Criminal Session No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL SESSION CASE NO. 36 OF 2023 THE REPUBLIC VERSUS 1. RAJABU CHANDE NG'OURA 2. KONGO ABDALLAH MATUTUKILO 3. AZIZI ALLY MSHINDO 4. WAMOJA ALLY MPILI 5. MBARAKA HAMIDU NGAHAMA 6. BAHATI SAWA MPILI 7. BASHIRU ABDUL MUHAGA 8. ADAMU MOHAMED ULEDI 9. SAID NASSORO LIOBAJAGI JUDGMENT 29h September & 28n November, 2024 MPAZE, J.: The offence facing these nine accused persons is Murder, contrary to sections 196 of the Pena! Code [Cap 16 R.E 2022] (the Penal Code), The information states that on 23rd August, 2022 Rajabu Chande Ng'oura, Kongo Abdallah Matutukilo, Azizi Aliy Mshindo, Wamoja Ally Mpili, i Mbaraka Hamidu Ngahama, Bahati Sawa Mpili, Bashiru Abdul Muhaga, Adamu Mohamed Uledi, and Said Nassoro Liobajagi, at Lukundi Subvillage in Liwale Village within Liwale District in Lindi Region, did murder one Yunge D/O Bujiku. All accused persons entered pleas of not guilty. As is traditional when accused person pleads not guilty, it becomes the prosecution’s duty to call witnesses to prove the charge against the accused beyond a reasonable doubt. The prosecution successfully paraded six witnesses, namely Kundi Sai (PWl), Mbuke Ngussa Zengo (PW2), Marwa Wambura Bakari (PW3), Butiku Seni (PW4), ASP Shabani Kitenge (PW5), and G 2735 D/CPL Moody (PW6). The offence facing the accused person being murder, the prosecution was expected to establish the following essential elements beyond a reasonable doubt; i) That a murder occurred; ii) That the murder was unlawful; iii) That the accused are responsible for the murder; and iv) That the killing was committed with malice aforethought. Through the testimonies of PWl, PW2, PW4, PW6 and PW3, who is the doctor that conducted the autopsy on the deceased, it is evident that the death of the child, Yunge> occurred. The evidence also shows that this death was not accidental, as established by PW3 through both testimony 2 and the post-mortem report, which was admitted into evidence and marked as Exhibit Pl. The prosecution successfully proved the first two elements beyond any reasonable doubt. The challenge now lies with the third element; proving that it was, in fact, the accused persons who caused the death. I note that this element is challenging due to the circumstances of the killing itself, which occurred in the context of mob justice. In such situations, the prosecution, beyond merely establishing that a murder occurred and that the death was unnatural, is also required to prove who specifically caused the death. In this case, PW1 and PW2 are the eyewitnesses who observed the killing of Yunge. They described how, on the day of the incident, a group of people attacked their village armed with machetes and sticks, destroying property, burning homes, livestock, and food supplies. They stated that the group had covered their faces with plastic bags; however, they alleged that, two persons had not covered their faces, allowing PW1 and PW2 to identify them as Kongo (2nd accused) and Wamoja (4th accused). They explained why they recognized the two, stating that the men were familiar faces in their village, often visiting and being served by the locals, such as receiving milk to drink. 3 However, regarding who specifically killed the child Yunge, neither PW1 nor PW2, in their testimony during examination-in-chief, cross- examination, or re-examination, could specify who among the group was responsible for Yunge's death. When this court sought clarification from PW1, she stated that she could not identify who killed Yunge, as the person who killed her had covered his face with a plastic bag. PW1 emphasized, however, that this person was one of the people accompanying Kongo and Wamoja. Given that this killing stemmed from an act of mob justice, it raises the question of whether the presence of a person within the mob, even if not directly observed inflicting harm on the deceased, can suffice to establish that person's liability for murder. This consideration delves into the principle of common intention, whereby each participant in a mob may bear responsibility for the collective outcome if a shared intent to commit harm existed among them. The Court's stance in Enock Kapela v. R Criminal Appeal No. 150 of 1994, CAT at Mbeya (unreported), provides crucial guidance on this matter. The Court observed; ■' We wish to observe that, as far as we know, there is no civilized country in the world in which the so-called mob justice is regarded as justice. Depending upon the particular facts of the case, an 4 attack in the course of administering 'mob justice1 which results in the death of the victim may, under the law of this country, constitute murder. Provided common intention existed, it would not matter who inflicted the fata! wound or wounds.1 This decision implies that, where there is evidence of a shared intent among the mob to engage in violent conduct, any participant may be liable for the resultant death, even without direct involvement in delivering the fatal blow. However, for the doctrine of common intention to apply, the prosecution must still prove beyond reasonable doubt that such shared intent was present among the accused in the mob. In the present case, while PW1 and PW2 confirmed the violent actions of a mob that included armed people, the evidence lacks specificity regarding any coordinated intention or direct act by the accused to harm the victim, Yunge. The witnesses could not verify the individual role of each accused in the assault, nor did they identify the specific person who inflicted the fatal injuries. Despite their familiarity with the 2nd and 4th accused persons, the witnesses could not establish that these persons or any specific member among the accused group shared a deliberate intent to kill. Therefore, while Enock Kapela's case suggests that the collective action of a mob can meet the requirements for murder if common intent 5 is proven, in this case, the prosecution did not demonstrate such intent among the accused. The lack of clear identification and evidence of each accused's specific actions introduces reasonable doubt regarding each person's responsibility for Yunge's death. In light of the foregoing, and considering the reasonable doubt arising from the insufficiency of evidence to establish individual intent or participation, this Court finds that the prosecution has failed to meet the threshold required for a conviction. Accordingly, all nine accused persons are found not guilty of murder due to the failure to prove beyond reasonable doubt their individual involvement or common intention to commit the fatal act. Consequently, they are hereby acquitted and the court orders their immediate release from custody unless they are lawfully held for another cause. It is so ordered. Dated at Mtwara this 28th November, 2024. 6 Court: The right of appeal is fully explained. Court: Judgment is delivered in the presence of Mr. Jagadi Jilala and Mr. Karangi Joel, State Attorneys for Republic and Mr. Ali Kassian Mkali, learned Advocate for all accused persons who were also present in court this 28th day of November, 2024. M.B. Mpaze Judge 28/11/2024 7