Clement Pancras vs Republic (Criminal Appeal No. 321 of 2013) [2014] TZCA 201 (30 October 2014)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MSOFFE, J. A., ORIYO. J. A.. And MMILLA. J. A. ) CRIMINAL APPEAL NO. 321 OF 2013 CLEMENT PANCRAS ............................................................................ APPELLANT VERSUS THE REPUBLIC.................................................. ........................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Pe-Mello, J.^ dated 5th day of September, 2013 in Criminal Sessions Case No. 52 of 2013 REASONS FOR JUDGMENT MSOFFE. 3.A.: On 28/10/2014 we allowed the appeal, quashed the conviction, set aside the sentence and ordered the appellant's release from prison unless lawfully held. We reserved our reasons which we now give. The appellant was arraigned before the High Court on an information for manslaughter contrary to section 195 of the Penal Code. The information read in part as follows:- R EPU B LIC VERSUS CLEM EN T S /O PA N CR AS i
A t the Sessions to be held a t ............... on the ............ day o f ................ 20. ..... , the Court is inform ed by the D IRECTO R O F P U B LIC P R O S E C U T IO N S on behalf o f the R EPU B LIC that CLEM EN T S /O PA N C R A S is charged with the follow ing offence, that is to say:- STA TEM ENT O F O FFENCE M AN SLAUG H TER , Contrary to Sections 195 and 198 o f the Penal Code Cap. 16 Vol. 1 o f the Laws Revised Edition [R.E. 2002]. SIG N ED at M W ANZA this l$ h day o f April, 2013. HEMED H. HALIFANI STATE ATTO RN EY It will be observed at once that, as correctly pointed out by Mr. Stephen Magoiga, learned advocate for the appellant, the information was defective for failure to state the name of the person killed. Furthermore, the information did not conform with the requirements of section 135 (a) (i), (ii) and (iii) of the Criminal Procedure Act [CAP 20 R.E. 2002] (the Act) which require the information to commence with a statement of the offence charged, and which should also describe the offence shortly in ordinary language, and finally the particulars of offence also set out in ordinary language. With respect, the trial judge ought to have noted these defects from the very first day the information was brought to her attention. If she had noticed them, perhaps this was a fit case for ordering
an amendment in terms of section 276 (2) of the Act. It follows that we could have safely determined the appeal on this point only. However, in the interests of justice we will proceed and point out other anomalies in the case. On 5/9/2013 the appellant appeared before the High Court. In order to appreciate the points we will canvass hereunder we take the liberty to reproduce the proceedings of that day verbatim. Date : 05/9/2013 Coram : Hon. J. A. De-Mello, J; - Present State Attorney for the Republic Wankyo S.:- Present Accused (Name) Clement P a n cra sP re se n t Accused Present under custody and represented by Mhingo Advocate:- Present Interpreter Mark John from English to Kisw ahili and Vise versa. W ankyo SA :- I am for the Republic and Accused Present Accused - Pleads 'G u ilty'.
W ankyo S A :- 1 pray for adoption o f the Prelim inary summary facts. C ou rt:- Adopted and proceed with reading o f the facts. W ankyo SA:- Read through the summary o f facts to the Accused and the Court in general. W ankyo SA:- I have with a copy o f 'P o st M o rte m ' report in ascertaining the cause o f death and I wish to tender it for admission as exhibit. M h in g o :- 1 have no objection. C o u rt: Let it be adm itted in Court as E x h ib it y P l'. W ankyo SA :- I also pray to tender the ' S ketch M a p ' o f the scene o f crim e for admission. M hingo:- No objection My Lord. C ou rt:- Adm itted as Exhibit P2 for Court records. W ankyo SA :- 'C au tion S ta te m e n t' to effect the Accused confession towards the offence o f killing with intention. M hingo:- No objection as well.
C ou rt:- Also adm itted E x h ib it \ p 3 ' for Court record and reference. M hingo:- A s admitted, the accused killed with no intention. In African culture punishm ent by corporal (sic) is normal. I pray for the Court to punish him as per the law. W ankyo S A Such practice is norm al and very practical. However, there has been excessive force in punishing the child. Many lives have been lost in due course. As a parent one ought to be reasonable in inflicting punishment. A fter a ll what wrong did the child do? Let S e ctio n 1 9 8 be applicable and with Court's discretion. That's all. M itigation by Counsel Mhingo:-
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The Offence is vivid not intentional.
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No record o f previous Offence.
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S till young and a future father to be depend upon.
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He is only 27 years o f age and able to lead a bright future.
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Alm ost 15 months in remand since the happening and on bail. I pray for leniency o f this Court. C ou rt:- Whatever the reason, no human being is responsible for any others life. Right to life is a basic if not the m ost crucial human R ight It is even worse fo r children whose rights are stipulated in the Convention for Child's Right to which our Country had not only ratified but also dom esticated in the current Law o f Child Act. B e in g a H um an R ig h ts a c tiv is t a n d m ore so a fo rm e r C o m m issio n er fo r H um an R ig h ts a n d G ood G overnance I have been in th e fo re fro n t in p ro p a g a tin g C h ild re n a n d W om en's R ig h ts. (Our emphasis.) The culture and practice as reiterated by both Counsels is bad and ought to be abolished forthwith. I have p e rso n a lly been a victim o f ab u ses b y a spouse and, I p ra c tic a lly kn o w w h at it m eans. (Our emphasis.) It's very hum iliating and very demeaning.
The Accused needs to realize that this is intolerable and unacceptable by any standards. Order:- From the ongoing I w ill w isely use m y discretion as prayed based on section 198 o f the law, by im posing a stern punishm ent to the Accused as a lesson not to repeat the such acts again. I also want the general public and parents more so to learn and avoid such uncivilized practices. I therefore convict and sentence the accused for seven years (7) imprisonment, upon which I believe he w ill have learnt a lesson. I so order. J. A. D E-M ELLO JU D G E 0 5 /0 9 /2 0 1 3 To start with, as correctly submitted by Mr. Magoiga and Ms. Mwamini Fyeregete, learned State Attorney for the respondent Republic, no plea known in law was recorded in the case. The plea ought to have been recorded in terms of section 282 of the Act. For our purposes, the key word in this section is recorded. In other words, an accused person's plea in his/her own words in answer to the information must be recorded.
With respect, the words "Accused - pleads guilty" did not constitute a plea. If we may respectfully add, a proper plea ought to have been taken in line with the directions given by this Court in John Faya v Republic, Criminal Appeal No. 198 of 2007 (unreported), citing the decision of the erstwhile Eastern African Court of Appeal decision in R v Yonasani Egalu and Others (1942) 9 EACA 65 at page 67, thus:- In any case in which a conviction is like ly to proceed on a plea o f guilty it is m ost desirable not only that every constituent o f the charge should be explained to the accused but that he should be required to adm it or deny every constituent o f the ofence a n d th a t w h at he sa y s sh o u ld be re co rd e d a n d in th e form w hich w ill s a tis fy an a p p e a l co u rt th a t he fu lly u n d ersto o d th e ch arg e a n d p le a d e d g u ilty to e ve ry ele m e n t o f it u n e q u ivo cally. (Our emphasis.) As already observed, the words "Accused - pleads guilty" did not come from the Appellant. The actual words spoken by the appellant ought to have been recorded. This was not done.
Ideally and under normal circumstances, once an accused person pleads guilty the prosecution is called upon to narrate the facts after which the said accused would be called upon to admit or deny them. In the event the accused admits them a conviction would then follow in terms of section 282 {supra). Thereafter, the prosecution would be asked to state if there is any previous record of conviction in respect of the accused. This process would then be followed by mitigation and sentence, respectively. In this case, the appellant was not called upon to admit or deny the facts. On the contrary, it is apparent that his advocate admitted the facts on his behalf. That was plainly wrong and highly irregular. As if that was not enough, the judge fell in error by convicting the appellant after mitigation! Closely related to the above misdirections is the fact that the record also shows that there are two other glaring shortcomings:- One, as pointed out by Mr. Magoiga and Ms. Mwamini, in sentencing the appellant the judge did not take into account the mitigating factors. Two, it was not open to the judge to introduce extraneous matters i.e. that she is "a human rights activist!', she has been a "victim o f abuses by a spousd', etc. These extraneous matters had no bearing on the case before her. These were personal experiences which had no relevance in the case. In passing 9
the sentence, all she was required to do was essentially to look at the facts; previous record, if any; and the mitigating factors. It was basically on the basis of the above shortcomings that we allowed the appeal as aforesaid. We appreciate that if the facts are anything to go by, the alleged offence was committed when the appellant was chastising his deceased daughter. The appellant has been in custody for a period of 2Vi years. In the circumstances, inspired by this Court's wisdom and reasoning in Kisukari Mmemo v Republic, Criminal Appeal No. 192 of 2013 (unreported) we leave upon the wisdom of the Director of Public Prosecutions to decide whether or not to mount a fresh charge against the appellant. Indeed, Mr. Magoiga and Ms. Mwamini agree that much, that this is the best approach or step to take in this regard. DATED at MWANZA this 30th day of October, 2014. J. H. MSOFFE JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL 10