CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA (CORAM: MUGASHA. J.A., KHAMIS. J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 76 OF 2022 MUGISHA KATULEBE....................................................... APPELLANT

VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Bukoba) (Nqiqwana, J/l dated the 12th day of November, 2021 in Criminal Session Case No. 126 of 2016

JUDGMENT OF THE COURT 26th & 28th November, 2024 MUGASHA, J.A.: Mugisha s/o Katulebe, the appellant herein, together with Derick s/o Yustas, Wiston s/o Wilson @ Fred, Ignatus s/o Respicius, Kamuhanda s/o Innocent and Zakeria s/o Zekeri who are not parties to this appeal were jointly and together charged with the offence of murder contrary to sections 196 and 197 of the Penal Code Cap 16 R: E 2002, Now R: E 2022. It was alleged by the prosecution that on the 29/12/2015, at Kaisho village, within Karagwe District in Kagera Region, the appellant and his co-accused murdered one "Rugema", the deceased herein. The appellant and his co-accused all denied the accusations by the prosecution. On account of what is to unfold in due course, we shall not give a factual account underlying this appeal. At the conclusion of the trial, the trial Court was satisfied that, the case against Mugisha Katulebe, the appellant herein was proved to the hilt. Eventually, he was convicted and sentenced to the mandatory death sentence. The co­ accused were acquitted after the trial Court found that the case against them was not proved to the required standard. The appellant is aggrieved by the decision of the trial Court hence the present appeal. Initially, he filed a memorandum of appeal containing six grounds of appeal which were abandoned at the hearing and in substitution, lodged a supplementary

memorandum fronting the following complaint: 1. That the trial court denied the appellant a fair trial for not appointing for him an advocate for legal representation. At the hearing, the appellant was represented by Mr. Samwel Angelo, learned counsel whereas the respondent Republic had the services of Ms. Wampumbulya Shani, learned Senior State Attorney assisted by Mr. Enosh Gabriel Kigoryo, learned State Attorney. In addressing the sole ground of appeal, Mr. Angelo faulted the trial court for not assigning a separate advocate to the appellant and instead, assigning a single advocate to represent accused persons who had conflicting interests in the charged offence. He pointed out that, all five co-accused testified against the appellant and ultimately, their evidence was relied upon by the trial court to convict the appellant. In the premises, Mr. Angelo argued that, the appellant was denied a fair trial because he was not fully heard in the charges preferred against him. On the way forward, the learned counsel initially implored us to allow the appeal and set the appellant at liberty. However, on a reflection, in the event we find the appellant was denied a fair trial, he urged us to nullify the trial proceedings, quash and set aside the conviction and sentence meted on the appellant and order a trial de novo. On the other hand, Mr. Kigoryo for the respondent

Republic, conceded to the appeal and subscribed to the submission made by the appellant's counsel. He added that, the conflict of interest is so glaring such that the defence counsel made irrational decisions on objections for and against the confessional statements of the accused persons. In this regard, it was the learned counsel's argument that the appellant was indeed denied a right to be heard and what ensued is a nullity. To bolster his argument, he cited to us the case of ELIAS MWAITAMBILA AND THREE OTHERS VS THE REPUBLIC, Criminal Appeal No. 414 of 2013 (unreported). With the said submission, like his counterpart, Mr. Kigoryo urged us to nullify the proceedings of the High Court, quash the conviction and set aside the sentence and order a retrial. We have carefully considered the record before us and the submissions of the learned counsel who both were categorically of the view that, the appellant was denied a fair trial as he was not assigned an advocate who could have taken care of his interests at the trial. Thus the issue at stake and subject for determination is whether the appellant was fairly tried. It is evident that before the trial court, all co-accused persons adduced evidence incriminating the appellant on the charged offence and the trial court heavily relied on both oral and documentary account of the co accused to convict the appellant. What appears at

page 71 of the record of appeal before the commencement of the defence case is a manifestation of the glaring conflict of interest as hereunder: - "Defence counsel My Lord, we have six (6) witnesses that is to say; Accused person, however, I find it difficult for me to conduct examination In-Chief and cross examination at the same time. I find there will be a conflict o f interest On that ground I pray the court to allow me to conduct examination In-chief for each accused, but when it comes to the issue o f cross-examination, I pray that each accused to be afforded an opportunity to cross-examine the witness ( if the need arise). That is all. State Attorney I have understood the defense's concern. My worry is that, there is a possibility that, it will appear that the accused persons were not fully represented but if each accused person is ready to cross-examine the witness, there w ill be no problem because there will be no miscarriage o f justice. That is all. As no objection was registered by the appellant and the co­ accused on the course taken by the learned counsel for either side, the accused persons undertook to conduct a cross examination. Such stance was blessed by the trial court as per the following order: Court: There is no doubt that in this case there are six (6) accused persons and the defence counsel is one. I have understood the defence counsel's concern.

Since, the prosecution side has dosed its case; there is no way we can have new advocates at his juncture for the purpose o f conducting cross- examination only. It is therefore prudent and in the interest o f justice to allow the defence counsel to conduct examination in-chief, and leave the accused persons to conduct cross examination. The accused persons have been asked whether they have objection to their defence counsel's prayer, but none o f them objected the prayer. Each o f them is ready to conduct cross-examination. I have done so to ensure that there is a fair trial, otherwise it w ill not be fair to allow the defence counsel to conduct examination in-chief, and at the same time to cross examine the witnesses. I agree with Ms. Xaveria Makombe that, there w ill be no miscarriage o fjustice if the accused persons are allowed to cross examine defence witnesses. Sgd: E L Ngigwana Judge 02/ 11/2021 Under the said circumstances, regardless of not raising any objection on the procedure invoked by the trial court, the appellant and co accused could not be effectively represented by one counsel. Effective representation before the court of law is one of the tenets of a fair hearing which embraces a fundamental right to be heard envisaged under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 (the Constitution) which stipulates: "13 (6) (a) Kwa

madhumuni ya kuhakikisha usawa mbe/e ya sheria, Mamlaka ya nchi itaweka taratibu zinazofaa au zinazozingatia misingi kwamba:- wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamHifu, na pia haki ya kukata rufaa au kupata nafuu nyingine ya kisheria kutokana na maamuzi ya Mahakama au chombo hicho kingenecho kinachohusika." [Emphasis ours] The unofficial English translation is that, in order to ensure equality before the law, the State Authority shall ensure and put in place measures to ensure that when then rights and duties of any person are being determined by the court or by any other agency, that person shall be entitled to be fully heard and to the right of appeal. One of the legislative measures in place to ensure fair hearing to obtain legal services by way of legal aid is prescribed under section 33 of the Legal Aid Act [Cap 21 R.E 2019] which states: "Where in any criminalproceedings, it appears to the presiding Judge or Magistrate that: - (a) in the interest o f justice an accused person should have legal aid in the preparation and conduct o f his defence or appeal as the case may be; and his means are insufficient to enable him to obtain legal services; the presiding Judge or magistrate, as the case may be, shall certify that the accused

ought to have such legal aid and upon such certificate being issued, the Registrar shall assign to the accused a legal aid provider which has an advocate for the purposes o f preparation and conduct o f his defence or appeal as the case may be. The operationalization of the cited section on the provision of legal Aid is prescribed under Part II of the Legal Aid (Remuneration of Advocates) Rules, 2019 and Rule 3 stipulates as hereunder: " 3(1) Pursuant to the provisions o f section 33 o f the Act, the presiding Judge or magistrate, after inquiry and upon being satisfied that the accused person is in need o f legal aid, shall give an order to that effect. (2) Upon receipt o f the order, the Registrar or magistrate in charge shall assign to the accused person a legal aid provider in the L.A Form No. 1 set out in the First Schedule to these Rules." In the premises, according to the stated position of the law, after it is established that the accused is in need of legal aid, he is entitled to be assigned an advocate who shall represent him before the court. However, in cases involving more than one accused person with conflicting interests and given that each accused is entitled to be fairly tried, effective representation is pertinent and it can only be attained if each accused is assigned a separate advocate. In the matter under scrutiny, given the apparent conflict of interest

between the appellant and co-accused, the effective representation of the accused before the trial court was not possible with a sole defence counsel representing all accused persons. The Court was faced with an akin scenario in the case of ELIAS MWAITAMBULA &. 3 OTHERS V. REPUBLIC (supra), whereby a confession by one appellant was admitted at the trial which clearly showed a conflict of interest among the accused persons. In that case the Court held that; "For effective representation o f the accused persons, the trial Judge ought to have adjourned the trial so that each accused person could be assigned a separate counsel to realize the right to effective legal representation." The Court went on to hold at p. 12 of the typed judgment as follows:- "... having admitted the confession o f the first appellant) he [the trial Judge] should have noted that there was conflict o f interest among the accused persons. Therefore, it was not practicable for a ll the accused persons to be effectively represented by one counsel. In such a situation; the best the trial court could have done was to adjourn the trial, so that each accused could get a different counsel to realize their right to effective legal representation." Under the circumstances, the trial court had two options: one, adjourn the matter and order that each appellant be assigned a separate advocate and two, since the trial

was at the advanced stage of defence hearing, seek the indulgence of the Chief Justice by way of reference in order to rectify the anomaly and directions on the way forward. Therefore, in view of what we have endeavoured to discuss, we agree with the learned counsel for either side that the appellant was not fairly tried which occasioned a failure of justice. On the way forward, given the circumstances of this case, an order for the appellants' retrial is the best option. Consequently, we allow the appeal, nullify what transpired before the trial court after the information of murder was filed, quash and set aside the conviction and sentence meted on the appellant. We direct that the information of the charged offence of murder be placed before another Judge for plea taking, preliminary hearing and the trial. The Registrar should assign the required number of advocates besides the advocate who appeared for the appellants in the initial trial. Meanwhile the appellant should remain in custody. It is so ordered. DATED at BUKOBA this 28th day of November, 2024. S. E. A. MUGASHA

JUSTICE OF APPEAL A. S. KHAMIS

JUSTICE OF APPEAL M. K. ISMAIL

JUSTICE OF APPEAL The Judgment delivered this 28th day of November, 2024 in the presence of Mr. Seth Niyikiza, learned counsel holding brief for Mr. Angelo Samwel for the Appellant and Mr. Enosh Gabriel Kigoryo, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original.

INGWELE 0. H. KINGWELE

DEPUTY REGISTRAR

COURT OF APPEAL