to answer" The foregoing position differs from that taken by the same Court in DPP v. Morgan Maliki (supra). In this case the Court adopted as good law the position of the defunct East African Court of Appeal in 8 Ramanlal Trambaklal Bhatt v. R [1957] EA 332 - 335 where it was held: "Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubts, we cannot agree that a prima facie case is made out, at the dose of the prosecution, the case is merely one, which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends on whether there is some evidence, irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. It may not be easy to define what is meant by prima facie, but at least it must mean one on which a reasonable tribunal, properly directing its mind to 9 the law and the evidence could convict if no explanation is offered by the defence." (emphasis is mine). The position in Morgan Maliki was applied in DPP v. Peter Kibatala, Criminal Appeal No. 4 of 2015, Court of Appeal - Dar es Salaam (unreported) which was decided on 9th July 2019 while Philip Joseph Ntonda was decided on 1st December 2021. By the principles of precedent, I am bound to follow the recent decision while by stare decisis rule the Court of Appeal was supposed to stand by its decision unless, considering the circumstances of the latter case, injustice would have been occasioned or development of the law would be impaired. However, as Morgan Maliki and Peter Kibatala cases are not considered in Philip Joseph Ntonda, I hold a view that the decision in Philip Ntonda is per incuriam of these decisions as their position was not put to the attention of the court in the latter case. On that account and since the decisions are of the same court, I choose to follow the decision in Morgan Maliki and Peter Kibatala. Back to the evidence on record. For brevity, I shall address the evidence in relation to all counts generally considering the fact that the relevant evidence, as argued by the prosecution, is only that of the oral io confession of the 2nd, 3rd and 4th accused persons leading to the arresting of the 1st accused and recovering exhibit P6 from his house. The prosecution has submitted that oral confession is admissible and can ground a conviction. I totally agree. However, to have evidential value, it must have been lawfully and voluntarily made and the maker was a free agent when he made it. In this case the oral confession of the 2nd, 3rd and 4th accused persons was made to law enforcement officers. It is my view that unlike a confession made to a civilian, oral confession to law enforcing officers cannot be accepted in evidence unless it is in a form of writing. This condition is imposed by section 57(1) and (2) of the CPA which provides: "57(1) A police officer who interviews a person for the purpose of ascertaining whether the person has committed an offence shall, unless it is in all circumstances impracticable to do so, cause the interview to be recorded. (2) Where a person who is being interviewed by a police officer for the purpose of ascertaining whether li he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the police officer shall make, or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record in writing, setting out- (a) so far as it is practicable to do so, the questions asked of the person during the interview and the answers given by the person to those questions; (b) particulars of any statement made by the person orally during the interview otherwise than in answer to a question'\ev^X\3s\s is mine) Consequently, as no caution statement of any accused person forms part of the evidence on record, the evidence of PW1, PW3, PW5 and PW7 that there was a confession has no probative value in terms of section 100(1) of the Evidence Act [Cap. 6 R.E 2022] (the Evidence Act) which stipulates: 12 "1OO.-(1) When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in ail cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act", (emphasis is mine) Section 57(1) of the CPA requires the interview by a police officer in which the suspect confesses to be reduced into writing. On that account, no other evidence relating to the confession is admissible except the recorded confession. The prosecution has, by implication of the evidence tendered, impressed on me that the information was gathered in normal conversation between the suspects on one hand and PW1, PW3, PW5, PW7 and PW8 on the other hand, hence, the conversation cannot be termed as formal interview. I agree it is lawful to do so under section 48(1) of the CPA but still for evidence of that nature to have evidential 13 value, the information received is subject to duties imposed to a police officer under section 52(1) of the CPA which states: "52.-(l) Where a police officer suspects that a person may have committed a serious offence, or believes that information has been received by the police that may implicate a person in the commission of a serious offence, but that suspicion or belief is not such as would, under section 14, justify the arrest of the person without warrant, the police officer shall not ask him any questions, unless he has first informed him that he may refuse to answer any questions put to him by the police officer". (2) A police officer who informs a person as provided under subsection (1) shall ask him to sign or thumb print an acknowledgement, in accordance with a prescribed form, of the fact that he has been so informed and of the date on which, and the time at which, he is so informed", (emphasis is mine) It is my further view that in order to hear the confession, most likely, PW1, PW3, PW5, PW7 and PW8 put some questions to the 14 suspects which prompted the answers. Even though possible it is highly improbable that such information was volunteered in a situation where the confession cannot be ascertained by a subsequent caution statement. Proof that information was not volunteered is in the evidence of PW1 who said she heard the confession after she asked the suspects as to why they were arrested at the Tanzania/Kenya border. Were the suspects free agents when they made it? The evidence is clear that the 2nd, 3rd and 4th accused persons were restrained in terms of section 5(1) of the CPA by PW3 while in the bus. In my view, from that time, as a matter of law, they ought to have been informed of the offence against them and their right to remain silent. Therefore, when they made the confession to the District Security Committee in the presence of PW3, not only they were no longer free agents but also uninformed of the offence they have committed and their right to remain silent. Equally so, when PW1 and PW5 transferred them from Tanga to Dar es Salaam and Horohoro to Chumbageni respectively, they were still restrained and spoke without being cautioned of the consequences. Again, in my view, they were not free agents and uninformed of their rights. Neither PW1 nor PW5 testified that they informed the suspects of their right to remain silent as required by 15 section 51(1) of the CPA nor cautioned them that whatever they shall speak would be used as evidence in court. I hold that anything which the 2nd, 3rd and 4th accused person told PW1, PW3, PW5 and PW7 who are police officers without being cautioned of the consequences cannot be used against them. The confession of the 4th accused person before PW8 was made when recording the caution statement. PW8 said he cautioned him. This would have been a valid evidence but it was rejected admission for being recorded outside the prescribed time in terms of section 50(1) of the CPA. I have read the cited cases on the value of the oral confession and to whom it can be made, they seem to suggest that it can be made to anybody. In Posolo Wilson (supra) for example, it was held: "It is settled that an oral confession made by a suspect, before or in the presence of a reliable witness, be they civilian or not, may be sufficient by itself to found conviction against the suspect." I am of the view that the phrase "be they civilian or not" does not include a police officer. I hold that view because section 6(1) of the CPA 16 obliges police officers, in performance of the duties imposed on them as police officers, to comply with the procedures relating to crimes investigation under part II of the Act. Such procedures include cautioning the suspects and where a confession is made, the same to be put into writing. Failure to do so makes the confession to lack probative value. Without the confession, no evidence is on record to establish that the accused persons did meet at any place leave alone Tegeta Kibaoni and agreed, physically or virtually, to join Al-Shabaab as charged in the first count. Even if we assume the confession was made, the same was false because their passports would not have enabled them to go to Somalia. The passports issued by PW2 and PW6 were limited to East Africa. Somalia had not joined the Community in 2013. A false confession cannot ground conviction. The same applies to the second and third counts. Without the oral confession there is no evidence on record that the 1st accused on one hand and the 2nd, 3rd and 4th accused person on the other hand, met at any place to discuss and the 1st accused proposed and the other accused persons agreed to be recruited as members of Al-Shabaab. 17 Through the evidence of PW1, PW3, PW5 and PW7 the prosecution has tried to establish a link between the accused persons. That the 1st accused person facilitated the others to obtain the passport and the travel to Mombasa had it not been for the interception by PW3. This attempt crumbles on the evidence of PW2 and PW6. They are Immigration Officers who attended applications and issued passports to the 2nd and 4th accused persons respectively. Their evidence is that the two accused persons were unaccompanied when they applied for the emergency travel passports. The evidence of PW3 is even more problematic on the place where he arrested the 2nd, 3rd and 4th accused person. He testified that he arrested the suspects in a bus. On cross examination he admitted that they had no travel tickets and passengers manifest did not even reflect their names. Considering the nature and seriousness of the alleged offence, this assertion ought to have been supported by either the bus driver or the bus conductor in order to establish the purpose of the 2nd, 3rd and 4th accused persons boarding the bus and remaining therein without attending border clearance processes. Even exhibit P6 (the DVD) does not link them in any way as its contents does not associate them with one another. Further, as argued 18 by the defence, there is no evidence that the first accused person who is called Ally Othumani Rashid is the Imam Ally of Al-Noor Mosque who allegedly trained the 2nd, 3rd and 4th accused persons. The defence argued that the prosecution has not proved the existence of Al-Shabaab as a terrorist group. For reasons I am constrained not to disclose here, I am not going to address this issue in relation to the evidence on record. This case can still be decided without getting that far. In conclusion, I find that the prosecution relied on oral confessions of the 2nd, 3rd and 4th accused person to prosecute all the accused persons. I have found that such confessions have no probative value. I have also held that the DVD (exhibit P6) retrieved from the residence of the 1st accused person does not associate the accused persons with each other. Consequently, I hold, there is no evidence proving that the accused persons or any of them committed any of the charged offences warranting them or any one of them to enter a defence for any of the charged offences. As a result, I enter a finding of not guilty in terms of section 293(3) of the CPA. They are accordingly, acquitted and discharged. 19 Lastly, let me give reasons for my decision which I made on 2/5/2024 overruling the objection to admit exhibit P6. The objection was that it is inadmissible because upon its seizure, the Commissioner of Police ought to have applied and obtained a court detention order in terms of section 33(3) of the Prevention of Terrorism Act, 2002. The prosecution argued that section 33(3) does not apply because the seizure and detention was made under section 29(l)(b) and (d) of the Prevention of Terrorism Act, 2002. In rejoinder, the defence submitted that, indeed, the seizure and detention were made under the said section but upon realizing the DVD had terrorism contents the provision of section 33(1) and (3) ought to have been invoked to legalize the detention awaiting the trial. I agree the seizure and detention of exhibit P6 was made under section 29(l)(b) and (d) of the Prevention of Terrorism Act, 2002 which provides: "29(1) Notwithstanding the provision of the Criminal Procedure Act, 1985, where, in case of urgency, application to the court to obtain a warrant would cause delay that may be prejudicial to the maintenance of public safety or public order, a police 20 officer, not below the rank of Assistant Superintendent or incharge of a police station may, notwithstanding any other Act, with the assistance of such other police officers as may be necessary - (a) N/A (b) search any person or vehicle found on any premises or place which is empowered to enter and search under paragraph (a); (c) N/A (d) seize, remove and detain anything which is, or contains or appears to him to be or to contain or to be likely to be or to contain, evidence of the commission of the offence under this Act." PW1 was Assistant Superintendent of Police when he seized and detained exhibit P6. His act was, therefore, lawful. The question, therefore, is whether further detention pending trial needed court detention order per section 33(1) and (3) of the Prevention of Terrorism Act, 2002. That section provides: 21 "33(1) Where the Inspector General of Police or Commissioner of Police has reasonable grounds for suspecting that any property has beep or is being, used to commit an offence under this Act, he may seize the property. (2) N/A (3) The Commissioner of Police shall as soon as practicable after seizing any property under subsection (1), make an application, exparte, to the Court for detention order in respect of that property. It is my view that section 29 and 33 of the Prevention of Terrorism Act covers two different scenarios. Section 29 applies in urgency while section 33 applies in situations where the action is based on deliberately planed intelligence and surveillance investigation. Even if in both cases seizure and detention may be involved, the parliament did not impose the condition to obtain a court detention order for action taken under section 29. As the sections are not interdependent, the condition under section 33 cannot be read into section 29. Therefore, detention of exhibit P6 did not need a court order. 22 I.C. Mugeta A -1 A r. \ Judge > if 09/05/2024 Court: Ruling delivered in open court in the presence of all accused persons, their advocates and the learned State Attorneys whose identity I have deliberately withheld for security reasons. Sgd: I.C. Mugeta Judge 09/05/2024 23