republic vs haridi juma ngwae 2023 tzhc 21152 22 september 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL SESSION CASE NO 44 OF 20.21 (PJ, Case No 5/2021 in the District Court of LINDI at LINDI) THE REPUBLIC........................ .....PROSECUTION HARIDI JUMA NGWAE___ _____ _______________ _____ ____ ACCUSED JUDGEMENT 2.:' September 2023 LALTAIKA, J. The amount of cruelty and inhumanness that can be harboured in the heart of a human being is unimaginable. Unfortunately, no human being can see and read the heart of another human being, at least as far as the current level of scientific and technological advancement is concerned. Had there been such a technology, parents would be the first customer. Many if not most parents would have loved to be able to read the hearts of the people, especially those they entrust their little ones with. The kind of cruelty brutality exhibited by a brother to his 8-year-old stepsister, which brutality, Page 1 of 10 in my opinion, should not be allowed to go unpunished, is the subject matter of the instant matter. The accused herein HALIDI JUMA NGWAE is charged with the offence of murder contrary to section 196 and 198 of the Penal Code Cap 1.6 RE 2019, The information filed in this court is to the effect that on the 14th day of May 2018 at Rondo Mnara Village in Lindi the accused murdered Theresia Mtalika (the deceased) an eight-year-old girichild who was his stepsister. The accused was 25 years old, and a trained people's militia "mgam.bo". The factual backdrop necessary to appreciate the story is as follows. A woman called Asha Saidi and a man called Omari Mtalika were widow and widower respectively. Having lost a spouse each, they decided to live as husband and wife in a remote village called Rondo Mnara in Lindi, Asha had four children from her previous marriage including the accused. It appears that other siblings of the accused are older than him and live in Dar es Salaam. Like other young people in the village, the accused had completed Standard Seven at Rondo Mnara Primary School in 2010 and attended paramilitary training "mafunzo ya mgambo" in Nachingwea in 2013. The accused worked as a watchman in Mtwara for about three years before he decided to go to Dar es Salaam where he stayed with his relatives for about two years. He returned to Rondo-Mnara in 2017 and lived in the same house with his mother Asha Saidi, his stepfather Omary Mtalika and his stepsisters Simpi Mtalika (13) and Theresia Mtalika (8) herein after the Page 2 of 10 deceased. The family stayed in a three-bedroom house: the main room for the parents, one room for the young girls and one room for the accused. It appears from the records that upon his return from Dar es Salaam, the accused had developed strange habits. He kept a snake in his room and when he was asked by his mother what the snake was for, he scolded her and told her it was none of her business. Her surviving stepsister Simpi would later tell the police that "Kaka Halidi" used say one day he would shed blood "iko. siku atamwaga damu". Records are silent on how the accused related to his stepfather Mtalika but his mother recorded a statement to the effect that the accused "hated that they [his step father and his daughter] were staying with us." On 14/5/2018 the accused and the deceased were left alone at home. The parents, Mr. and Mrs. Mtalika, had gone to guard their maize farm against monkeys. Like other neighbours, the parents chose to erect a temporary camp in the farming area and stay there for a few days, but they occasionally visited their children at Rondo-Mnara. Initially, the duo had left the accused and his: little stepsisters Simpi and Theresia. However, Simpi later left to join her parents in the farm. That is when the unimaginable happened. The accused raped and proceeded to butcher the little Theresia like an animal. At this juncture, I will let the records of the court speak albeit in Kiswahili. Below is a part of the accused's cautioned Statement recorded by a police detective in Lindi and admitted in court as exhibit in a botched plea taking and preliminary hearing session: Page 3 of 10 "NUimnyonga kwa kutumia KAMBA YA KATANL Nikmciycnga hadi allpokufa. Baada ya kufa niiirrichukua na kumtoa nje ya nyumba, NUipofika pale nje niliamua kumchinja kwa kutumia kiau. NHimkata kwanza MGUU WA KULiA kwenye nyonga na MKONO WA KULIA kwenye kiwiko. Baadaye ndipo nilimkala shingo kwa kuanza. kukata KOROMFOnakuishianyumayashingo, Wakati namkatanflikuwanje ya nyumba yetu eneo la uwanjani. Baada ya kumtenganisha niiichukua yiungo vyake yaani KICHWA, MKONO na MGUU na kuviosha kwa kutumia maji ya K1SIMA kiiichppo hapo hyumbani. Baadaye niiiweka Viungo hivyo kwenye ndoo kubwa ya RANGY ya nyeupe na kuvificha katika MIGOMBA na kufukia chinI ya ardhi." The incident was reported to the police and' investigations commenced. The parts of the body scattered in different places were identified by relatives of the deceased. Thereafter Dr, Josephine Leonard Ngonyani made a comparison of the parts, of the body and determined that such body parts belonged to the deceased Theresia Mtalika. The Dr. also stated that the death of the deceased was caused by very severe anemia, hypovolemic shock, neurogenic shock, and cardiogenic shock due to cut of big blood vessels. To cut the long story short, the accused was later arrested, interrogated as shared above. As he was interrogated by one F1378 CPL Marwa and later recorded his extrajudicial statement before a Justice of Peace Hon. Faudhia Ahmed Jamadan he confessed that he had killed the deceased. He claimed that the killing was motivated by his belief in witchcraft. He claimed further that a witch: doctor in Dar es Salaam (whose name, he could not recall) was ready to buy human body parts and that he would gain riches [''Niliamini kuwa ningepata utajirij Page 4 of 10 It appears that as soon as the accused was arrested and separated from his diabolical lifestyle such as sharing a room with snakes, envisioning bloodshed, and nurturing other evil intentions, most of which remain unknown, he lost a part of his mind. Some sort of folly or irrationality, others would call insanity befell him. I will come back to this later. On the 6fh day of December 2021, the accused was arraigned in court for plea taking and preliminary hearing. It became apparent before the presiding judge Hon. ZG Muruke J. (as then she was) that the accused was unable to follow proceedings. Pursuant to section 220(1) of the CPA the learned Judge ordered the accused to be detained in Isanga for determination of his mental health during commission of the offence. On the 9/3/2022 the court received the report from Isanga Institution whereupon Dr. Enock Heteregho Changarawe stated that the accused was SANE during commission of the offence. The accused would appear before the learned Judge four more times: 24/6/2022, 30/6/2022, 22/8/2022 and 25/11/2022 but wheels of justice could not move an inch. Why? The accused appeared insane or so he wanted to be considered. Needless to say, that the court file was reassigned to me following the transfer of Hon. ZG Muruke. On the 29th day of May 2023, the matter was called on before me for preliminary hearing and plea taking. Whereas Ms. Mwanaamina Kombakono, learned Senior State Attorney appeared for the Republic, Mr. Emanuel bigongi, learned defence counsel on State docket advocated for the accused. The accused displayed inability to follow proceedings. His mental status varied. I ordered the Mtwara Regional Referral Hospital Page 5 of 10 (commonly referred to as Ligula) to provide Psychosocial Support Services to the accused in the form of professional counseling. For avoidance of doubt, I am inclined to expound on the concept of psychosocial support (PSS) and the rationale thereof. The National Guidelines for the Provision of Psychosocial Care and Support Services (NGPPCSS) issued by the Ministry of Health, Community Development, Gender, Elderly and Children (MoHCDEC) in December 2020 defines psychosocial support as: "...a continuum of services and facilities that address social, emotional and psychological problems in order to safeguard the wellbeing of individuals, their families and communities." According to Dr. John K. Jingu, Permanent Secretary MoHCDEC (as he then was) the aim of the above guidelines is "to help individuals and families cope and overcome life adversities." The Guidelines specifically mention "people in prison" as intended beneficiaries of the services (see p. iv Foreword). The Guidelines provide as follows on provision of PSS services at regional level: "Since the social welfare services are part of the health systems, the Regional Health Management Team (RHMT) is responsible for coordination and supervision of PSS services in the region. " (HGPPCSS p. 22) As alluded to above, the Regional Medical Officer (RMO) Mtwara Regional Referral Hospital and his team deserve commendation for acting professionally and with uttermost expertise on the order as reflected in the detailed reports issued. For respect of data privacy and medical ethics, I will not disclose the meticulous observations contained in. the reports. Page 6 of 10 On the 13/9/2023 the matter was called on for hearing. Ms. Kombakono, SSA appeared for the Republic while Mr. Issa Chiputula,learned Advocate represented the accused. The PSS report from Ligula was formally received and made, a part of these proceedings. The next parts of this judgement are on the legal position after receipt of the PSSS report and the order thereof. It is the interest of the public that litigation comes to an end. The Criminal Procedure Act Cap 20 RE 2022 provides as follows: D. - Procedure.in Case of the Insanity or Incapacity of an AccusedPerson 216.~ (1) When in the course of a trial the court has reason to believe that the accused is of unsound mind and consequently incapable ofmaking his defence it shall, before inquiring into the fact ofsuch unsoundness ofmind and notwithstanding- the fact that the- accused may not have pleaded to the charge, call on the prosecution to give or adduce evidence in support of the charge. (2) If at the close of the evidence in support’ of rhe charge it appears to the court that acase isnot made out againstthe accusedperson thecourt shall dismiss the charge, and acquit the accused person and may then proceed to dea! with him under the Mental Diseases Act. (3) If at the dose of the evidence in support of the. charge it appears to the court that a case has been made out against the accused person, it shall then proceed to inquire, into the fact of the unsoundness of mind of the accused and, for this purpose, may order him to be detained in a mental hospital for medical examination or, in case where bail may be granted, .may admit him to bait on sufficient security as to his personal safety and that of the public and on condition that he submits himself tp medical examination dr observation by a medical officer as may be directed by the court. (4).. Vie medical officer in charge of the mental hospital Id which an accused person has. been ordered to: be detained or a medical officer to whom he has been ordered to submit himself for mental examination or observation pursuant to subsection (3) shall, within forty-two days of such detention or submission, prepare and transmit to the court ordering the detention or submission, a written report on the mental condition of the accused stating whether in his opinion the acciised. is of unsound mind and consequently incapable of making his defence. (5) On the receipt by the. court of the written report provided for by subsection (4) it. shall. resume its inquiry into the question of the unsoundness of mind of the accused and may admit as evidence for this Page 7 of 10 purpose any such written report purporting to be signed by the medical officer who. prepared- It unisss It "is proved that the medical officer purporting to sign it in fact did not sign it. (6) Where the court having considered any written report admitted in evidence under subsection (5) and any other evidence that maybe available to it regarding the state of.mind of the accused is of the opinion that- the accused is of unsound mind and consequently incapable of making his defence it shall record a rinding to that 'effect, .postpone further proceedings in the. case, order the accused to be detained as a mentally disordered offender in a mental hospital or other suitable piece ofcustody untilreleased or otherwise dealt with in the manner provided for in sections 217 or 218. It should be noted that before the 2022 Revision of the CPA, the words "criminal lunatic7' appeared (See Criminal Procedure Act Cap 20 RE 2019) instead of mental disorder offender (sic!) [read mentally disordered offender]. The 2022 edition is based on the internationally accepted distinction between an offender and a criminal. Although, as in the matter at hand, the difference on the purfishment is negligible, an offender is someone who has been sentenced without being convicted while a criminal as used in this Act is someone who has been convicted and sentenced. The word "postpone/' as used in section 216(6) also deserves a brief commentary. In its ordinary meaning means "to delay an event or arrange for it to take place at a later time." [See the Cambridge Dictionary [Online]. In the above section it is not used in that ordinary sense. The legal word for that purpose it to adjourn. When legislators use the word postpone "kuahrrisha" they do not always mean that the meeting has been temporarily delayed. Most of the time this means that particular meeting has come to an end but another one may be convened related to the same continuum. The law and practice related to sentencing of mentally disordered offenders is to the effect that Page 8 of 10 after sentencing an offender, the matter; is not adjourned but postponed. This is because, although this court is done with its duty of dispensing justice, the Director of Public Prosecutions can at a later stage, should it come to his knowledge that the accused person has "come back to his senses''and can make his defence, kickstart proceedings on the same facts against the offender. If that is done, the matter is tried de-novo. The CPA does nor set deadlines for such a decision of the DPP to take effect. The above "open ended" approach to prosecution while the accused is committed to a mental institution as a criminal lunatic serve one important public interest: although it is vital to consider mental incapacity of an accused, "...it is also in the interests of the state that crimes do not go unpunished." (See Court of Appeal of Tanzania with Massati J A (as he then was) as its mouthpiece in MARKO PATRICK NZUMILAI & Another v. THE REPUBLIC CRIMINAL APPEAL NO. 141 OF 2010, CAT Mbeya (Unreported). The above public interest which is not unique to Tanzania finds support in utilitarianism and Holly Scriptures. The Bible provides as follows in the Book of Proverbs 17:15 [New International Version NIV1: "Acquitting the guilty and condemning the innocent— the LORD detests them both." Premised on the above, I order that KALIDi JUMA NGWAE be detained as a criminal lunatic at Isanga Institution until released or otherwise dealt with in the manner provided for in sections 217 or 218 of the Criminal Procedure Act. I order further that the proceedings herein be submitted to the Minister forthwith for relevant legal and administrative procedures. Page 9 of 10 It is so ordered. 22/09/2023 Judgement delivered this 22nd day of September 2023 in the presence of Mr. Wilbroad Ndunguru Principal State Attorney, Mr. Justus Zegge, State Attorney, Mr. Issa Chiputula learned Defence Counsel and the Offender. The right to appeal to the Court of Appeal of Tanzania is fully explained. 22/09/2023 Page 10 of 10