DPP V SAMSON MASWI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 118 OF 2023 DIRECTOR OF PUBLIC PROSECUTIONS......................................APPELLANT VERSUS SAMSON S/O CHAMBILI MASWI................................................. RESPONDENT JUDGMENT 11/7/2024 & 30/7/2024 ROBERT, J This is an appeal by the Director of Public Prosecutions (DPP) against the decision of the District Court of Nyamagana in Traffic Case No. 126 of 2023. The appeal is grounded on a single claim that the trial Magistrate erred in law by not canceling the respondents driving license, which is a mandatory requirement under section 27(l)(a) of the Road Traffic Act, Cap. 168 R.E. 2002. The respondent, Samson s/o Chambili @ Maswi, was charged and convicted on his own plea of guilty for causing death through careless driving on a public road, contrary to sections 41, 63(2)(b), and 27(l)(a) of the Road Traffic Act. The trial Court, taking into consideration the respondent's status i as a first offender and his guilty plea, sentenced him to pay a fine of TZS 50,000, with a default term of two years imprisonment if he defaulted on the payment. Additionally, the trial court decided not to cancel the respondent's driving license, taking into account his reliance on it for his livelihood and the fact that his wife had recently given birth and was still hospitalized. Instead, the court issued a warning not to repeat the offense within a year. The appeal was argued by way of written submissions. The Director of Public Prosecutions, represented by Benedicto Ruguge, State Attorney, argued that the trial Magistrate's failure to cancel the respondent's driving license was a legal error. He emphasized that under section 27(l)(a) of the Road Traffic Act, the cancellation of a driving license is mandatory upon conviction for the offences listed, including causing death through careless driving. The appellant cited the case of Melkizedeki Mkuta vs Republic, Criminal Appeal No. 17 of 2006 which underscored the mandatory nature of statutory requirements through the use of the word "shall". The respondent argued that the trial court appropriately exercised its discretion under the Road Traffic Act by considering special reasons to refrain from canceling the driving license. These reasons included the respondent's dependence on the license for earning a livelihood and his family situation. 2 The respondent referenced the case of The Republic vs Hassan Buyogera George, Criminal Revision No. 10 of 2019 where it was established that mitigation factors are relevant in deciding the extent of a penalty. Upon reviewing the submissions and the relevant laws, this Court finds as follows: Section 27(l)(a) of the Road Traffic Act, Cap. 168 R.E. 2002, indeed mandates the cancellation of a driving licence for a period of not less than three years upon conviction for causing death by careless driving. The use of the word "shall" signifies that this action is not discretionary but obligatory. The principle of statutory interpretation mandates that where the legislature has used the word "shall," it is indicative of an intention to impose a compulsory requirement. This is corroborated by the decision in Melkizedeki Mkuta vs Republic (supra), where the Court of Appeal held that the mandatory nature of such provisions must be upheld to maintain legal consistency and predictability. While the law allows for consideration of special reasons to reduce the period of cancellation, these reasons must be exceptional and compelling. 3 The phrase "special reasons" should be interpreted narrowly, meaning that they must relate directly to the commission of the offence or its immediate consequences, rather than personal circumstances of the offender. In this case, the trial Court's consideration of the respondent's need for his driving licence for his livelihood and his wife's recent childbirth, although empathetic, do not constitute special reasons that outweigh the mandatory legal requirement. Personal hardships, while significant, do not alter the severity of the offence or its impact on public safety. The case of Melkizedeki Mkuta vs Republic (supra) reiterates the mandatory nature of legal provisions using the word "shall". Furthermore, while mitigation factors are relevant for sentencing, they do not override mandatory legal provisions unless explicitly provided for by law. The rationale behind mandatory cancellation is to uphold public safety and ensure that individuals who have demonstrated a disregard for the safety of others on the road face appropriate consequences. The mandatory cancellation of driving licences for offences causing death by careless driving serves a crucial public policy objective. It acts as a deterrent to potential offenders and underscores the seriousness with which the law views such offences. Allowing leniency in the form of non- 4 cancellation undermines this objective and could potentially lead to a perception of inconsistency and leniency in the judicial system's handling of serious traffic offences. The trial Magistrate's decision to refrain from cancelling the respondent's driving licence was an error in law. The mandatory nature of section 27(l)(a) of the Road Traffic Act must be upheld to ensure consistency and adherence to legal standards. Mitigating factors, while important for determining the appropriate sentence within the parameters of the law, cannot override the explicit statutory mandate for licence cancellation in cases of causing death by careless driving. The appeal is allowed. The trial Court's order of non-cancellation of the respondent's driving licence is set aside. It is hereby ordered that the respondent's driving licence be cancelled for a period of not less than three years in accordance with section 27(l)(a) of the Road Traffic Act, Cap. 168 R.E. 2002. 5