19930521 TZCA Arusha

IN THE COlffiT OF APPEAL OF TANZANIA I' AT A:usHA (CORA1__1: ICTSANGA. J e}.q MNZAVA3. J .A., And MFALILA, J .A.) CRIMINAL A:.:'FEAL NO. 31 OF 1993 BET't:JEEN LEICASI H3SAl!Pu'UEICT , e , t o • • • • • • APPELLANT AN!:l TI-IE :P.EPUDLI C • • • • • • 0 -0 • • • • :?.ESPON!>ENT ( A1:r::ieal "1 from the conviction and sentence of the High Court of Tanzania at Arusha) (Munuo.. ~. ) · dated the 2nd day of October_.. 19~2 in Cr:iJ-n:i.n..µ,JJessions Case No, 23 of 1';91 JUDGfil,IBNT OF THE COllilT MFALII.A, J,A.: In the Hir:;h Court s::_ttins at /l.rusha; the appellant Lekasi Mesawarieki was charged jointly i-rlth his fifteen year old son Zephania Mesawarieki uith the offence of murder. His son was .. .,, acquitted. but he was. convj_cted as charGed and sentenced to death. ·r··· , .. He loclte..d t;:d.s appeal against both '-. his conv-lction and the sentence. of rJ.eath. · Defore us_. Mr. Sabaya, learned Counsel who appeared for the appellant ar2,uec:. two grounds of arJpeal after abandcnin~; the second ground, In ground No.l the appellant complained. that 'bhe learned trial :}ude;e erred in law and fact when she allowed the appellant to procee.d to defend h:i.mse .f on such a· serious charge of murder ..... /2 / 2 I without availinG him with the services of a lawyer. Durinc; the hearing, Mr. Sabaya argue :_ that the appellant was greatly prejudiced by being allr,wed to prose ,ute M.s own case j_nvolving such a serious charge carrying the 0_eath penalty. He added that for the same reason tl1at this Court ordered a retr:i.al in LAT.r,.ENT JOSEPH & ANOTHE':l. v ::?.EPUBLIC li81 TL.1.,Jpl a retr:1.al sb.·,uld be ordered in the present case_ In reply Mrs. Slll]l_g; _ wl10 had initially supported the ap:,)e1lant I s conviction arf,uing that ht had freely informed the Court that he i-1as prepared to proceed with i.he trial on second thou;;;hts she conceded that the appellant was pre jud.iced by proceeding with the trial i1ithout Counsel. hence in her v:i.e,. the a::;9ellant did not .zet a fair trial. The record shows th, l:. wi.1en the trial of the appellant and his younG son opened on 2< /9/92 the following is what transpired:. 1st accused: If no advocate l,as turned up to defend us ,,1e shall conduct the c~efr .1ce by ourselves, 'fhe case should not be adjournec.. :( 2nd accused: Let the case proceed, '.'Je :::hall defend. ourselves, These statements by the a:i:• ,ellant and his young son appear to have 0 been given spontaneously_ for they are not preceded by any comments or address by the Court, After recordj_n1:s those spontaneous .·;,t statements there was no ""·~tempt by the Court to e1~:;;1la:i.n to the accused the cl.angers that t'.1ey were faced in concJ.uct:Lng their own ..... /3 / .3 defence in such a serious cl1arge of murder. The Court simpl~ ordereo. the triaF.to proceed as scheduled oblivious of the fact that one o! the accused persons was just a child. As it turned out. the going proved t~ difficult for the ai'.lpellant. \!hen cross .... eJ;:aI11inee. by Mrs. Lyi.mo, he is recorded to have replied at one stage: . "I i-1as not able to ask anythin:; ! wanted .'\_· .... •::¾ because I am not literate and the case has many cornets. .. . 11 We think that this statement sums up graphically the di.fficuJ.ties ·which the a:;)pellant and. his son faced in the conduct of their 'p:, .de.£ence at the trial. Ue are t!1Us inclined .to agree with botb ·~tJ counsel that the al~lla.nt did not and could not get a fair trial without legal a:.,sistance. For the$e reasons ,-re allow the appeal.. quash the appellant's C-O?l.V1.C:tion an.cl set aside the sentence of death. nowevar in view of the state of the evidence on record we order that the appellant be retried before another .-;uc1.ge in accordance with thE:9 law. DATED at A.'1US!IA this 21st clay of Nay 1 19~.3. R. H. ICTSANGA JUSTICE OF APPWi N. S. MNZAVAS JUSTICE OF APPEfJ, L. M. NFALILA JUSTICE OF APPEAL I certify that this is a true CO!JY of the original.