republic vs ally omary chitekete 2023 tzhc 21151 22 september 2023

THE UNITED REPUBLIC OF TANZANIA.

JUDICIARY IN THE HIGH COURT pF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CRIMINAL SESSION CASE NO 51 OF 2020 (P. I. Case No 5 of 2019 in the District Court of Ruangwa at Ruangwa) THE REPUBLIC.............. ........................ ............ ..PROSECUTION

VERSUS ALLY OMARY CHITEKETE ....... ........ACCUSED

JUDGMENT 13'- & 22' September 2023 LALTAIKA, J. Life is full of misfortunes, calamities, and adversities. When such hardships happen whether through outright bad luck or with our contribution, however slight, how we react to the eventuality makes a huge difference. Some people are gifted with serenity to face life difficulties; bear the responsibility arising therefrom and bounce back to normalcy. Such a comeback often has the added advantage of more wisdom, experience, and a bigger heart. Sayi ng that these people are rare would he nothing but an exercise in stating the obvious. Most people, or so it seems, lack this inner strength, and opt to live in perpetual denial. Unfortunately, just as running away from a problem Page: 1 of 13 is not a way to solve it, outright denial does not relieve one from criminal liability. Sometimes it exasperates the situation. The matter at hand, involving a 25-year-oid (by then) father who allegedly murdered his own nine months daughter, cold-bloodedly I would: say, is a living reminder of this time-tested wisdom of courageously facing life adversities. That courage to face consequences would have enabled justice to take its own course with lesser hurdles. The next part of this judgement will expound. The accused person herein ALLY OMARI CHITEKETE, stands charged with murder contrary to section 196 and 198 of the Penal Code Cap 16 R.E2 2019.

The information on a charge of murder filed in this court against the accused is to the effect that on 31/7/2019 at Chienjere Village, the accused murdered Mariamu Ally Omary. Before he was arrested in connection with these proceedings way back in July 2019, the accused was a 25-years old peasant, and resident of Chienjere Village in Ruangwa District, Lindi. He was also a father to a nine-month girlchild (now the deceased) Mariamu Ally Omary. The factual backdrop necessary to appreciate the story is that the accused was a lover to the mother of the deceased one Salome Max. The two were cohabiting but living at Salome's place. They were blessed with one issue, the deceased. The accused had never been to school and his lover, Salome, born in the year 2000, made it to Standard Two and Chienjere Primary School, Ruangwa. On the fateful day, the accused was at his lover's place with other members of the family. Dinner was prepared but the accused refused to take part. After dinner Salome and children of her uncle called Parick namely Stamili and Asina left their homeplace to Salome's father's Page 2 of 13 place. The deceased Mariamu was being carried on the back by her mother. As Salome and her company reached Chienjere Primary School, they heard someone calling: out "Salome! Salome!They turned back and saw the accused. The accused signaled to his lover to come closer so he

could tell her something, Salome obeyed. No sooner had the accused got hold of his lover and the infant than fatal attacks started. The accused proceeded to assault the 9-month baby girl who fell from her mother's back. The accused then took out a knife he had hid in his trousers and stabbed the infant on her ribs fatally. Asina and Patrick run away leaving Salome and her infant crying bitterly for help. The child was bleeding profusely. As some villagers responded to Salome's alarm "yowe" and came to their rescue, the accused took to his heels. The poor Mariam, badly injured with a knife was rushed to Chienjere Dispensary and later transferred to Ruangwa District Hospital, Three days later she passed away. The body of the deceased was examined by one Dr. Ezekia Jason Ambikile and he stated in the autopsy report that the cause of death was massive blood loss. The accused was later arrested, taken to Ruangwa Police Station where he was interrogated by one G4564 DC Evance and confessed having killed the infant. On 9/3/2021 when the accused was arraigned in court for plea taking and preliminary hearing, he displayed inability, to appreciate proceedings. Consequently, Ngwemhe J (as then he was) ordered, as required by law, that the accused to be committed to Isanga Mental institution, a part of M.irembe National Mental Hospital, for examination of his state of mind during

commission of the alleged offence. On Page 3of 13 the report from Isanga was received by this court. It indicated that the accused was SANE during the commission of the offence. On 15/3/2022 the matter came before me at the then newly inaugurated Ruangwa High Court Center. Contrary to expectations, the accused seemed out of touch. It was clear that although he was there for plea faking, an exercise that would have lasted for only a few minutes, he was mentally unsettled. Given the expert opinion already in the court file indicating that he was SANE during commission of the offence, I ordered that the accused be provided with Psychosocial Support Seivices (PSSS) in the form of professional counseling to enable him to gather courage to face the consequences of his alleged actions. Unfortunately, more than one year later, no action was taken to implement the order. When the accused appeared before me for hearing of the matter on 24th of Moy 2023, the learned State Attorney Ms. Mwanaamina Kombakono (Senior State Attorney, SSA) prayed for extension of time and an elaborate order expounding on expectations of the court. The prayer was granted, and I penned down the order that was eventually taken to the Regional Medical Officer in Charge, Mtwara Regional Referral Hospital. As will be expounded later, the order was professionally and diligently worked upon. For avoidance of doubt, I

am inclined to expound on the concept of psychosocial support (PSS) and the rationale thereof. The IMational Guidelines for .the: Provision of Psychosocial Care and Support: Services {'NGPPCSS) issued by the Ministry of Health, Community Development, Gender, Elderly and Children (MoHCDEC) in December 2020 defines psychosocial support as: "...a continuum of services and facilities that address soda! emotional and psychological Page 4 of 13 problems in prder to safeguard the wehbeing of individuals, their families and communities." According to Dr. John K. Jingo, Permanent Secretary MoHCDEC (as he then was) the aim of the above guidelines is "to help individuals and families cope and overcome life adversities/' The Guidelines specifically mention "people in prison" as intended beneficiaries of the services (see p. iv Foreword). The Guidelines provide as follows oh provision of PSS services at regional level: '■Since the social welfare services are part of the health systems, the Regional Health Management Team (RHMT) is responsible for coordination and supervision of PSS services in the region: " (NGPPCSS p.

22) As alluded to above, the Regional Medical Officer (RMO) Mtwara Regional Referral Hospital and his team deserve commendation for acting professionally and with uttermost expertise on the order as reflected in the detailed reports issued. For respect of data privacy and medical ethics, I will not disclose the meticulous observations contained in the reports. Suffices it to say that despite the efforts, the accused ALLY OMARY CHITEKETE remains in his denial state. I have no other choice but to proceed with what the law requires as elaborated in the remaining part of this judgement. At this juncture, before going into the relevant legal provisions, I would like to register my appreciation to Ms. Kombakono the learned Senior State Attorney and Head of the National Prosecution Services (NPS), Ruangwa District, for her unmatched willingness to learn and explore new grounds to improve her work. Having successfully prayed for this court to extend the time for implementation of its order, Ms. Kombakono took the trouble to read and understand the NGPPCSS and carefully engage the relevant stakeholders. The advent of the Presidential Report on Improving the Criminal Justice System (also known as Justice Page 5 of 13 Chande Report) 2023 requires civil servants with an open and positive mindset like Ms. Kombakono. The Criminal Procedure Act Cap 20 RE 2022 provides as follows: D. -

Procedure in Case of the Insanity or Incapacity of an Accused Person 216, -(1) When in the course ofa trial the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence it shall, before inquiring into the fact of such unsoundness of mind and notwithstanding the fact that the accused may not ha ve pleaded to the charge, call on the prosecution to give or adduce evidence in support of the charge, (2) If at the dose ofthe evidence in support of the charge it appears to the court that a case is not made out against the accused person the court shall dismiss the charge and acquit the accused person and may then proceed to deal with him under the Mental Diseases Act. (3) If at the dose of the evidence in support of the charge it appears to the court that a case has been made out against the accused person, it shall then proceed to inquire into the fact of the unsoundness of mind of the accused and, for this purpose, may order him to be detained in a mental hospital for medical examination or, in case where bail may be granted, may admit him 'to bail on sufficient security as to his personal safety and that of the public and on condition that he submits himself to medical examination or observation by a medical officer as maybe directed by the court. (4) The medical officer in charge of the mental hospital in which an accused

person has been ordered to be detained or a medical officer to whom he has been ordered to submit himself for mental examination or observation pursuant to subsection (3) shall, within forty-two days of such detention or submission, prepare and transmit to the court ordering the detention or submission, a written report on the mental condition of the accused stating whether in his opinion the accused is of unsound mind and consequently incapable of making his defence. (5) On the receipt by the court of the written report provided for by subsection (41 it shall resume its inquiry into the question of the unsoundness of mind of the accused and may admit as evidence for this purpose any such written report purporting to be signed by the medical Page 6 of 13 officer who prepared if unless it is proved that the medical officer purporting to sign it in fact did not sign it. (6) Where the court having considered any written report admitted in e vidence under subsection (5) and any other evidence that may be available to it regarding the state ofmind of the accused is ofthe opinion that the accused is of unsound mind and consequently incapable of making his defence it shallrecord a finding to that effect postpone further proceedings in the case, order the accused, to be detained as a mentally disordered offender in a mental hospital or other suitable place of custody until released

or Otherwise dealt with in the manner provided for in sections 217 or 218. It is worth emphasizing that before Tanzania joined the rest of the international community in promoting psychosocial care and support, there were no fewer or no other options. The practice allowed a judge to commit an accused for mental examination in Isanga at least twice. The first time being for examination on the accused's state of mind "during commission of the alleged offence" as his Lordship Ngwembe 1 correctly did for the accused herein. The second time (that could easily increase to a third and fourth time with a new judge taking over proceedings) would be for the accused who had been found SANE in the first instance, to be examined as to whether he was "sane enough" to make his defence. With due respect, I find that practice no longer viable and completely unnecessary. I will give three reasons. First, insanity is a legal and not a medical concept. If a Judge is convinced that an accused person in his court to make his defence is in insane and incapable of making such a defence, he most likely is indeed insane. To borrow the words of Justice Steward "I know when I see it." This is even so where such a finding of the bench meets concurrence of the bar (as it often does). Professor Karpman stated as follows way back in 1.949; Page7of 13 "It must be first dearly understood that insanity is

entirety a legal term comprising behavior that is grossly and obviously abnormal; hence, a mental defective without any evidence of psychotic manifestations is legally insane, since he cannot choose, because he does not understand the difference between right and wrong; while a very intelligent and dear paranoiac, obviously psychotic from a psychiatric point of view, is often freed by the judge and jury as not insane," See Benjamin Karpman "Criminality, Insanity and the Law" Journal of Criminal Law and Criminology, Vol. 39 Issue 5, 1945 p. 1 As alluded to above, if counsel for both parties agree with the judge that the conduct of the accused is abnormal why send such an accused back to the same mental institution that had hitherto ruled out that he was sane? There is no, yet a universally accepted definition of insanity. Lord Blackburn when giving evidence before the select Committee of the House of Commons in 1910 famously stated: '7 have read every definition [of insanity] which I could meet with and never was satisfied with one of them, and I have endeavoured in vain to make one satisfactory to myself. I verily believe that it is not in human power to do it." [Quoted in Milton Green "Public Policies Underlying the Law of Mental Incbmpetpnce." 38 Mich. L. Rev. 1189 fl940). The second reason is that the drafters of the Criminal Procedure Code were generous enough to allow the

court to interpret the sections on insanity or incapacity of 'an Accused Person liberally and progressively. Waiting until such time when the legislator specifically mentions The National Guidelines for the Provision of Psychosocial Care and Support Services (NGPPCSS) would be playing common law judging too passively much to the detriment of judges' contribution to the growth Of law> The immortal words of Lord Denning U, in Seaford Court Estates Vs. Asher, (1949) 2 K.B. 481 (498) may serve as a timely reminder of the role of a judge: Page 8of 13 "It would certainly serve the judge's trouble if Acts of Parliament were drafted with divine prescience andperfect clarity. In the absence ofit, when a defect appears, a judge Cannot simply fold his. hands and blame the draftsman: He must set to work on the constructive task of finding the intention of Parliament..." I have no doubt that the intention of Parliament was to facilitate the acquisition of an expert opinion on the state of mind of a given accused. It would be totally absurd to make an order to send an accused person to Dodoma, 668 kilometers away for an opinion that can be obtained at the Regional Referral Hospital (passionately referred to by the locals, often with shining eyes as Hospital! ya Ligufa} 5. kilometers from this Court's building. The difficulties associated with a trip to Dodoma with an accused person often in

handcuffed are unimaginable not to mention the cost implications. More importantly and I emphasize here or else one confuses this discussion with the requirement for mental health examinations to find out the state of mind of the accused during commission of the offence, insanity that makes an accused incapable of making his defence is, in my opinion, a factual matter. As alluded to above, insanity is squarely a legal as opposed to medical concept. A careful examination of the demeanour of an accused, in my opinion, should be enough to get the wheels of justice moving. Justice delayed is, indeed, justice denied. The third reason is that outside legal circles, a distinction between mental and psychological conditions is often made. While mental health experts and practitioners are medics, psychosocial support providers are often, psychologists and sociologists with a background in social sciences and humanities. The latter assist the former in moving beyond hard sciences to offer counselling services that enable one to reconnect with Page 9 of 13 their urgency and take actions to mitigate adverse impacts of their actions. With a disclaimer not to expect too much from the exercise, committing an accused faced with murder (especially domestic violence related homicide as opposed to more intentional and direct ''vengeful" homicide) for PSSS can be viewed as ah exercise in

therapeutic jurisprudence. The International Society for Therapeutic Jurisprudence provides as follows in their informative website https corn/ "Therapeutic Jurisprudence (TJ) is an interdisciplinary field of philosophy and practice that examines the therapeutic and anti- therapeutic properties of laws and public policies, legal and dispute resolution systems, and legal institutions. TJ values psychologically heaithv outcomes in legal disputes and transactions, without claiming exclusivity in terms ofpolicy objectives," See also Wexler, David B. (2014) "Two Decades of Therapeutic Jurisprudence" Touro Law Review.. Vol. 24: No. 1, Article 4. Available at: https://digH:alC0iTimons.toiMtotewtodu/fawreview/vo124/i3si/!4 Coming back to the matter at hand, the learned Senior State Attorney had drawn the attention of this court to the conduct of the accused during proceedings. For example, when he was offered a chair, he chose to seat on the floor as an attempt to hide himself in the witness box. The learned defence counsel Mr. Ngongi, on his part, had continuously lamented on how difficult it was to conduct a meaningful discussion with the client. This court also observed the demeanour of the accused. In addition to the report from Ligula Regional Referral Hospital I hereby make a finding that the accused person is insane and incapable of making his defence. Page 10 of 13 A word or

two is necessary as I get ready to wind up, on the implications of a court order on section 216(6). Once again, for ease of reference, here is the subsection. (6) Where the courthaving considered any written report admitted in e vidence under subsection (5) and any other evidence that may be available to it regarding the state of mind of the accused is of the opinion that the accused is of unSound mind and consequently incapable of making his defence it shall record a finding to that effect postpone furtherproceedings in the case, order the accused to be detained as a criminal lunatic in a mental hospital or other suitable place of custody until released or otherwise dealt with in the manner provided for in sections 217 or 218. [emphasis added.] The word "postpone/' as used in section 216(6) also deserves a brief commentary. In its ordinary meaning means "to delay an event or arrange for it to take place at a later time." [See the Cambridge Dictionary (Online]. In the above section it is not used in that ordinary sense. The legal word for that purpose it to adjourn. When legislators use the word postpone "kuahirisha" they do not always mean that the meeting has been temporarily delayed. Most of the time this means that meeting has come to an end but another one may be convened related to .the same contihuum. The law and practice related to sentencing of mentally

disordered offenders is to the effect that after sentencing an offender, the matter is not adjourned but postponed. This is because, although this court is done with its duty of dispensing justice, the Director of Public Prosecutions can at a later stage, should it come to his knowledge that the accused person has "come back to his senses" and can make his defence, kickstart proceedings on the same facts against the offender. If that is done, the Page 11 of 13 matter is tried de-novo. The CPA does nor set deadlines for such a decision of the DPP to take effect. The above "open ended" approach to prosecution while the accused is committed to a mental institution as a criminal lunatic serve one important public interest: although it is vital to consider mental incapacity of an accused, "...it is also in the interests of the state that crimes do not go unpunished." (See Court of Appeal of Tanzania with Massati J.A. (as he then was) as its mouthpiece in MARKO PATRICK NZUMILAI & Another v. THE REPUBLIC CRIMINAL APPEAL NO. 141 OF 2010, CAT Mbeya (Unreported). All said and done, I order that ALLY OMARY CHITEKETE be detained as a mentally disordered offender at Isanga Institution until released or otherwise dealt with in the manner provided for in sections 217 or 218 of the Criminal Procedure Act. I order further that the proceedings herein be submitted to the Minister forthwith for relevant legal and administrative procedures. It is,so.ordered. . / Judgement delivered this 22nd day of September 2023 in the presence of Mr. Wil broad Nd unguru Principal State Attorney, Mr. Justus Zegge, State Attorney, Mr. Issa Chiputula learned Defence Counsel and the Offender Page 12 of 13 Court The right to appeal to the Court of Appeal of I anzania fully explained. Page 13 of 13