suleiman vs advocate general 1995 tzhc 3 8 february 1995

~ \~~'~.' ----,..;.-- I ~-c IN THB HIGH CO~ OF TANZANIA ~S~~ AT DAR ES SALAAM COURT MARTIAL CRIMINAL AnpEAL NO.2 OF 1990 P.2669 MAJ. 8Y SULEIMAN, 'Ii. SULEH1AN ••••••••••••• APPELLAlilT / JUDGE ADVOCATE / GENERAL •• , RESPONDENT TwO preliminary points were taken on 'behalf of the appellant,. and we dismissed the same and reserved the reasons. The first point is about the legality of the 'order which oonvened the trial court, and the seoond is aboijt the eompetence of the Judge-Advocate who oftic1ated at the trial proceedin~s. one Colonel Mkindi. and the part played'oy him, It wae sUbmitted that the Chief of staff who made the , .onve.ni.-n~order did n9t have authority under the law to do so. t., "ind1oate'd. w,e were unable to sustain this sUOmission. Under the prgvis~o~ f'f,~the etatijte which was 01 ted by counsel for the appellant, the power to convene a General court~arti~l 1s Qonferred upon the President, the. Qhief nf Defence l~rces and "any other officer specifica.ly as~igned by the, Defenoe )orces Cemmi ttee". An instrument was produced and displsjeft 'bY cQunseJ.' for 'the respondent whioh explic~tly showed that the Detenee Fg.oee C~mmittee had actllaJ1.¥eXirg:i.sedits d1~oretion by \ appointing the Chief of,stal. as the convener of a~l General oourt~arti~l. It was po~nle~ Qut. ~ :~e. in re~at~on with the second );)Qint.that the Q.:~;e ~., cQJ,one~ Mkind~ was the one whioh initiated the t.1a,. and :i.twas areued that in ~inQiple and ju.st1ge c,lone. M~lac1~ shg~ld not have 'i~ken part "in the d~terminat~Qn at ~ile gase". vie _QQus:1,dertnat there is n~ tactual bae~e tQr thii can"ent~Qn. w~ totally airee that it is nQt t~e d~ty .: a JuOg~dvooate tg partioipate in the determ1natign ot a oaee befQre S~h In Ql,lJ" viptbe QOl4rt. rQle of a Jjog~dI~Qal.1g. broad~. one wb}cn is Qon:1n~1;; t~ eupor1n,endin8 the (t~1a,. a~vis1.ngthe,'Ou':rt on POiP.tS .'. i and F;r-ioe~ure, andae~.lat:l.~ part~ ~o91~9'~" .~ i ! -full 'statement of facts material to their respe8tive cases. It is not his business to participate in the deaision of the case, and, we repeat, there is nothing on the record t6 show or suggest that Colonel Mkindi did so. These were the reasons which led us to overrule the preliminary points. We now turn to consider the main part of the appeal. It is the contention of the appellant that the General Court.Martial - which tried him failed to comply with statutory procedures at the time of his arraignment. In particular, he argued that contrary to laid down procedure, the President of the General Court •.. Martial dL,d not' take the oath as required by Regulation 112 of the Defence Forces Regulations. These Regulations, made under section 66 of the National Defence Act, No.24 of 1967, are read as one with the Code'of Service Discip!tne made under sections 53 and 85 of the said Act. Section C~1'2(1) ef the Code of Servioe Discipline makes it a mandatory condition _ precedent ,;:..-' that: I "C.112(1) At every court-martial an oath ehall be administered to each Of the !o.low1ng per60n~t. (a) the President and other members Of the ogl.lrt.inartial, (b) the Jijdge-Advoeate, (e) eOijrt reporters, ,.' (d) tnterpreters, and {e) witnesses. in the manner and ~n the forma prescribed ~n D@,t'enceForces Regv.lationa". Regulation 112.05 ma~es provision for a mandatery pr~cedur€ which m~st be followed before the oaths are administered -in the prescribed form, When the oourt has been opened and all have taken their pla;es. the convening order. ipe.Uding the names of the gfticers appo1nted to try the aooused. mUlt be read ~n the hear1ng of the agOl.lsed,.The aco~~ied. or eaoh ,,1 them se,perate: Mijet be given an opportunity to objeot to any 8! those otfioers 'by being asked wl1ether he doee so objeot, The O'bJeg1;ionswill have to be determined in advance at any other etep in the , , proQeed1ngs, Then every member of the Qour~artial and every persQn in atte.ndancteon a oouryartial as JUdge~dvocate ,\the President and each officer who~is named~in seotign C.'~2(1) of •• , j thG Code of Service D~.sciDlin8, must take an ooth if they are C~ristians or be affirmed if they are Moslene. The oath shall bp in the prescribed form as provide~ for in Regulations 112~05. OJ~ ei~mination of page 2 of the record of proceedings before the General Court-Martial shows that after the court c-ad assemhled and objections . from . the appellant having been overruled, the President sw~re all members of the court and the Judge Advocate. The Judge-·Advocate swore the court reporter. The record of the proceedings does not. show that the Pre.si.den,t was himself sworn by the JUdge·-Advocate, or by ans ~ther member of the General Court-Martial. Ms. KiwanC8, learned S+.ate Attorney, concedes that the General Court-Martial included the President. It is her view that although page 2 of ~he ~ecord of proceedings does not show that he was sworn, he was in fact sworn and that the ommiss1gn i~ probably a clerical error. That is fin. attractive point. We are~ however, after a careful scrutiny of the reoord, not persuaded that that was a clerical omission. We are satisfied that the exclusion of the President of the Court from those whO took the oath portrays the true position of what happened. We would thus call in aid the maxim that LtfreRli.2., j,.nJ-~ perezgae vel rei, ttst e3ilq10. af tJrio•• eu u:. We oonsider that the oath to be taken by the President of a General Cgijrt.Martial is a necessary·re~~qij1s~te to the j~isd~otion of that court. It w1l. theretgre aot without jijr1sdiotion. as it is the oase oefore ~. where it fails to ( eomplY with :Qrma~t~es which are o~nd1t1ona preOedent to the 88mmenQement o! a tria.. .n these c1rQumstances we hold that the Genera. Cour~artia. aated w1ihQut Jur1ijd1ct1on. consequently the pr()Qeeditn8~oefQre it ,have beefl rendered a nullity: ism'o td v F re n a ensatt n C~mmis . n and An the, ~96!, 2 WLR'~ wh~ 'wa c1i~ w;l.thapprQ'Va Q.y the C~urt ef APpea~ ~. Tanzan~a ~ Mana eme»t ! H e r1cana ~ Jumui- ole Jl~*~lllak:i1~. (i~T~. C~,iAppea. No.'O of 196 • In the result we declare the proceedings a nullity. There will be no retrial, inasuch as the appellant has fully served the senfence passed by the Court-Martial. D.P. MAPIGANO JUDGE L.A. KYANDO JUDGE J .M. 11ACKANJA . JUDGE 8/2/95 Coram: Mapiganc, J. Appellant in person Mr. Naali for the Respondent. ~.urt: JUdgment delivered. D.P. MAPIGANO JUDGE 8.2.1995 IflertifY that this is a true cop'y<r·~f the original.