HAIRATI OMARY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA

AT BABATI CRIMINAL APPEAL NO. 25887 OF 2024 (Originating from criminal case no. 24199 of2024 the District Court of Kiteto at Kibaya) HAIRATI OMARI............................................... 1st APPELLANT JUMA HAMZA.................................................... 2nd APPELLANT

VERSUS THE REPUBLIC........................................................... RESPONDENT

JUDGMENT 4th Nov, & 13th Nov, 2024 MWIHAMBI, J. Before the District Court of Kiteto at Kibaya, the appellants, Hairati d/o Omari and Juma s/o Hamza, were convicted of the offence of trafficking narcotic drugs contrary to section 15A (1) and (2) (a) of the Drugs Control and Enforcement Act [Cap 95 R.E. 2019] as amended by section 19 (a) of the Written Laws (Miscellaneous Amendments) Act, No. 5 of 2021, upon their own plea of guilty. They were sentenced to four years imprisonment, and this is an appeal against the sentence. i Briefly, the facts of the case were as follows: on 22nd August, 2024 both accused persons at Bwakalo in Kiteto District were caught transporting 67 bundles weighing 24.62 kilograms of narcotic drugs known as "Cath edulis" commonly known as "Mirungf, by using Motorcycle with Reg. No. MC 359 DTP make Boxer black in colour. On being aggrieved by the sentence the Appellants have lodged 4 grounds of Appeal as follows: 1. That, the trial magistrate erred in law and facts for award(ing) heavy punishment to the appellants compare(d) to the offence they had committed.

2. That, the trial Magistrate erred in law and fact for enter(ing) a huge verdict to the appellants while at the trial the appellants did not disturb the trial court even a single minute.

3. That, the trial magistrate erred in law and facts when he acted harshly rather than judicious and enter unfair/unwantedjudgement.

4. That, the trial Magistrate erred in law and fact for convicted (sic) the appellants for a term of four (4) years imprisonment white they have never been convicted of any offence. At the hearing the 1st appellant appeared in person, unrepresented, while the respondent/Republic was represented by learned State Attorneys, Mr. Leons Bizimana and Ms. Anifa Ally. Before hearing, the parties were made 2 aware of a letter filed by the 2nd appellant withdrawing himself from the appeal. The 1st appellant and respondent agreed to proceed with the appeal with the 1st appellant as a sole appellant. Therefore, in this judgment we will only be referring to the remaining appellant, namely Hairati Omary. During oral submissions, the appellant raised two issues; one, that at the police station, she admitted committing the offence because she was intimidated by the police, and two, that she does not deserve the sentence because she is not guilty. On the other hand, Mr. Leons Bizimana, learned State Attorney for the respondent, responding collectively to all grounds of appeal, opposed the allegation that the sentence of 4 years imprisonment is excessive as compared to what the appellant deserves. That the appellant was charged with an offence under section 15A (1) (2) (c) of the Drugs Control and Enforcement Act [Cap. 95 R. E. 2019] as amended by section 19 (a) of the Written Laws

(Miscellaneous Amendments) Act, No. 5 of 2021 which expressly state that the sentence shall be imprisonment for a term not less than thirty (30) years, which is a mandatory sentence. On the appellant's aver of not being guilty, the learned State Attorney referred to section 360 3 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2022] that a person convicted on own plea of guilty cannot appeal on anything except sentence. In a brief rejoinder, the appellant reiterated her arguments that she was not guilty of the offence. That at the police station she admitted committing the offence because the police intimidated her by beating and statements like "utakalia chupa". After going through submissions of both parties, it became apparent that the appellant is challenging her conviction by the trial court. Generally, as the learned State Attorney rightly argued, the accused person under Section 360 of the CPA is not allowed to appeal on a plea of guilty, except as to the extent or legality of the sentence. However, in Hussein Rashid Jumanne v. Republic, Criminal Appeal No. 55 of 2020, it was stated that case law has widened the scope having stated special circumstances warranting a remedy of an appeal against a conviction based on own plea of guilty where it is established that the plea was imperfect, ambiguous or unfinished, and for that reason it is wrongly treated as a plea of

guilty. In addition, from the appellant's submission, On the other hand, this Court cannot close its eyes and ears on the repeatedly allegations from the 4 appellant that she was intimidated in the police station and that the confession she made thereafter was due to that intimidation. Therefore, before going to the grounds of appeal, I find it pertinent to examine the trial court's records to find out whether the issue of police intimidation was reported and how the trial court dealt with it, as well as whether the plea taking session was properly conducted and the plea was unequivocal.

PROCEEDINGS "... COURT: Charge is read over and explained to accused persons who p/ea thereto: 1st accused: Kweli nimekamatwa na mirungi 2nd accused: Kweli nimekamatwa na mirungi COURT: Both accused persons have entered a p/ea ofguilty. Public Prosecutor: I pray to proceed with the facts FACTS: 1. Accused persons names are collect (sic) as they read in the charge sheet 2. That on 22/8/2024 both accused persons at Bwakaio in Kiteto District were caught transporting Narcotic drugs known as Cath eduiis by using Motorcycle with Reg. No. MC359 DTP make Boxer black in colour.

3. That the 1st accused person admitted to have committed the offence when her caution statement was recorded. 1st accused, Facts are correct 2nd accused, Facts are correct 5 B.A. LIHAMWIKE - PRM 27/8/2024 Public Prosecutor: I have the following exhibits 1. Certificate of seizure 2. Chain of custody 3. Accused Caution Statement 4. Sample receipt notification 5. Exhibit handing form 6. Motorcycle Reg. No. MC359 DTP 7. Cath edulis leaves 1st accused, I have no objection on exhibits tendered. 2nd accused, I have no objection on exhibits tendered B. A. LIHAMWIKE-PRM 27/8/2024 COURT: Certificate of seizure, Chain of custody, Accused Caution Statement, sample receipt notification, Exhibit handling form, Motorcycle Reg. No. MC 359 DTP and Cath edulis leaves are admitted as exhibits PEI to PE7 respectively. B.A. LIHAMWIKE-PRM 27/8/2024 CONVICTION: Both accused persons are convicted for their own p/ea of Guilty. B.A. LIHAMWIKE-PRM 27/8/2024 PREVIOUS RECORDS: Public Prosecutor: Both accused persons have no criminal records. B.A. LIHAMWIKE-PRM 27/8/2024 MITIGATION: 6 COURT: Both study mute..." (Emphasis is mine). It can be seen from the proceedings that during the plea taking session the appellant did not report any police intimidation. When facts were read and exhibits were listed for admission the appellant accepted everything with no objection. One of the exhibits that was tendered and

admitted was the appellant's Cautioned Statement (PE 3), under which the appellant confessed to committing the offence. Thus, one would expect the appellant to raise an objection in the trial court that the Cautioned Statement should not be admitted as an exhibit because she recorded it under duress, but she did not object. In addition, even during mitigation the appellant still "stayed mute.” Allegations that the appellant was intimidated by the police if were raised in trial court, in various opportunities that arose, would have been dealt with in various avenues available in law. It was said in the case of Nyerere Nyague v Republic, Criminal Appeal No.67 of 2010 CAT Arusha (unreported) that objections to the admissibility of confessional statements may be taken on two grounds under section 27 of the Evidence Act, that it was not made voluntarily or not made at all. Where objection is taken 7 under the Evidence Act, the trial court has to conduct a trial within trial (in a trial with assessors) or an inquiry (in a subordinate court) to determine its admissibility, in which the trial court only determines whether the accused made the statement at all, or whether he made it voluntarily. This means a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground. (See also the case of Selemani Hassani v Republic

Criminal Appeal No. 364 of 2008 (unreported). It was also said in Kennedy Owino Onyango and Others v. Republic, Criminal Appeal No. 48 of 2006 (Unreported) that as a matter of general principle an appellate court cannot allow matters not taken or pleaded and decided in the court (s) below to be raised on appeal. Therefore, the fact that the appellant stayed mute at the trial court about the alleged police intimidation in relation to her confession, has deprived her the right to complain about it at this stage since the Appellate Court cannot admit new facts. On whether the plea taking was properly conducted and the plea was unequivocal, the Court of Appeal in the case of Michael Adrian Chaki v Republic, Criminal Appeal No. 399 of 2017 (unreported), underlined that: 8 "... there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met: 1. The appellant must be arraigned on a proper charge. That is to say, the offence section and the particulars thereof must be properly framed and must explicitly disclose the offence known to law; 2. The court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result; 3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228(1) of the CPA.

4. The facts adduced after recording a plea of guilty should disclose and establish all the elements of the o offence charged.

5. The accused must be asked to plead and must actually plead guilty to each and every ingredient of the offence charged and the same must be properly recorded and must be dear (see Akbarali Damji vs R. 2 TLR137 cited by the Court in Thuway Akonaay vs Republic [1987] T.L.R. 92); 6. Before a conviction on a plea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the 9 elements of the offence charged" [Emphasis added]. The above stated conditions have been considered in a number of cases including the case of Sokone Mtahali @Chimongwa vs R. What can be seen in the trial court proceedings does not entirely fit in the procedure explained in Michael Adrian Chaki (supra), the charge and its particulars do not fit well with the response that"Kweli nimekamatwa na mirungT one may ask "amekamatwa na mirungi akiwa anakuld] "Akiwa ameibebd' or? The procedure for the prosecutor stating the facts of the alleged offence and accused person's general response "Facts are correct' also leaves a lot to be desired. The proceedings do not show whether before a conviction on a plea of guilty was entered, the court satisfied itself without any doubt that the facts adduced disclose or establish all the elements of the offence charged. It was argued by the learned State Attorney that the offence under which the appellant was charged

with attracts a mandatory sentence of imprisonment for a term not less than thirty (30) years, it was pertinent therefore for the trial court to make sure that accused person comprehends what she was actually faced with, to prevent injustice. 10 I therefore find that the plea was imperfect and unfinished. Looking at what will be a proper remedy in the circumstances, retrial comes up as one of the remedies. In Fatehali Manji v. Republic [1966] 1 EA 343 the principles for determining whether to order retrial or not were stated as follows: "... in general a retrial will be ordered only when the original trial was illegal or defective/it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up the gaps in its evidence at the first trial: even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame/it does not necessarily follow that retrial should be ordered/each case must depend on its particular facts and circumstances and an order for retrial should only be made where interests ofjustice require it and should not be ordered where it is likely to cause an injustice to the accused person." After all said and done, I nullify and quash the proceedings, set aside the conviction and sentence. I order the appellant to re-tried with

immediate dispatch. If the appellant's re-trial is not commenced with 30 days or if a re­ trial is commenced within the specified time but it is not completed within 3 li months for any reason, from the day of this judgment, the appellant be discharged and upon being discharged, the appellant shall not be arrested and charged on the same facts. All in all, the prosecution is at liberty to initiate a re-trial or cause the appellant's discharge. I order accordingly. Dated at Babati this 13th day of November, 2024. Mwanaidi Chuma, State Attorney for the respondent. B/C: Ms. Fatina Haymale (RMA) is present. N.J. MWIHAMBI

JUDGE 13.11.2024 12