Akimu Mselemu Mwakalinga and Another vs Republic (Criminal Appeal No. 101 of 2014) [2017] TZCA 992 (10 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA, J.A., MZIRAY, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 101 OF 2014

1. AKIMU MSELEMU Ml/VAKALINGA L .
2. DAUDI JUSTI MWASIPASA _r- ...... u ■ ••···············APPELLANTS VERSUS TH:E REPUBLIC ................................•..................................... RESPONDENT {Appeal from the decision of the High Court of Tanzan·ia at Mbeya sitting at Rungwe) (Karua, J.) dated the 12 th day of November, 2013 · · in Criminal Sessions·case-No. 31 of 2012 JUDGMENT OF THE COURT 29 th September, & 10 th October, 2017 MUSSA, J .A.: In the High Court of Tanzania at Mbeya, the appellants along with Obote Mwanyingili @ Aganishi Masungo and Kelvin Maun.isi Myovela . . were jointly arraigned f9r murder, contrary to section 196 of the Penal . \ . . ' Code, Cha·pter 16 of the Revised Laws (the Code). During the trial the appellants stood as, respectively, the first and second accused persons, 1

, · . whereas Obote Mwanyingili @ Aganishi Masungo and Kelvin Myovela .were arraigned as the third and fourth accused person. · The particulars- on the information alleged that on the.19 th May . j2011, at Mpandapanda Kiwira, within Rungvve District, the appellants, jalong with the third and fourth accused persons, jointly murdered a {certain John Afwile Mankenja. . They. all denied the prosecution :_"' .. ,·;.; : .. : ";. · ·accusation whereupon the matter proceeded to a full trial. At the ~-- -~~ conclusion of the trial, the three assessors. who sat with the judge . . 5 i . . . . ·. (Karua, J.) unanimously returned a .guilt verdict with respect to the appellants as well>as .the third:· ac:cused person They, however, ' .)unanimously exonerated the fourth accused from the charge. On his !part, the learned Judge concurred with the assessor's opinions· with j . 1 ;Jrespect to the first and second appellant and, accordingly, entered a -=1 ., · -conviction and handed them the mandatory death sentence, As _, 1 jregards the third and fourth acused persons, the learned Judge was

• ~~ . . ~ !minded of a different view in that he found them not guilty of murder _]but, instead, he convicted both of them of the lessor offence of being . ·" J • i . pccessories after the fact of murder contrary to section 213 of the Code. 2 ,

Upo'n, conviction, they were sentenced to a term of imprisonment for seven years. · Thus, against ttie foregoing backdrop, the appellants were aggrieved and, when the appeal was called on for hearing before us, ! they were represented by· Messrs Victor Mkumbe and Boniface ; _]Mwabukusi, learned Advocates, whereas the respondent Republic had 1 \h~ services of Mr. Joseph, P~nde, learned Principal State Attorney who 1 .j ~ . }'Vas being assisted by Mr. Baraka Mgaya, learned State Attorney. It is I hoteworthy that their appeal is upon a joint memorandum which goes lhus: - "1. That the tria/High Court erred in law and fact in allowing the court Assessors to

• .... ,···•a. - .-. ' crossiexarfrme the witnesses. . ·

2. • That the trial High Court erred in law and fact in convicting the appellants on the basis of the repudiated 1 st appellants extra-jμdicial statement and_ the cautioned statement of the Z,d appellant 3

which had been illegally · taken from the appellants. · 3. . That the trial High Court erred in law and . fact in convicting the appellants basing on the report of PW9 {Government Chemist) on samples on which the ch?J.in of custody had not been established. " Addressing us ; on the first ground of appeal, Mr; Mkumbe submitted that the presiding Judge allowed the. assessors to cross- examine all witnesses for both the prosecution and the defence. Such ari irregu:larity, he si;d, Ts r,;{·curble and the only remedy is for this court to nullify the entire trial proceedings witt, an order for a new trial. .. ·---~ - ~-·- ~ .. To fortify·his submission, Mr. Mkumbe referred to a number of decisions viz-Crimimal Appeal No. 97 of 2014 - Baraka Jail Mwandembo Vs • The Rep;~blic;. Crimin.aJ Appeal No. 97 of 2015 - Chrisantus Msingi Vs The :Rep,ublic; ~nd Criminal Appeal No.· 14 of 2012 - Mage Kalamu ~nd Another Vs The .Republic (all unreported). 4

To this s·ubmission, Mr. Pande went along· and· advised us. to invoke our revisional jurisdiction and nullify the proceedings under the provisions of section 4(2) of the Appellate Jurisdiction Act, Chapter 141 ... '.·' · . .,_ : . . .. of the· Revisq Lws (AJA). The_ learned Principal State Attorney also pressed for a. ne~ trial'. before another Judge an9 a different set of assessors. On our part, we entirely subscribe to the submissions of counsel from ei.ther side. A;, it turns out, the shortcoming is easily discernible from the record of proceedings since the ~ssessor's questions, with respect to -~II witnesses, were preceded with the prefix: "XXD" . . It is common gr_ound that the prefix is an abbreviation for the term: "Cross- exa_mination" and, thus, it is beyond question that the learned Judge, indeed, allowed the assessor's to cross-examine the witnesses. .. '. . . - . . Up0n numerous·occasions, this Court has reasserted the mandate of the ·assessors in trials-and insistently deplored the practice of allowing ·' them to cross-examine witnesses. For instance, in the .unreported Criminal Appeal No. 162 of 2015 - Mapuji MtOgwashinge Vs The Republic, the Court categorically stated: - 5

. 1., . . t• ''It is clear that the duty of assessors and the Judge is to put questions to witnesses for clarification and not to cross-examine as the aim .. of cross-examination is basically to contradict weaken or c_ast doubt upon the a.ccuracy of the· evidence given by · the witnesses during . t examination ·in chief. " In the majority of cases where assessors were allowed to cross- exami ne, the shortcoming was held incurabl~ with the=effectof vitiating · .. the entire proceedings· [see;- for instan·cef"",the. cases-~--:of · Baraka Mwandembo, Chris.antus Msingi and Mage Kalamu (supra)].·, In similar vein, in the matter at hand/ .we are minded of the same . . i . view andi accordingly,.·. we, exercise our revisional Jurisdiction under section 4(2) of AJA and-nullifythe entire trial ptoceedings. In the result, the conviction and se~terice imposed upon -the appellants are, respectively, quashed and set aside. Wei however, in the interests of justice,· order an ·expedited retrial of the appellants before another· 6

judge with a different set of assessors. In the meantime, the appellants should rem,iin in·. custody as· they await the resumption .of the trial. .. ~ .. . • .. ' ..... ·-"' •. t • ' Having. so ordered, we need not decide this matter more than is necessary for its disposal and, accordingly, we refrain from a consideration of the other grounds of appeal.., ·:·,,- · bjEo at MBEYA this 10 th day of October, 2017 . ...,,.;;;.;;. . ,~~- ' I ' ... l .. ~- M.,MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY . JUSTICE OF APPEAL. . . s .. s •. MWANGESr; JUSTICE OF APPEAl. . I certifytnat this is a true copy of the origial. · 7