Director of Public Prosecutions vs Moses Zablon (RM Criminal Appeal No. 50 OF 1996) [1999] TZHC 186 (11 October 1999)

rn THE RE.'3IDENT MAGI3~1E?S COURT OF AHUSHA

• ·•'t. EXTENDED APPELLATE JURISDICTION RM .. CRTI1Il-JAL APPEAL NO~ 50 OF 1996 . (d/ff{:igh[_cd'£.,;:, di:Lfuarfi:tpcal iI~~:-2.f o'.r ··..-· .· LU.-~ G M E. N 'TI : • • • ., .. __ .. , Ii - -· - E.MoK.o_,RtJTAI(ANG.Y!&., ';J!!Q.GE'?.'

Lur T:hil.e 3,.(b:),._ of_.:l:.he Arume:ru Distr:?:£t coupc;{?,re1Tentiv~-- Hep.;t.-W1,)c •. , Bye.'.)-Laws,,,:1993 ,m_c:-de under sec:q.on 11+8 •• o(Act No. 7 of 1982--::,every;: --,. , · resident...of Ar,μneru District. is .o.t>lig~,;i. to have and use one_,'pit-latrine '.• '• ! , • • . .·:·· . : 1( • • • . ~ • • _) - - - with a door and pit .. cover. ule;.·Q ,pf. t,he_ s,aid :bye'.""'laws maks,-.it an -: .. } - . . : . . . . . .. ·. ,; '·' .,., .. •' .;. - . . . offence for _ny .,c>ne to _act in brep,th qf. p.ny, of the rules,,in- the, said .J.. ' . . .. - ,.J:., ..... - . .... J.- •• ~- ... ·,; ..... :. ·.- - .. '·· .•.,: ; ...•. . Bye-laws. The punishment for the offence is a sentence of a fine of Tshs. 7000/= or a term of ±niprisolkent••io,f'': six months or both. In criminal case No. 6 of 1994 _.bf Arumeru P.rimary Court at ·:, ,·:, ..... ·. Enaboishu, the Respondent in this appeal was char:ed with an offence under the said rule 3 • pn bein,; convicted he was sentenced to_ :a fll.le· of Tshs. 4,000/= or four months jail. appealed to the Arusha/ Aruneru District ourt h<3.:l~~~:;in, the c.onv.iction and sentence. The District Court, without .. much,.:ado,. allowed th!3 •-a.p1?0al -;,_ but not on merit. The appeal was allowed on the basis that the :;,aid"· bye-laws were not in existence. The proceedings were,. a_ccorqingly :_ . i • I • • • _: • _; • • ' • •• •. • •- ~ nullified and the conviction quashed. The fine was ordered to be refunded. This prompted this appel by te Director of Public Prose- .. ·'' cutions which after perusing the recC?rds was filed in time inspite of the Respondent1s arguments to the contrary. The principal ground of appeal by the D .. P.B. is: "That the District Magistrate erred in in concluding that the bye-laws under which the charge was framed were not existing laws/published in Government Gazette 11

'"I'h±a po.j.nt, -0f <:bjeGtion aBainst. U~ /Dr>elhite -1:.rfot. 1-s_.jnt is well taken. A perusal of the trial Pr'.:i.mafy'Court,record reveals that the Respondent was first arraigned ori''fE5/5/94. -The ffonce he was . ·. . '' (. :., - ( ·. ~ '· . charged with was allegedly. committed· bri'141/)/fCJ94-: '. The above cited bye-laws were gazetted as GNo No. "21 8{'.1993 on 6/S/199'3.o It. goes. without saying,' herfore,., tha,:b •'bhe 0 ReSporidEint .l;JS 0 harged under an existing law.. Although, I must admit, the charge was inelegantly drafted, it did give the P..esponclnt :,the __ necessary i.11.formation to enable him understand the nature of the offence and enter an effective defence;· In view of the above findings I quash tJ1e de'Cii.Sion··,and orders of the District Court and set them aside. As prayed by the D'oP.F~ the jud2,men~ of the trial Primary Court is, hereby restored., The records are hereby remitted to the Dist_rict Court with, diroctf6ns that it .. .. . '. :·· . . : hears and· p.etermines the appeal 4:ln its merits. It is so ordered. Date: 11/10/1999 Coram: E.M.K,. Rutakangwa, J. ~ 11/1'./1999 For Appellant: Mrs. l\Ttila'twa, State Attqrru:)y.' For ne.apordent: Present in person. Court Clerk: Mr. Onary • .Q2_urt; · Jud@llent delivered in court at Arusha. EMKR/vm. ..•",_ JUDGE .ii/10/1999 ~ ·,~..; '#, .. ', .. ·._.