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IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO CRIMINAL APPEAL NO. 24925 OF 2024 (Arising from the decision of District Court of Morogoro in Criminal Case No.150 of 2023 by Hon. Kasele, PRM) SHAIBU AHMAD NG’ITU …………………….……………… APPELLANT VERSUS REPUBLIC………………………….………….………………. RESPONDENT JUDGEMENT 04th of December, 2024 MANSOOR, J. The appellant, Shaibu Ahmad @Ng’itu was charged and convicted by the District Court of Morogoro, at Morogoro with the offence of unnatural offence contrary to section 154(1)(a) of the Penal Code (Cap.16. R.E. 2022). It was alleged by the prosecution that the appellant had carnal knowledge of AB (whose identity is withheld) a fifteen years’ old boy on the 11 st day of December 2022 at Madizini Area, Kilakara Ward in Morogoro District within Morogoro Region. He was convicted and sentenced to serve life imprisonment. Aggrieved by the decision of the District Court of Page 1 of 14 Morogoro, at Morogoro herein "the trial court", the appellant filed his petition of appeal armed with four (04) grounds of appeal as reproduced hereunder; 1. That the learned trial magistrate erred in law and fact for failure to observe basic principles of law which the interpreter should adhere during interpretation. 2. That, the learned trial magistrate erred in law and fact by relying on Exhibit P-3(PF3) which was prepared by unqualified personnel and hence did not reflect sufficient evidence to rely upon. 3. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant based on prosecution evidence which was not proved beyond reasonable doubt. 4. That, the learned trial magistrate erred both in law and in fact to convict and sentence the appellant based on the evidence of PW2. During the hearing, the appellant appeared personally and represented by Mr. Mwansoho G. Gabriel, the learned counsel Page 2 of 14 while Josbert Kitale, the learned State Attorney entered appearance for the respondent. The counsel for the appellant began his submission by requesting the court to argue the second and fourth grounds of appeal jointly while dropping the third ground, and addressing the first ground separately. Regarding the first ground of appeal, he argued that the trial magistrate failed to observe the laws concerning the interpretation of language by the interpreter. He submitted that the victim was a dumb person and there are specific procedures for recording the evidence of a dumb person. He cited section 128(1) of the Evidence Act [Cap 6 R.E 2019] and referred the court to page 9 of the trial court proceedings where Aisha Alida from CHAMVITA was the interpreter. He argued that the interpreter was not sworn in or affirmed, as required by section 4 of the Oath and Statutory Declaration Act [Cap 34 R.E 2019], which led to failure of justice during the trial. For the second and fourth grounds of appeal, the learned counsel argued that the trial court's proceedings and judgment did not Page 3 of 14 adequately consider various factors in the evidence. He pointed out discrepancies in the evidence provided by PW1 and PW2, who testified seeing mucus/sperm on the victim's pants on 14/12/2022, while PW4, the doctor, did not confirm this. He also highlighted that there was no explanation for the period between 11/12/2022, the date of the alleged incidence and 15/12/2022, the date of the victim’s medical examination. The learned counsel questioned why a doctor from Tungi Dispensary examined the victim at Jordan University Dispensary, a private institution, instead of a nearby government hospital. He prayed that the conviction and sentence be quashed and the appellant be set free. In response, Mr. Kitale conceded to the first ground of appeal, acknowledging that the victim was dumb and deaf and that an interpreter was used without proper procedure. He admitted that this led to a lack of a fair trial, as required by Article 13(6)(a) of the Constitution of the United Republic of Tanzania. He cited various legal provisions and case law to support his argument Page 4 of 14 that the interpreter's services were improperly handled and that the evidence of PW3 should be struck out. The state attorney argued that the remaining evidence warranted a retrial. He submitted that there is no law restricting which hospital a person can go to or prohibiting a public hospital doctor from working in a private hospital. He emphasized that issues of credibility should have been addressed during cross-examination at the trial. Regarding the analysis of evidence, the state attorney argued that there was a proper analysis and that if the court found otherwise, it could re-evaluate the evidence. He cited relevant case laws to support this argument. On the discrepancies in dates, the state attorney explained that the incident was discovered on 14/12/2022, after it occurred on 11/12/2022, and the doctor’s examination on 15/12/2022 could not conclusively find sperm in the victim's private parts. He insisted that the case was proven to the required standard but due to procedural irregularities, a retrial should be ordered. Page 5 of 14 In his brief rejoinder, Mr. Mwansoho reiterated that the doctor should have reported finding sperm in the victim’s pants belonging to the appellant. He maintained that the remaining evidence was insufficient to convict the appellant if the evidence of PW3 was expunged. He reiterated his prayer for the appellant to be set free. After considering the parties’ submissions and re-visited the trial court proceedings, the question that exercised my mind was as to whether the instant appeal has merits. Starting with the first ground as to whether there was a violation of principles on appointment of the interpreter. The learned counsels were at one that the procedures for appointment of interpreter was not followed. The interpreter was not sworn. The interpreter was not hired by the judiciary, but brought in court by the State Attorney. That the proceedings are silent whether the state attorney had prayed before the court for services of an interpreter. The court did not examine the interpreter whether he had conflicts with the appellant or has an interest in the case. The Page 6 of 14 appellant also was not asked whether he objects the presence of that particular interpreter. In this regard, I need to do no more than reiterate the statement of principle as accurately laid down in the case of Kigundu Francis & Another vs Republic (Criminal Appeal 314 of 201) [2011] TZCA 71 (28 November 2011) in which the Court imposed the duty for appointment of the interpreter be done by the court and insisted on the requirement for the interpreter to be sworn in before embarking on any interpretation. The Court held that; “In Tanzania, by statute, the courts that are entrusted with the duty of administering justice and ensure fair trials, can only use two languages; Swahili and English. But that does not mean that people who do not know or understand the two languages cannot get fair trials. They can, because, under section 211 of the Criminal Procedure Act the court may, in such situations, arrange for some interpreter to translate the proceedings or evidence for the accused person or from witnesses who do not understand the language of the Page 7 of 14 court. However, under section 4 (b) of the Oaths and Statutory Declarations Act (Cap 34 RE 2002) such interpreters must take judicial oaths prescribed under the Act before embarking on any interpretation” In view of the above authority, an interpreter must be appointed by the court to ensure that all parties understand the proceedings and that justice is served fairly. Section 211 of the Criminal Procedure Act makes it mandatory for the court to arrange for provision of an interpreter to an accused person or a witness who does not understand the language of the court once it ascertains that there is indeed such need. That was the procedure taken by the Court of Appeal in the case of Maganzo Zelamoshi @ Nyanzomola vs Republic (Criminal Appeal No 355 of 2016) [2018] TZCA 543 (7 September 2018) as observed hereunder; “From the very outset, it came to our attention that in both courts below the appellant communicated through an interpreter due to a language inability. Thus, we appointed a court interpreter, namely, Mary Mhozya who was sworn and instructed to facilitate the Page 8 of 14 communication with the appellant, that is, from Kiswahili into Kisukuma and vice versa” It is also crucial that interpreters must take judicial oaths before embarking on any interpretation under section 4 (b) of the Oaths and Statutory Declarations Act (Cap 34 RE 2002). The provision provides as follows; 4. “Subject to any provision to the contrary contained in any written law, an oath shall be made by- (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; (b) any person acting as interpreter of questions put to and evidence given by a person being examined by or giving evidence before a court”. The procedures for appointment of the interpreter also has to be clearly depicted in the court proceedings. This is based on a settled position of the law that everything that transpires in the proceedings of the trial court must be on record so as to enable an appellate court to decide fairly any issue brought before it challenging the conduct of the trial. [See the case of Misango Page 9 of 14 Shantiel vs Republic (Criminal Appeal 250 of 2007) [2012] TZCA 218 (30 May 2012) at page 9]. Also before being sworn and commence the interpretation, the scope of the same must be well established, that is from which to what language the interpretation will be done [See also the case of Bashirakandi Emmanuel vs Republic (Criminal Appeal No.167 of 2022) [2023] TZCA 17309 (5 June 2023). Now looking at the trial court proceedings, I join hands with both learned counsels that the interpreter was not hired by the court but brought into court by the state attorney, she was not sworn, the trial records are silent as to how the interpreter came to be appointed and how he was conducting the interpretation. It is indeed certain that the trial court failed to observe the basic principles of law in admitting the interpreter into court. From the above observation, it cannot be said that the accused person was accorded the service of an interpreter, the omission that in my considered mind occasioned a miscarriage of justice as the appellant was not accorded a fair trial which is a fundamental Page 10 of 14 right under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania which provides that; "13 (6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles namely; (a) When the rights and duties of any person are being determined by the court or any other agency that person shall be entitled to a fair hearing and to the right of appeal or other namely against any decision of the court or of any other agency concerned.” As to the fate of the proceedings in violation of section 211(1) of the Criminal Procedure Act, the answer is definitely the nullification of the whole proceedings and judgement or expungement of the relevant evidence. In holding as such I have borrowed a leaf of wisdom from the case of Kalyehu Kadama @ Madaha & Another vs Republic (Criminal Appeal No. 403 of Page 11 of 14 2021) [2023] TZCA 17670 (29 September 2023) categorically stated that; “It is now settled that omission to provide an interpreter when one needed is fatal irregularity which goes to the root of fair hearing. Similar consequences attach to failure to administer an oath to an interpreter before he assumes his responsibility. The omission may vitiate the entire proceedings or lead to expungement of the relevant evidence depending on the circumstances of each case” In the present case, since PW3's evidence was interpreted by an interpreter arranged by the prosecution, the court completely failed to provide an interpreter. This failure undermined the fairness of the hearing, as it cannot be assured that the appellant received an impartial interpretation when the pre-arranged interpreter translated PW3's evidence. Consequently, this omission denied the appellant a fair hearing, especially given the seriousness of the charges he was facing. This omission constitutes a significant irregularity that undermines the Page 12 of 14 credibility of PW3's evidence. I concur with the stance of the learned counsel for the appellant, and therefore, I will expunge the evidence of PW3 from the record accordingly. Having expunged the evidence of PW3, the prosecution case against the appellant is left with no cogent evidence upon which the conviction for the offence of unnatural offence could be credibly predicated. I say so because apart from the evidence of PW1 and PW2 that they saw mucus or sperm on the victim's pants on 14/12/2022, none of them testified to have witnessed the appellant sodomizing the victim. They merely suspect the appellant because he spent a significant amount of time with the victim at his salon. PW4, the doctor only confirmed penetration of the victim’s anus but that not the appellant was the one responsible for the same. With the remaining evidence, it is clear that the prosecution has not provided convincing evidence to conclusively identify the appellant as the person who sodomized the victim. It is in the circumstances academic exercise to consider the rest of the grounds of appeal. Page 13 of 14 In the event, I allow the appeal. I quash the conviction and set aside the sentence imposed by the District Court of Morogoro in Criminal Case 150 of 2023 to the appellant. I therefore order immediate release of the appellant from custody unless he is lawfully held. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 04th DAY OF DECEMBER 2024. L.MANSOOR JUDGE 04/12/2024 Page 14 of 14