DC CRINIMAL APPEAL 8531 OF 2024 MUSA SALUM YASIN AND OTHERS VS REP

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) A T K IG O M A DC. CRIMINAL APPEAL NO. 8531 OF 2024 M U S S A S /O Y A S S IN ist APPELLANT NGOME S/O STEPHANO 2nd APPELLANT ID D I S/O O MA R Y 3rd APPELLANT VE R SU S THE REPUBLIC RESPONDENT (Appeal from the decision of the District Court of Buhigwe at Buhigwe) (K. V. Mwakitalu, SRM) Dated 28th day of February 2024 In Criminal Case No. 5318 of 2024 JU D GM E N T 15/07 & 20/08/2024 N K W A B I , J .: The appellants are assailing the district court's proceedings, convictions and sentences by four grounds which, h ow ever. could be conveniently summarize into two grounds as below: 1. That, the trial court magistrate erred in law and fact by convicting and sentencing the appellants by considering the own plea guilty of appellants w h ic h w a s e q u iv o c a l because the appellants were threatened by the police and forced to admit the charge and ambiguous one. 1 2. That, the trial magistrate erred in law and fact by sentencing the appellants to custodial sentence without option of fine, they being first offenders and the offences are not wide spread and not shown to be of a serious nature. On account of the above grounds of appeal, the appellants are praying this Court thus: 1. This appeal be allowed. 11. The convictions and sentences be respectively quashed and set aside while the appellant be set free from prison. iii. The appellants be present at the hearing of the appeal. 1v . Any other relief for the benefit of the appellants this honourable High Court may deem fit and just to grant. When the appeal was called on for hearing, by way of oral submissions, the appellants were represented by Mr. Sadiki Aliki, learned counsel while the respondent was represented by Mr. Fortunatus Maricha, learned State Attorney. In submission in chief, Mr. Aliki argued that the trial court misdirected itself in convicting the appellants on the claim that they pleaded guilty to the charge. He urged that the plea of guilty was equivocal and ambiguous. 2 Mr. Aliki explained his stance that the first count against the appellants was that they did practice traditional health practitioner contrary to the law. He demanded that the charge sheet ought, in the particulars of the offence, to have shown clearly the statement of offence. Mr. Aliki claimed that the particular of the offence in the charge sheet are insufficient because the allegations were too wide. He further required that the prosecution ought to have stated what actually the appellant were practicing. Mr. Aliki went on to submit that under section 3 of the relevant Act, defines the traditional health practitioner. He said the particulars of the offence in the charge sheet do not indicate (specify) the practice itself. He referred me to the case of Maimuna Ramadhani & Another v. Republic, Criminal Appeal No. 57 of 2022, HC. Mr. Aliki also assailed the 2nd count which concerned being in possession of instruments of witchcraft. He said that the offence does not show malice aforethought (intent) and that the count ought to have been brought under the section used to charge them and section 5 of the very law. He asked me to see the decision he had cited and supplied at page 5. That is the fault in 3 th e c h a rg e s h eet. Eve n th e p h ra s e " d iffe re n t tra d itio n a l m ed ic ine " the y o ug h t to have been m entioned, underscored Mr. Aliki. rd Turn ing to the 3 count which was about advising other persons on the use of witchcralt Mr. Aliki maintained that the count too is pro blematic in that the appellants were charged that they were advising other persons on the use of such witchcraft but those other persons needed to be mentioned in the charge sheet. He insisted that the charge sheet that was read over and explained to the accused persons, missed those elem ents in the particulars of the offence and the facts of the case. He added that the plea was illegal because the respondent was duty bound to tender the items/instrum ent of witchcraft and adm itted as evidence as per the requirem ent stated in the Ramadhani's case at page 4. Mr. Aliki further lamented that, the facts w hich were read over to the appellants by the respondent concealed whether the appellants confessed at the police. He added that if they did not confess at the police why then did they plead guilty in court? 4 Mr. Aliki also contended that the appellants claim they were tortured at the police. It is the stand view of Mr. Aliki that the circumstances suggest so. That is because the facts show that the appellants were arrested on 23/02/2024 at 11:00 am at Munanila area which is on Friday but the respondent said the appellants were interrogated on the arrest day. He was of the opinion that the police ought to have sent the appellants to court on 2 8 /0 2 /2 0 2 4 . He questioned if the appellants pleaded, why were they delayed to be sent to Court? It was also the contention of Mr. Aliki in respect of the 2nd ground of appeal as I have listed above that on the 1st count, the appellants ought to have been sentenced to pay fine because the same applies to the 2nd count. H asked me to see section 5(2) of the Act. Mr. Aliki stressed that it was illegal to sentence the appellants to imprisonment term without option of fine. He pointed out that this Court has power to interfere with the sentence if the lower court applied a wrong principle in sentencing the appellants as it did. He ought to have fined them, stated Mr. Alikia and beefed up that the appellants pleaded and they had no record of previous convictions. He referred me to the case of Benjamini Adaiswa @ Sarni v. Republic, Criminal Appeal No. 41 of 2022, HC at page 5. He finally prayed this Court 5 to allow the appeal and acquit the appellants. He insisted that this Court should not direct for re-trial given the circumstances of this case because a retrial would be prejudicial to the appellants. He was of the view that the respondent would fill in the gaps. He backed his stance by the case of Maimuna's case at page 7 for acquittal. Mr. Maricha, learned State Attorney for respondent, opposed the appeal. He made it clear that he was placing reliance to the case of Michael Chaki v. Republic, Criminal Appeal No. 399 of 2019, CAT where guiding principles were stated for unequivocal charge sheet where it was stated that: 1. It should be a proper charge. 2. The Court must satisfy itself the accused persons know what they are charged against. 3. The accused person be permitted to plea. 4. The facts of the case be read over and explained while they catch up all the ingredients of the offence. 5. That all the ingredients of the offence be admitted. 6. The court should ensure that the ingredients of the offence are found in the facts of the case. 6 Mr. Maricha underscored that the counts on the charge are correct. He added that pt count is not fatal. Regarding the offence of possession of instrument of witchcraft, Mr. Maricha submitted that those things were mentioned in the particulars of the charge sheet. He disputed the claim that the 3rd count needed to mention the persons who were advised. He explained that it is impossible to mention in the charge all the persons. The offenders were advising by Kamchape. It is impracticable to mention all the persons who follow the members of Kamchape. They completely admitted the offence, emphasized Mr. Maricha. It was his view that it is a matter of evidence, why the appellants delayed to be sent to court. Mr. Maricha explained that if the case had gone up to trial, the respondent would have brought evidence about to be delayed to be c h a rg e d . He elucidated that since the appellants pleaded guilty in Court, they were free. He also submitted that failure to cite the punishing section is not fatal. He nevertheless conceded that section 5 of the Witchcraft Act is punishing section, but he was of the view that the omission is curable because the punishment is known. He was of the stance that the appeal is unmerited, he 7 prayed it be dismissed or else, the case be ordered for retrial. Concerning the punishment, Mr. Maricha said that it is the in discretion of the Court and this Court may re-assess the same. In rejoinder submission, Mr. Aliki maintained that the case cited by the respondent has its directives not followed. He stressed that the statement of offence lack the ingredients of the offence, He pointed out that the same applies to the facts of the case lacked the ingredients of the offence. He insisted the decision of Maimuna (supra) be followed. nd Regarding the 2 count, on different traditional medicines, Mr. Aliki explained that there is a comma whereby after that other things were mentioned. Those different things ought to be mentioned, Mr. Aliki emphasized. rd On 3 count the respondent which speaks about Kamchape, Mr. Aliki explained that ought to have been mentioned. There is no where Kamchape was mentioned in the charge sheet, pressed Mr. Aliki. Mr. Aliki too reiterated that delay in charging the appellants, whereas the facts ought to have stated the reasons for failure to arraign the appellants 8 before the court. He also said that the claim that failure to mention the section that prescribes the sentence is not fatal, he insists that it is fatal. He pointed out that it appears that the respondent had not seen section 5. He added that that section talks also about the malice aforethought. I partly agree that this Court has power to order retrial, but explained that the circumstances do not allow, because the prosecution would go to fill in the gaps. Mr. Aliki prayed the Court to acquit the appellants. As the respondent has no objection for the option of fine to be taken, he insisted on his submission in chief. Mr. Aliki rested his submission in rejoinder. I have paid deserving attention to the rival submissions of the counsel for both parties. At the outset, and with the greatest respect to Mr. Aliki, I am not moved by his submissions. I nature no doubts that one of instructive authorities on plea of guilty is the case of Laurent Mpinga v. Republic [1983] T.L.R. 166 where the circumstances in which an appellant in an appeal of this nature may succeed w e re sta te d th u s : 9 •~n accused person who has been convicted of an offence ''on his own plea ofgwlt// may appeal against the conviction to a higher court on any of the following grounds A. That, even taking into consideration the so called admitted tects, his plea was imperfect, ambiguous or unfinished and for that reason, the lower court erred in law in treating it as a plea of gwlt B. That he pleaded guilty as a result of mistake or misapprehension. C That the charge laid at his door disclosed no offence known to law. D. That upon the admitted facts he could not in law have been convicted of the offence charged. // I am inclined to accept the submissions of the learned State Attorney stated that the plea in this case was unequivocal one. The facts are clear that the appellants were engaging with a practice commonly known as Kamchape or Lambalamba. That practice by which doctors is claimed to cleanse witches and bewitched places. That practice is common in societies along Lake Tanganyika. That practice cause havoc among some members of the 10 communities. All the offences were said to have been committed at 11:25 hours, according to the charge sheet and the facts of the case. The appellants were having a pumpkin which was surrounded by white bead, different traditional medicines, two pieces of white cloth and two pieces of red cloth and eleven cow horns. When asked to plea to the three counts on the charge sheet, all appellants in this case pleaded guilty to each count. Alter admitting the facts to be true and correct, the appellant followed by convictions, the appellants were called upon to state their mitigating facts, they merely prayed for forgiveness. The counsel for the appellants lamented that the exhibits were not tendered in court. That is not the requirement of law because, if a person looks at the position of the law as stated by the Court of Appeal, one could appreciate this stance. That decision is the case of Bahati Masebu v. Republic, Criminal Appeal No. 135 of 1991 (Unreported) (CA) (MWANZA) where it was stated that: "We have had a look at the Rules Published under GN No 192/88 especially Rule 4 and 6. We desire to make four brief observations about the rules. Arstly, there can hardly be any 11 doubt that they are couched in mandatory terms. Secondly, we consider that in that context "the facts of the cese" include the materials contained in docum ents like extra Judicial statem ents/ autopsy reports. and sketch plans. Thirdly, it is thus essential that the materials in such documents also be read and explained to the accused And lastly, it is the accused and not his advocate/ who should be asked to state the facts which he admits. We wish to point out to the Judges and Magistrates below that there may be cases in which such non-compliance may result into quashing convictions on appeal. // It is trite law that when suspects are before the Court of law or magistrate, they are free than they are at the police station. I need not provide an authority for this stance. Thus, the complaint that the appellants were forced by the police to plea guilty does not find purchase with me. In any way, the appellants did not state so before the trial magistrate. Concerning the claim that if this court orders for a re trial, then the respondent would fill in the gap. I am respectively of a different stance. Had the case been entertained by witnesses being heard, that would be a 12 different case. Where a case is determined by plea of guilty where facts are read which are recorded from the witnesses' statements, deciding as the counsel for the appellants wants this Court to do would mean denying the right of the witnesses to be heard who may have not have recorded their statements in full as stated in Hatibu Ghandhi & Others v. Republic [1996] T.L.R. 12 CAT where it was stated that: "... we think this is also explicable on the ground that a police statement is not meant to be as deta11ed and as thorough as the testimony given in a trial court. /I' The complaint that the charge sheet does not show intent is with respect, lame because, the appellant were practicing traditional health practitioners without being registered or enrolled as traditional health practitioners. They were too possessing instruments of witchcraft, I do not see how the offences would require intent to be established. See section 3 of the Witchcraft Act. The trial magistrate was also criticized for not having imposed fine sentence. I have looked at the provision of the law, indeed, there is an option of fine. However, as imposition of sentence is the discretion of the trial court having regard to the circumstances, I do not see that the sentence is illegal. 13 Consequently, I hold that the proceedings, convictions entered and sentences meted out by the trial court against the appellants are justified in law. In the premises, the appeal is dismissed. It is so ordered. 14