the republic vs josephat kawawa athman 2 others 2023 tzhc 21979 12 october 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY) AT MUSOMA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No. 13 OF 2023 THE REPUBLIC v. 1. JOSEPHAT KAWAWA @ ATHMANI 2. MASHAKA JUMA @ MANGU @ JESHMAN 3. MKONGWE MARWA @ KINOZI @SOMATAMA RULING [TRIAL WITHIN TRIAL] 12.10.2023 & 12.10.2023 Mtulya, J.: This trial within trial Ruling emanates from a protest registered by Mr. Daudi Mahemba, learned counsel for the first accused in protest of admission of a cautioned statement of the first accused, Mr. Josephat Kawawa @ Athman (TWD1) recorded by a police officer, H. 83D/Cpl. Onesmo (TWP1). According to Mr. Mahemba the first accused was forced and tortured during recording of the statement which is contrary to section 27 (3) of the Evidence Act [Cap 6 R.E 2022] (the Evidence Act). During the hearing of the trial within trial, the prosecution summoned one witness, TPW1 to testify on the arrest and recording of the cautioned statement. According to TWP1, the accused was arrested within Nyasirori Village at 13:00hrs on 27th August 2022 and brought to Butiama Police Station at 15:00hours, and recorded statement on the same day at 16:00hours and completed recording at 17:30 hours. i According to TWPl, there was no torture or ill treatment or any promise during recording of the statement and the first accused was granted all of his rights in recording the statement, including right to call relatives or advocated of his choice. Regarding voluntariness of the first accused, TWPl stated that there are two (2) circumstances which prove that the recording was freely done without any force or inducement, namely: first, he signed the document by both thumb print and writing to all pages; and second, by producing the same words to the justice of the peace. In defence, the first accused appeared as TWD1 and disputed the evidence of TWPl. In his testimony, he stated that he was tortured at two police stations at different dates at Mulyaza and Butiama and he confessed to avoid more torture and injuries. TWD1 also complained on the way the Extra Judicial Statement was extracted from him as it was under threat as there were two (2) police officers, stood next to the justice of peace, namely Onesmo and Wilson. In his opinion the dual police had forced the justice of peace to record what he so wishes. However, during cross examination by Mr. Sadiki, learned State Attorney for the Republic, TWD1 stated that he confessed to tell the truth because of the torture and need to save his life. The law regulating confession is enacted in section 27 (3) of the Evidence Act provides that confession made to police officer shall be held involuntary if the court believes that it was induced by 2 threat or promise or any other prejudice. The provision had received an interpretation from a celebrated case of Tuwanoi v. Uganda. [1967] EA 84, where the East African Court of Appeal held that, the main essential for the validity of a confession is that it is voluntary. In the present dispute, the question is whether the confession was made by threat or promise. In aid of the resolution of the matter, the first accused alleged cautioned statement was admitted in the trial within trial as exhibit TWPE1 for scrutiny purpose to determine the authenticity of the statement. I have perused the exhibit TWPE1 and found that TWD1 had produced a detailed information with regard to his historical background, educational background, his activities and plans to kill the deceased. On their meeting held on 26th August 2022 afternoon hours, the crucial question was: kwa nini tusimteke Mwa/imu S?/d?That question was replied in the same statement on what transpired at night hours on the same day. The statement also has the details of the purpose and number of people involved in the execution of the plan. With the details in the statement, any one would believe that the statement was produced by a person who had direct knowledge of what had transpired. In the present trial within trial, both parties also agreed there was second person who participated in recording the extra judicial statement of the first accused and he admitted the offence, 3 though claims that there were two (2) police officers, Onesmo and Wilson next to the justice of peace. Having said so, and considering all circumstance in trial within trial, I am persuaded to believe that the first accused was not tortured or promised anything, and even the recording of the statement did not prejudice him in any manner. This statement was freely and voluntarily made. The same may lawful be admitted in the case. The objection raised by Mr. Mahemba for the first accused has no any merit whatsoever and hereby overruled. This Ruling was issued in the open court in the presence of all accused persons, Mr. Josephat Kawawa @ Athmani, Mr. Mashaka Juma @ Mangu @ Jeshiman and Mr. Mkongwe Marwa @ Kinozi @ Somatama and their learned Defence Attorneys, Mr. Daudi Mahemba and Mr. Evance Njau, and in the presence of Mr. Abdulheri Ahmad Sadiki and Ms. Natujwa Bakari Idd, learned State Attorneys for the Republic. Judge 12.10.2023 4