meshack nibushozi saguti another vs republic 2023 tzhc 22660 30 august 2023

THEWTED REPUBLIC0F TANZANIA. JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO. 28 OF 2023 (Originating from the Resident Magistrate's Court of Mtwara at Mtwara in Criminal Case No. 118 of2022) MESHACK NIBUSHOZISAGUTI....,,,.............1st APPELLANT HAY A.ZUIMANA JOHN SAGUTI..,.............................2nd APPELLANT VERSUS THE REPUBLIC....... ...................... RESPONDENT JUDGMENT 22--' & 3iR August 2023 LALTAIKA, X;. The appellants herein, MESHACK NIBUSHOZI SAGUTI and HAYAZUIMANA JOHN SAGUTI were arraigned in the Resident Magistrate's Court of Mtwara at Mtwara (hereinafter referred as the trial court) and charged with the offence of Unlawful present within the United Republic of Tanzania contrary to section 45(l)(i) and (2) of the Immigration Act [Cap 54 R.E. 2016]. Page 1 of 15 It was asserted by the prosecution that on 22nd day of November 2022 at Newala District Council within Mtwara Region, the appellants being the citizens of Burundi were found unlawfully present within the United Republic of Tanzania without being in possession of valid passports or visa or resident permits that could allow them to enter and stay. When the charge was read over and explained to the accused/appellants they pleaded guilty to the charged offence. Therefore, the trial court went further to take the facts of the offence within which they were charged, Upon recording the facts which constituted the ingredients of the offence of Unlawful present within the United Republic of Tanzania thus, the appellants admitted to those facts. Consequently, the appellants were found guilty and were convicted on the offence of Unlawful present within the United Republic of Tanzania contrary to section 45(1) (i) and (2) of the Immigration Act [Cap 54 R.E. 2016], Thereafter, the trial court, conducted a sentencing session whereby it considered the previous records and the mitigating factors of the convicts. Consequently, the trial court sentenced the convicts to pay a fine of TZS, 1,000,000/™ (one million only) or in default the convicts were to serve two (2) years term in jail. Dissatisfied, the appellants have appealed to this court on the following grounds: 1. The Appellant's (sic) plea of guilty was. a result of misapprehension or mistake as they did not understand the nature of the pica nr offence. 2. The lower court erred in law and fact by not considering the appellants 'plea of guilty as an essentia! mitigation factor. Page 2 of 15. 3. That the lower court erred tn law and. met for con victing the appellants on their own pica ofguilty relying on the reasons that they were con versant with Swahili language.] 4, The manner in which the proceedings at the trial was conducted was irregular improper. S. The prosecution side failed to prove their case beyond reasonable doubt as required by the section 3(2)(a) of the Tanzania Evidence Act, 1967. Lately the appellants came up with the following additional grounds- I choose not to reproduce them. When the appeal was called for hearing, the appellants informed this court that a lawyer with knowledge on international migration issues had offered to assist them but was still in Dar- es-Salaam. The respondent Republic, on the other hand, appeared through Mr. Edson Mwapili, State Attorney who was in support of the trial court's decision. Arrangements were made and Adv. Sarsh Mercer Mushi appeared on the video Conference from The Integrated Justice Centre (ICJ) Tern eke. Mr, Mwapili and the appellants were in the court's chamber keenly following the matter. Unfortunately, the network was very slow. A decision was made to conduct the hearing by way of written submissions. The arguments for and against the appeal are summarized in the next paragraphs. Ms. Mushi, submitting on behalf of the appellants, stated that the appellants had been wrongly convicted and sentenced for the offense of unlawfully being present in the United Republic of Tanzania. She emphasized that the appellants were legally recognized refugees from Nyarugusu Refugees Camp. Ms. Mushi pointed out that the trial magistrate had failed to consider their legal status, resulting in a miscarriage of justice. Page 3 of 15 She mentioned that the definition of a refugee under the Refugees Act of 1998 had been provided during the proceedings. The definition emphasized the.appeliahts' well-founded! fear of persecution and their compelled displacement due to external factors in their country of origin. Ms. Mushi argued in the appeal that the conviction, based on the wrong charge, had denied the appellants justice. She cited Section 388 of the Criminal Procedure Act, which allows the court to consider orders leading to a failure of justice. Additionally, Ms. Mushi faulted the trial court's magistrate for not rejecting the improper charge under Section 129 of the Criminal Procedure Code, stating that it did not properly disclose the offense. Regarding the second ground of appeal, Ms. Mushi focused on the trial magistrate's failure to consider mitigating factors, concentrating instead on aggravating factors. She cited legal precedents to highlight the importance of balancing aggravating and mitigating factors in sentencing. The third ground of appeal argued that the plea of guilty' was equivocal, as the appellants did not understand the nature of the plea, leading to an unjust conviction. Ms. Mushi stressed the court's duty to ensure a dear and unambiguous guilty plea, citing legal standards. Language barriers were highlighted, albeit in hindsight, with Ms. Mushi asserting that the appellants, refugees from Burundi, did not fully comprehend Swahili. She criticized the trial magistrate for not ensuring a fair trial, especially regarding the language used in court. Ms. Mushi argued that the plea of guilty was deemed equivocal, and she contended that the trial magistrate should have entered a plea of not Page 4 of 15 guilty and followed proper procedures. Emphasizing the prosecution's failure to prove the case beyond a reasonable doubt, Ms. Mushi questioned the thoroughness of the investigation and highlighted the universal standard in criminal trials. In conclusion, Ms. Mushi prayed for the quashing of the conviction and the setting aside of the sentence. Opposing the appeal, Mr. Mwapili stated that generally, individuals who plead guilty to art offense are typically barred from appealing the conviction itself. Their appeal is restricted to challenging the extent or legality of the. sentence, as per the principle established by Sectian 360(1) of the Criminal Procedure Act. However, he acknowledged exceptions when a plea might be considered equivocal, allowing for a successful appeal. The criteria for an equivocal plea were outlined in the case of REX Vs FOLDER (.1923). 2 KB 400, and subsequent cases like LAURENCE M PIN GA. Vs REPUBLIC [1983] T'LR 166 and KARLOS PUNDA Vs REPUBLIC, CRIMINAL APPEAL NO 153 OF 2005 (UNREPORTED). The above criteria, Mr. Mwapili reasoned, encompass imperfect, ambiguous, or unfinished pleas; pleas made under mistake or misapprehension; charges that disclose no offense known to law; and situations where, based on admitted facts, a conviction would be legally impossible. Referring to the Court of Appeal Tanzania's decision in the case of MICHAEL ADRIAN CHAO v. REPUBLIC, CRIMINAL APPEAL NO 399 OF 2019, Mr. Mwapili emphasized that for a guilty plea to: be unequivocal, specific conditions must be met. These conditions include the proper framing Page 5 of 15 of the charge; ensuring the accused comprehends the charges; a clear explanation of the charge before the plea, disclosure; and establishment of all elements of the offense in the facts, and a clear and properly recorded guilty plea, Mr. Mwapili contended that the charge against the appellants was proper, and their attempt to introduce their refugee status at this stage is procedurally improper. He cited the principle that fresh evidence should not be introduced at the appellate stage unless unavailable during the trial. Regarding sentencing, Mr. Mwapili argued that the trial magistrate did consider mitigating factors, as evidenced by the sentence imposed, and it was not excessive. He emphasized the need for a balance between aggravating and mitigating factors, citing legal precedents. Mr. Mwapili countered the claim that the appellants did not understand the nature of the plea, asserting that the plea was dear and unambiguous. He cited the court proceedings to demonstrate that the appellants comprehended the charges, entered a clear plea of guilty, and admitted the facts with understanding. Finally, Mr, Mwapili challenged the argument that the trial magistrate did not observe proper procedure, maintaining that the magistrate followed the correct procedure for recording a guilty plea. He also disputed the appellants’ claim that they acknowledged themselves as. refugees during the trial, arguing that this is a misrepresentation. In conclusion, he prayed for the appeal to be dismissed, upholding the trial court's decision. Psge 6 of 15 Ms. Mushi stated in rejoinder that she had thoroughly reviewed the respondent's written submission in opposition to the appeal She argued that a person could not appeal based on a guilty plea unless challenging the sentence's extent, or legality, citing Section 360 of the Criminal Procedure Act. However, Ms. Mushi reasoned, the appeal questioned the Fairness of the sentence imposed by the trial magistrate. In response to the claim that there was no record of the accused pleading not guilty due to her refugee status, the appellant argued that Nyarugusu is a refugee camp within Kigoma region. She asserted that the appellants had declared themselves as a refugee, showing a Jack of proper investigation before the trial Ms. Mushi submitted further that the trial magistrate held failed to explain the nature of the plea adequately, resulting in an equivocal plea with contradictory statements. She sought to introduce additional evidence (Annex 1 and 2) to clarify her client's legal status in Tanzania. Regarding sentencing, the learned Counsel for the appellants argued that the trial magistrate had not considered mitigating factors properly. She claimed that the sentence exceeded the legal limits and did not align with the principles in NEMES MYOMbe NTALA1WA VS REPUBLIC [2019] and other legal precedents. Ms. Mushi disputed the respondent's claim that the trial magistrate had carefully explained the plea, asserting that there was no evidence of such clarity in the court proceedings. She argued that the magistrate should have recorded a not guilty plea due to the appellants' contradictory statements. Page 7 of 15 Responding to the. assertion that Swahili is an official language, the appellant claimed she was not well-versed in Swahili and English. She argued that the trial magistrate should have ensured her understanding of the language. The appellant challenged the respondent’s denial that she acknowledged being a refugee, providing references to the trial court proceedings where she declared her refugee status. She argued that Hyarugusu Refugee Camp is globally recognized, and the respondent’s claim reveals a lack of investigation. Ms, Mushi insisted on the court's discretion under Section 360(1) of the Criminal Procedure Code, maintaining that the appeal was based on the sentence’s extent or legality. She cited Section 388, arguing that the court had the power to rectify' errors leading to a failure of justice, In conclusion, she prayed for this court to quash the conviction, set aside the sentence, and grant her liberty. I have dispassionately considered the grounds of appeal, rival submissions, and records of the court. In determining the merits or demerits of the. appeal, I am inclined to focus my analysis in addressing the following issues: i. Whether the charge sheet was defective /Z Whether the appellant's plea was unequivocal //Z Whether the trial court, did not consider the mitigation factors of the appellants thus it meted the excessive sentence. iv, Whether this court may receive additional evidence On the first issue, there is no dispute that the appellants were charged with the offense of Unlawful presence within the United Republic of Tanzania c/s section 45(l)(i) and (2) of the Immigration Act [Cap 54 R.E. 2016]. The appellants' counsel argued for their legal status as. refugees in Nyarugusu Refugee Camp, emphasizing compliance with the Refugees Act of 1993. It was contended that the trial magistrate should have rejected the charge for not properly disclosing the offense as per section 129 of the Criminal Procedure Act [Cap. 20 R.E. 2Q22]. It should be noted that in 1998, Tanzania enacted the Refugees Act, replacing older laws and granting authorities the power to confine, refugees to designated areas (DAs), usually refugee camps. The Tanzania National Refugee Policy of 2003 reinforces this direction. Section 17(5)(a) of the 1998 Act mandates refugees to obtain temporary movement permits with specific terms. Violations may result in imprisonment or fines. Refugees found outside designated areas without proper authorization can be prosecuted under the Immigration Act [Cap 54 RJL 2016]. The appellants, arrested in Newata District without proper authorization, were deemed to have violated the Refugees Act, forfeiting their refugee status. Consequently, they were charged with unlawful presence as described above. I have gone through the relevant provisions of the Acts cited in the light of our criminal law. The law is clear that if found guilty and convicted, the convicts may be punished by paying a fine of not less than five hundred thousand shillings or serve a sentence not exceeding three (3) years in jail Page 9 of 15 or both. I am fortified that the complaint on defectiveness of the charge or no existence of offence is devoid of merit and is hereby dismissed. In 1998 Tanzania enacted new legislation on the refugees. The legislation is the Refugees Act of 1998, which replaced the older laws. The Act makes no specific mention of the right of freedom of movement for refugees; however, pursuant to section 16 and 17, authorities have the power to require any asylum seeker or refugee to reside within a "designated area" (DA)-a euphemism for a refugee camp or settlement, Furthermore, according to UNHCR, in practice all refugees are required to reside in camps or settlements. In addition, the Tanzania National Refugee Policy of 2003 frames the general direction of the government intends to pursue tor refugee matters, affirms in paragraph 28 that refugees will be hosted in designated area whereby the international community will be obliged to provide material assistance. The government of Tanzania vigorously enforces restrictions on the movement of refugees once they reside within the designated area. According to section 17(5)( a) of the 1998 Act, a refugee must obtain a temporary movement permit from an official who then determines the specific terms and conditions of the permit. Furthermore, a movement permit can only be issued for up to 14 days unless the Director of Refugee Services has specifically allowed a permit for a longer period of time. In default of the terms: and conditions of the permit, the person who fails may be found guilty of the offence according to the Refugee Act and may be convicted and sentenced up to six months in jail or pay a fine of fifty thousand shillings or USD 23 or both. of 15 More importantly, the refugees and asylum seekers if found outside the camps/DAs without proper authorisation they will be prosecuted for the offence of unlawful presence within the United Republic of Tanzania under the immigration Act [Cap 54 R.E. 2016]. When found guilty and convicted, the convicts may be punished by paying a fine Of not less than five hundred thousand shillings or seme a sentence not exceeding three (3) years in jail or both. In the present case the appellants were arrested in Newala District within Mtwara Region without a proper authorization/ permit of the Director or Settlement officer of Nyarugusu Refugee Camp situated at Kasulu District, in Kigoma Region. According to the Refugees Act, the appellants had already violated the Refugees Act for being found at Newala District in Mtwara Region. In that regard, their right of being refugees from Burundi and residence of Nyarugusu Refugee Camp automatically ceased and that is why they were charged under the Immigration Act with the offence of unlawful presence within the United Republic of Tanzania. To this end, I fortified that the appellants' complaint is devoid of merit because the charge was not defective. On the second issue, section 360(1) of the Criminal Procedure Act [Cap.20 R.E. 2022] establishes that no appeal is. permissible when an accused pleads guilty and is convicted on such plea unless challenging the legality or extent of the sentence. The exceptions were highlighted in LAURENCE MPINGA V. R. [1983] T.LR 166 and KARLOS PUNDA V. REPUBLIC, Criminal Appeal No. 153 of 2005 (unreported). These exceptions include imperfect, ambiguous, or unfinished pleas, pleas made Page 11 of 15 under mistake or misapprehension, charges disclosing no offense known to law, and situations where, based on admitted facts, conviction would be legally impossible. Additionally, MICHAEL ADR.IN CHA KI V. REPUBLIC, Criminal Appeal No.399 of 2019 introduced conditions for an unequivocal plea: a proper charge, accused's full comprehension, clear explanation of charges before the plea, disclosure of all offense elements in the facts, and a clear, properly recorded guilty plea. In the present case, the contention that the appellants did not comprehend their plea is refuted by the trial records, demonstrating understanding and admission of guilt despite their refugee status. Therefore, the plea was unequivocal. On whether the trial court considered mitigation factors, appellate courts are to exercise restraint in altering sentences imposed by trial courts unless based on wrong principles, manifest inadequacy, or excessiveness. See R. V. MOHAMED ALT JAMAL (1948) 15 EACA 126. I am. aware that sentencing involves balancing several mitigating factors. To this end, this court is inclined to uphold the trial court's sentence, provided that no procedural violations occurred. Finally, on whether this court may receive additional evidence, the position of the law was handled down in the case of SAJAN VS.. CO­ OPERATIVE AMD RURAL DEVELOPMENT BANK (1991) T.L.R 44 at 46, as quoted in the case Of IDRISA R, H.AYESHI VS. EMMANUEL ELINANI Page 12 of 15 MAKUNDI, Civil Application No. 1.1.3/08 of 2020, where the Court of Appeal held: "Except on grounds of fraud or surprise, the general rule is that an appellate court will not admit fresh evidence unless it was not available, to the party seeking to use it at the trial or that reasonable diligence would not have made it so available." Before I pen down, I must be honest that this appeal has exercised my mind quite a bit. I found myself between a rock and a hard place. The appellants are young people in the early 20's. They allegedly run away from their country because of fear of persecution. They were, allegedly welcomed by authorities in Tanzania and registered as refugees with Nyarugusu Refugees Camp. It: appears that the appellants had a much bigger plan in mind. No one knows how they escaped the tight security of the refugees' camp and were on their way to some other countries in the southern region of Africa. I am baffled as I try to imagine how they travelled from Kigoma to Mtwara almost 1,000 kilometers only to be arrested and charged as discussed, in detail above. Illegal trafficking in persons (ITP) is an equally baffling phenomenon. Judges and magistrates in many countries have always wondered how victims of ITP communicate with their agents. l am not saying this is an ITP case, but it bears many similarities. As much as this court appreciates the pro bonoservices of the skillful Advocate for the appellants, the above and many other questions remain unanswered. Her prayer for introducing new evidence to prove refugees' Page 13 of 15 status of her client, even if it was granted would not have answered the crux of the puzzle I have been battling with namely where do the appellants go from here? Are they still welcome in Nyarugusu? If the answer is to the affirmative, I urge Ms, Mushi to take her pro bono services one step ahead by notifying the camp of the whereabouts of her clients and that upon completion of their jail term a much safer place they must go back is the camp. Mindful of the wisdom of the sage that two mistakes do not make a right, I think if care is not taken a refugee may easily be turned into an ITP victim. All said and done, I dismiss the appeal in its entirety. Judgement and orders of the trial court are upheld. It is so -orde f edb .ojcfcj? [VM-V .-judge: 30,08,2023 Court This is delivered under my hand and the seal of this Court this 30th day of August 2023 in the presence of Mr. Melchior Hurubano, learned State Attorney for the respondent and the appellants who have appeared in person, unrepresented. Ya ILVi LALTAIK JUDGE Page 14 of 15 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 15 of 15