S.M.Z. v. Machano Khamis Ali and 17 Ors.Criminal Application No. 8 of 2000 (treason case)

S.M.Z.  v.  Machano Khamis Ali and 17 Ors.

Court of Appeal (Corum: Kisanga , Ramadhani and Lugakingira JJ.A.): November 21, 2000

Criminal Application No. 8 of 2000

Constitutional Law- treason- committal- whether act of treason only to be committed against sovereign or state by person owing allegiance to it- United Republic of Tanzania one Country and one State- whether treason Union matter as falls within definition of security under First Schedule of Union Constitution- whether cognate offense to subversion as defined under Tanzania Intelligence and Security Services Act- combined effect of s.28 (4) and Article 64(5) of Constitution- whether repeal of s.26 of Penal Code Decree of Zanzibar

This was an appeal by the accused against the decision of the learned Chief Justice of Zanzibar sitting as the High Court of Zanzibar to the effect that the offence of treason could be committed against the Revolutionary Government of Zanzibar.  Before delivery of this appeal decision, the Registrar released the accused from custody following the entry of the nolle prosequi by the Prosecution.  However the decision by the High Court that raised grave constitutional issues was left intact and hence this revision under S. 4(3) of the Appellate Jurisdiction Act 1979 as amended by Act No. 17 of 1993.

The eighteen accused persons were charged with treason c/s 26 of the Penal Code.  The litigation was protracted and finally landed into the High Court of Zanzibar.  After amendment of the charge, which was initially defective, the accused raised among other issues the preliminary issue that the charge of treason against the authority in the Revolutionary Government of Zanzibar (Serikali ya Mapinduzi ya Zanzibar S.M.Z.) was not maintainable as Zanzibar was not a sovereign state.

Held:

1.  On an indictment for treason, the following matters have to be proved, that the act was treasonable, that the act is against a sovereign or state, and that the act was done by person who owes allegiance to the sovereign or state.

2.  For a state to exist, there must be a people, a country in which people have settled down, a government i.e. a person or persons who are the representatives of the people who rule according to the law of the land, and that government must be sovereign. 

3.  Sovereignty has dual aspects of internally of relating to the power to make and enforce laws and externally to freedom from outside control.  The United Republic of Tanzania is one country and one state.  The International persons called Tanganyika and Zanzibar ceased to exist as from April 26, 1964 because of the Articles of Union and surrendered their treaty making powers to a new International person called the United Republic of Tanzania. A nation cannot indefinitely surrender the treaty making power to another, and at the same time retain its existence as a sovereign state.

4.  Union matters and non-Union matters are provided for under the Union Constitution, the First Schedule to the said Constitution, as well as legislation enacted under Article 64(4) extending to the entire Union.  On the basis of the principle of duality and the fact of exclusive jurisdiction of the Revolutionary Government of Zanzibar over all non-Union matters in Zanzibar, sovereignty is divisible within the United Republic.

5.  S. 3 of the Tanzania Intelligence and Security Services Act defines “security” to include “subversion”, and “subversion” is defined in the same Act to mean attempting to, inciting, counseling, advocating, or encouraging the overthrow by unlawful means of the Government of the United Republic of the United Republic or of the Revolutionary Government of Zanzibar.

6.  Subversion and treason are cognate offences as they are both about the overthrow of or the revolting against authority. They both fall securely within security, which by virtue of item 3 of the First Schedule is a Union Matter.

7.  Treason is defined by article 28(4) of the Union Constitution, as the gravest offence against the United Republic. Although the article does not create an offence, it acknowledges the existence of the offence as defined by law. It is the only offence elevated so by the Constitution.    The clause makes the offence of Treason a Union Matter although the offence is not contained in the First Schedule.

8.  The combined effect of Article 28(4) and Article 64(5) of the Union Constitution is to repeal s.26 of the Penal Code Decree

Legislation considered:

1.  Appellate Jurisdiction Act No. 17 of 1993

2.  Constitution of the United Republic of Tanzania Articles 1,2(1) 4, 28(4), 34, 64(5), 103, 125, 129 and First Schedule

3.  Constitution of Zanzibar Article 102

4.  Covenant of the League of Nations Article 22

5.  Peace Treaty (Treaty of Versailles) Article 119

6.  Penal Code Decree s. 26 (Cap. 13)

7.  Tanzania Intelligence and Security Services Act, 1996 No. 15 of 1996

Cases cited:

1.  Caglar v. Billingham [1996] LRC 1 565

2.  Daudi v. Republic [1993] TLR 22

3.  Haji v. Nungu and Anor. [1987] LRC (Const.) 224

4.  Joyce v. D.P.P. [1946] AC 347

5.  R. V. Christian [1924] App. D. 101

6.  Sief Shariff Hamad v. S.M.Z. Crim. App. No. 171 of 1992 (unreported)

Ruling of Chief Justice set aside

Othman Masoud Othman, for the Attorney General

Salum Toufiq, Principal State Attorney

Amicus curiae

1.  Othman Masoud Othman Deputy Attorney General S.M.Z.

2.  Kipenka Musa Director of International and Constitutional Department in office of the Attorney General of Tanzania

3.  Syrilius B.G. Matupa Principal State Attorney in office of Attorney General of Tanzania

4.  Prof. Jwan Mwaikusa Chair of Constitutional Law at Dar es Salaam University

5.  Mbwezeleni

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