Karume Manyonyi @ Master and Others vs Republic (Criminal Appeal No. 21 of 1998; Criminal Appeal No. 22 of 1998; Criminal Appeal No. 23 of 1998) [1998] TZHC 2267 (13 November 1998)

.. . DJ THE. RESIDENT VU\GISTRATE COURI' AT DODOHi.. ---= .. - . ....,-----==- EXTENDED JURISDICTION CRIMINAL APPEAL NO. 21, c/f 22 & 23 of 1998 (HIGH COURT (00) CRIMINAL APPEl'.J. No. 45 c/f·46 & 47 OF 1998 ~ FROM THE DECISION OF THE DISTRICT COURT OF DODOMA AT DODOMA. IN CRIMINAL CASE NO. 68 OF 1998 BEFORE - W.P. DYANSOBERA ESQ.RESIDENT MAGISTRATE) 1 oKARIB-'.IE MANYONYI @ MASTER) 2.MANENO ABDALLAH 3.BERNARD s/o MLESI versus THE REPUBLIC JUDGE~ } ) · . •••• .APPELLANTS PROSECUTOR The three appellants namely Kc.ru....-ie s/o Manyonyi 34t Maneno s/ Abdallah 29, and Bernard s/o Mlesi 30, heretnafter variously referred to as first; second and third appellants respectively were on 29th May, 1998 convicted by the Dodoma District Court on various offences _contrary to the Penal Code, Cap. 16 of the Laws as horeunder:.;.; 2ND COUNT:

}RDCQ!lli.t: Personating Pulic-rOfficers c/s 1·"',2),' Armed Robbery c/s 285 and 286. ... For the first appellant - Rape c/s 131 &nd 131 and 4TH COUNT for the second appellant Rape •/s 130 and 1:;1. They were subsequently sentenced as follows:.;.· j_ST APPELLANT: (1) Twelve months imprisonment on the first counts (ii) Thirty (30) yea:rs imprisonment term.· (iii) Thirty (30) years imprisonment on the third count~· 2ND APPELLANT: • (i) Tw·elve months inJprisonment in the first •ounte (ii) Thirty (3{)) years imprisonment term in the second count.; (iii) Thirty yea:rs imprisocetlt on the fourth count· 37 .,..... fr. . )(~ ... ·.·:. -,i ·:• ... ':.·

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THIP.D APPELLANT: ... (i) Twelve (12) months imprisonment on the first .......-~~.~ count. (ii) Thirty (30) years imprisonment term on the second count. All the sent0nces were ordered to run concurrently~ A compensation order of Shs.10,000/= was rrade 'against the first and second appellant in favour of PW3 and PW2 respectively. The appellants are not satisfied with the findings and sentence imposed on them and have preferred this appeal. It ·was common ground at the trial that in the night of 08th March, 1998, PW1 Peter Jeremiah 1 PW2 Halima Shnto...'l"l nnd PV/3 Hawa Rrunadhani . a.t their workplac~ 1 the Rift Valley Bar and Guest HouG~• • PW1 is the Manager cum watchman, while PW2 and P\rJ3 a.re 13!lr and Guest attendants. At around 02.30 the three witnesses were awakened from their slumbers by a. knock on the window of the kitchen urging them to open as the knockers were policemen. PW1 opened a window and saw three men. Two in police uniforms and one in ci vilia.n clothe.s. The men claimed th::-..t they were looking for a gun allegedly left in room number one by fugitive offender, who had dropped down a panga which they had in their possession~ The three bandits began to search the rooms of the guest house PW1 remained under guard of an armed uniformed bandit. Two bandits, one in police uniforms and anothex< in civilian clothes proceeded with the seereh after taking some beers. After que- nching their ~~Ywith beer 1 the uniformed bandit and civilian bandit found it proper to do the same to their sexual urge. They took two girl attenda.YJ.ts who were in. one of the guest house rooms; to different rooms where they raped them. / 7. -· • •••• 0 0 0 o Co ✓ , ~ •

• 3 The two girls, PW2 and P:13 had resisted the advances but succumbed under threat of being harr:1ed., They winded·up their evil activities by collecting Shs.37;000/=, and television set, 30 oo.fari beer bottles,_ 2 bottles of Konyagi, 2 bottles of soda, and five packets of sportsman cigarrettes. Later on the owner of the property PW8 .t_rma Hduma reported the i incident to the Central Police Station,.. He was given some police officers to assist in the investigations. PW2 and PW3 were given P.F.3 1 s so that they can attend hospital for Medical exruni.nation. The two women went to Dodoma Genero.l Hospital where they were attended by PW9 Dr. Anna Gh 1 wasa 1 an Assistant Medical Officer ·deaiing in obstetrics and gyneacology. Pl!J9 saw no spermatozoa in the vaginas of PW2 and Pv/3. However both PW2 and PW3 were found tobe suffering from a disease lmown as trycomonos vaginalis. The first·appellant was found to be suffering from syphilis after he was medically examined. Going by the records of the District Court, it shows that some arrests were made before the arrest of the present appellants. One Simon s/o Mnyrun3goha. and Damasi s/o Amosi, were charged in connection with this offence on 16th March, 1998. They were discharged on 14/04/1998 which the day the appellants were cha:rgedo The crucial. issue in this case is identification. Were the appellants properly identified~ It was laid down in the case of Waziri Aman v. Republic /J98sfj' T.L.R. 250 that, no court should net on evidence of ,risual identifica- tion unless all possibilities of mistaken identity are eliminated mid the court is fully SD.tisfied that the evidence before it is absolutely wntertighto The justices of Appool. pointed out tho.t, the extent to which the poscibility of the danger of an affront to justice occuring in this (I•· e • e O b·e • O o·e e o ./4. O 0

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type of case depends entirely on the mrumer and care with which the trial judge approaches his task· &f anAJ.ysis and examination .of evidence.• The r~.4. abould ... show· question& such:.as ·tho .. fo~ .ed ~ r.ecolved by him. the ti.me.· the .wi.tnesa. had ·"the·-aoeused.-·.,~ -vat~- .the tance at whicJ1:e observed.him, the candit±&US .. in. tirhieh,,,,...._.,.., ... J3llfh. o bserva occu.red• .,!.or· instru:ic:e .. ,.,whether it -was .;.nigh~,---::.-;., , ... : ... timGt.••whethe.x- there was -:.lighti.ng at the·seene 1 . li'J!.d further·· . whether the witness .kn.ew --.,r had seen ·the e.ocused before .not ~ not •. .,... • .• ••.i. ' . .. ,•··,,. .. •.·:-::: · ·Bef-ere going :inte· deal. hew h appellant was ·identified let···us see- -the law governing· identification parades and how they are--·-··- ... · ;:suppos-e(l-:te> ·be eoncl. S• 60( 1 )- -of the CrimillD.l. Procedure · . A:et· , -· . v-·· _ _J.96.5 and S.397 (e) 35B states that: :· .•··· t.Any pi.lice t"fficer incharge of a poli-ee atati-on ·or any police officer·investigating ·an· --eff ence may hold an identification plU'8.de . ··;:;.:.••.··' ~ for the purpos.e __ nf .. ascerta;ining whether· a·· - ,.,:.. ··· · · . . vi tness oan id,enti!y a person suspeoted ·of the .. :con ~--an,~fi.enc.e- • ··:-.-. .. ·· There. are . n.o .special rules ~! pr-oeedure . ll:dd . ~wn .in -onduc.ting identif'ica.ti _ _parades, but in East Africa, the procedure la.id down in the case .. f'!lf' R.- vis. Mwango s/• Maua (1-936 3 E.A.l:.A.• 29) ie••:the· pr-· .. ,pr&ee ,-tti ·be- :tollciwed when holding an· identif:i.cation--pai"a.de._. · .. Ac-cerding to . the-·deoisi .. in that case. the. oedure should be as ll'"ws::-·_ _ ....... · · ( 1 ) . -e accused. pra.n i . ~ :ihft,r.med that he ·may_ have ·a . ·· t---.an: . .a~ .~ .a. ~end .present when. the

• aae takes .. pJ.ace-. .. , .. ., .. , - - ..... (2)- .The .,ffioe?"· (n,;,.c~:·,t .the ·ease, al.tho.ugh he ai!JS . .be•· ·.. present~~--~,- eEl.ITy:--~t-, the .identification. (3) _ .. The wi tnesaes de net see the eused before the parade ♦,_ ,. .• _ The aecμsed is plaeed among at least eight· p,ersqnst.. , _far.as ~ible--of ... similar. age,. height,. general appea-, ·:- ranee .a11d l..ass. .of ·1i£e as hims.elf ~ herseli+-.·-:.:: .....
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7 5 ... (5) The accused is allmved to take any position he chooses, and he is allowed to change his position after each identifying witness has left, if he so desireso (6) Care is to be exercised that the witnesses are not allowed to communicate with each other after they have been to the para.dee (7) Ex:clude every person who hns no business thereo (8) Make a careful note after each witness leaves the pru-adei recording whether the witness identifies, or other circumstances. (9) If the witness de$ires to see the accused wall<i hElliI' 1 him speak, see him with his hat on or off, see that this is done. As a precautionary measure it is suggested the whole parade be asked to do this. (10) See that the witness touches the 1;srcon he identifies. (11) At the terr.ti.nation of the parade O:!' during the parade ask the accused if he is satisfied that the parade is being conducted in a fair manner and make note of his reply~ (12) In introducing the witness tell him that he will see a group of people who may or rmy not contain the auspected person.,· Don't say "Pick out somebody, or influence him in.any way whatever.e (13) Act with scrupulous fairness otherwise the value of ide- ntification as evidence will depreciate considerably. ( ·; In the case at hand 1 ther.e is no dispute tho.t the conditions for identifications were very favourable• There was ~lectricity light in the bar/guest house in which the incident took place. The appellants stayed with the witnesses for a considerable .long time. The witnesses came at close quarters with the appellants. The only hurdle was that it was the first time that the witness had seen the oondits. It was expected therefore.that the witnesses should have

6 ' . . ¢.ven the description of the bandits, and that description should hav~ led to the arrest of the accused person. In cases of this nature, it is always very important to have evidence of dhscription of the bandits by persons who claim to have identified them; Similar the evidence of the first person who was to],d about that desc'ription is important • . In.this case, the witness appear not to have given any deecriptions of the pers;ns who &ttacked them 1 other than saying that .· ·, · two .,;,ere in ci vilfon clothes. The arrest of the appellants was a result of a word of mouth from a.rt informer •. A search of the appellants revealed nothing useful to the The first appellant was identified by PW2. saying that he is the person who raped FW3. Surprizingly PW3 who was raped failed to identify him •. It is doubtful for PW2 to have identified the first appellant for the mere fact that when the bandits bursted into their room 1 it was the first appellant who slapped theme No doubt the witnesses were terrified, and the slapping took few seconds. The identificatioM of the second appellant by the PW2 appear to be sound as the latter had ample time to observe him when he lavished her. A similar situation is the identification of the thirdappeilant by PW1 as the person who guarded him for a very longtime. Now was the identification para.de properly carried out as required by law •. I think not quite. ~ will point out some shortcomings in the procedure •. First, the appellants were not placed among at least eight persons. In the identification parade held on 30/03/98 two suspects, namely Karume Manyonyi and Seif Lukuba were placed among ten per_sonse That is to say each suspect was literally placed nmong five persona. In the identification parade held on 01.4.98, the second and third appellants namely Maneno Abdallah and Bernard Mlesi were placed among nine persons. That was :trregulm-. • •••••••• /7 •••

• 7 - In Paulo e/o Joseph vs. Republic (196?) HCD n.340 it was held that th~ requirement that an accused person ought to be placed among at least eight other persons, is violated when several suspects are placed amongst nine persons. 'l'he second irregularity was that the officers conducting the parade informed the witnesses that a suspect is certainly on the p.:u-ade• The rule requires the officer conducting the parade in introducing the witness to tell him or her tho.the will see a group of people who may or may not contain the suspect person. In this case, PW4 A1Inspector Mga.11ga is' recorded a saying 1 ·•r called at first Halima Sha.bani who is a bar attenda.11t. I told her that was an identification parade and that as they had said that they could identify the person who had invaded them.• Conducting the second para.de, PW5 Inspector Joseph, introduced the witness as fol.lows:, •I then called first the PW1. I told him that there were eleven. .people and that amongst them were those who were invol• ved in the incident of 09.P3c98 and that he could point out who he chose and then tell me what he might done. With those irregularities it is evidence that the identification parade was not properly conducted, and its probative value is very much diminished. In the absence of o.nr other evidence connecting the appellD.nts with commission of the offences, the evidence available falls far short of proving a charge in criminal cases. I therefore quash the convictions against the appellants, and set aside the sentences impcseci on them •. I further order their immediate release fro,;1 custody unless held. therein on other lawful causes. It 1 s so ordered. ·(S.B,. LUKELELWA) PRINCIPAL RESIDENT MAGISTRATE EXTENDED JURISDICTION --- .. ~.. _____ ...... ..._. 13/11/98

8 Date - 13/11/98 Coram:- S.,:i3. L~elelwa, PRM. Ext.J. 1st Appellant ) ' 2nd Appellant - ) - Present. 3rd Appellant - )

State Attorney for too Respondent - Absent. c/c. - Chalanμ la. j ORPER: .. J udgmcnt deli verE!d in· Court this 13th November_,· 19·• Right of apperu. explined. (s.B~• t,tLELWA) PGNCIPAL RESIDENT MAGISTRATE EX'TENDED JURISDICTION

• - 13/11/1998