Kabula d/o Luhende vs Republic (Criminal Appeal No. 281 of 2014) [2014] TZCA 2242 (11 December 2014)

IN THE COURT OF APPEAL OF-TANZANIA AT TABORA (CORAM: RTAKANGWA. J.A .. MANDIA. j.A .• And MUSSA, J.A.) . CRIMINAL APPEAL NO. 281 OF 2014 .KABULA D/0 "LUHENDE ···························••.•·······················--- ■■■ I ■■■■ APPELLANT VERSUS· . . THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) {Lukelelwa. J.) dated the 23 rd day of April, 201'4 in Criminal Sessions Case No. 87 of 2008 JUDGMENT OF THE COURT 8 th & 12 th December,2014 RUTAKANGWA, J.A.: ·,Article 13(6) (a) of the Constitution of the United . Republic of Tanzania, 1977 prescribes thus:- . . . i ,> ·. 11 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) ttyhen the rights and duties or any person are ' being determined by the court or any other agency,· that person shall be entitled to a fair hearing and

I:. " to the right of appeal or other legal remedy against te decision of the court or of th_e other agency concerned~~:- [Emphasis is ours]. There is no gainsaying here that _the right to " a fair hearing" clearly enshrined in the Constitution is synonymous with the right to a fair trial. We take it to be common knowledge that one of the basic attributes of this universally _recognised right to a fair, is a triI before ar) impartia! ,,court or tribunal. We call it a "uni_versally recognized rig~t" as it 'is embodied in many Covenants or Treaties to which our country is a .party and have actually been domesticated. To mention but a few, these are:- (a) The International Covenant on Civil and Polit1cal Rights, 1966 (the ICCPR); (b) The African Charter on Human and Peoples Rights (article 7(1); (c) The Treaty Establishing the East African Community (articles 6(a) and 7(2); and (d) The Universal Declaration of Human Rights (article 10). 2

" \ Article· 14(1) c;>f the ICPPR; for instance, provides as follows:- 1114(1} All persons shall be equal before the courts and tribunals. · In. the determination of any criminal charge against him or his rights and obligations in a suit at. law ' ' everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. "[Emphasis is ours.] In the. case of D.P.P. v. ALLY and OTHERS, Criminal Appeal Nos. 44 and 45 of 1985 (unreported), this Court held that: . . . . 11 In interpreting· the Constitution, the courts have to take into account the provisions of the UDHR (1948) and other treaties which Tanzania· has ratified. " See also, THE ATTORNEY GENERAL v LESINOI [1980] TLR 214 and ' . . D.P.P v .. DAUDI PETE [1993] TLR ~2; It is ac::cepted that ·a right to a fair trial is one of the cornerstones of any· just· sodety. For :this reason, this fi°ght is said to be "a fundamental 3

i safeguard to ensure that individLic;ils are protected from unlawful or arbitrary deprivation of their rights anp freedoms, most importantly the right to liberty and security of the person.· It is an importat _aspct)f the rights which enable effective functioni.ng of the administration of ju'stice." (See www.legislationline.org). We should now hasten to point out that we have found it proper and unavoidable to make these pertinent observations at the outset be.cause •, .. ~ ,\ the issue as to whether the appellant was accorded a fair trial is central in ... . . the determination of this appeal. The background . to this appeal,. for our current purposes,-- is---simple. · The appellant was charged before the High Court of Tanzania, sitting at Tabora, with the murder of one Byhanya Bunato, (the deceased) on 25 th April, 2006. There was one person who eyewitnessed the unpisputed brutal ., murder of the deceased. This was the brother of the deceaJ;ed oneiPembe . . ,, •·,• Mayunga, who testified as_ PW1 at the trial of 'the a·ppllant. ·,'At· the· material time PW1 Pembe. was_ aged 8 years. The evidence of th other . . ' three prosecution witnesses was mainly based on what PW1 Pembe had reported to them. 4 . ,

In the tri.al High Court, PWl Pen,be told the learned trial judge that he .actually saw the appellant hack to death the dec;eased using an axe. Anoth¢r witness PW4 No.E 6650 Det. Cpl. Magori testified that he arrested ,,. the appella~t, recorded her cautioned statement, and later took her to a Justice of Peace, where she gave her ext_ra-judicial statement. It was PW4 D/Cpl. Magori's evidence thaf in both statements the appellant, unequivocally confessed to have .. murdered that deceased. What has confounded us is that these alleged statements were never proffered in evidence at all . . PW4DiCpl. ·Magori was the last prosecution witness. At the close of the prosecuti.~n case, the learned ~rial Judge held thus:- "Order Having gone through the evidence by the . prosecution I consider that the accused committed the offence of which she stands . . . charged. " ' It is this order which has perturbed us a lot in this appeal. .. . · When, the Court sought the opinion of the learned counsel for the . appellant, Mr. Mugaya Mtaki, he said that the learned judge had 5

9 {) L I. condemned the appellant even before . he had heard her eviqence. ,. Although the appellant eventually gave evidence denying th.e: chrg;. that procedure was a mere formality as the leaned trial judge had afready . ma.de up his mind, that the appellant was guilty, he contended. Nothi.ng . ' the appellant said or could have eventually said would have convinced otherwise the learned judge, he submitted. He strongly argued that the learned trial judge was openly biased in favour ot' the prosecution and as such it cannot be seriously argued that the appellant got a fair trial in· he High Court. He accordingly urge9 us to nullify the whole trial and make fitting orders in the case. At first Ms. Juliana Maka, learned State. Attorney for. the respondent I ' Republic, was dismissive of Mr.· Mtaki's ·fears because the· appellant was heard in her defence. But it eventually dawned on her tha in cases: of this nature what counts most is the opinion of those right-m'irided men and women who were in the court room on that day. To the question what they thought of the appellant's trial, when the trial judg· convicted her . ~ . : . . • before he heard her evidence, she lucidly stated that they went away . : . . .. ,: ' convinced that the learned judge was already biased. 6 .I .,>., ' .. ' .

;..... ... ··• (' L We. believe that the ·solution to the crucial issue in this appeal was p·rovided · y· Ms. Maka·. We respectfully hold that the learned trial judge openly exhiited bias against the appellant when he unequivocally ruled, at the stag~ o{ determining whether or not the appellant had a case to answer, thathe considered that the· appellant had murdered the deceased .. . .. . .. We re -also in. full agre_ement with Mr. Mtaki on his submission that "nothing th:· appellant said or could have eventually said would have ... . ·,, i: / convinced otherwise the learned juge". The learned trial judge, in our respectful opinion, did not, therefore, approach the defence cae with an open mind .. That is why, as we have found out, the learned trial judge, everi before evaluating the entire evidence before pim, had in his judgment condusively found PW1 Pembe to" be"a credible witness" who:- 'saw the accused cut his sister on the,head with an axe which was lying outside", before rejeci:ing, fleetingly, the appellant's defence as "deliberate lies". After so rejecting the defence evidence the learned trial judge -· ' . . attempted to bolster PW1 Pembe's evidence by unreservedly accepting as . tru,e, the· evidence of PW4 D/CPL. Magori to the effect that the appellant 7 _.

., confessed the murder to him forgetting, unfortunately, thaf the so-tailed ,-. ~ <: ": confessional statements relied on by the witness and the )¢arned judge, were not part of the evidence. . .... All in ·au, we are now of the settled view that the appellant old not get a fair trial in the sense of not having been tried by an impartiI trial ·: ·: ..... ~ . . . court. In the case of ALEX JOHN '! R, Criminal Appeal ··N?. 32 of. 2003 . ·: .. (unreported), this Court unequivocally held thus:- •, " It is settled law which binds us that fair trial guarantees must be observed and respected from the moment the . investigation against the accused commences until the '. final determination of the proceedings, the appeal process . inclusive. See, for instance, Manfield Nowak in .his U.N Covenant on Civil and Political Rights, CCPR CofT!,mentary . (N.P Engel, Arington 1993) at page 244. Relying on the .case of EKPETO V.WANOGHO: , .. (2004) 18 NWLR. (Pt. 905) 398, the Suprem Court ot: Nigeria in the case of NEWSWATCH COMM. LTD ·v. - . . . An-A {2006) ALL FWLR {Pt.318) page 580 at 611, held. . .. , .. .. ,, that fair hearing according 'to'the law.envisages that both:>- : ,. '·. <<: 8 : . . ~ ','( . ' : -: ·... . '· . :; ·.. . . , ..

2 <.:J parties to a case be given opportunity of presenting their respective cases without let or hindrance from the , beginning to the end. It went on to hold that a fair trial : <. ; also .. envisages that the court or tribunal hearing the parties' case should be fair and impartial without it showing any degree of bias against any of the parties. So, a fair trial, first and foremost, encompasses strict adherence to the rules of natural justice, whose breach would lead to the nullification of the proceedings'~ . In the •·light" of this clear stance of the law, we accordingly find ourselves ·constrained to nullify the appellant's trial, conviction and death . . ,, 6 . . .. sentence, which we hereby set aside, in· the exercise of our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap. 141. Having nullified the appellant's trial, we wish to reiterate what we lucidly stated in D.P.P. v. OWDEN KASANJA and 9 OTHERS, Criminal Appeal No. 305 of 2009 (unreported). We said: .. . . ... " We have already shown that settled law is to the effect that in a just society, where equality 9

" ' .. under the law is one of the cherished aspects of . .. ,: the national ethic, the conviction_ of the guilty is a ·. ' ' '' . . . . ',, ' ' ,' .... ·. public interest as is the acquittal of the inJ?OCent. This fad notwithstanding, it is equally settled that .:r. · a retrial should not be ordered where it is likely to · · .. · . · ,. cause an injustice to an accused : .See, .... PASCAL CLEMENT Braganza v.R. [1957] ·_ EA.152'~ ·.•' 'I In the present case, given the nature of the case· and the fact that . . the appellant was convicted har9ly eight (8) months ago;·. public ·interest enjoins us to order a re-trial before another · judge:· ·of competent jurisdiction, and we so order. DATED at TABORA this 11 th day of Decembert2014. E.M.K.RUTAKANGWA JUSTICE OF APPEAL W.P. MANDIA JUSTICE OF APPEAL 10 •,· .. . . . . . . ,. 1

I ~ertify €h · · true cop /} ;, ' I .. 'M·' IL · DEPU COUR 11