DPP v ASHERY JONATHAN MWAKALEJA 2OTHERS

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA MISC CRIMINAL APPLICATION NO 14897 OF 2024 (Arising from Economic Case No. 7402 of 2022 before the Resident Magistrates Court of Dodoma at Dodoma) THE DIRECTOR OF PUBLIC PROSECUTIONS ……..APPLICANT

VERSUS ASHERY JONATHAN MWAKALEJA…….………1ST RESPONDENT OLIPA ANGETILE MWAKIBETE…………..2ND RESPONDENT TULIBAKO ANGETILE MSYANI …………3RD RESPONDENT

RULING Date of last order: 25/07/2024 Date of the Ruling: 26/07/2024 LONGOPA, J.: This application arose out of the Economic Case No 7402 of 2024 pending before the Resident Magistrate’s Court of Dodoma Region where the respondents stood charged with offence of leading organised crime contrary to Paragraph 4(1) (d) of the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2022; money laundering c/s 12(1)(a), 13(1) (a) of the Anti-Money Laundering Act, Cap 423 R.E. 2022 read together with Paragraph 22 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2022; and occasioning loss to 1|Page specified authority contrary to Paragraph 10(1) of the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E.

2022. On 13th June 2024, the Director of Public Prosecutions filed an application under Section 392A (1) and (2) of the Criminal Procedure Act, Cap 20 R.E. 2022 for the following orders, namely: 1. That, the Court be please to call for and examine the records of the proceedings of the Resident Magistrates Court of Dodoma at Dodoma in Economic Case No 7402 of 2024 for purposes of satisfying itself as to the correctness, legality and propriety of the order passed and as to the regularity of the proceedings thereto.

2. That, the Honourable Court be pleased to give appropriate orders it considers necessary in the interest of justice.

3. That, any other relief (s) this Honourable Court may deem fit and just to grant. The application is supported by affidavit of Petro Lucas Ngassa, State Attorney. The 2nd respondent did not file a counter affidavit. On 25th July 2024, the parties appeared before me whereby Ms. Estazia Wilson, Senior State Attorney assisted by Mr. Donasian Chuwa and Zubeda Lyaumi, learned State Attorneys while the 2nd respondent was represented by Mr. Barnaba Pomboma, learned advocate. Estazia Wilson, Senior learned State Attorney prayed to adopt the affidavit in support of the application and reiterated the prayer that this 2|Page honourable Court be pleased to quash the proceedings and set aside the order dated 21/05/2024 regarding the order of the trial Magistrate that the National Prosecutions Service and the Regional Crimes Officer for Dodoma Region to produce the Statement of the witnesses and statement of the 2 nd accused person to Isanga Prison. The learned counsel for the 2nd respondent did not object the application to strike out the proceedings and order of the trial court dated 21/05/2024. He joined hand with the learned State Attorney that the proceedings ought to be quashed and the order set aside. I have dispassionately perused the record of the trial Resident Magistrate’s Court of Dodoma at Dodoma namely the proceedings dated 2nd April 2024 and that dated 21st May 2024 in the light of the application before me for purposes of ascertaining validity of this application. It is imperative to reproduce the affidavit in support of the application for easy of reference. In that affidavit the deponent averred that: 1. That, I am the State Attorney in the National Prosecutions Services, stationed at Dar es Salaam.

2. That, I have been assigned to handle this matter, hence conversant with the facts deponed. 3|Page 3. That, the respondents stand charged with the offences of Leading Organised Crime, Money Laundering and Occasioning Loss to a Specified Authority in the Resident Magistrate’s Court of Dodoma in Economic Case No 7402 of 2022. A copy of the Charge Sheet is annexed thereto and marked as NPS -1 to form part of this affidavit.

4. That, the case mentioned in Paragraph 3 above is still at committal stage.

5. That, on 2nd April 2024 the Resident Magistrate’s Court of Dodoma at Dodoma made an order that the 2nd respondent be remanded into Isanga Institution for the treatment in respect of her mental health. A copy of the order dated at 2nd April 2024 is annexed hereto and marked as NPS 2 to form part of this Affidavit.

6. That, on the 21st May 2024, the Resident Magistrate’s Court of Dodoma at Dodoma further ordered the National Prosecutions Services (NPS)/Regional Crimes Officer (RCO) Dodoma to produce statements of the witnesses and statement of the 2nd accused to Isanga Prison to facilitate the 2nd accused to be embarked to Isanga Mental Health Institution. A copy of the order dated 21st May 2024 is annexed hereto as NPS 3 to form part of the affidavit. 4|Page 7. That, the order of the trial Magistrate mentioned in Paragraph 6 above is illegal thus raising the question of its correctness, legality as well as propriety.

8. That, the order of the trial magistrate mentioned in Paragraph 6 above is not only detrimental to the present case but also creating unnecessary precedent while the court is not a court of record.

9. That, the matter is within the jurisdiction of this Court. Accordingly, in a summarized form the contents of the affidavit reveal that: First, the case in question is at committal stage. Second, the Resident Magistrate’s Court of Dodoma Region ordered committing the 2nd accused to Isanga Mental Health Institution. Third, NPS/ RCO were ordered to produce witnesses’ statements and 2nd accused person’s statements to Isanga Mental Health Institution to facilitate embarkment of the 2nd accused person to Isanga with immediate effect. Fourth, order violated the law thus illegal. It appears that in course of the proceedings the Resident Magistrate’s Court of Dodoma was of the view that the 2nd respondent was not acting in an appropriate manner that a reasonable sound mind person would do thus, decided to invoke its powers under Section 220(1) and (2) of the Criminal Procedure Act, Cap 20 R.E 2022 5|Page It is on record the order dated 02/04/2024 was only limited to committing the 2nd respondent (who is the 2nd accused) to Isanga Institution for treatment. The Order states as follows: COURT: The 2nd Accused person, behavior shows that she is not of sound mind; therefore, this Court hereby remand into Isanga Institution for the treatment. Mental status report be addressed to this Court with immediately effect . This order made under Section 220(1) and (2) of the CPA SGD HON D.J. Mpelembwa, PRM 02/04/2024 ORDER: Mention on 16/04/2024

AFRIC SGD HON D.J. Mpelembwa, PRM 02/04/2024 The proceedings on this date had no orders as to the requirements of the National Prosecutions Service (NPS) nor the Regional Crimes Officer (RCO) to produce any statements. However, on 21/05/2024 having heard the parties the trial Magistrate in a Ruling observed as follows: 6|Page Basing on the submission of trained minds of both parties of the case. This court for sake of justice to seen to have been done especially for the behavior shown by the second accused person, it seems she needs to be whisked to Isanga Mental Health Institution for intensive check up as she is insulting in Court room. Speaking very rude words, which is not expected to any prudent person with normal mental status. Therefore, I do hereby order NPS/RCO Dodoma to produce statement of witnesses and statement of the 2nd accused person to Isanga Prison in Charge today, to facilitate 2nd accused person to be embarked to Isanga Mental Health Institution immediately. This Court ordered the same on 2nd April 2024 but nothing has been executed, failure to obey court orders renders to contempt of court. This court as well, order that, execution of the court order be addressed to this Court on 23rd day of May 2024. It is so ordered. SGD HON D.J. Mpelembwa, PRM 21st May 2024 It is this order that aggrieved the Director of Public Prosecutions leading to preferring the

instant application in order to challenge the same 7|Page for being detrimental not only to the present case but also creating unnecessary precedent. In this jurisdiction, the questions of insanity may be invoked in different circumstances. The guide is found in the case of MT. 81071 PTE Yusuph Haji @ Hussein vs Republic (Criminal Appeal No. 168 of 2015) [2016] TZCA 229 (19 April 2016) (TANZLII), at pages 8-9, where the Court of Appeal stated that: To begin with, we wish to preface our consideration with an observation that there is a marked distinction between unfitness to make a defence due to insanity and the plea of insanity as a defence to a charge or information. Sections 216 to 218 of the Act, lay down the procedure to be followed where an accused person is suspected to be incapable of making his defence. In such situations, the issue is as to the unfitness of an accused person to plead and to take his trial and, thus, the unsoundness of mind must relate to the time of the trial and the inquiry must be in relation to an accused's mental condition at the time of the trial as distinct from his mental condition at the time of the commission of the alleged offence. 8|Page Conversely, where it is desired to plead insanity as a defence, the issue, would be as to the state of mind of the accused at the time of the commission of the alleged act. Such defence is governed by the

provisions of section 219 and 220 of the Act. From the record of proceedings of the court below, it is beyond question that the appellant desired to make a plea of insanity as a defence to the charge. In the first instance, the presiding Judge correctly, in our view, predicted the order for the appellant's detention at a mental hospital under the provisions of section 220. From the principles in this case are that insanity in the first place relates to the time of trial whereas the accused person fails appears to be incapable of making defence and secondly when the defence of insanity relates to the time of commission of the offence. In the instant application, it is lucid that the Honourable Principal Resident Magistrate invoked the provisions of Section 220(1) and (2) of the Criminal Procedure Act, Cap 20 R.E.

2022. In particular, section 220(1) states as follows: 220.-(1) Where any act or omission is charged against any person as an offence and it appears to the court 9|Page during the trial of such person for that offence that such person may have been insane so as not to be responsible for his action at the time when the act was done or omission made, a court may, notwithstanding that no evidence has been adduced or given of such insanity, adjourn the proceedings and order the accused person to be detained in a mental hospital for medical examination. My close scrutiny of this provision of the law reveals that it empowers the court to adjourn the proceedings and order the person to be detained at the mental institution for medical examination during trial of that person. Such powers of the court seem to be confined during the trial of the case against such person. Further, the provision does not require the Prosecution to produce witnesses’ statements. It is my view that the order requiring the National Prosecution Service and Regional Crimes Officer to produce statements of witnesses is not backed up by that provision where the order purports to have been made under it. It is settled principle of the law that criminal trial commences when the plea is entered and the preliminary hearing has been completed thus the prosecution commence rallying witnesses to adduce

evidence. Anything before that is not considered as trial. Thus, committal stage of the case is also part of the legal process before trial commencement. 10 | P a g e It is noted that Paragraph 4 of the affidavit in support of the application indicates that the Economic Case No 7402 of 2024 before the Resident Magistrate’s Court of Dodoma is at the committal stage. Committal stage presupposes that the matter was not yet for trial. That being the case, it is my view that the action by Honourable Principal Resident Magistrate to order detention of the accused to Isanga Mental Health Institution and that the National Prosecutions Service/Regional Crimes Officer to produce witnesses’ statement and statement of the 2nd accused person to Isanga Institution in charge was invoked prematurely as it was committal stage of the case. At the committal stage, it appears that the court conducting the proceedings lacks mandate to entertain invocation of section 220(1) of the Criminal Procedure Act as such court at that stage is not a trial court. The emphasis on the need to invoke the provisions of section 220(1) of the Criminal Procedure Act, Cap 20 R.E. 2022 during trial has been reiterated by the Court of Appeal in the case of Thomas Pius vs Republic (Criminal Appeal 145 of 2019) [2022] TZCA 487 (2 August 2022) (TANZLII), at pages 16-17, where it stated that: On the provisions of section

220(1) of the CPA cited above, these crucial legal positions stem out. One, a court trying an offence has power to adjourn proceedings and enquire 11 | P a g e into insanity, two; such power is exercised during trial, three; the exercise of such power is discretional and four; before making such order the court must lay down grounds for making such an order or that there must be circumstances suggesting that the accused might have been insane at the time he committed the alleged offence. Also, in the case of Republic vs Feda d/o Jason Mwambene (Criminal Session Case No. 44 of 2021) [2023] TZHC 21315 (21 September 2023) (TANZLII), at pages 7-8, the High Court (Hon. Ndunguru, J.:) noted that: The procedure to be followed where the accused intends to rely on insanity as a defence at the time of commission of the offence was elaborated in the case of MT. 81071 PTE Yusuph and Another Vs. Republic, Criminal Appeal No. 168 of 2015 CAT (unreported) thus: "First, where it is desired to raise the defence of insanity at the trial, such defence should best be raised when the accused is called upon to plead. Second, upon being raised the trial court is enjoined to adjourn the proceedings and order the detention of the accused in a mental hospital for medical examination. Third, after receipt of the medical report the case proceeds the normal way with the prosecution leading evidence to

establish the charge laid 12 | P a g e and then doses its case. Fourth, upon the closure of prosecution case, the defence leads evidence as against laid, including medical evidence to establish insanity at the commission of the alleged act. And fifth, the court then decides on the evidence, whether or not the defence of insanity had proved on a balance of probabilities. If such enquiry be determined in the affirmative, the court will then make a special finding in accordance with Section 219 (2) and 220 (4) of the Act and proceed in accordance with enumerated consequential orders" Accordingly, the principle seems to emphasize that at least the case must be at plea taking stage where the accused is called upon to plead. Also, it is the trial court that is empowered to adjourn the proceedings and commit the accused to mental health institution. The exercise of judicial discretion under provision of the law cited i.e. section 219 and 220 of the Criminal Procedure Act is only appropriately invoked when the court entertaining the same is clothed with prerequisite jurisdiction to try the matter. It is on that ground, the first and second stages of the application of defence of insanity under circumstances, which the Resident Magistrate’s Court of Dodoma Region purported to have relied upon, put much emphasis on the plea taking stage and court trying the case…as among

the preconditions for proper exercise of the discretionary powers of the judiciary. 13 | P a g e Given that the instant application is against an order of the Resident Magistrate’s Court to order the detention of the 2nd accused person to Isanga Mental Health Institution during pendency of committal stage of the case, it is evident that the court overstepped its mandate. As the Honourable Principal Resident Magistrate invoked the powers of the Court to order detention of the accused at the Isanga Mental Health Institution at the time of the proceedings which is not trial, it is my settled view that such exercise of judicial discretion was improperly invoked. As such, it is pertinent to state at this stage that the proceedings dated 21st May 2024 and the order arising thereto were nullity. In the circumstances, it is settled view of this Court that the application is meritorious as the Honourable PRM had acted beyond the prescription of the law. As such, I hereby call upon the records of the Resident Magistrate’s Court of Dodoma Region in Economic Case No. 7402 of 2024 in particular proceedings dated 21st May 2024 and proceed to quash the same. The order emanating in the ruling thereto dated 21st May 2024 is also set aside. Having categorically observed in lucid terms of the events in the proceedings in Economic Case No. 7402 of 2024 before Resident Magistrate’s Court of Dodoma

Region, it is my settled view that the whole 14 | P a g e ruling and order dated 21st May 2024 that directed committing the 2nd accused to the Isanga Mental Health Institution and ordering the National Prosecutions Service (NPS) / Regional Crimes Officer (RCO) Dodoma to produce witnesses’ statement and statement of 2nd accused to Isanga Mental Health Institution in charge to facilitate 2nd accused to be embarked to Isanga Mental Health Institution immediately violated the law governing insanity procedures. The whole of the ruling and orders dated 21st May 2024 in the Economic Case No 7402 of 2024 before the Resident Magistrate’s Court of Dodoma Region is hereby quashed and set aside for being nullity. The proceedings dated 21st May 2024 shall stand quashed and order thereat set aside as for reasons set out in the foregoing analysis. Having quashed the proceedings of the Resident Magistrate’s Court of Dodoma Region dated 21st May 2024 and setting aside the order thereto is for a very specific aspect of the Economic Case No 7402 of 2024 regarding the procedure and order of committing the 2nd accused to Isanga Mental Health institution alone, it is lucid that such determination does not affect the remaining proceedings in that particular case. The original case file for Economic Case No. 7402 of 2024 be immediately remitted to the Resident Magistrate’s Court of Dodoma Region 15 | P a g e to proceed with necessary actions regarding the case against the 2 nd respondent (2nd accused person) in accordance with the law. It is so ordered. DATED and DELIVERED at Dodoma this 26th day of July 2024. E.E.LONGOPA

JUDGE 26/07/2024 16 | P a g e