19810521 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA AT DAR ES Sitl..l\t.M (CORAM: !'1ustafa 1 ..:.J .,.'\o, Mwakasenc;lo:, J oAo an<i Makame 1 J.A. ) CRIMINAL APPEAL NO., 15 OF 1981

BETWEEN DEUSDEDIT KILANG1tJ'ANA ) 0 0 o. e o o ~ o o o ~ e· APPELLANTS /\ THUf-'1'\NI .AHAMi\DA )

A ND THE REE>UaJ;i·IC O Cl p Cl O O o O G O O e O O e O O O • RESPONDENTS (Appeal from the Conviction and Sentence_ of the High Court of Tanzania at Bukoba) (Rubama, J.) dated the 25th day of June, 1980, in Cr:imin.al. Sessions Case Ifo. 148 of..1979 L . ' ''-..4' • •,. • ~ • I • • The two appellants, QEtJSDEDIT KILANGW:M-.A and ATHUMANI Ali~J;Vj\1?~, w;e:~~, .<?n,~rg~q :.t<:geppAf.., "~~itJ~,. t~q; _othe,.r.:s, wh,o, .,w\ei;e. ,9 c_qui. tted, _.. .,_ .,,..,~- ........ c:-., ... -~--""'"-'"-•-""'""·"'-........'""''-:-...........---,....,..,.,,.~-•-U,......_................,,....,...... ~ ,I, . . . . . ._ , . , . , . , . . , ~ . - - ... - • . - . • - - - ~ · - ~ · - -... - ----•lt"Jld<iS-" .... Bukoba Rural District on.127th, A,ugu$t;1 1978. ~ • ,J • I - • ' ~ The two appeilants were The facts are briefly these. On 27th August, 1978, the first ;J_tI I~ !<Li?':} ~.1/l'C .~-:L '...:\ '~-~7-:~·,,:-,,' ·~·.-_ • 1.: "' t ..1 Q ,, :i , appellant KILANGWANA and three of 'his :colleagues, all members of (.~r;t•··?.L frc~:· 1·:1l (>.~rrv.tct3c,--; :=;r•.l :~,.::·.:· 1 :·-:-~:.:.:(·· the Peoples' Miltt1i'a·• 11i-t l- Ka'tot·o•:vifVa\fe:p-weti ~~at:h:l·ssued with one 1 ~_-.-.it:~,~.-~>' :..~,.1 1....:-._.,1:, (~~u?~-.::~; \, .l.~) ,'·-1*-:. -.; :_:{~,\:'.· ·;J ~~:·::;:·, automatic firearm and instructeg_J>y the Ward Secretary to go to conduct a search for. smug~}-,~,<;l_:R

..Jf:~rUfilRU~t~~d.,g,o.odso .......,_ ........... J , . . . . ,.,,-_........... -w,,.'4. ,:,........,..,.,...,,, _ _ _ _ _....._.._ ,. -- The four f!l:i·~Jt,i,c~5n~~).u~~i;- "-e·•- :the command of the first appellant were then .,.,,._.,.,v=.~,1•,-t;t·,wo,_~_.,.,,. ..,_,.. •--c,;-...,. d.ti ven ~?;, tq~:-:fl0~:1?~, ,o~. ,~_J/w;I.~A-,1_-.a1:-)J.K:YE2IT<J'?. ,N:i,:,:lJpge,,,:~ . We:,a·r~. ,told ~h:a,t\; ~n.~n J~l}-{/1.L.J:~/\-, isaw ; tlle_ tfQu-r 9.lilll~P tn:li::li;t-i~n;i~p ._.,t;ie-, -~t~filf. 4 c9~R\.9:~~f! . . • , . . -~1~ •••'•." •' J..- .·.~,. ·,.~~•,,,.-:·_,.'·• •• •.,:,.~~•••· ~. ,,., • '' • ,·• 9 ..,,a 1 ·• ., ' i,71 ,~~S}flO~~!-=h: ,,\:n~.;sting: ,tl);._at.;h;.i:;_ it.~9 .c~:11, le.ac;~rs-:,b~ -pres._e_nt,,,_,·, ,.-.,-., ',• 00 ;, ;~;·'-:.r;,-~_:::~ ···r, ,.:+.:-·· ., . ,.".'"._, 1:./,.;, ';:,,:; ;-,.-. '- .:1_·.,-,•_:<100.0_;0 /2 ... 2 I before he could let the militiamen erter and search his house, .! which Ml\JALIWA did as soon as his two'. cell leader,s were brought I ' i to the scene" Thereafter MAJALIWA ap;Pears to })ave been entirely help.ful to the search party. The fir/st appellant as the leader i 'i of the search party to ensure, perhaPis, that there would be no interruption or interference of t~e search from the crowd I I which.had begun to assemble outside MAJALIWA's house, instructed :,I . .j · t~e, second appel').ant,. ATHUMANI AHAMAqA,:• to·.

stand. guard at the ! ' front doo.r of the house, while anothe)r rnili,tiaman was. posted at ~e · back of the house~· With. that ictone I ' the fi1:st. appEHlant I : and the fourth militiaman proceeded ~o search MAJAL.IWA' s house in th,e presence of MAJALIWA and the lwo'. cell leaderso While I ' 1 the search was going on a gun shot was heard fro.:n outs~de the house :1 i I ' an<l on hearing the shot the first appellant rushed outside armed .- . . . :I . with his automatic weapon. What happened oh his arrival lhere is ~ matter of considerable dispute. slLIM -K/\IJTAGE:. {P. w~ 3) one 1 . • • ,I ' of :the two ce 11 leaders witnessing the search, narrated how . I : .. .th.e .c;\eceased was hit by a bullet fired ,by the first ?ppellant. The material part of his evidence at; tl{e trial is contained in the followin9 passage:- "I had asked perrnission to go out to help myselfo1 He gave me the perrnissri.on. I saw many people outsideo I can not say if I had seen Hindu Abubakar or Ahamada Yusuf Mgand/~ when i got outside to help myself. There were rn c\11Y : people around. I went a long distance away -!I 200 yards away. While there and before helping rnys;~lf I heard· gun shots - from P.,W.1's houseo I cou.1;~ 11ot count, I was frightened. I returned to the scetik 9 nd found people shouting saying that a person Hlas ~been shot dead o I saw the person sh6f~ I saw i1 w~s Hi~du Abubakaro

She was being supported by a male. I, as leader, ,asked the leader of the militia~~n 'What had happenedo He wanted to know.I was asking this in what capacity and I told , 11 • him that I was asking ihim as the 10 cell leader of the area. He held my arm //and pulled me b~hind himself. He had a guno He the~ fired his gun at the crowd. It hit a person. Harnalda Yusufu Mganda was hit. He was hit. on the' right arm. i/ He did not fall down P- he remained standing. i The ieader of the militiamen went to him, held his '1arm and ordered that he be laid ' ~ on the ground., He then-,, ordered that the victim·:·. I ooooo/3 11 II 1: i) Ii l,i I 'I :i • • /i '1 3 I - I I · Ii ' • "be given milk to drink.[! ~ went. out to look for any person with a m1otqr vehicle to take Ahainada Yusuf: Mganda . ,. tbI' Katoro. I' • I left Ahamada Yusuf Mgahda t 9!ker:i inside the house., The .remaining mili tiarneJln were present .;. 2, inside and 2 outside. I got /ftr~nsport and returned · to PoW~1' s house. We ~1ound A}').i'imada Yusuf Mgandc\ already dead. II. i:' . . :i :I 11 '· I' It was on the basis of KAIJAGt' s : evidence that the learned :"; I' . '/ I; trial judge found that the first app~ll;nt o:e_liberately shot into ' , . ,', I,' •. I !l ari. o~~erly and well behaved crowd of _jvBl·. lagers of Kyenge Village, I : killing the deceased and th<1t the offence was. murde-r. While ·. .. :1· :i ·. .

. ' ' ·1 we are unable to accept Mr. Lakha' s .~ontenti_on that .the incident .· . . . I :1 was purely accidental, we find it diffi~ultto accept KAIJAGE's . :1 I · story in its totality. Like both co\msel, we harbour ·grave , · · · II · 1 . doubts that. the first appellant deli~er:f'tely and maliciously I I 1 1 fired at the crowd thereby killing t~e ec.eased. a. ·rf we were II . 1 I ,, ·., I, I' persuaded that the evidence on recoriil wbuld lead to such ,a II . :1 conc~usio~ _then. cle/rly that would beI' ni~rder. .. , . We are, however, . ... i_• i Itii not I !!:'ather a case, of a tense SQ persuaded and we think this was 1 1 i! 1 and suspicious mar{ acting_ und~r str~s~:. . ,I . We take note of the: ,, fi '( fl notorious fact that mili~iamen are ill trained and do not have '1 " the skill and necessary experience t~at: the police. have at crowd control and we think this lack of prbpe'r training in police methods would make a persoh like the first alpJllant_ touchy and nervous 1 ;I 1 at the slightest movement from a crowd 1which, in the circumstances ;I :I I i of the case, could not be said to hat"e [been too friendly to i i 1 these armed men from another village o 1we are accordingly 1 I I I ' satisfied, without accepting the firist :!appellant's version of the matter, that in view of the evidence on record the first appellant I[ !I · · I 1] may well have acted under fear when

~ejfired at the deeeasedo 'I 11 : II In any case, on the state of the ev:Lbence, as we understand it, :I 1 1 ·1 !,'I ' we are satisfied that a conviction fjOr [;murder cannot be sustained. 'I 1; i i ,I ,j ! o•o•o/4 I .i We. are, h owever,. o f the considered ·1:view that the evidence· 1:1 amply supports the lesser offence ,of :manslaughter as the firing was clearly unlawful and rec:kless. In the.result, I•. we quash the c:-onviction of the first appellant for murder and· · set aside the sentence of deaJh imposed on him; and ,i,, substitute: therefor a conviction fdr manslaughtero As regards ,,' sentence, we are of the view that the1circumstances of the case ,I cry out: for a heavy sentenceo We 1:l~lieve circumstances were such that fi.ting in the air would ti!av~ been quite adequate ', I, i ' . to calm down the crowd, no matter Hbw'excited i1, it may have beeno /1 ii I We sentence him to ten (10) years' iimprisonment. 'I "\ The case against the second ibppellant, ., ATHUMJ\NI AHAMi\DA, is entirely differento His convict~ori ,I for murder was wholly based on the learn8d trial judge's,! fi;nding that he was acting I i ih.concert • with the first appellant1,I and ,' was therefore equally I: guilty of the offence. We can see ho ,,evidence whatsoever to I . ( show that there was any common intention I between . the two i appellants to commit the offence of 1 mtirder against the

deceased, 1, : ,, as the two appellants had gone to Kyerige on a lawful missiono 11 . I' We think, on the evidence placed before the trial court, the second i . appellant was entitled to ah acqui tta1:· of the. offence chargedo I , We accordingly quash his conviction. of:1 murder, set aside the sentr~nce of death imposed on him and order that! he be r~~leased from prison i ' forthwith unless he is detained therein on some other matter. DATED at DAR ES SALAAM this 21st II . day of May, 19810 11 Ao MUSTAFA

JUSTICE OF APPEAL Y.,M.M., MWAKASENDO

JUSTICE OF APPEAL Lo Mo M/\KAME

JUSTICE OF APPEAL I certify of the original • . 11 ( (\--'\lllL l . < ~t. ...Jfsti~ > .:_k·:~~ ·~·:'. '\ ·~-~ 1 S:SNIOR DEPUTY REGI~Tili\Fi