republic vs omary masudi namawela 2023 tzhc 21211 22 september 2023

THE UNITED REPUBLICOF TANZANIA: JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL SESSION CASE NO 9 OF 2021 (P. L Case No 3/2019 in the District Court of Masasi at.Masasi) THE REPUBLIC............. ................................... ............PROSECUTION VERSUS OMARY MASUDI NAMAWELA ..... ................................. ACCUSED JUDGEMENT : 12* & 22 : September2023 LALTAIKA, J. 180 years ago, that is 1843 to be precise, a man called Daniel McNaghten [also spelled McNaughton, M'Naughten] was convinced (in a dream I would suppose) that the then British Prime Minister Williarh PeeU.the Pope and Jesuits were conspiring to kill him. Rather than waiting for the undesirable eventuality, he decided to preemptively kill-Mr, Peel instead. McNaghten proceeded to the Prime Minister's Office at 10 Downing .Street ready to kill Mr. Peel. However, it appears that lack was on Mr. Peel's side that day. McNaghten ended up killing Drumond, Peel's Secretary, mistaking him for Mr. Peel. Page 1 of 7 To cut the long story short, Mr. McNaghten was not held criminally liable for his action. Owning to his mental incapacity, the common law court reasoned, he was unable to appreciate the nature of his action because he was insane. See McNaghten's Cose 8 Eng. Rep. 718/ 722. (1343). As a result of that case with much public interest in the UK 180 years ago/ an elaborate set of rules, known'to date as the McNaghten Rules, was developed. The rules play a vital role in assisting courts in dealing With insanity as a defence to criminal liability, I am inclined to state albeit in passing, that in a case with so much public interest at the time, arguably comparable to the McNaghten case in the UK more than a century and a half back, a person called Mwamwindi shot dead the then Regional Commissioner for Iringa Wilbroad Kleruu on Christmas day in 1971. The attempt to invoke the defence of inanity was however rejected by this Court presided over by His Lordship Onyiuke .T (as he then was.) See Mwamwindi v. R. (1972) HCD 212 That the matter at hand is an invitation to apply the McNaghten Rules, albeit in a different context as codified in section 13 of the Penal Code Cap 16 of the Laws of Tanzania Revised Edition 2022, goes without saying, The above cases, namely McNaghten and Mwamwindi's, though they fall under the larger box of the defense of insanity, have been used as a preface to this judgement merely as a "curtain raiser." This is because, as will beundicated, the present matter has not proceeded to full trial. Some factual ' issues herein have not gone through the rigorous sieve of cross examination. Page 2 of 7 The accused OMARY MASUDX. IMAMAWELA (herein after the accused) was arrested in his home village of M navi rd in Masasi District, Mtwara on allegations that he murdered HAMISIBAKARI MAlIMUSI fthe deceased), a fellow villager. On the 8* day of February 2023, the accused appeared in this court for plea taking and preliminary hearing. Mr. Hussein Mtembwa, the learned counsel on state docket for the accused was quick to alert the court on abnormality of his client's behavior. He prayed that the accused is committed to a mental institution for determination of his state of mind during commission of the alleged offence. Pursuant to this court's order to that effect, a report dated 09/05/2023 signed by one Dr. Enock Eteregho Changarawe, Psychiatrist at Isanga Institution returned the verdict: the accused was INSANE during commission of the alleged offence. The matter was listed for hearing of criminal session cases and the accused, enjoying services of Mr, Emanuel Ngongi, learned advocate of State docket, entered appearance. Mr. Wilbroad Ndunguru, learned Principle State Attorney, appeared for the Republic. The learned Principle State Attorney alerted the court on its previous order and prayed that the report from the mental institution be formerly received and made a part of the proceedings. The same was marked as Pl. Mr. Ndunguru went on to state that in addition to Pl, the court file contained other exhibits particularly witness statements that cumulatively corroborated the expert evidence on the state of mind of the accused. Page 3 of 7 Mr. Ngongi, on his part, unwaveringly conceded with the position of the learned Principle State Attorney, He asserted that his attempts to communicate with his client prior to commencement of these proceedings left no doubt on abnormality of behavior of the accused. He invited this court to make a special finding as provided by the Criminal Procedure Act Cap 20 RE 2022 and other relevant laws. The Court of Appeal of Tanzania (CAT) the highest court in our jurisdiction, speaking through His Lordship.Lila JA. and with concurrence ofKitusi and Mashaka JJA went to some enviable details in the case of THOMAS PIUS V. THE REPUBLIC Criminal Appeal No 145 of 2019, CAT at Dar es Salaam (Unreported) Judgement delivered on 2r,d August 2022 to clarify the law related to insanity in murder cases in our country. Needless to say, that this ruling is built on such directives which are binding to this court It is noteworthy on the outset that insanity is a legal concept. It is not, as many presume, a medical or psychological terminology. It is also incapable of a precise definition, from a human being's standpoint. Lord Blackburn when giving evidence before the select Committee of the House of Commons in... famously stated: "I have read every definition which I cobid meet with and never was satisfied with one of them,- and 1 have endeavoured in vain to make one satisfactory to : myself. I verily believe that it is not in human power to do it." [Quoted in Milton Green "Public Policies Underlying the Law ofMental Incompetence. 38 Mich. L Rev. 1189 (1940). Page 4 of 7 The Black's Law Dictionary (Supra) provides the following rather useful explanation of the term insanity: '71 mental disorder severe enough that it prevents a person from having legal capacity and excuses the person- from criminal or civil liability. Insanity is a legal not a medical standard.'[Emphasis added.] Tf/T In our jurisdiction, and no doubt in many if not most: other commonwealth jurisdictions with which we (partly) share legal ancestry, the defence of insanity does not automatically lead to outright acquittal. The Black's Law Dictionary provides as follows in the entry on Insanity Defence: "Unlike other defenses, a successful insanity defense may not result in an acquittal but instead in a special verdict (not guilty by reason of insanity) that usually leads to the defendant's commitment to. a mental institution." Premised on the above doctrine this court (Biron J. as he then was) in R. v. Maneno s/o Salum (1968) H.C.D. 419 emphasized that the expression ’’guilty but insane" was unknown to law. The court went on to expound the procedure which remains unchanged in our jurisdiction save for the section cited thus: "(3) After finding accused not guilty by reason of insanity, the court should have submitted a record of the proceedings to the Minister and ordered accused kept in custody as a criminal lunatic pursuant to section 168(1) of the Criminal Procedure Code/' [Now section 220] Coming back to the matter at hand, it is my finding further that 1. The deceased HAMISI BAKARI MALIMUSI has passed away. 2. The accused's death was not natural as per the autopsy report. 3. That the accused person is the responsible for the death of the accused. 4. That the accused was Page 5 of 7 mentally incapable of appreciating the act which would otherwise have resulted into capital punishment. As alluded to earlier, successful invocation of the defense of insanity does not automatically lead to acquittal. I have taken into consideration the fact that the accused does not seem to haver recovered from the mental condition that let to commission of the offence. Chances are, unless he continuously receives medical attention to the satisfaction of mental health professionals, he is likely to cause yet another homicide. Premised on the above, I hereby order that the accused OMARY MASUDI NAMAWELA be kept as a criminal lunatic at the Isanga Institution as per section 220 of the Criminal Procedure Code. I further order that these proceedings be submitted to the Minister for further legal actions. It is so ordered. E.I. LALTAIKA JUDGE 2.2/09/2023 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 Chiputuia learned Defence Counsel and the Accused. Page 6 of 7 E.I. LALTAIKA JUDGE 22/09/2023 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. 1 Alto-T>e'/ j ■* j E.I. LALTAIKA JUDGE 22/0972023 Page 7 of 7