Kalyehu Kadama @ Madaha & Another vs Republic (Criminal Appeal No. 403 of 2021) [2023] TZCA 17670 (29 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA CRIMINAL APPEAL NO. 403 OF 2021 rCO RAM: MKUYE, J.A.. GALEBA, 3.A., And MASOUD, 3.A/1 KALYEHU KADAMA @ MADAHA................ ..... ............. ..... . 1st APPELLANT JOSEPH JISHOSHA @ MADAHA ........... ............................... . 2 nd APPELLANT VERSUS THE REPUBLIC . ........... . ..............................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Khamis, 3.1 Dated the 2n d day of July, 2021 in Criminal Sessions No. 87 of 2019 JUDGMENT OF THE COURT ISP* & 29h September, 2023 MASOUD, 3A.: There was, on the fateful night of 8th August, 2017 at around 23:00 hours, a brutal killing of one, Kabula d/o Zakaria. She was one of two wives of one, Maganga Masanja of Bugingija Village within Igunga District in Tabora Region. The killing took place at the residence of Maganga Masanja when the former was allegedly attacked and beaten up by assailants who also killed the deceased.

Investigation which ensued led to the arrest of the appellants on suspicion of killing the deceased. They were both charged with and ultimately convicted of the offence of murder contrary to section 196 of the Penal Code [Cap. 16 R.E 2002 now R.E 2022] and were sentenced to death. The context of the allegation against the appellants was that Maganga Masanja on the fateful night arrived home with the deceased from Bugingija village centre. They kept outside drinking alcohol that they brought from the centre where they spent their day celebrating Nanenane day. On their way back from the centre, they met one, Monji Busagala. He stopped the deceased and remained with her in private along the roadside talking as the deceased's husband was on his way coming behind them. Upon seeing Maganga Masanja who was hurriedly approaching them, Monji Busagala broke out. Irritated by seeing Monji Busalaga with her deceased wife in private, Maganga Masanja ran after Monji, got hold of him and a spontaneous fight ensued. Subsequent to such fight, Maganga Masanja left for his place with the deceased, leaving behind the other wife at his parents' place. After a while, the two appellants and Monji Busalaga 2

invaded Maganga Masanja's place at around 23:00 hours, caned him so much so that he became unconscious, and eventually killed the deceased. In a bid to prove the allegation against the appellant, the prosecution led evidence from three witnesses. The witnesses were PW1 Inspector Magengeli Paulo Ntinginya, PW2 Dr. Godfrey Bwire Augustino, and PW3 Sesiiia Kipanga, a 14-year-old daughter of Maganga Masanja and the deceased. A post mortem report of the deceased body (Exhibit PI) was also tendered in court. On the other hand, the substance of the defence evidence was only from the sworn testimony of the appellants. Of all witnesses of the prosecution, the testimony of PW3, a supposedly eyewitness, who was just 10 years old when the incident occurred, is critical to the prosecution case. She testified through an interpreter, one, Baziiio Lazaro Balola, from Kisukuma to Kiswahili and vice versa. The interpreter was unilaterally pre-arranged by the prosecution. PW3's evidence was of a visual identification. She claimed to have recognised the appellants at night while inside her room having peeped through a window of the room. With the aid of an outdoor powerful solar light, she saw what they did behind and inside the house which was allegedly about five paces away from the house where she was inside

peeping through the window. She claimed to have heard everything the appellants' said and planned. She claimed to have reported the incident to her grandfather (Masali Mwanahindi) and the Hamlet Chairman after the assailants had left. She also claimed to have informed the police afterwards. However, neither her grandfather nor the Hamlet Chairman testified at the trial. Besides the evidence of PW3, there is the evidence of PW1, a police officer, whose evidence is merely hearsay. He claimed to have been told by Maganga Masanja, and the Chairman of Bugingija Hamlet, about the incident and the appellants as the assailants and not by PW3. Those who told him about the incident did not however testify at the trial. The other evidence was that of the medical doctor (PW2) who examined the body of the deceased and tendered Exhibit Pi. On their part, the appellants testified against the charge. They came up with a plausible story exonerating them from the charge. The story traced its root from the fight that Maganga Masanja had with Monji Busalaga, and the first appellant's endeavour to inquire from Maganga Masanja as to why he beat up his young brother (Monji Busalaga) for no apparent reason.

In convicting the appellants, the trial court relied on the evidence of PW1 and PW3 as to the identification of the appellants. The trial court was also satisfied that such evidence was corroborated by the evidence of the appellants who admitted to have been at the residence of Maganga Masanja on the fateful night. Appealing against their conviction and sentences, each of the appellants who were represented by Mr. Saikon Justin Nokoren, [earned advocate, raised five grounds of appeal in their respective memoranda of appeal. The grounds were, subsequently, supplemented by another ground of appeal by Mr. Nokoren at the hearing, with the leave of the Court. Ms. Lucy Enock Kyusa, learned State Attorney, who represented the respondent Republic did not support the appeal. All grounds of appeal when looked at as whole revolved on the issues about, firstly, right to fair hearing in relation to interpretation of the evidence of PW3 by an interpreter who was pre-arranged by only the prosecution side; secondly, visual identification of the appellants; thirdly, discrepancies in the prosecution evidence; and fourthly, failure by the prosecution to prove the charge beyond reasonable doubt. In our scrutiny of the rival submissions by the learned counsel, we were satisfied that as

the first issue was the most compelling, the appeal can be disposed of only on the very issue. Addressing us on the first issue, Mr. Nokoren submitted that the interpreter who interpreted the evidence of PW3, a 14-year-old girl who was just 10 years old when the incident occurred, was pre-arranged by the prosecution. He was, therefore, a prosecution witness in disguise, which has as a result denied the appellants a fair hearing. In relation to his submission, Mr. Nokoren referred us to page 112 of the record of appeal where Ms. Jane Mandago, who was a learned State Attorney, informed the trial court that the prosecution had arranged for one, Bazilo Lazaro Balola, to serve as an interpreter, since the witness (PW3) could only testify in Kisukuma. According to Mr. Nokoren, once such revelation was made to the trial court, the prosecution pre-arranged interpreter was there and then sworn in as an interpreter as is evident at page 113 of the record of appeal. As the court did not inquire anything about the said interpreter, it was not clear; firstly, where such interpreter came from apart from being brought by the prosecution, secondly, whether he was not conflicted in any way, 6

and thirdly, whether he was qualified and competent enough to properly and fairly discharge his interpretation duties as a court interpreter. As if the foregoing was not enough, Mr. Nokoren insisted in his submission that the record is equally clear that the appellants were neither required by the trial court to comment on the pre-arranged interpreter serving as such, nor were they given opportunity to say whether they object against the pre-arranged interpreter interpreting the evidence of PW3. Because of such omission, the learned advocate reiterated his argument that it cannot be ruled out that the purported interpreter was a prosecution witness in disguise and was not impartial in his interpretation. In his further submission, he argued that section 211 of the Criminal Procedure Act, [Cap. 20 R.E 2022] (CPA) only provides guidance for interpretation of evidence of an accused person who does not understand the language of the court. We were thus asked by the learned advocate to draw inspiration from other jurisdictions, in which one must be proved to be neutral, impartial and not conflicted before he is appointed, sworn in and assumes the responsibility as a court interpreter. We were in this regard referred to the State of New York Unified Court System's Canons of Professional Responsibility for Court Interpreters

http://ww2.nycourts.gov/sites/default/files/document/files/2018- 05/CourtInterpreterManuaLl.pd (accessed on 17/09/2023) in support of the learned advocate's submission. Our close attention was drawn to canons 2, 6, and 7 of the above cited Canons and best practices relating to arrangement and appointment of a court interpreter. The cited canons are in a nutshell hinged on the principle of impartiality, disclosure of any conflict of interest, and independence of judgment in the discharging of interpretation duties. With the foregoing, and as was also maintained by the learned advocate In his subsequent rejoinder, the best practice requires the court to find and appoint a qualified person to serve as an interpreter after being informed by the parties of the need, or if it appears to the court that a party or witness needs one. And, once one is so appointed, and sworn in, he becomes a court interpreter. Since the omission is fatal and vitiated the appellants' right to fair trial, we were asked by Mr. Nokoren to expunge the evidence of PW3. The said evidence is on the record from page 112 up to 127. In doing so, the learned advocate said that it is, in the circumstances, clear that the appellants were not afforded a fair hearing. 8

Ms. Lucy Kyusa, learned State Attorney, who represented the respondent Republic opposed the appeal. She readily admitted that, indeed, the interpreter who was sworn in to serve as such was pre arranged by the prosecution because PW3 could only testify in Kisukuma. In her submission, what was done in the trial court by the prosecution was reflective of the prevailing practice in our jurisdiction which pertains to provision of an interpreter when need arises. In the learned State Attorney's argument, the practice is opposite to what pertains in other jurisdictions as exemplified by Mr. Nokoren, Ms. Kyusa did not cite any authority substantiating the practice in our jurisdiction she was referring to. She however referred us to the import of section 211 of the CPA. She argued that there is no one who is under the provision specifically assigned the responsibility of providing an interpreter when need arises. It, therefore, means that it is either the presiding judge or magistrate, the prosecution side or an accused person who may arrange for one to be sworn in and serve as such. Ms. Kyusa submitted further that since the appellants who were duly represented by learned counsel did not at the trial court object against Bazilo Lazaro Balola serving as an interpreter, it meant that they were not

prejudiced by the interpretation conducted by the interpreter after he was sworn in, and no miscarriage of justice was likely to have occurred. Accordingly, the appellants could not under the circumstances raise the objection as a ground of appeal. We were thus urged to dismiss the ground for lack of merit. We have, on our part, perused the record thoroughly well. We entirely agreed with both learned counsel that the interpreter who interpreted the evidence of PW3, which is on the record of appeal, from page 112 to page 127, was pre-arranged by the prosecution. The pre arranged interpreter was, according to the record, brought to the attention of the trial court on 04/06/2021 after PW1 and PW2 had already testified between 28/05/2021 and 03/06/2021. The trial court was, according to the record, only informed by the prosecution of the arrangement that had already been made for interpretation of the evidence of PW3 by one, Bazilo Lazaro Balola. The pre-arranged interpreter was, according to the record, meant to address language barrier possessed by PW3 as she could only testify in Kisukuma. As to why such person was, from the perspective of the prosecution, a fit

person for the task of interpreting the evidence of the supposedly eyewitness of the prosecution was not forthcoming from the prosecution. It is not on the record either that PW3's language barrier had earlier been raised and an appropriate request for an interpreter made before the court at earliest opportunity possible to enable the court to arrange for and provide such an interpreter. In this respect, we are clear that there is neither at the committal nor at the preliminary hearing an indication by the prosecution side that an interpreter would be needed for PW3 who was listed as one of the intended prosecution witnesses. The relevant part of the record from page 111 to page 113 tells it all. It reads and we hereby quote thus: Ms. Jane Mandaao, SSA My Lord, the case is set for continuation of trial. We have two witnesses and ready to proceed. Sgd Judge Mr. Fadhiii Kinau, Advocate My Lord, we are ready to proceed. Sgd Judge Mr.Lanaa Mvuna, Advocate My Lord, we are ready to proceed. 11

Sgd Judge Ms. Jane Mandaoo, SSA My Lord our next witnesses; Cecilia Ibembele.....„can only speak in Kisukuma. We have arranged for a translator to assist the court in translation . The translator is Mr. Bazi/io. Sgd Judge 04/06/2021 Court: The translator has to be sworn in Sgd Judge 04/06/2021 Translator: Baziiio Lazaro Baloiaf TZf 54 Years old, Resident of Nzega, takes oath- to faithfully translate these proceedings from KiswahiH to Kisukuma and vice versa. Sgd Judge 04/06/2021 Clearly, there is no prayer in the prosecution's submission at page 112 of the record of appeal asking the trial court to arrange for and provide an interpreter because of PW3's language barrier. Rather, the prosecution just informed the court that it had a pre-arranged interpreter 12

in place to interpret the evidence of PW3. Other than being pre-arranged by the prosecution side, there is nothing showing that the pre-arranged interpreter was not conflicted and was a proper person for the task. What we see on the record is that immediately after being informed of the unilateral arrangement by the prosecution, the trial court without further ado swore in the pre-arranged interpreter. In doing so, the trial court did not ascertain from the appellants if they had any comment or objection against such person serving as an interpreter. Likewise, the trial court did not on its part inquire into whether such person had no interest to serve against the appellants and was a proper person to serve as an interpreter. We are minded that it was not shown on the record that such person was a regular court interpreter in terms of section 30 of the Magistrates7 Courts Act, [Cap, 11 R.E. 2022]. The omission means that chances of potential conflicts, appearance of impropriety and the likes were not eliminated before Bazilo Lazaro Balola served as an interpreter. Since it was not shown on the record that the supposedly interpreter was a regular court interpreter and the trial court did not at the outset inquire into whether such person was fit for the task, it is not in doubt that the trial court did not do what was expected of it, and in the result, the 13

appellants were completely sidelined in the process which was unilaterally arranged by the prosecution side. It is this process that eventually saw the evidence of PW3, a child of 14 years old, being received on the record and being used by the trial court to ground the conviction for the offence of murder. It was thereafter accepted without caution and circumspection as it ought to have been, thereby prejudicing the appellants. While the purpose of the oath that the interpreter took is to give assurance to the witness whose evidence was being interpreted, to the trial court which was recording the evidence and to those against whom the evidence is given that the interpretation is faithful and not misleading, we cannot, with certainty, be sure of what would have been the appellants' response with regard to the pre-arranged interpreter had the trial judge afforded the appellants who stood charged with murder, an opportunity to express their opinion. We cannot equally say that the purpose was achieved while the supposedly interpreter was unilaterally arranged by the prosecution and was therefore not one that was provided by the trial court under section 211 of the CPA. There is, therefore, some sense in the argument by Mr. Nokoren that the interpreter was a disguised prosecution

witness, supposedly, interpreting the evidence of PW3 who was then 14 years old, something which denied the appellants a fair hearing. In our previous decisions, we have had opportunity to consider issues relating to provision of interpreters. Such decisions involved situations where there was a complete failure to provide an interpreter, or where at times an interpreter was provided while at times not, and situations where an interpreter was not sworn in before assuming his responsibilities of interpreting proceedings or evidence. See, Mpemba Mponeja v. Republic (Criminal Appeal No. 256 of 2009) [2012] TZCA 225; Moses Mayanja@ Msoke v. Republic (Criminal Appeal No. 56 of 2009) [2012] TZCA 70; Kigundu Francis and Another v, Republic (Criminal Appeal No. 314 of 2010) [2011] TZCA 71; Marko Patrick Nzumikila & Another v. Republic (Criminal Appeal No. 141 of 2010) [2011] TZCA 134; Lekeni Lokondorotu and Another v. Republic (Criminal Appeal No. 338 of 2015) [2015] TZCA 39; Joachim Ikechukwu Ike v. Republic, Criminal Appeal No. 272 of 2016 (unreported); Dastan Makwaya and Another v. Republic, Criminal Appeal No. 179 of 2017 (unreported); and Mariko Jidendele v. Republic (Criminal Appeal No. 136 of 2018) [2022] TZCA 463. 15

In such decisions, we interpreted section 211(1) of the CPA which relates to the requirement of provision of an interpreter to an accused person who does not understand the evidence given in the language of the court. One of such cases is Dastan Makwaya (supra) in which we held that: "Section 211 (1) o f the CPA requires that whenever it appears an accused person does not understand the language spoken during the proceedings o f the case, an accused person should be provided with an interpreter so as to enable him understand the proceedings o f his case. The omission to comply with the requirements o f section 211 (1) o f the CPA renders the proceedings o f the case null and void,7 In Kigundu Francis and Another v Republic (supra) we gave the provision of section 211 (1) a broader interpretation. We included in our interpretation situations in criminal proceedings that require interpretation of evidence from a witness who does not understand the language of the court. We made it clear that where an interpreter is needed in any criminal proceedings and it so appears to the trial court, it is the duty of the trial court to arrange for the provision of such interpreter to interpret evidence of an accused person or from witnesses who do not understand the 16

language of the court. We equally insisted that such interpreter must take an oath or affirm before assuming his responsibilities as a court interpreter. We stated that: "i/7 Tanzania, by statute, the courts that are entrusted with the duty o f 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 court However, under section 4 (b) o f the Oaths and Statutory Declarations Act (Cap 34 RE2002) such interpreters must take judicial oaths prescribed under the Act before embarking on any interpretation. "[Emphasis added] In view of the above authorities, it is now settled that section 211 of the CPA 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.

As to the consequences of failure to comply with section 211 (1) of the CPA, or rather to arrange and provide an interpreter, it is now settled that omission to provide an interpreter when one is needed is a 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 case of Moses Mayanja (supra), for example, the testimony of an eyewitness given in a language the appellant did not understand and without interpreter was expunged from the record. In that case, it was held that the omission was fatal irregularity as it denied the appellant the constitutionally guaranteed right to a "full hearing," The Court added that the omission meant that it could not be predicated that the appellant was in the trial court given a full or fair hearing. Since in the present case, the evidence of PW3 was interpreted by an interpreter arranged by the prosecution, there was a complete omission to provide an interpreter by the court. It cannot therefore be predicated that the appellants were given fair hearing when the pre-arranged interpreter 18

interpreted the evidence of PW3. Thus, the omission denied the appellants a fair hearing considering the gravity of the charge they were facing. The omission is, for reasons already detailed above, a fatal irregularity which vitiates the evidence of PW3. We associate ourselves with the position taken by the learned advocate for the appellants and we accordingly expunge the evidence from the record. Having expunged the evidence of PW3, the prosecution case against the appellants is left with no cogent evidence upon which the conviction for the offence of murder could be credibly predicated. We say so because, the evidence of PWi was a mere hearsay. Those who told PWl about the incident and appellants as the assailants did not testify as witnesses. They are PW3's father (Maganga Masanja), and Chairman of Bugingija Hamlet. The other evidence left is that of PW2, the medical doctor, who examined the deceased and established the deceased's cause of death. It means that there is no evidence from the prosecution cogently identifying the appellants as the assailants. With such evidence as the only remaining evidence, we need not deal with the remaining issues raised in the remaining grounds of appeal. 19

In the event, we allow the appeal. We quash the conviction and set aside the sentence imposed by the trial court to the appellants. We further order that the appellants be released from prison forthwith unless otherwise lawfully held. DATED at TABORA this 29th day of September, 2023. R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 29th day of September, 2023 in the presence of the appellants in person represented by Mr. Ayo Charles, learned advocate holding brief for Mr. Saikon Justin Nokoren, learned advocate for the appellants and Mr. Nurdin Mmary, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL