Hashimu Said Katobo vs Republic (Misc. Criminal Cause No. 21 of 1998) [1998] TZHC 2230 (9 July 1998)

t· . f IN THE HIGH COURT OF TANZANIA AT DA11 ES SALAAM. -------.--.- OF 1998 • • HASHIMU SAID KATO BO O ••• ·,. •• • o •••• • •· •• o • , , • • • ••••••• , •• APPLICANT VERSUS ' ' REPBLIC. • ••••• • • • • 0 ...... • •• • •• : o. • • • • •• • ••• 0 • • •••• • • • RESPONDENT RULING __ ._ ____ The Applicant, Hashimu Said Katobo and 'three ohers are jointly charged . with the offence of armed robbery contrary to seetions 285 and· 286 of the Penal Code, Cap. 16. Up to the filing of, this application thy were being tried in the :RJvl'S Court of Dar es Salaam, Criminal Case No. 1265 of 1996 •. '• Before the tl'"ial wa eoneluded 1 the Applicant. applied to. thir. eo.u.rt for orders to disqualify the trial Magistrate on ground:;; of bias and tc assign.the hearing of the said case to another Magistrate, · In his affidavit tlle Applicant States, inter alia: ll2, : That during the proceedings·, I had rquested the prosecton to produce statements recorded at Police Station of the witnesses ,iho came to testify against me in court as laiQ. down in seetion 166 and 172 of the Evidence Act of, 1967 The Honourable Magistrate G. Mirumbe ruled that it was unnecessary and as a· resul,t I. failed to erc;9s - examine the ,1i tnesses against lies they said in court• . . ' 3. · That in most court ·hearings, -the Magistrate does not give me chance to explain my defence. He is always listening the prosecution side and he completely shows bias against me and my fellow othGr accused persons. 4. · Because Ho1iourable a: }hrumbe is completely biased against me, I have developed an·extensive apprehension that he will never deliver justice in this case and therefore he should make a reeusal •. •••••••• /2 ••

2 5. \·/herefore, I r_Jre.y tlw.t th.e !ii.oh Cow,.t rul.es that another Magi- Honourable G. Mirumbeo At the hearing cf this application tbe Republic did not oppose the grant of the orders sought. I'1r. Gondv1e 1 learned State Attornye was of the view that in the li 6 ht of the allegations made against the trial magistrate the case should he assigned to anoth0r Magistrate of competent jurisdiction. It appears th1;.t in cases of this kind actual bias need not be prove • . It is sufficient if bias is presumed on reasonable grounds. In the King VS. Sussex Justices, ex parte Me Ca.rthy (1924) 1 KB 256 at P. 259 Lord Hewart, c. 3. stated: no. o.. a lcng line of cases shmJs that it is not ·merely of some impor- . tance but is of fundamental importance that justice should not only be done, but should manifostly and undoubtedly be seen to be done 11 • T'J'.,i_~ dic:tun . ., wc;..s applied in METRO.l?OLI'W PROPERI'IES -CO. (F oG.C) LTD. Vo I.ANNON AtTD OTIDRS (1969) IQB 557 •. In that case, after quoting with approval the nbove dictu!l1.-. Lord Denning, M. R. stated at P • 599: "o ••••• in considering whether there .was a real likelihood of bias the court does not look at the mihd of the justice or at the mind of the· chairman of the tribunar "·'hoevcr ;i.t may be, who sits in the judicial capacityo It does not lock te- see if here was a real likelihood thc-=i.t he-would, or did, in fact favour one side at the expense of the other. ✓ The court looks at the impression which "rculd. be given to other people. Even if he was as impartial as cculd be, .ieve_rtheluss if right-minded persons would think that, in the circumst.i;1ees, there was a real like- Lord Denning goes on to sayt iiThere must be cir,e.\111st'1nees from 1M.ch n reopble .., would thi'nk it likely or probable that the justiee 1 « ehairman, as the case may ·be, would, or did 1 favour r;n~ side unfaii',y at the experuse of the othe?'• .••••• !I'.• ./3 .•

3 The court would not inquire whether he did, in fa.ct, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in .. confidence; and confidence is destroyed when right-minded people go away thinking: • 1 The judge was biased:!. This dictum was quoted with approval by Mwakasendo 1 Ag. J, (as he then was) in TUMAINI V. REPUBLIC (1972) E.Ao 441 where it was held that in considering the possibility of bias, it is not the mind of the judge uhich is considered but the impression given to reasonable persons. It is clear from thE: above authorities that the objective is to secure confidence in the impartiality of courts. Hence nothing should be done, which creates the impression that the decision maker is biased. In the instant case refual to provide the accused with statements of witnesses recorded by the Polie..e prier to trial to enable him test the credi- bility of those witnesses during cross-examination may create the impression of bias in the minds of reascnable people. The decision not to furnish the accussed with the said statements may not have been mede malafide. Never- theless it creates suspencion that the trial magistrate may be biased against the accused. The application is accordingly grc:nted: It is ordered that the case · be assigned to another Magistrate of competent jurisdiction. dg.' D. M. MUITA, - Delivered in Chambers in the presence of the of July, 1998 Sdg., D. Mo M'/ITA, .J.]P; 9th JULY, 1998

4 = 1 certify that this is a true copy of the original. /, ,· , .. . ,·;\t ~ ff·:':' ;:7' t \·_., ,-'// . --~~~:::-- DR J.E. RUHANGISA DISTRICT REGISTRAR