20100506 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: MSOFFE, J.A., MBAROUK, l.A. And BWANA, J.A.) CRIMINAL APPEAL NO. 17 OF 2006 MELKIZEDEKI MKUTA .................................................... APPELLANT

VERSUS THE REPUBLIC ............................................................ RESPONDENT (Appeal from the Conviction and Sentence of the High Court of Tanzania at Bukoba) (Luanda, J.) dated the 15th day of November, 2005 in Criminal Sessions Case No. 74 of 2002

JUDGMENT OF THE COURT 4 & 7 May, 2010 MSOFFE, J.A.: The appellant was sentenced to death by the High Court (Luanda, J. as he then was) consequent upon his conviction of the murder of Yakubu Swalehe on or about the 1ith day of August 1999 at Nkwenda village within the District of Karagwe in Kagera Region. He is dissatisfied, hence this appeal. He is advocated for by Mr. Constantine Mutalemwa, learned counsel, while the respondent Republic had the services of Mr. Steven Makwega, learned State Attorney. Mr. Mutalemwa filed a memorandum of appeal with twelve grounds of complaint. Some of the grounds are in the alternative to the others. In view of the position we have taken on the appeal we will not do two things. One, we will not address all the grounds. Instead, we will discuss only two grounds. Two, we will not state the facts of the case that led to the conviction and the sentence. The 1th ground of appeal reads as follows:- 12. That the trial court erred in law in convicting without affording a fair trial/hearing to the appellant on account that the court did not sit with assessors at the commencement of the trial. In elaboration on the above ground, Mr. Mutalemwa was of the view that under Section 265 of the Criminal Procedure Act (CAP 20 R.E. 2002), hereinafter the Act, all trials before the High Court are conducted with the aid of assessors. So, since a preliminary hearing

is a trial, the preliminary hearing in this case ought to have been conducted with the aid of assessors, he stressed. He referred us to the preliminary hearing on pages 3-6 of the record in which it is clear 2 that the trial judge (Mchome, J.) did not sit with assessors. In this regard, he went on to say, since trials before the High Court are with the aid of assessors in conducting the preliminary hearing under Section 192 of the Act, the trial judge ought to have sat with assessors. However, Mr. Mutalemwa did not cite any authority in support of the above proposition. In his brief response, Mr. Makwega was of the view that a preliminary hearing is part of the trial which commences before the main trial. There is nothing under Section 192 that provides for assessors in a preliminary hearing. The essence of Section 192 is merely to speed up trials. So, even if a preliminary hearing is not conducted that does not vitiate the proceedings in the main trial, he asserted. The above point need not detain us. It is common ground that ' there is nothing under Section 192 to the effect that a preliminary I hearing before the High Court should be with the aid of assessors. In fact, even under the Accelerated Trial and Di~posal of Cases Rules (GN 192 of 1988) made under sub-section ,6 thereto there is 3 nothing to that effect. The Act came iinto effect on 1st ' November 1985 by virtue of

GN No. 375 of 1985. Prior to the enactment of the Act there was no provision for a preliminary hearing in our laws. This is borne out by the fact that prior to its enactment in 1985 the repealed Criminal Procedure Code (CAP 20 Volume 1 of the Laws) did not have such a provision. Following the enactment of the Act, Section 192 was introduced thereto. It is also significant to mention here that Section 265 of the Act is in pari materia with Section 248 of the repealed Code that all trials before the High Court should be with the aid of assessors. So, at the time of enacting the Act if the legislature had intended that a preliminary hearing should be with the aid of assessors it could have easily enacted so. Since it did not do so, there is no basis for saying that a preliminary hearing before the High Court should be with the aid of assessors. Perhaps, the legislature, in its wisdom, did not do so for one main reason. The idea behind Section 192 is to accelerate trials and minimize costs. Introducing assessors in a preliminary hearing might necessitate extra costs. In fact, we wish to observe here in passing that inspite of the provisions of Section 265 of the Act requiring that all trials before the High Court 4 be conducted with the aid of assessors, in practice that is not always I the case. Not in all trials is the aid of assessors necessary. For instance, a trial within a trial is conducted without the aid of assessors. Therefore, there is nothing unusual in conducting a preliminary hearing without the aid of assessors. The complaint in the 11th ground of appeal has a bearing on the proceedings of the High Court dated 14/11/2005 thus:- ''Mr. Nd;ike: My Lorcl we close our case. I . Mr. Kabunga: My Lorcl I don't want to submit.

RULING The accused has a case to answer.

8. M. Luanda

JUDGE 14/11/2005 I Mr. Kabunga: .My Lorcl we pray for a short adjournment for defence. One hour could do.

8. M. Luanda

JUDGE 14/11/2005 CT: Granted. Order: Defence 12. 00 noon.

8. M. Luanda

JUDGE 14/11/2005" 5 It is evident from the above record of proceedings that the appellant was not informed of his right under Section 293 (2) of the Act. The sub-section reads:- "{2) When the evidence of the witnesses for the prosecution has been concluded and the statement if anr✓ of the accused person before the committing court has been given in evidence/ the court if it considers that there is evidence that the accused person committed the offence or any other offence of which/ under the provisions of section 300 to 309 he is liable tb be convicte~ shall inform the accused person of his right - (a) to give evidence on his own behalf/ and (b) to call witnesses in his defence/ and shall then ask the accused person or his advocate if it is intended to exercise any of those rights and record the answer/ and thereafter the court shall call on the accused person to enter on his defence save where he does not wish to exercise either of those rights. " (Emphasis supplied.) 6 I Mr. Mutalemwa and Mr. Makwega are; at one that th.e above sub- I section is couched in imperative terms'I and that the trial judge ought I to have informed the appellant of his right provided for under the sub- 1 I section. With respect, we agree with them. I As submitted by both learned co~nsel, the above sub-section is ' i I couched in mandatory terms. That is ~y virtue of the 1;1se of the word • "shall" in

the sub-section. This means that it was mandatory to ' I perform the function stated in the I sub-section. · In this spirit, Section 53 ( 2) of the Interpretat;ion of Laws Act ( CAP 1 R. E. I 2002) is relevant. Sub-section (2) thereto reads:- ' (2) Where in a written law I the word ''shall" is used in conferring a function, :such word shall be interpreted ; to meanI that 1 the function so conferred must be I I performed I (Emphasis supplied.) j I -1 I We may add here that the Interpretation of Laws Act came into ' I I effect on 1/9/2004 vide GN 312 of 2004 which vyas published on

I I I 1/9/2004. So, at the time of the trial of this case this Act was in 7 operation. Therefore, the High Court ought to have informed the appellant of his right under the sub-section. The failure to do so led to one major effect, that is, there was no fair trial. At this juncture, we think it is pertinent to mention one other point in passing. In the course of arguing the 11th ground Mr. Mutalemwa persistently referred us to Articles of our Constitution relating to the right of a fair hearing. With respect, it was not necessary to do so. In saying so, we wish to subscribe to, and associate ourselves with approval, with the view expressed by Lugakingira, J. (as he then was) in Shabani Msengesi v National Milling Corporation, High Court (MZA), Civil Appeal No. 44/94 (unreported), citing the Zimbabwe case of Ministry of Home Affairs v Rickie and Others, (1985) LRC (Const) 755, that:- It is a cardinal principle of constitutional law that where an issue can be resolved without recourse to the constitution, the constitution should not be involved As we demonstrated above, the point at stake here could safely be decided without necessarily invoking the Constitution .. 8 ' This brings us to the inevitable question. What shtjuld we do in the circumstances? On this, Mr. Mutalemwa was, with: the greatest respect, not consistent. At one stage he said that we should nullify

the proceedings subsequent to those of 14/11/2005 and order the High Court to proceed therefrom. At some later stage he appeared to be I saying that we should not do so because if we do so, the prosecution might fill in gaps in their case during, the cross-examination of the appellant. Again, with respect, we fail to see the rationale or logic behind the latter suggestion. In our considered opinion, we will go along with. the suggestion put forward by Mr. Makwega that the safest thing to do in the circumstances will be to nullify the proceedings that followed the J/ closure of the prosecution case. Accordingly, in ;exercise of our revisional jurisdiction under Section 4 (2) of :the Appellate Jurisdiction Act, 1979, as amended by Act No. 17 of 1993, we hereby quash and set aside the proceedings which followed the closure of the prosecution case on -14/11/2005. The High Court is directed to reconstitute itself and proceed from w~ere it ended on ' 9 14/11/2005 when. Mr. Ndjike informed the Court that the prosecution side was closing its case. DATED at MWANZA this 6th day of May, 2010. J. H. MSOFFE

JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF A:PPEAL S. J. BWANA

JUSTICE OF APPEAL I certify that this is a true copy of the original. . ,:ii )- ,' 1 .~-~..- ~;;,J~- ·IJ ; ... !• (J. s. !• • DEPUTY REGISTRAR . ' i,.t~ ~-t· ":,...~