19990115 TZHC Dar es Salaam 1

AT __ DAR F.S SALAAM ECONOMIC CRTMTNAL RF.VISION NO. 1 OF 1997 (Originating from Ilala District Court Economic Criminal Case No. ,o of 1997) MT. 17720 CPL. SF.LEMAN T.ALT ................... APPLT..ICANT

VERSUS . \THE REPUBLIC ........ ~ .......................... RESPONDENT . , JUDGE ME ~-y KALRGEYA, J. The Applicant, MT. 17720 CPI,. Sel.emani s\o tali, an ex- soldier with Tanzania National Service Force, was convicted by I , the Ilala District court on his own plea of guilty and sentenced to 15 years impri.sonment for the offence of unauthorised possession of rounds of, ammunition c\s 1.3 (l) and 31 (l) of the Arms and Amm11nit.i on Ord. Ci:1.p. 223 as reacl togRther with para. 20 of the First schedule to ancl s. 59 of the Economic and Or.gani~ed Crime Control Act, 1gg4_ On 2nd thoughts, 'possibly upon reflection on the consequences of the extent of the custodiaJ. • sentence meted on him·, he came· to this court ·praying for rev.i.S&e~ arguing that he was "ill advised to plead guilty by the official of the unit under· the understanding that the full facts have been supplied to the courts and the D.i.rector of Criminal Investigation, under official communication'', and that he wa~ officially in possession of the relevant ammunition (60 rounds) as the same ·had been supp.lied to him as a serving soldier on active duty on security guard during the General elections period. Mr. Mtanga, Advocate, represented the Appl.icant whi.Je Mr. Chidowa, State Attorney>represented the Repuhlic\Respondent: l The Applicants' Counsel vehemently argued that the Appellant .could not be said to

have been in unlawful possession of the 60 rounds of ammunition as his boss vide letter Ref. NSHQ\P.10.25 dated 30th ,July, 1997 cler1rly shows that they were "officially issued to him under armed forces regulations in order to facilitate security duties, duly signed in the register in compliance with armed forces regulations" and that this was during the election period, hence an act alone without gui~ty mind cannot sustajn conviction; that the trial court wrongly acted on paragraph 20 of the First sched1lle to ands. 59 of the Economic and Organised Crimes Control A~t as the former had long been delAted hy Act. 9 of 1995 and that thA acr.used having simply stated "It is true" it was equivocal plea. In response, the learned State Attorney countered by arguing that the Applicant's boss's letter clearly establishes the offence for it states that though they were issued to him, through his own negligence, he left his place of d1ity assignment without permission to unknown place, and that "As the Applicant left the area he was assigned to guard, the lawful possession of the 60 rounds of ammunition ended, when he was put under arrrest. . at Kariakoo area ..... he was in unauthorised possession of the sixty rounds of ammunition. He was not authorised to be J.n the possession of the same, except to his place\area of duty of assignment". The learned State Attorney conceded that para 20

was deleted by Act 9\95 but that it concerned dangerous drugs: adding that· however para 21 conc~rning the present offence was introduced by Act 10\89 which came into effect on 1\8\96. He insisted that the applicant was guilty under the doctrine of strict liability which does not require mens rea (telied on Smith and Hogan's Criminal law book, 7th Edn. Butterwotths, London, 1992, pag. 99) where it is stated, 2 . ,:; "when the court holds that it is an offence of strict liability, it decides that a ~easonable mistake, as to that particular fact i.s not a defence". Finally, the State Attorney insisted that the Applicant's plea was unequivocal and relied on Ahmed s\o Osmani v R (1969) HCD 145, that once facts have been properly explained the plea of. guilty based on the statement set out in the record is supportable. In reply the Applicants' counsel insisted that the ammunitions were officially issued to him and th~t para. 21 to the 1st schedule does not refer to negligence; that the prosecution should have cited para .. 21 and not 20; that Osman's case was distinguishable from the one at hand. Facts which stand out undisputed are that the Applicant was a soldier working with the Tanzania National Service Force. At the time of his arrest he was on active duty, and,. as the country was involved in the General Elections he w;::is assigned security duties,. and among others, he was

issued by his a1ithority with 60 rounds of ammunition packed in two mag;::izines. Unauthor.isedly,. he left his place of duty (on the facts on record,. the place is not disclosed) and went to see his family at Kibaha. On his way back, at Kariakoo,. as he was embarking into a daladala (it is not disclosed as to whether he 1was returning to his place of duty or elsewhere) he was arrested,. searched and found in possession of the 60 rounds. He was duly charged wi.th ''un;::iuthori.sed possession of rounds ammunitions c\s 13(1) and 31(1) of the Arms and Ammunition Ord. Cap. 223 as read together witri para. 20 of the First Schedule ands. 59 of the Economic and Organised Control Act, 1984''. When the charge was read over to him on 3\11\95, being an economic offence he was not cal.led 11pon to plead. Seventeen (17) months Jater1 on 11\4\97,. after the DPP had given his consent to the charge, when it was read over to Applicant he pleaded: "It is true" 3 . The prosecution proceeded to read the facts and what ! followed is on record as under:- "On or about the date of 1.\1.1\95 the accused_ ..... at Kariakoo ..... was found in unlawful possession of 60 rounds of ammunition without permit. The accused was arrested while he was getting in the Daladala Bus No. TZG 151.6 which was plying between Kariakoo and Tegeta within the city of Dar es Salaam. When the accused was searched by Insp.

Dachi the accused was found with 60 military ammunition which was packed in the magazine amounting two and each of it carried about. 30 ammunitions. 'l'he accused did not produce any document to the effect. Then the statement. was taken to the accused (?) and thereafter charge was prepared and the accused was brought hefore the court for further action. The round of ammunitj.on it is I?) wi.th the Msimbazi Police St.at.ion and the same will he produced tomorrow before this court so as to continue with the case. Accused states - what. the prosecution stated it is true Sgn DM". The matter was then adjourned till the following day when the 60 rounds of ammunition were tendered as exhibits. The prosecutor told the court, "The Exhibit are present before the court and J am praying to tender it as part of evi.dence which contents 60 round of ammunitions with two magazine". After marking the Exhibits as P3, the record contjnues, "Accused: what the Public Prosecutor. stated it is true and I have no objection. Sgn. DM 4 J ''t' • Court: Through the plead ( ! ) of guilty from the accused person, this court has nothing to add but to convict the accused person as charged. Sgn. DM" From here: the prosecutor's address on sentence is recorded, followed by the courts' observati.ons on sentencing and the sentence itseJf. Applicant is afforded no chance of mitigation. I Again for further clafity

let the Applicant's boss's letter on which the applicants' Counsel and the State Attorney Vie regarding its interpretatjon speak for itself. It is dated 30\7\97 and addressed to the In-charge, Ukonga prison. Its body runs under, KUPATIWA NAKALA YA BARUA NSHQ\P.l0\25 YA TAREHE 06\11\95 Makao Makuu ya Jeshi la Kujenga Taifa, imepokea barua toka kwa MT. 1720 CPL. Selemani Laly, mpiganaji mstaafu kazi jeshini ambaye ni. mfungwa nambari MF No. 0833\97 katika gereza lako ya tarehe 25 Julai, 1995. Yeye ameomba apatiwe nakala ya barua iliyotajwa hapo juu iliybpelekwa kwa DCT tarehe 06 November 1995, nakala hiyo hatapatiwa. Barua hiyo aombe kwa DCI. Askari huyo al.ikuwa askari. wetu na amesha staafu kazi jeshini tangu mwaka 1996. Kabla ya kustaafu alitenda kosa rnwaka 1995 wakaU akiwa zamu ya ulinzi imara wakati wa uchaauzi mkuu wa Rais arnbaoo alikabidhiwa risasi sitini kwa maandishi kwa aiili ya ulinzi. kwa uzembe alitoroka na kuacha ulinzi akaenda nvumbani kwake Kibaha ambaoo alikamatwa na Police wa kiraia akiwa na risasi (60). Afahamishwe na kuelimi.shwa kuhusu nakali:1 al.i yoomba. A. K. Matinga's Kanali Kny: Mkuu wa ,Jesh i la Kuj enga Tai fa 11 (emphasis mine). 5 t Now, with the above, let us discuss the arguments presented. I will start with the mix up of para. 20 and 21 of the 1st schedule to the Economic and Organised Crimes Offences, Act. No. 13 of 1984. This should not

detain us here because the facts tell '.the obvious in that by the time the charge was being formulated the relevant para was and is para 21 added by Act 10\89 (thus it i.was a misdirection to cite para. 21,) and which provides, "A person is guilty of an offence under this paragraph who is found in unauthorised possession of arms or ammunition contrary to the provisions of the arms and Ammunition Ordinance''. Other matters being perfect, however, the above defect is curable. Regarding the other arguments, I have carefully considered them in light of the proceedings before the trial court and the Applicants' boss's letter which did not exist when the plea was being entered and I have come to a conclusion that this is a fit case where revisiom is necessary for the ends of j11stice. I have so concluded because it would seem, the true position of the facts was either not known to the prosecutor when he was giving the facts or deliberately decided not to reveal them. I am quite sure that had it been revealed before the r.ourt that the ammunitions had be~n officially iss11ed to Applicant but that he had moved from his duty station when he was arrested no plea of guilty would have been entered, for: circumstances would have necessitated arguments as to whether or not that was unlawful possession as contested now between the State Attorney and Applicants' defence Counsel. In order to

conclude as to whethiu the possession was unlawful or not further ev.idence ought to he offered, 1 . e. whet.her applicant. hac'l hanc'led in the g11n before departun:i for Kibaha, if so, what explanation did he offer for the absence of 6 the ammunitions; for what duration was he supposed to remain with such ammunition once issued to hj_m; what was his duty post. I cannot accept the learned State Attorney's argument that once a soldier leaves his duty post, an authorisedly, possession of ammunition officially issued to him automatically becomes un authorised - the absurdity of this proposition can easily be explained in this simple example. Supposing soldier "A" is stationed at the gate to Army barracks. During the course of his duties, his eyes land on girl passing along the main road nearby but outside the barracks and who attracts him. Then, devoid of all sense of responsibility and work ethics, buttressed by human vices, the said soldier leaves his gate post, wal.ks along wi.th that girl for a kilometre away while his loaded gun is slung on his shoulder, would he be charged with being jn unlawful possession of a gun and ;:immunition if at that point his commandant pounces on him and arrests him for not being on duty? My answer is no. Of course, the case at hand is somehow in extreme, for, although we are not toJ.d what his duty post was, it would seem it was reasonably

a-far from Kibaha where he had gone and Kariakoo where he was :~rrested. All the s~me, however, in view of new revelations in Kanali Matinga's 1.etter, the applicants' plea of guilty cannot he allowed to stand. WhiJ.e still on this, I should point out that as per record (quoted jn this judgement) the trial co11rt offered no chance to appljcant to mitigate before sentencing. This is important, and legally, in considering whether a plea i.s uneqtli vocal or not, what the accused says in mitigation is very material, for, up to that point he is at liberty to change his plea. Indeed, if, in his mitigation, his statement contains elements of disputing the o-f fence the court is duty bound to record a plea of not gu i lt.y. Hypothetically, for example, if 1.n mi.tigation, Applicant had said, "I a<lmit all that the prosecution has stated. The ammunition were issued to me while on duty", the court could not have proceeded to convict him. As we don't know what Applicant would 7 have said i f he had bAen r.;:i]Jed upon to rn.it.igat.A the benefit of doubt should be be-stowed on him. This also tarnishes the plea on which he was convicted. In the premises, the application for revision is hereby allowed. The plea of guilty and ensujng .sentence are quashed and set aside. It is hereby ordered that the Applicant he taken to have pleaded not g11ilty to the charge. The matter to proceed to full

hearing before the same court thongh not necessarily before the same Magistrate. The trial courts' record shows that Applicant was on bail Eince 9\1\96 and always attended court sessions save once when he missed h11t satisfactorily gave an explanation that he had mixed up dates, which explanation was accepted by the trial cpurt. On those aforementioned premises the Applicant to be released forthwith (unless otherwjse lawfully held) and he shall be taken to be on same bail bond as that existed before he was convicted. He should however report his presence to the Tlala District court Resident Magistrate i\c for necessary orders\djrectj.ons within a week of his release from prison. (L. B. Kalegeya) ,TUDGF. Judgement deJ.ivered today the 15th January, 1999 in the presence of Mr. Mdeme, State Attorney. (L. B. Kalegeya) r JUDGE 15\l\99 8