LEONARD SATU MASHABARA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA CRIMINAL REVISION NO. 24889 OF 2024 (Arising from Criminal Case No. 23476 of 2024 in the Resident Magistrates Court of Dodoma at Dodoma) LEONARD SATU MASHABARA…..……………………..……….…………… APPLICANT Versus REPUBLIC ………………………………………………………..………..1ST RESPONDENT MT 140105 CLINTON DAMAS @ NYUNDO………………….……..2ND RESPONDENT PRAYGOD MUSHI….…………………………………………………….3RD RESPONDENT AMIN LORD LEMA….………………………………………..…………..4TH RESPONDENT NICKSON JACKSON………..…………………………………………….5TH RESPONDENT

RULING Date of last order: 13th September, 2024. Date of Ruling: 17th September, 2024. E.E. KAKOLAKI, J. In this application the Court is moved by the applicant to call for and examine records of the Resident Magistrates Court of Dodoma at Dodoma in Criminal Case No. 23476 of 2024 so as to satisfy itself on the propriety, legality and regularity of the representation of the 2nd, 3rd, 4th and 5th respondents by members of the Tanganyika Law Society (the TLS), revise the proceedings and expunge from the records all names of TLS members who are active and representing the 2nd, 3rd, 4th and 5th respondents herein for avoidance of conflict of interest and further, issuance of any other relief deemed fit to grant. The application is preferred under certificate of urgency by way of chamber summons in terms of section 372(1) and 373(1) of the Criminal Procedure Act, 1 [Cap. 20 R.E 2022] (the CPA) and section 44(1)(a) of the Magistrates Courts Act, [Cap. 11 R.E 2022] (the MCA), supported by affidavit duly sworn by the applicant stating grounds as to why the application should be granted. However, the same could not have peaceful stay in court as it met strenuous resistance from all respondents who filed their counter affidavits separately to that effect. Briefly as gathered from the pleadings and lower court records the 2nd, 3rd, 4th and 5th respondents are arraigned before the Resident

Magistrates Court for Dodoma at Dodoma in Criminal Case No. 23476 of 2024, facing charges in two counts of Gang Rape, Contrary to section 130(1) and (2)(e) and 131A(1) and (2) and Unnatural Offence, Contrary to section 154(1)(a) and (2), both under the Penal Code, [Cap. 16 R.E 2022], allegedly committed to XY a girl aged 17 years. In making sure that, their trial is conducted fairly and in the course of exercising their right to legal representation the four respondents hired legal services from Mr. Godfrey Sabato John Wasonga, Mr. Sadiki Omary, Mr. Boniventura Njeru and Mr. Meshack Yona Ngamando, all learned advocates and active members of TLS. However, prior to their arraignment in Court by the 1st respondent, on 05/08/2024 the TLS issued a public statement titled ‘Kulaani Kitendo cha Udhalilishaji and Ukatili wa Kijinsia’ condemning the act of sexual violence/abuse by a group of men who also recorded themselves in a video clip form and published it in social media, calling the Police Force to take actions while promising to cooperate with all law enforcement agencies 2 and other criminal justice organs in making sure that all perpetrators are brought to justice timely. The applicant herein being active member of TLS and aware of the said statement that was sent through his email address as well as the representation of four respondents by the fellow active members of the

society raised a concern as to how TLS members whom their society had already taken side could represent the four respondents with impartiality for having conflicted interest annexed to the said public statement issued by the society. It is from that concern this application is preferred by the applicant seeking court’s intervention to disqualify them from the conduct of that matter so that the respondents are securing an independent legal representation outside TLS members, the prayer which as alluded to above is vehemently contested by all respondents. At the hearing of the matter all parties appeared represented and were heard viva voce. The applicant hired legal services of Mr. Emanuel Anthony, learned counsel while the 1st respondent represented by Mr. Gothard Mwingira and Ms. Magreth Fyumagwa, both learned State Attorneys and the 2nd to 4th respondents enjoyed the services of Mr. Robert Owino, learned counsel. In his address to the court in support of the application Mr. Anthony informed the Court that, the 2nd, 3rd, 4th and 5th respondents who are facing charges in Criminal Case No. 23476 of 2024 before the Resident Magistrate Court for Dodoma Region preferred by the 1st respondent as complaint and prosecutor, are represented by four advocates who are also members of TLS, whose 3 membership is defined under sections 6(a) and 7 of Tanganyika Law Society Act, [Cap. 307 R.E

2002] (the TLSA). He said, on 05/08/2024 the TLS governing council established under section 15 of the TLSA issued a public statement condemning the act of sexual violence/abuse and humiliation to one woman/lady by men whom the statement referred as criminals (wahalifu) and promising to cooperate with all law enforcement agencies and other criminal justice organs in making sure that all culprits are brought to justice timely. According to him, it is this same governing council which its spokesman is the president of TLS and head the society, the law provides that is accountable to its members in all of its conducts and decisions as pronounced in regulation 4(1) and 5(d) of the Tanganyika Law Society (Council) Regulations, 2022 GN. No. 599 of 2022. In view of the above composition of the governing council and its mandate Mr. Anthony argued, the said TLS statement issued on 05/08/2024 and annexed to the affidavit is binding to all members under two circumstances, one being the governing law and second, conducts of its members. On the governing law he claimed, TLS is a body of associated members which its mandate cannot be achieved if scattered hence falling under the definition of ‘person’ a provided under section 3 of Law of Interpretation Act, [Cap. 1 R.E 2019] and well elaborated in the persuasive case of Eunice Nganga and Another Vs. Law Society of Kenya and 2 Others, [2019]

eKLR at 4 paragraphs 41 and 42. As the governing council has to exercise its mandate as a person in law and being a body of associated members its decision its binding all members. On the conducts of its members he contended, since 05/08/2024 when the statement was issued neither one of the members of TLS nor the four advocates representing the 2nd to 5th respondents denounced or disassociated themselves from contents of the said statement hence binding on them. On the existing conflict of interests by the four advocates representing the 2nd to 5th respondents herein in relation to the public statement issued by TLS Mr. Anthony submitted that, the term ‘conflict of interest’ is defined under regulation 3 of Advocates (Professional Conducts and Etiquettes) Regulations, 2018 GN. No. 118 of 2018 to include a situation that has the potential to undermine the impartiality of an advocate because of the possibility of a clash between the advocate’s self-interest and the public interest. Basing on that definition he argued that, the TLS public statement triggered conflict of interest to its members in two scenarios. One, when condemned the suspects’ act of sexual abuse and humiliation against women and its promise to side with all law enforcement agencies and other criminal justice organs in making sure that the so called ‘criminals’ are brought to justice timely. By labelling

the suspect as criminals the TLS and its members had already taken side in the said matter before even the suspect were indicted before the Court contrary to what regulation 60(1) of the GN. No. 118 of 2018 provides that, an advocate 5 shall protect the client to the extent possible from being convicted except by court of competent jurisdiction and upon legal evidence sufficient to support conviction for the offence charged. Secondly he contended, by declaring publically it position to cooperate with all law enforcement agencies and criminal justice organs in exclusion of the Court, in dealing with the suspect already termed as criminals with full knowledge that, suspects’ guilty is pronounced by the court upon full trial, the TLS and its members had already demonstrated its conflicted interests the act which is against the provisions of regulation 132(1) and 2(c) of the GN. 118 of 2018 providing that, no comments shall be made in public by the advocate without prior instructions from his client and that, when making such public comments he has the responsibility of upholding and encouraging public to respect the law and system of administration of justice. Since TLS as a person violated the said provisions of the law its members are also barred from acting against the signposted conflict of interests by representing the 2nd to 5th respondents, Mr. Anthony stressed, as to do

otherwise is tantamount to going against the demands of the law for advocates to conduct themselves in a manner that will assure public confidence as held in the case of UAP Insurance Tanzania Limited Vs. Akiba Commercial Bank PLC, Civil Appeal No. 135 of 2022 (CAT) Tanzlii. Since it is TLS that issued the said public statement and took side when disclosed its conflicted interests by disassociating itself from the termed criminals (four respondents) and given the fact that, its members are 6 the ones representing them, Mr. Anthony submitted there is serious violation of principle of impartiality which also goes against the advocates’ etiquettes as provided under GN. No. 118 of 2018 and the findings of the case above cited hence a prayer for this court to be pleased to revise the proceedings and quash them. In response Mr. Mwingira resisted the submission by the applicant while adopting the counter affidavit duly sworn by one Mihango Kezirahabi, State Attorney to form part of our submission. In his submission the learned State Attorney had no issue with the interpretation of the law on constitution of the TLS governing counsel and membership to the society as well as the fact that, the governing council is accountable to its members. He only differed with the submission that discharge of advocate’s daily duties is affected by his membership to the society submitting that, it is

the Advocates Act and its Regulations and not the TLSA and its Regulations which regulate conducts of advocates in discharge of their duties including GN. No. 118 of 2018 which he said under regulation 35(1) of the said GN, an advocate shall not act for the client when his personal interest or interest of the firm are in conflict with client’s interest, the conflict of interest which is defined in regulation 3 of the same GN. Elucidating on this point Mr. Mwingira contended that, the law bars an advocate to represent the client only when he has personal conflict of interest or the same is associated with his law firm and no otherwise. He made himself clear that since the applicant in his affidavit disclose none of the above 7 mention circumstances then there is no confliction interests that would force the 2nd to 5th respondents’ advocates to disqualify from representing them as that would be going against the provisions of regulation 55(1)(a) and (b) of GN. 118 of 2018 calling for an advocate to represent his client resolutely, honorably and dispose of the matter within the limit set by the law. Regarding the submission that, TLS public statement conflicts with the right to legal representation by the 2nd to 5th respondents after TLS’s act of taking side in the matter he retorted that, the statement does and cannot affect such right for being a constitutional right embodied in

our constitution under Art. 13(6)(a) of the Constitution of the URT, 1977 providing that, when the rights of a party are determined by the Court such person shall be entitled to fair hearing and to right of appeal or other remedy against the decision of the court or any other agency concerned. He said, the said right is traced from the common law principle ‘hear the party’ that was adopted in our laws by virtue of section 3(2) of the Judicature and Application of Laws Act whereby principles of presumption of innocence, the right to fair trial and rule of law became part of our law. According to him the right to fair trial extends to cover the right to legal representation which is a universal right as held by this Court in the cases of Alimasi Kalumbeta Vs. R [1982] TLR 328 and Thomas Mjengi Vs. R, (1992) TLR 157. He added that, the right to legal representation is also well spelt under section 310 of the CPA. Since that right is a constitutional right and given the fact that 2nd to 5th respondents are facing 8 charges likely to affect their liberty if proved he submitted, the public statement by TLS does not bar its members to render legal mandated duties to their clients for furthering administration of criminal justice system in the country in as long as they are in full compliance with the law as provided under regulation 55 of GN No. 118 of 2018. He therefore invited the

Court to dismiss the application with costs for want of merit as it is aiming at delaying disposal of this case at the 2nd to 5th respondents’ detriment. On the part of the 2nd to 5th respondents Mr. Owino while adopting the submission by the 1st respondent as well as the counter affidavits by the 2nd to 5th respondents to form part of his submission he informed the Court that, all respondents were contesting the application while asking the court to dismiss it with costs. He said, in their counter affidavits respondents are questioning whether the statement by TLS condemning acts done in violation of women rights takes away their right to legal representation. And whether the said statement disqualifies TLS members who are legally mandated to represent them when faced with criminal cases. He approved the submission made by the 1st respondent that, right to legal representation is a constitutional right for being traced from common law principle cherishing the principle hearing the party as held in the case of Pett Vs. Greyhound Racing Association Limited (1969) QB 125 where Lord Denning, had this to say: 9 ’’It is not every man who has the ability to defend himself on his own … if justice is to be done, he ought to have the help of someone who speaks for him; and who better than a lawyer who has been trained for the test?’’. This common law principle he argued, was adopted in

our law through the case of Haruna Said Vs. R (1991) TLR 124. It was therefore his submission that, the right to legal representation is constitutional one and cannot be ousted by the TLS statement and if the applicant believes any of his rights or of the society is breached then constitutional petition would be his first option to challenge the violation and not criminal revision. On the submission by the applicant that, the TLS public statement has the binding nature to its members Mr. Owino countered that, none of the TLS objectives as provided under section 4 of the TLSA states that, advocate’s daily conducts in his business including choices of clients to represent in court shall be regulated by TLS nor does it provide that, any statement by TLS carries common goal of all members as under sections 40 and 66 of the Advocates Act, [Cap. 341 R.E 2019], an advocate is described as court’s officer entitled with the right to work independently from any interference since his conducts in the course of discharge of his duties is governed by the Advocates Act and its Regulations. In his view since the applicant has failed to demonstrate that the advocates for the 2nd to 5th respondents acted in conflict of interests of their clients then, this application is wanting in merit as in the relied on case of UAP Insurance Tanzania Limited (supra), advocates 10 therein were expecting to

benefit against interests of their clients hence its facts are distinguishable from the case at hand. He thus, prayed the court to dismiss the application with costs. In rejoinder Mr. Anthony started by inviting the Court to disregard the prayer for costs by the respondents as the applicant’s aim to bring this application was to further interest of justice than causing delay to the case as alleged. On the 2nd to 5th respondents’ rights to legal presentation he said, the applicant has no issue with it as what is being challenged is their act of procuring legal services from TLS members who are conflicted with interest of the case facing them after issuance of public interest by TLS taking side against them. As to the submission by Mr. Owino that, applicant ought to bring his complaints by way constitution petition he retorted, the submission sound like the preliminary objection in which this Court is urged not consider for taking the applicant by surprise. Regarding the submission that, TLS statement has no effect to its members he referred the Court to section 4(e) of the TLSA. And lastly on how does the said statement bind all members of TLS the Court was referred to section 31(1)(l) of the TLSA and the case of UAP Insurance Tanzania Limited (supra) on the advocates’ duty to avoid conducting themselves in a manner that erodes public confidence in the criminal justice system.

He rested his rejoinder submission by praying the court to grant the application. 11 I have dispassionately considered the rival submissions by the parties and took time to study the affidavit and counter affidavits in support and against this application which is also considered in a bid to answer to the main issue as to whether this application has merit or not. From the submissions made parties are at one as to the membership, constitution and accountability of the TLS governing council to its members through the TLS president who is also the society’s spokesman as spelt in sections 6(a), 7(1) and 15 of the TLSA and Regulations 4(1) and 5(d) of Tanganyika Law Society (Council) Regulations, 2022 GN. No. 599 of 2022. It is also uncontroverted fact by parties that following the video clip that was trending in the social media throughout the country showing the several men sexually abusing one lady/woman allegedly from Yombo Dovya within Dar es salaam city, TLS as a body of associated members in legal profession on 05/08/2024 and prior to the arrest of suspects in the said crime and their arraignment before the Court of law issued a public statement condemning such act and promising to cooperate with all law enforcement agencies and other criminal justice organs in exclusion of the Court to making sure that the culprits are brought to justice timely. Again all parties are in

agreement that, the 2nd to 5th respondents are entitled to the right to legal representation as a constitutional right derived from the right to fair hearing which is enshrined in the Constitution of the URT, 1977 under Art. 13(6)(a) and as it was also held in the cases of Thomas Mjengi (supra) and Haruna Said (supra). On the right of legal 12 representation as a constitution right in the case of Haruna Said (supra) this Court speaking through Mwalusanya, J (as he then was) pronounced itself in the following terms: ’’The legal representation for an accused is a right which is almost universally recognized. In some jurisdictions the right is a constitution right. In Tanzania the right is provided for in section 190 of the CPC (now section 310 of the CPA). That right is so jealously guarded by the law that if an accused is deprived of it, through no fault of his own and through no fault of his advocate and he is in the end convicted, that conviction cannot be allowed to stand on appeal. It must be quashed.’’ From the above cited authority it is gathered that, section 310 of the CPA also provides for the right of an accused person to be represented by an advocate of the High Court, subject to the provisions of any other written laws relating to provisions of professional services by advocates. Giving interpretation to the said section the Court of Appeal in the case of Lucas

Gisland Vs. R, Criminal Appeal No. 89 of 2021 (CAT) Tanzlii had the following observation to make: ’’Certainly, the provision gives as accused person before a criminal court, the right to be defended by an advocate. Indeed, the right to legal representation which applies to both civil and criminal proceedings is fundamental as stated in various cases of this Court.’’ (Emphasis supplied). From the above authorities it is now settled legal stance that, legal representation promotes the right to fair hearing both in criminal 13 and civil matters which is an integral part of the right to be heard guaranteed by our Constitution under Art. 13(6)(a) of the Constitution of the URT, 1977 as any attempt to deprive any party to a case such right is a tantamount to violation of the right to fair hearing or fair trial more so when the accused or party to the case is capable of hiring legal services from any advocate of his choice. I find solace in the decision of the superior Court in the case of Samwel Kitau Vs. R, Criminal Appeal No. 390 of 2015 (CAT-unreported), where the Court overemphasized on the right to legal representation when observed thus: ’’The right to legal representation is a human rights issue. It is prime importance for an accused person to have a fair trial. Access to counsel is therefore very important.’’ Now the above position notwithstanding, what brings parties into

locked horns is the proposition by the applicant that, since TLS issued the public statement allegedly with a binding nature to its members including the four advocates representing the 2nd to 5th respondents and given the fact that, in the said statement TLS took side with the law enforcement agencies and other criminal justice organs including the Police force and prosecution then its members are disqualified from representing the 2nd to 5th respondents before the RMs Court for having conflict of interest against interest of their clients. That proposition as alluded to above is vehemently contested by all respondents who are challenging binding nature of the said public statement by TLS to its members for not being supported by the law governing the society’s businesses since 14 advocate’s accountability to his client(s) is personal and his conducts in the discharge of his daily duties are governed by the Advocates Act and its Regulations and not TLSA and its Regulations. The issue for determination by this Court therefore is whether the said public statement by TLS allegedly binding its members affects the 2nd to 5th respondents’ legal representation by restricting their advocates from representing them on the ground of being in conflict with interests of their clients. To respond to the above issue effectively I find it imperative to explore the law governing conducts of

TLS albeit briefly. To start with the objectives for which the society (TLS) is established are well spelt in section 4 (a) to (i) of the TLSA which objectives are implemented by the governing council under leadership of the president who is also spokesman to the society. Council’s proceedings are governed by Tanganyika Law Society (Council) Regulations, 2022 GN. No. 599 of 2022. Glancing at both laws this Court is in full satisfaction that, the same were enacted for the purposes of regulating conducts of the body of associated members of legal profession and not to regulate daily conducts of its members in the discharge of their duties which as correctly submitted by Mr. Mwingira and Mr. Owino are governed by Advocates Act, [Cap. 341 R.E 2019] and the Advocates (Professional Conducts and Etiquettes) Regulations, GN. No. 118 of 2018. I so opine as advocates are dealing with their clients directly and are personally accountable to both clients and the court in as far as their daily discharge of 15 duties and choice of clients to deal with is concerned and not through the society as Mr. Anthony would like suggest and invite this Court to so believe as even their disciplinary authority which is the Advocate Disciplinary Committee is also established under section 4 of the Advocates Act and not TLSA. Under the provisions of Regulations 35(1) and 60(1) of GN. No. 118 of 2018, it is

learnt an advocate can refrain from representing the client or be selective in choosing the client to deal with where his personal interest and client(s) interest or interest of any person in his firm are in conflict since he owes a duty to protect his client from being convicted unless lawfully so done by the competent court under due process of law. The situation under which conflict of interest between client(s) and advocate can arise is detailed in regulation 45(1) of GN. No. 118 of 2018 as one that would be likely to affect adversely advocate’s judgment or advice on behalf of, or loyalty to his client(s) or prospective client. It is from that legal stance I have no difficulties in holding that, in the discharge of his daily duties under GN. No. 118 of 2018 advocate’s accountability is personally rested on his client and the Court, unlike the one attached to the society (TLS) which is limited to his membership only, thaking in to account the fact that TLS is a mere body regulating associated legal professional members to further the objectives and mandates for which the society is established. In simple words I would say in discharge of his daily 16 duties the advocate is personally accountable to the clients and the Court only and not the society. See also the case of Eunice Nganga (supra). Coming to the issue of public statement issued by TLS on 05/08/2024, I agree with

Mr. Anthony’s submission that the same was issued in furtherance of one of the TLS’s objectives as provided under section 4(e) of the TLSA which is to protect and assist the public in Tanzania in all matters touching, ancillary or incidental to the law. I however differ with his proposition that, under section 31(l) of TLSA the said statement is binding to its members as such provision empowers the governing council to make regulations providing for among other things, any other matters as it may deem necessary for the proper conduct and regulation of Society’s affairs. In this matter the Court was not referred by the applicant to any regulation made by the Council under section 31(l) of the TLSA specifying or stating that whenever any public statement is issued by the governing council it shall have the binding effects to regulate or affect conducts of its members in the discharge of their daily business including choices of clients to deal with. In absence of such provision of the law or any other binding authority in support of Mr. Anthony’s proposition, I find the said public statement by TLS dated 05/08/2024 condemning acts of sexual abuse and humiliation to the lady or woman from Yombo Dovya within Dar es salaam City that also named the suspects as criminals before even were tried and convicted by the competent court, while siding with the law enforcement agencies and

other criminal justice state 17 organs to making sure that the same are brought to justices timely, has no binding effect to its members in the discharge of their daily duties for aiming at furthering its objectives one of which is to protect the public from violation of laws and their rights, thus cannot in anyway oust or affect 2nd to 5th respondents’ constitutional right to legal representation. Had there been any concern raised by the 2nd to 5th respondents against their interests in the case being conflicted with advocates’ interests in Court, I hold that could constitute justifiable reason for this Court to revise the proceedings to satisfy itself as to the propriety, legality and regularity of their representation. Since there is none raised the issue is answered in negative in that, the said public statement by TLS issued on 05/08/2024 does not affect 2nd to 5th respondents’ right to legal representation for not binding its members in the discharge of their daily duties including choices of clients to serve. Thus there is no any disclosed illegality, irregularities or impropriety of proceedings before the Resident Magistrate Court for Dodoma Region in Criminal Case No. 23476 of 2024 to warrant this Court exercised its revisional powers and I so hold. Before retiring, I wish to comment though by passing to the proposition made by Mr. Anthony that, TLS’s act of issuing

the said public statement and aligning with all enforcement agencies and criminal justice organs to make sure that all suspects on the condemned act who were also labelled as criminals (wahalifu) are brought to justice timely was in contravention of the provisions of Regulations 60(1) and 132(1) and (2)(c) of GN. No. 118 of 2018, enjoining 18 an advocate among other things to protect his client from being convicted except where conviction is arrived at upon due process of law and refrain from giving public comments concerning client’s interest in the case without prior instruction from the said client, thus a clear conflict of interest against 2nd to 5th respondent’s interest in the case facing them before the RMs Court for Dodoma Region. With due respect to the learned counsel, I am not prepared to embrace that proposition for two good reasons. One, when issuing the said public statement TLS was in exercise of its mandate under section 4(e) of TLSA and in furtherance of its objectives as a body of associated members of legal profession, one of which is to protect and assist the public of Tanzania in all matters ancillary or incidental to the law and not in the capacity of an advocate whose conducts are regulated under Advocates Act and GN. No. 118 of 2018. Second, TLS being a legal person (body) there is no possibility could have violated advocate’s mandates legally entrusted

to individual advocate as stated in Regulations 60(1) and 132(1) and (2)(c) of GN. No. 118 of 2018 and claimed to been in conflict with interests of the 2nd to 5th respondents who are not her clients. I so find as it is already found above that, in terms of Regulation 45(1) of GN. No. 118 of 2018 a conflict of interest is one that would be likely to affect adversely the advocate’s judgment or advice on behalf of, or loyalty to a client or prospective client and not a legal person or body like TLS. 19 In view of the above deliberations and findings, I hold the main issue is answered in negative in that, the application is devoid of merits. Consequently the same is hereby dismissed in its entirety. It is so ordered. Dated at Dodoma this 17th September, 2024. E. E. KAKOLAKI

JUGDE 17/09/2024. Court: The Ruling has been delivered at Dodoma today on 17th day of September, 2024, in the presence of the applicant in person, Mr. Emmanuel Anthony, advocate for the applicant, Ms. Magreth Fyumagwa, State Attorney for the 1st respondent, the 2nd, 3rd, 4th and 5th respondents in person, Mr. Robert Owino, Advocate for the 2nd, 3rd, 4th and 5th respondents and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI

JUGDE 17/09/2024. 20