Hatibu Gandhi and Others v Republic 1996 TLR 12 (CA)

 

HATIBU GANDHI and OTHERS v REPUBLIC 1996 TLR 12 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

CRIMINAL APPEAL NO 3 OF 1986

14 December, 1987

(Appeal from the convictions and sentences of the High Court of Tanzania, Dar es Salaam, Mnzavas J.K.)

Flynote

Criminal Practice and Procedure - Criminal Procedure Code replaced by Criminal Procedure Act, 1985 - Effect on form of laying a treason charge. Criminal Practice and Procedure - Section 12 of the Evidence Act, 1967 - Evidence to be adduced D to bring the Section into operation when treasonable conspiracy alleged. Criminal Practice and Procedure - Whether a trial judge's summing up of the case to assessors is mandatory or discretionary - Section 283(1) of the Criminal Procedure Code (now Section 298(1) of the Criminal Procedure Act, 1985). E Criminal Practice and Procedure - Trial judge's summing up of the case to assessors - Extent of particularity required. Criminal Practice and Procedure - Assessors' opinions - Duty of trial judge to take such opinions F before giving judgment - Section 248 of the Criminal Procedure Code (now Section 265 of the Criminal Procedure Act, 1985). Evidence - Extra-judicial statements - Formalities required for confessions - Magistrates' Courts Act, 1963 - Section 56(2) - Empowers Chief Justice to issue instructions - Such Chief Justice's G Instructions applying to magistrates also - Whether magistrates' failure to comply fully with Chief Justice's Instructions rendering extra-judicial statements inadmissible. Evidence - Retracted confession - Value and weight to be attached to retracted uncorroborated confessions. H Evidence - Retracted confession - Whether capable of corroborating other evidence against the confessor. Criminal Practice and Procedure - Trial within the trial - Scope of - Findings on the general character of an accused falling within the scope of the main trial - Whether such findings expressed after trial within the trial having the effect of vitiating a fair trial. 

Evidence - Incriminating statements made at trial within the trial - 1996 TLR p13 Admissibility at the main trial - Such statements can be used against the maker at the main trial. A Criminal Law - Section 39(2)(a) of the Penal Code - Charge of treason - What constitutes. Criminal Practice and Procedure - Sentencing - Interference with a trial court's sentencing on B appeal - Principles applicable. -Headnote The First Appellant, together with the Second to Ninth Appellants, were convicted in the High Court of Tanzania at Dar-es-Salaam on three counts of treason, contravening Section 39(2)(a) of the Penal Code. Each was then sentenced to life imprisonment. In C an appeal both against the convictions and sentences, and based on seventy-three substantive grounds of appeal, the Court of Appeal of Tanzania (per Nyalali, CJ) upheld the convictions and sentences in each case and dismissed the appeals in their entirety. Held: D (i) The effect on the laying of charges brought about by the enactment of the Criminal Procedure Act, 1985, is that the courts of this country are no longer bound to follow English practice and procedure in a criminal trial. (ii) The word `may' in Section 283(1) of the Criminal Procedure Code (now Section E 298(1) of the Criminal Procedure Act, 1985) is unambiguous and crystal clear; and thus the trial judge's summing of the case to his assessors is not mandatory, but is prudent as a matter of practice. (iii) It is sufficient for the trial Judge to state the substance or gist of the case on both sides to enable the assessors' opinions to be formed on the case in general or on any particular point required. (iv) Section 248 of the Criminal Procedure Code (now Section 265 of the Criminal Procedure Act, 1985) obliges the trial judge, by necessary implication, to take the assessors' opinions before giving judgment.  

(v) In deciding whether a magistrate's failure to comply fully with the Chief Justice's G Instructions renders extra-judicial statements inadmissible, the question is whether apart from any such non-compliance, other circumstances suggest that the statements were made involuntarily. (vi) A conviction on a retracted uncorroborated confession is competent if the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. H (vii) A retracted uncorroborated confession, if truthful, can corroborate other evidence against the confessor. (viii) Incriminating statements made at a trial within the trial are admissible at the main trial and can be used against their maker at the main trial. (ix) A conviction on a charge of treason requires proof of an overt act as well as the perpetrator's appropriate intention and his allegiance to the Republic at the material time. (x) An appellate court will not interfere with the sentence imposed by the trial court unless such sentence is manifestly excessive. (xi) The appeals are dismissed in their entirety. 

Case Information 

Cases referred to: 

1. Mattaka v R. EA 495 

2. Andrea v R. [1958] EA 685 

3. Milligwa v R. [1953] 20 EA 255 

4. Nayinda s/o Batungwa v R. [1959] EA 691 

5. Ezera Kyabanamaize and Another v R. [1962] EA 309 C 

6. Tuwamoi v Uganda [1967] EA 84 

7. Lusabanya Styantemi v Republic [1980] TLR 276 

8. Wong Kam Ming v The Queen [1979] 1 All ER 939 

9. R v Hammond [1941] 3 All ER 318 

10. D.P.P. v Peter Rowland Vogel [1987] TLR 4 D 

11. Palalar Melaram Bassan and Wathiobia s/o Kyambuu v R. [1961] EA 521 Criminal appeal. 

The facts appear from the judgment of Nyalali, CJ. Lakha, for the 1st, 2nd and 3rd appellants. Kashumbugu, for the 4th, 5th and 6th appellants. Jadeja, for the 7th and 9th appellants. E Mbuya, for the 8th appellant. Mwanyika and Massaba, (assisted by Miss Korosso), appeared for the Respondent. [zJDz]Judgment Nyalali CJ: The following matters are not seriously disputed between the parties in this F case. The nine appellants, namely, Hatibu Gandhi alias Captain Hatty Macghee; Captain Christopher Kadego alias Chriss; Lieutenant Eugene Maganga; Captain Metusela Suleiman Kamando; Captain Vitalis Gabriel Mpunda; Captain Rodrick Roushan Roberts; Captain Dietrich Oswald Mbogoro; Captain Zacharia Hanspoppe and P3794 G Lieutenant Badru Rwechungura Kajaja, hereinafter called first appellant, second appellant, third appellant, fourth appellant, fifth appellant, sixth appellant, seventh appellant, eighth appellant and ninth appellant respectively, were jointly with ten others on three counts of treason, contrary to s 39(2)(a) of the Penal Code, and with one H alternative count of misprision of treason, contrary to s 41(b) of the Penal Code. At the close of the prosecution case five of the accused persons were found to have no case to answer and were accordingly acquitted. The trial then proceeded with the remaining fourteen accused.  

The trial of this case took about a year to conclude. The prosecution called a total of ninety-seven prosecution witnesses, whereas the defence called A forty-three witnesses including the accused persons, all of whom with the exception of the eighth appellant, elected to give unsworn statements in their defence. The first appellant elected to say nothing but called one defence witness. At the end of the long B trial, only the present nine appellants were convicted on the three counts of treason in respect of certain specified overt acts and were each sentenced to imprisonment for life. The remaining five accused persons were acquitted both on the substantive charges and the one in the alternative. As to the appellants who were convicted on the C substantive counts, the learned Jaji Kiongozi properly did not make a finding in respect of the alternative count of misprision. For purposes of this appeal, the proceedings were compiled in fifteen volumes of stenographers' records, and four volumes of the Trial Judge's notes. It was a job well D done both by the learned trial Jaji Kiongozi and the court stenographers led by Mr John Luanda from the Court of Appeal Registry. 

The nine appellants were aggrieved by the convictions and sentences, hence this appeal to this Court. Mr Lakha, learned advocate, appeared for the first, second and third E appellants; whereas Mr Kashumbugu, learned advocate appeared for the fourth, fifth and sixth appellants. Mr Jedeja, learned advocate, represented the seventh and ninth appellants; whereas Mr Mbuya, learned advocate, appeared for the eighth appellant. Messrs Mwanyika and Massaba, Principal State Attorneys, assisted by Miss Korosso, F State Attorney, appeared for the Republic. A total of seventythree substantive grounds of appeal were submitted against the judgment of the High Court. The hearing of the appeal took seventeen days and at the end of the appeal we reserved our considered judgment until now. For reasons that will become apparent in this judgment, this case has an economic background. The global economic crisis which still exists in the world today started many years ago. As it is well known, there is hardly any country in the world which has not, in one way or the other, suffered from this adverse global economic effect. But the year 1982 was a particularly bad one for Tanzania. Most people in the country were H affected by the economic situation. Faced with such economic adversity, there were those who reacted constructively, and others who reacted destructively. By early 1983 the Government had enacted a draconian legislation known as The Economic Sabotage (Special Provisions) Act 1983, to combat a tide of economic crimes.

At the time when the country was facing this economic crisis in 1982, the second, third, fourth, fifth, sixth, seventh, eighth and ninth appellants held military commissions in the Tanzania Peoples' Defence Forces, that is TPDF. At the time material to this case in 1982, the second appellant was stationed in a tank unit in Dar es Salaam, whereas the B third appellant was pursuing higher studies at Dar es Salaam University. He was in his final year reading for a BA degree in Political Science. The fourth appellant was a pilot in the TPDF Airwing at Ukonga in Dar es Salaam, and so were the fifth and sixth appellants. As far as the seventh appellant is concerned, he was in the Air Defence Regiment and was in charge of Battery No 2 in Dar es Salaam; similarly, the eighth appellant was in the same regiment as Chief Engineer. As for the ninth appellant, he happened to be stationed in a military unit at Nachingwea, but was in Dar es Salaam in December 1982. All appellants are Tanzanians by nationality. 

Thereafter, during the same month of December 1982, the first appellant and the fourth appellant visited Zanzibar on several occasions. At about this time the first appellant received a number of guests at house No 80B Drive-In. He, and a number of friends, also used to visit a house at Kinondoni Mkwajuni, that is, house No 65--32P E along Livingstone Street in Dar es Salaam, where he and his friends used to have lunch and indulge in heavy drinking. That house belonged to PW38, that is, Zahara Abdulla Sengumba, who rented it from the National Housing Corporation. She was in some way related to the first appellant. She had agreed to allow the first appellant and his friends to F have their lunch there as and when they wished. For most of the time, material to this case, the first appellant travelled in the city by taxi which he hired from PW1, that is, Abdallah Mhando. Towards the end of December 1982, the first appellant hired another taxi driven by PW45, that is, Nassor Sultan Seif, apparently because PW1 had travelled G outside the country to Harare in Zimbabwe. During this time, Pius Lugangira alias Father Tom was not sitting idly by at Motel Agip, but made a number of contacts in the city, including a visit to house No 1127 Chole H Road at Masaki in Dar es Salaam.  

That house belonged to one Christopher Paschal Ngaiza, who was one of the persons jointly charged with the appellants but was acquitted after a full trial. This Christopher Paschal Ngaiza happened to be a relative of the said Pius Lugangira alias Father Tom. Towards the end of December 1982, the said I Pius Lugangira invited a number of people to a meeting at house No 1127 along Chole Road at Masaki in Dar es Salaam on two consecutive days. The meeting was claimed to be a business meeting and was held while A the owner of the house was away from Dar es Salaam. On 6 January 1983 events took a dramatic and serious turn. A decision by the authorities was made to launch a joint exercise of the Military, Police and the National Security Department to arrest a number of persons suspected of plotting to overthrow B the Government of the United Republic and kill its President. In the course of that exercise, Mohamed Tamim alias Martin Tamim was shot dead by a national security man as he attempted to avoid arrest at Kinondoni Mkwajuni. Subsequently, various persons, both military and civilian were arrested in the joint exercise. 

The first and C seventh appellants were arrested on 7 January 1983 at Kinondoni Mkwajuni; whereas the fourth appellant was arrested the following day on 8 January 1983, also in the area of Kinondoni Mkwajuni. The fifth, sixth and eighth appellants were arrested in their homes during the night of 7/8 January 1983. The ninth appellant was also arrested in Dar es D Salaam about that time in January 1983. A search for the second and third appellants was made but neither of them was to be seen anywhere in the country until they were retrieved from Kenya in October 1983. Subsequent to the arrests, the first, fourth, fifth, sixth, seventh and eighth appellants, while in police custody, were interrogated by the E police. Later the first, fifth, sixth and seventh appellants were taken before magistrates to whom they made extra-judicial statements. There was, however, a delay in instituting prosecution in a court of law apparently because a number of important suspects F managed to escape from Keko Remand Prison. The case got off the ground after some of the escapees had been retrieved from Kenya sometime in October 1983. That is as far as the matters which are not seriously in dispute in this case are concerned. We now turn to matters that are seriously in dispute in this case.  

It is the prosecution G case that before the first appellant and the late Mohamed Tamimu alias Martin Tamimu, as well as Pius Lugangira alias Father Tom entered the country from abroad between mid-November 1982 and mid-December 1982, they were involved in conceiving and hatching up a plot to overthrow the Government of the United Republic, kill its President and install their own form of Government upon the belief that the Government then in existence had mismanaged the national economy. They hoped that their own government would provide a cure to the economic problems facing the country. The plot so conceived and hatched up required participation of some elements of the TPDF as I well as some civilians. The conspiracy to kill the President of the United Republic constituted the first overt act charged in Count 1. The thrust of the conspiracy which was directed at deposing the President from his lawful office, constituted another separate overt act as stated in Count 2, whereas that part of the conspiracy which was derived at overthrowing the B lawful Government of the United Republic constituted another overt act stated in Count 3. It is part of the prosecution case that the first appellant assisted or facilitated the entry of the late Mohamed Tamimu alias Martin Tamimu from Kenya to Dar es Salaam. This conduct is listed as the second overt act in Count 3. C Furthermore, the prosecution contends that after the trio had entered the country, they began to approach and recruit persons into their plot. 

A number of those approached and recruited were elements in the TPDF. Some of them succumbed to the plot, but D there were others who refused outright; whereas some pretended to cooperate with the plotters while reporting the matter to the authorities. Among those who were successfully recruited were the second, third, fourth, fifth, sixth, seventh, eighth and ninth appellants. PW46, that is, Captain Mohamed Suleiman Mape of the Navy Unit E refused outright. However, he did not report the matter to the authorities. PW11, that is, Captain Albert Ballati of the Commando Unit pretended to go along while reporting to the authorities. This aspect of recruitment of Captain Ballati constituted the seventh overt act charged in Count 3. The successful recruitment of the fifth appellant and the seventh F appellant constituted overt acts numbers 8 and 9 charged in Count 3. PW8, that is, Staff Sergeant Boniface Temu was another military officer who pretended to go along while reporting to the authorities. His recruitment, into the plot constituted the fourteenth overt act charged in Count 3. G It is part of the prosecution case that the plotters managed to hold a number of conspiratorial meetings to work out the modalities and details of their plot. Some of these took place at house No 80B Drive-In, while others took place at house No 1127 along Chole Road at Masaki, and at a house at Kinondoni Makaburini. The operations H plan of the coup plot was finalised at the last two meetings held at the Chole Road house and a house at Kinondoni Makaburini, between the end of December 1982 and the beginning at January 1983.  

The prosecution further contends that some of the conspirators either deliberately or I unwittingly let the cat out of the bag, so to speak, by making incriminating declarations or remarks to friends 1996 TLR p19 NYALALI CJ and acquaintances in unguarded moments. Instances of such behaviour were the A disclosures made by the first appellant to PW1, that is, Abdallah Mhando in the course of the first appellant being driven in PW1's taxi in the city. Similarly, the second applicant revealed the lot to PW2, that is, Iddi Mushi Stambuli when the two met in a bar house in B Arusha about the middle of December 1982. Also, the ninth appellant revealed the plot to PW3, that is Lieutenant Augustine Pancras Ndejembi when the two met at Lugalo Barracks early in January 1983. The incriminating declarations or remarks made by the second appellant constituted overt act number 10 in Count 3; whereas those by the ninth C appellant constituted overt act number 12 in Count 3. Finally, it is the prosecution case that the conspirators had reached the stage of making preparations to execute their coup plot on 8 January 1983. Towards that end, the eighth D appellant deliberately mistuned or mishandled Battery No 2 on 6 January 1983, and the seventh appellant instructed PW8, that is, Staff Sergeant Boniface Temu to interfere with Battery No 2 on the eve of the plot, that is, on 7 January 1983. On that same critical day, the first appellant purchased a number of batteries for use in walkie talkie radios E which were intended for monitoring the coup operations as they were meant to occur on 8 January 1983. In order to leave nothing to chance, the first appellant and the late Mohamed Tamimu alias Martin Tamimu sought assistance from the supernatural world by consulting witchdoctors and requesting them for charms to immunise them against F harm by bullets.  

The conduct of the eighth appellant in mishandling Battery number 2 on 6 January 1983 constituted overt act number 20 in Count 3; whereas that of the seventh appellant of instructing PW8 to interfere with the Battery constituted overt act number 6 of the same Count 3. And the consultations with the witchdoctors constituted overt act G number 6 of the same Count 3. The defence side, both at the trial and in this appeal, shares one main position. It is a common contention of the defence side that the prosecution case is a fiction, concocted jointly by the police and the National Security Department of the Government to cover up H the death of Mohamed Tamimu alias Martin Tamimu, which occurred on 6 January 1983. Apart from this common position, each appellant has a unique stand against the prosecution case. We start with the first appellant. His defence as laid down in cross-examination of witnesses for the prosecution and through his defence witness constitutes a general I denial of the prosecution 1996 TLR p20 NYALALI CJ case and an assertion that the material prosecution witnesses are either liars or A unreliable. There is also an alibi to show that between 31 December 1982 and 5 January 1983 the first appellant was away from Dar es Salaam and had gone to pay condolences to his bereaved mother at Mkaramo in Tanga. He denies travelling to Zanzibar to recruit Albert Ballati. As to the extra-judicial confession which he made B before the magistrate, he claims that it was extorted from him by the police. Finally, he contends that he was denied a fair trial when the learned Jaji Kiongozi made remarks in his ruling at the end of the trial-within-a-trial, concerning the admissibility of the first appellant's extra-judicial confession to the effect that the first appellant was a person C who could choose to tell any lie in order to suit himself.  

That remark drove the first appellant to choose not to say anything in defence in the main trial. The second appellant's defence, like that of the first appellant, disclosed through D cross-examination of witnesses for the prosecution as well as in the second appellant's unsworn statement from the dock, consists of a general denial of the prosecution case and an assertion that the material prosecution witnesses are either liars or unreliable. There is also an alibi to the effect that during the month of December, the second appellant never visited Arusha as claimed by PW2. E The third appellant's defence, like that of the first and the second appellants, disclosed through cross-examination of witnesses for the prosecution and in the third appellant's unsworn statement from the dock, consists in a general denial of the prosecution case F and an assertion that the material prosecution witnesses are either liars or unreliable. There is also an alibi to the effect that at the time when he is alleged to have participated in conspiratorial meetings at the Drive-In house early in December 1982, he was busy with his studies at the University of Dar es Salaam. G The defence of the fourth appellant also consists of a general denial of the prosecution case and an innocent admission of visiting the first appellant at the Drive- In house on two occasions, firstly in connection with the death and burial of the first appellant's sister, and secondly in connection with a Christmas party which the first H appellant hosted. He denies visiting Zanzibar with the first appellant to recruit Captain Albert Ballati, but admits going to Zanzibar on several occasions to buy some building materials for the house he was constructing in Dar es Salaam. Finally, he has an alibi to the effect that at the time when he is alleged to have been attending conspiratorial I meetings in early January 1983, he was busy attending to his sick relative, that is, one Oscar.  

The defence of the fifth appellant consists of a general denial of the prosecution case, A although he admits meeting PW46, that is, Captain Mohamed Suleiman Mape of the Navy Unit at Kigamboni. He claims, however, that the meeting was an innocent one connected with his request to have Mape assist the fifth appellant to transport some B fridges from Zanzibar in Naval vessels. He also has an alibi to the effect that at the time when he is alleged to have been attending conspiratorial meetings, he was busy either working in his farm at Kitunda where he had a project to build a house, or he was busy with his pigs. As to his extra-judicial confession, he contends that it was extorted from C him by the police and the national security men. The defence case of the sixth appellant, like that of the other appellants, consists of a general denial of the prosecution case. There is, however, a specific denial of involvement in the recruitment of the fifth and seventh appellants. There is also an alibi D concerning his movements on 31 December 1982 when it is alleged that he visited New Africa Hotel together with Captain Mapunda and Kamando and recruited the seventh appellant. He contends that at the material time he was with his friends celebrating the end of the year at Mwenge Bar in Ukonga. He, of course, makes an innocent admission E of visiting the first appellant at the Drive-In house once in connection with the death and burial of the first appellant's sister.  

The defence case of the seventh appellant, like that of the other appellants, consists of a F general denial of the prosecution case. However, he specifically denies recruiting PW8, that is, Staff Sergeant Boniface Temu and asserts that throughout the period when he is alleged to have been involved in conspiratorial activities, he was on leave effective 24 December 1982 until his arrest. During his leave, he was busy attending to G personal matters on the dates when it is claimed he attended conspiratorial meetings. As to the eighth appellant, it is his defence that he was on leave away from Dar es Salaam and in Iringa, until 30 December 1982. He denies using his car on 1 January 1983 to drive himself and other conspirators to a meeting at the house along Chole H Road. He asserts that his car was undergoing repairs at the time. He further denies attending a conspiratorial meeting on 3 January 1983, and puts forth an alibi to the effect that he spent most of the morning of that day in the company of a relative, namely one Tonny Roussons, ie DW3, who had arrived from Iringa and was in transit taking pupils to I a school at Arusha. He, however, admits visiting Battery No 2 on 6 January 1983, but not for conspiratorial purposes, but to make personal A checks to enable him to report to a special meeting which was being held that day to discuss range practice matters. As to the defence case of the ninth appellant, it consists also of a general denial of the prosecution case. He admits being in Dar es Salaam at the time of his arrest, but asserts that he had come to Dar es Salaam from his usual station at Nachingwea for medical treatment at Lugalo hospital. He also admits meeting PW3, that is, Lieutenant Augustine Pancras Ndejembi with whom he conversed about a disturbance which had been occasioned by a soldier in PW3's unit when that soldier snatched a gun from a C policeman and made derogatory remarks about the Government.  

He, however, denies making any treasonable declarations or remarks to PW3 in the course of, or after, such conversation. Let us now consider the merits of these appeals. The form in which the charges against the appellants were filed or presented in the High Court is similar to the one adopted in D the case of Mattaka v R (1). In that case the Court of Appeal of East Africa had occasion to consider the appropriate form of a treason charge and stated at 500: E `The Criminal Procedure Code makes no specific provision as to the method of laying a charge for treason contrary to section 39(2) and the prosecution followed the English practice of setting out the various overt acts in each count after having first set out the statement and the particulars of the offence. This procedure has not been questioned and was, in our view, correct. It complied with the F provisions of section 135 of the Criminal Procedure Code as it sets out a statement of the specific offence charged and then gave such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Section 135 states: "Every charge or information shall contain, and shall be sufficient if it contains, a statement of G the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged." It also complied with the section 138, and the use of the English procedure in setting out the overt acts after the particulars was justified by section 3(3) of the Code which provides that the procedure and practice observed by the High Court in England, as on 28th September, 1945, shall be followed in cases where the procedure is not prescribed by the Code.' We were asked, in this appeal, by learned Principal State Attorneys for the Republic to give directions as to the propriety of continuing to lay charges in A the form that has been the practice hitherto.

We are aware that the Criminal Procedure Code has been replaced by the Criminal Procedure Act 1985, with effect from 1 November 1985 as per Government Notice No 379 of 1985. We are also aware B that the High Court conducted the trial in the present case in accordance with the Criminal Procedure Code, since the trial commenced and ended before the Criminal Procedure Act 1985 came into effect. We are aware too that the provisions of s 3(3) of the Criminal Procedure Code which required compliance with the procedure and C practice of the High Court in England was repealed by s 7 of Act 26 of 1971. We do not, however, think that this change in the law which freed the criminal courts in this country from the requirement to comply with English procedure and practice, where there is no specific statutory provision to the contrary, necessarily entails a change in the D appropriate form of laying a charge for treason. What it means is that the courts in this country are no longer bound to follow English practice and procedure in a criminal trial and are free to develop a practice and procedure which is in keeping with the circumstances prevailing in this country. Unfortunately, although we were asked to consider the propriety of continuing with the old practice, the request was made half-heartedly without any local circumstances being pointed out to justify a departure from the old practice. 

We think that this point was not sufficiently argued before us in this case and it would be unsafe to formulate a new procedure or practice without a sound foundation. We hold that the current practice should continue to be used until such a time in the future when a change is made by this Court or the Legislature. We note that the Criminal Procedure Act 1985 reproduced the relevant provisions of the Criminal Procedure Code and cannot therefore be construed to have changed the position concerning the form of laying a treason charge. We next deal with the general complaints which are common to the grounds of appeal submitted by the appellants. The first complaint is that this case is a fictitious one concocted by the Police and the National Security Department of the Government to cover up the fatal shooting of Mohamed Tamimu alias Martin Tamimu on 6 January 1983. We find this contention ridiculous and untenable for four reasons. Firstly, if the Security Department and the Police needed a cover-up they would have picked the obvious cover-up, that is, they would have claimed that the deceased Mohamed Tamimu was killed accidentally while resisting arrest. After all, there 1996 was evidence that the late Mohamed Tamimu had absconded from the army and was A on the run while the army looked for him. Secondly, a cover-up suggesting involvement of some elements of the Army in a coup plot is so sensitive and potentially damaging to national security that no person in his proper mind, and certainly no one in the Police or B National Security Department can conceive such a cover-up, let alone take action to implement it. Thirdly, the fatal shooting of Mohamed Tamimu alias Martin Tamimu was done by a national security man and not by the police.  

No convincing reason has been given to C explain why the innocent Police Force would agree to be involved in the cover-up. Fourthly, there are at least five persons who reported the treasonable conspiracy to the authorities at different times. They are PW2, that is, Lieutenant Iddi Mushi Stambuli, who reported about the middle of December 1982 at Arusha. There is also PW11, that is, D Captain Albert Ballati who reported it in Zanzibar in the third week of December 1982. Also there is PW1, that is, Abdullah Shaban Mhando who reported it in early January 1983, in Dar es Salaam. Similarly, there is PW8, that is, Staff Sergeant Boniface Temu who reported it in Dar es Salaam also in early January 1983. Finally, there is PW3 E Lieutenant Augustine Pancras Ndejembi who reported it in Moshi towards the end of the first week of January 1983. These persons acted independently and at different times and places. Strong criticisms have been raised in the course of this appeal against these witnesses who claim to have reported the conspiracy to the authorities. Let us examine the main F criticisms. We start with those concerning PW1. It has been submitted to the effect that PW1 is either a liar or is in any case an unreliable witness. It was argued that it was highly improbable that the first appellant would have G divulged the coup plot to PW1, a mere taxi driver whom the first appellant had hired to drive him in the city. We think that the true position can easily be appreciated by bearing in mind the following factors: PW1 was an old acquaintance of the first appellant; they had been school-mates at Magamba Secondary School in 1965, and PW1 had been H driving the first appellant in his taxi for at least a fortnight before the first appellant divulged to him the coup plot. This association for a fortnight must have renewed and deepened their old acquaintance. Furthermore, the character of the first appellant is very relevant on this point. He is described by a number of witnesses, including PW13, that I is, Sunday Matola; and PW11, that is, Captain Albert Ballati; as well as PW15, that is, Agnes Ballati; and PW39, that is, Asia Mbwana, as a very talkative and sociable person. Such a talkative and sociable A person, in our view, was likely to divulge the coup plot to an old acquaintance. Furthermore, there is the evidence given by many witnesses, including PW37, that is, Hadija Omari which shows that the first appellant had a weakness for heavy drinking. B The effect of alcohol is well known. It has a tendency to loosen tongues and to remove inhibitions. Another criticism against PW1 concerns the conspiratorial meetings which are said to have been hosted by the first appellant at house No 80B Drive-In in the early part of December 1982. There was evidence given by PW41, that is, Hope Banyikwa and C PW96, that is, Ibrahim Issa, to the effect that PW1 used to participate in those meetings.  

It is submitted that if the meetings were conspiratorial as the prosecution contends, then PW1 must have been involved and his evidence has to be treated with great caution. Undoubtedly, this submission has merit. However, it is apparent from the evidence of D PW1 that he was initially uncertain about the information given to him by the first appellant, and he decided to study the movements of the first appellant and his associates before reporting the matter to the authorities. Can such conduct on the part E of PW1 be condemned in a country like ours where it is proclaimed as a part of the national policy that the defence and security of the nation is the responsibility of every Tanzanian and particularly of every patriot? We do not think that the law of this country condemns such patriotic conduct on the part of an individual citizen who decides to F investigate a suspected treason before reporting it to the authorities. Such conduct is commendable and certainly does not, in our criminal law, make him an accomplice or a person with an interest to serve. It has been argued further that there was an unnecessary delay by PW1 in reporting the G incident to the authorities. Undoubtedly, on the evidence, PW1 made an appointment to report to a senior official of the Intelligence Services, that is, Mr `X' on 15 December 1982. The appointment fell through because PW1's taxi broke down. As the description of the taxi was the only means by which Mr `X' was to identify PW1, it is understandable why PW1 missed the appointment. The following day PW1 flew out of the country to Harare in connection with an earlier commitment of his own. 

He did not return to Dar es Salaam until 1 January 1983, and managed to contact Mr `X' on 2 January 1983, when he successfully made his report. It has been argued with some merit that PW1 ought to have cancelled his trip to Harare until after successfully making his report to Mr `X'. But in A passing judgment on the conduct of PW1, one has to bear in mind that PW1 did not know exactly when the coup plot was fixed to take place. And, furthermore, one has to bear in mind that even the security services did not find it necessary to inform the B President about the coup plot until 6 January 1983, although they had already received a report about such a plot as early as mid-December 1982. Under the circumstances, we do not think that the conduct of PW1 can properly be censured. Like the learned Jaji Kiongozi, we find PW1 a credible and reliable witness. Let us turn to the main criticisms directed against PW11. They are similar to those C directed against PW1. It has been submitted that it was highly improbable that the first appellant and the fourth appellant would seek to recruit PW11 into the conspiracy without first laying the ground for so doing. We think that there is a reasonable D explanation for the conduct of the first and fourth appellants. Firstly, the coup plotters needed the services of commandos, and PW11 was in charge of commandos. Secondly, the economic hardships which provided the motive power for the coup conspiracy, affected practically everyone both within and outside the army.  

It was, therefore, reasonable for the plotters to expect to find sympathy from some elements in the army. Furthermore, Captain Ballati had a bad record in the army, as he had killed a fellow soldier. Such a record made him a likely target for coup plotters. There is also a criticism about the conduct of PW11 in delaying to report the incident to F the authorities. He was first approached in early December 1982, and he was again contacted by the first and fourth appellants on 12 December 1982, when the coup plot was discussed in detail and his assistance was sought. PW11 did not, however, report the matter to his commanding officer, that is, PW16, Major Hamisi Hemedi Nyuni until 31 December 1982. G PW11 gave an explanation for his delay in reporting. At first he did not believe the information, and thought that the first and fourth appellants could have been sent by the National Security Department to test the loyalty of Army Commanders at a time of H national economic crisis. Later, when he realised that the plot was real, he decided to get more details about it before reporting the matter to the appropriate authorities. As in the case of PW1, we find this explanation reasonable and convincing. There was also the additional criticism that PW11 delayed in submitting a written report I requested by his Commanding Officer, PW16. PW11 explained that after he had made his oral report to PW16, he was assigned other pressing duties which necessitated a delay in his A submitting his written report. 

There is no evidence to contradict this assertion. There is another explanation which is inherent in the evidence. The crucial purpose of alerting the authorities about the existence of the coup plot was already accomplished by PW11 B making his oral report. The report was transmitted by PW16 to PW17, that is, Sei Bakari Omari, the Deputy Minister in the Ministry of Defence and National Service in the Union Government. The written report was required for a different purpose. PW16 needed it for discussions with commanding officers and other heads of security services in Zanzibar. C Thus the written report was not as urgent as the oral report and PW11 must have known so. There is another criticism made against PW11, and it is based upon the fact that he was one of those people arrested in the course of the joint exercise conducted by the army, police and national security department. D We do not think that this criticism has merit. Many people were arrested by the police, undoubtedly because the police did not want to leave a stone unturned after they had taken over the investigations from the National Security Department. On our own evaluation of the totality of the evidence, we are satisfied that PW11 is a credible and reliable witness.  

We now turn to PW8, that is, Staff Sergeant Boniface Temu. Five main criticisms were levelled against this witness. It was submitted that it was improbable for PW8 to take part in the mini-meeting at Banana Bar in Ukonga on 4 January 1983, together with commissioned officers, when he was himself a non-commissioned officer. F We think that the behaviour pattern of soldiers under circumstances of a coup plot cannot be judged by the standard behaviour under normal circumstances. A coup plot is an abnormal event and soldiers involved may behave abnormally. It was also submitted that it was improbable for PW8 G to walk all the way from Banana Bar in Ukonga to State House to report the conspiracy instead of using the Shs 200/- which he claims to have been given by the seventh appellant. It is argued that he would have hired a taxi. We do not think that it is improbable for a soldier to decide to walk from Ukonga to State House H and save the money for better personal use, after all, walking is another way in which a soldier may decide to keep himself physically fit. Moreover, we take judicial notice of the fact that the distance from Ukonga to State House is no more than a walking distance for a soldier. It is also said that PW8 is uncertain about the time he arrived at State House. We do not think that this uncertainty is surprising, in view of the fact that the witness was testifying about events that took place many years back. 

It was also submitted that it was improbable for PW8 to recall what happened in Banana Bar on 4 January 1983 after taking four beers in addition to another two which PW8 had B previously consumed at the house of the seventh appellant en route to Banana Bar. There is no evidence that PW8 got drunk as a result of drinking these beers. On the contrary, there is evidence that the meeting at Banana Bar in the course of which PW8 consumed the four beers, lasted from 7 or 8 pm to 10.00 or 11.00 pm. That being the position, normal metabolism of the body must have prevent PW8 from getting drunk. C Finally, it was submitted that the fact that PW8 was one of the persons arrested by the police during the crackdown requires that his testimony be treated with caution. The answer given in respect of a similar submission concerning PW11, also applies here. D On our own evaluation of the totality of the evidence of this witness, we are satisfied that he was a credible witness. We turn next to the main criticism directed against PW2, that is, Lieutenant Iddi Mushi Stambuli. It has been submitted that it was improbable that the 2nd appellant would E divulge the coup plot to PW2. With due respect to Mr Lakha who made this submission, we do not see any improbability when account is taken of the following factors:  

On the evidence of PW2, the 2nd appellant was an old friend or acquaintance of PW2. In his unsworn testimony given in his defence in the main trial, the second appellant did not F contradict PW2 on this point. Furthermore, PW2 found the second appellant at a counter in the bar house. It can reasonably be inferred that the second appellant had been drinking in the bar house, unless there is evidence to the contrary. There is no such contrary evidence. We have already pointed out the effect of alcohol. It tends to G loosen tongues and remove inhibitions. Under the circumstances, the second appellant was most likely to divulge the plot to his old friend. On the totality of the evidence adduced by the prosecution, we are satisfied that PW2 is a credible and reliable witness. We turn next to the main criticisms directed against PW3, that is, Lieutenant Augustine H Pancras Ndejembi. It has been submitted that it is highly improbable that the ninth appellant would divulge the coup plot to PW3 who was not closely connected to him. With due respect to Mr Jadeja who made this submission on behalf of the ninth appellant, we can see no improbability in respect of that fact bearing in mind the I following factors: The disclosure was not suddenly made by the ninth appellant to PW3. 

It was made in the course of mutual discussions between the ninth appellant and PW3 concerning an A incident of a disgruntled soldier who had snatched a firearm from a policeman, caused a disturbance and made derogatory remarks about the Government. That soldier apparently belonged to PW3's Unit. In the course of that conversation PW3 agreed with the ninth appellant about the validity of the grievances expressed by the soldier, but disproved the manner in which those grievances were expressed by that particular soldier. The ninth appellant responded by expressing full support for the soldier, and informed PW3 that a coup plot was in the offing for the purpose of remedying the grievances. We think that the ninth appellant must have felt that he could safely divulge the coup plot to PW3 who recognised the validity of the grievances, notwithstanding PW3's disapproval of the conduct of the disgruntled soldier. The other main criticism directed against this witness concerns his failure to report the conspiracy to the authorities and instead reporting it to his father. PW3 explained why he acted as he did. He was not sure who in authority was not involved in the coup plot, after the ninth appellant had informed him that even a Major General was involved in the plot. So PW3 decided to be cautious and decided to report to his father in Moshi, who was then the Area Commissioner in that part of the country.  

We think this explanation is reasonable. After all, his father was a man of authority in the Government and could take appropriate measures, consequent upon such a report. The evidence shows that that is F what happened. The report was transmitted to the Regional Commissioner of Kilimanjaro Region and thence to the Prime Minister. On our own evaluation of the totality of the evidence, we are satisfied that PW3 is a credible and reliable witness. Having found all these relevant material witnesses to be credible and reliable, we are led G to the conclusion that no reasonable person can say that the treasonable conspiracy charged in this case is a fiction concocted by the National Security Department and the Police. We are satisfied that there was a treasonable conspiracy as reported by these witnesses. We are satisfied further, that the evidence adduced by these witnesses is H sufficient to bring into operation the provisions of s 12 of the Evidence Act 1967 which states: `Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by anyone of such persons I referring to or in execution of or furtherance of their common intention after the time when such intention was first entertained by anyone of them, is a A relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it.' We notice that out of the five persons who reported the conspiracy to the authorities, four of them were soldiers of the TPDF. 

This demonstrates, in our view, how over the years the TPDF has truly become a peoples' defence force-an army which every Tanzanian of good will is entitled to be proud. C We come next to another general complaint raised by learned advocates for the appellants. Practically all advocates for the appellants have complained against the attitude of the trial Jaji Kiongozi in accepting the evidence of a number of material prosecution witnesses on the basis that he found no reason why such witnesses should D tell lies against the appellants. Learned advocates for the appellants have submitted, in effect, that the learned Jaji Kiongozi's attitude or approach is wrong, since it appears to proceed on the assumption that witnesses for the prosecution were telling the truth unless the contrary was shown. Both Mr Lakha and Mr Jadeja took the occasion to express a complaint against what they termed to be a general practice by judges in the courts below and magistrates, of adopting a similar attitude. It is the contention of the advocates for the appellants that such an approach appears to shift the burden of proof in a criminal case. F This criticism by the learned advocates is directed particularly in respect of the Jaji Kiongozi's handling of the evidence given by PW1, PW39, PW41, PW8, PW9, PW31, PW32, PW34 and PW35. We have considered these criticisms very carefully and we have noticed that learned Jaji Kiongozi treated the absence of apparent reasons for lying G against the appellants as only one of the factors for accepting the evidence of the relevant witnesses. For instance, in handling PW1, Abdallah Mhando, the learned Jaji Kiongozi had this to say at 2229 of the Judge's notes: 

 `Abdallah Mhando appeared to be well versed with what he told the court. He was a very straightforward witness who stood firm despite long cross-examination by Mr Lakha. I detected no cunning devices in his evidence and I am satisfied that he was a credible witness. There was no reason why he should have decided to tell lies against Macghee. As for his arrest and detention that does not necessarily make him an untruthful witness.' It is evident that the learned Jaji Kiongozi gave at least four grounds in favour of this A witness, and one of the grounds was the apparent lack of a reason to tell lies against Macghee. Since one of the major tasks of a trial court is to determine whether a witness is telling the truth, it is logical for such a court to consider whether a witness has reason B for lying against an accused person. This is what the learned Jaji Kiongozi appears to have been doing in the present case. The same approach can be seen in the handling of the other material witnesses. At 2234 of the Judge's notes, the learned Jaji Kiongozi had this to say: `Kadego's defence that he did not know Asia, leave alone visiting the Mkwajuni house is, on the evidence available, not true. Why should Asia and Hope tell lies against him? Why should Lt. Stambuli decide to cook-up such a serious story against him? There was no evidence at all that the D two were enemies.  

On the contrary, they worked together in Monduli and Rombo Districts. On the totality of the evidence, I am satisfied that Kadego's unsworn defence was a clumsy attempt to evade the consequences of his crime. He apparently did not tell the court why he left the country.' E At least four grounds are given for accepting the evidence of Asia, Hope and Stambuli. Two of the grounds are common to all these witnesses, that is, the absence of a reason for lying and the failure by Kadego to tell the court why he left the country. There are two F additional grounds in favour of Stambuli. Firstly, the absence of enmity and the fact that he had been working together with Kadego in Rombo District. Similar approach applies to the other relevant prosecution witnesses in respect of whom the criticism has been raised by the defence advocates against the Jaji Kiorgozi's attitude. With due respect, we find the criticism misconceived. G The other main common ground of complaint against the conduct of the learned Jaji Kiongozi was raised by Mr Jadeja, learned advocate, to the effect that the learned Jaji Kiongozi failed to make adequate summing up of the case to the assessors. It is the H contention of Mr Jadeja that it is mandatory for a trial judge to sum up the case to the assessors before taking their opinions. Mr Jadeja has invited this Court to overrule the decision in the case of Andrea v R (2), where it was held to the effect that the summing up to assessors is a discretion and not a mandatory duty of a trial court. Mr Jadeja has invited us to restore the earlier decision in Milligwa v R (3) where it was held to the effect that there was a mandatory duty to sum up the case to the assessors before taking their opinions. We are satisfied that A the decision in Andrea's case is the correct one for the reasons given therein, that is, the relevant statutory provision is unambiguous and crystal clear. 

We cannot interpret the word may used under s 283(1) of the Criminal Procedure Code (now s 298(1) of the Criminal Procedure Act 1985) to mean shall. To do so would be to do violence to clear B statutory provisions. We, however, agree with the views expressed in Andrea's case that, although it is not mandatory for the trial judge to sum up the case to the assessors before taking their opinions, it is prudent as a matter of practice so to do, except in the C simplest of cases. The present case was not a simple one, and the learned Jaji Kiongozi properly decided to sum up the case to the assessors before taking their opinions. After all, as already mentioned, the case took about a year to complete. For the avoidance of doubts, we must point out that it is in any event mandatory upon a D trial judge to take the opinions of the assessors before giving judgment. This is a necessary implication of the provisions of s 248 of the Criminal Procedure Code (now s 265 of the Criminal Procedure Act 1985) which requires all criminal trials before the High Court to be with the aid of the assessors. We have examined the summing up of the learned Jaji Kiongozi. It covers ninety-one E pages of fullscap paper. Although it is true that the learned Jaji Kiongozi did not state every detail and it would have been impossible so to do, it is apparent to us that he summed up the substance or gist of the case for the prosecution and the defence. We F do not think a trial judge is required to state all details of the case in his summing up. If he does so, it would cease to be a summing-up. It is sufficient if he states the substance or gist of the case on both sides in a manner which enables the assessors to give their opinions on the case in general, and on any particular point that the trial judge needs G their opinion.  

This is what appears to have been done in the present case. For instance, in connection with the seventh appellant in respect of whom Mr Jadeja specifically raised this complaint, the learned Jaji Kiongozi summed up the case at length from pp 1976 to 1978 of the Judge's notes. The gist of the prosecution case against the seventh H appellant appears on those pages, whereas the gist of the seventh appellant's defence is dealt with from pp 2006 to 2008 of the Judge's notes. The summing up deals with both the seventh appellant's general denial of the prosecution case and his alibi. For those reasons, we think that the summing up by the learned Jaji Kiongozi in respect of the I seventh appellant and the other appellants cannot be faulted. Another main common ground of complaint made by the learned advocate for the A appellants is to the effect that the learned Jaji Kiongozi failed to consider or give adequate consideration to the defence of the appellants. This complaint was raised in the course of the appeal in respect of the first, second, third, fourth, seventh and eighth B appellants. We have carefully considered this ground. It is true that the learned Jaji Kiongozi did not consider each and every detail of the defence of these appellants, predictably because the trial took such a long time. It is apparent, however, that the learned Jaji Kiongozi set out and considered the gist or substance of the defence of each of these appellants. Can it be said that in so doing the learned Jaji Kiongozi failed to consider any material detail of the defence of the appellants? Since the learned Jaji Kiongozi grasped the gist or substance of the case for the defence, he must necessarily have been aware of the material details from which such gist or substance is derived. 

This is borne out clearly from p 2228 to p 2264 of the Judge's notes where the learned Jaji Kiongozi dealt at length with the main criticisms levelled by the defence side against the prosecution case. One other main common ground of complaint is that the magistrates or the Justice of E the Peace, before whom extra-judicial confessions were made, did not comply with all the formalities required when taking such extra-judicial confessions. Unfortunately, neither Mr Lakha nor any of his learned friends who argued this appeal before us, was certain as to the formalities which apply in this country. The learned attorneys for the F Republic contended that the only relevant formalities are those contained in the Judges' Rules issued by the Judges of the Queen's Bench Division in England. The case of Nayinda s/o Batungwa v R (4) was cited in support of that contention. In that case the following words from a ruling of a Judge of the High Court were cited: G `The Judges' Rules apply to Tanganyika and therefore before taking a statement from a person in custody the police officer should administer the caution prescribed by Rule 5 of the Judges' Rules.... In my view, a magistrate who is recording an extra-judicial statement should give the person making H the statement the same caution. In fact it is usually done and there has been a High Court Circular some time ago saying that it should be done.' We agree that Nayinda's case lends support to the proposition that the English Judges' I Rules, at least as they were at the time of that case, were applied to this country by a High Court Circular.  

But that is not the end of the problem. Members of this Court, as well as all the learned A advocates and the Principal State Attorneys who appeared in this appeal, were fully aware throughout the hearing of the appeal that there is a current practice concerning the taking of extra-judicial statements in this country which contains rules which are B more elaborate than the Judges' Rules. Unfortunately, no one was able to assist the Court in the course of the appeal to trace the authoritative source of this current practice. The Court had to conduct further research on its own after the conclusion of the appeal, and this necessarily resulted in an unexpected delay in giving this judgment. C This exercise was, however, worthwhile and rewarding. We are now in a position to say that the current local practice can be traced to the year 1963 when the Magistrates' Courts Act 1963 was enacted. The Act contained provisions for the appointment of Justices of the Peace, both ex-officio and appointees of the Minister responsible for D Legal Affairs. Under s 56(2) of the Act the appropriate judicial authority, that is, the Chief Justice, is empowered `to issue instructions not inconsistent with any law for the time being in force for the guidance and control of Justices in the exercise of their powers, functions and duties and every justice shall comply with and obey such instructions'. 

On the authority of the provisions of s 56(2) of the Act, the Chief Justice issued instructions to Justices of the Peace to guide them on, among other things, the manner of taking extra-judicial statements, and these instructions were published in a booklet by F the Government Printer under the Official Seal of the United Republic, and were effective from the date the Act came into force. This booklet entitled `A Guide for Justices of the Peace' contains on pages four to five the relevant instructions hereinafter called `The Chief Justice's Instructions'. The position, therefore, appears to be that since G 1 July 1964, when the Magistrates' Courts Act 1963 came into force, the taking of extra-judicial statements by Justices of the Peace has in this country been regulated by the Chief Justice's Instructions. The Judges' Rules remain applicable to the police only, for whom they were in any case, originally intended. The question then arises whether these Instructions to Justices of the Peace extend to H the taking of extra-judicial statements by magistrates as well? There is a misconception in this country, and was apparent in the course of these proceedings both in the High Court and in this Court, that a magistrate of every description is an ex-officio Justice of the Peace. That does not appear to be correct. Under the I Magistrates' Court Act 1963, which has been repealed but substantially reproduced by the Magistrates' Courts Act 1984, the only section which A makes magistrates ex-officio Justices of the Peace is s 52(1)--(now s 58(1) of the Magistrates' Courts Act 1984) which provides:  

`A Primary Court Magistrate shall be a Justice of the Peace for the District for which the Primary Court to which he is assigned is established; and in his capacity as a Justice is hereby assigned to every District Court therein.' It would seem that only Primary Court Magistrates are ex-officio Justices of the Peace. C The Resident Magistrates and the District Magistrates who took the extrajudicial statements in the present case are not ex-officio Justices of the Peace. Of course, this does not mean that they were not empowered to take extra-judicial statements from persons in custody. They clearly had such powers by virtue of the provisions of s 28 of D the Evidence Act 1967. But are they also bound by the Chief Justice's Instructions when taking extra-judicial statements? Although the Chief Justice's Instructions specifically refer to Justices of the Peace and make no mention of magistrates, we are satisfied that the instructions were meant to E apply to magistrates also. It is inconceivable, on the grounds of public policy, that there could be two different sets of rules, one applicable to the taking of extra-judicial statements by Justices of the Peace, and another to magistrates when taking such statements. This is because magistrates and Justices of the Peace play the same role while taking extra-judicial statements. They have, therefore, to be governed by the same rules. We now come to the crux of the matter. 

It is indisputable that none of the magistrates who took the extra-judicial statements, which were admitted as exhibits at the trial, fully complied with the Chief Justice's Instructions. Does this breach of the instructions render the statements inadmissible? We think that the answer to this issue is to be found in the case of Nanyinda s/o Batungwa already cited above. At p 693 of the report it is stated, and we quote: H `But it must be kept in mind that the Judges' Rules are administrative rules; and breach of them does not automatically result in the exclusion of the statement. The breach is but one of the circumstances, I though the important one, for the trial judge to take into account in deciding whether or not the statement is voluntary.' Although this decision concerned the Judges' Rules as they then applied to this country, A we are satisfied that the position stated therein applies also to breach of the Chief Justice's Instructions. This means that in as far as the extra-judicial statements of the appellants are concerned, the Court has to consider whether apart from the breach of B the relevant formalities, there are other circumstances which suggest that these extra-judicial statements could have been involuntarily made before the magistrates. Let us now see whether there are such circumstances relevant to all the appellants who made the extra-judicial statements.  

It is common ground that the appellants, who made C the extra-judicial statements, had been in police custody shortly before they were taken to the magistrates, and that they either did not complain against treatment by the police, or they expressly informed the magistrates to the effect that they had not been induced by anyone to make the statements. It is also common ground that they were D handed back to the police after they had made the extrajudicial statements. On the basis of this fact, there is a common line of defence by the appellants to the effect that the conduct of the appellants before the magistrates who took the statements was a E mere pretense of freewill so that the particular appellants concerned could avoid a repetition of torture by the police or by the national security men, who had previously tortured them to induce them to confess to the offences charged. It is part of this line of defence that the appellants concerned ought not to have been F handed back to police custody, but should have been put into judicial custody, that is, put into remand custody by the magistrates after taking the extra-judicial statements. In our considered opinion, the issue whether or not the particular appellants pretended to be free agents before the magistrates, cannot be resolved in a court of law by other G means except by reference to the conduct and physical appearance of the persons concerned. Only the Almighty God, or perhaps those who claim to have what is known in psychology as Extra Sensory Perception (ESP), can tell directly what goes on in another person's mind without reference to the conduct or physical appearance of that other person. 

For most humans, including this Court, what goes on in the minds of another person can reasonably be ascertained only by reference to the conduct or physical appearance of that person. In the present case, since the appellants who made the extra-judicial statements made it I known to the magistrates that they were free agents, no reasonable tribunal can find otherwise, unless there 1996 TLR p37 NYALALI CJ was something in their physical appearance or conduct which was inconsistent with A being a free agent; or unless there is cogent evidence to show that they had been tortured while in custody before being taken to the magistrates. With regard to the submission that the appellants concerned ought not to have been B handed back to police custody, but should have been put in remand custody, we do not see how in law such suspects could have been remanded in custody before they were charged in court. In any case, according to the Chief Justice's instructions above mentioned, the suspects are required to be handed back to police custody. C The lengthy steps which a Justice of the Peace or magistrate is instructed to take contain instruction No 10 which reads: `The accused is returned to police custody.' It is followed by the signature of the Justice (or the magistrate) concerned, as the case may be. Let us now try to see whether there are any unique circumstances which may suggest that any of the appellants who made the extra-judicial statements might have done so involuntarily.  

In the case of the first appellant, it is common ground that he informed the magistrate that he had not been tortured. On the evidence, there is nothing in his conduct or physical appearance to belie this information, since the five old scars which he had on his body, were, according to his testimony, sustained by him about two-and-a-half years before this matter. Those scars, therefore, have no relevance to this case. There is, of course, the suggestion that the magistrate did not sufficiently F identify himself as such to the first appellant. This suggestion, however, is contradicted by the record. For instance, it is quite clear on pp 808, 810, 837 and 838 of the Judge's notes, that the resident magistrate identified himself as a magistrate and the first appellant understood him to be such. As to the allegation that the first appellant was tortured while in police custody, the G learned Jaji Kiongozi specifically addressed his mind to it and stated in his ruling at the end of the trial that: `Having examined with the closest care and attention all the circumstances in which the accused gave his confession, I am satisfied that Superintendent Siame, Mr Y and Mr H told the truth when they H said that they did not torture the accused, so as to induce him to make a statement before the Justice of the Peace.' With due respect to Mr Lakha, learned advocate, we find nothing in his written or oral submission which can fault the trial Jaji Kiongozi for accepting the evidence of I Superintendent Siame, or Mr `Y'  Or Mr `H' on this point. 

Moreover, we can find nothing on record to enable us to come to A a conclusion which is different from that arrived at by the learned Jaji Kiongozi, regarding these witnesses on this issue. We are thus led to hold that the extra-judicial statement made by the first appellant was a voluntary one and therefore was properly admitted as evidence in this case. What about the circumstances under which the fifth appellant made his extra-judicial statement? It is common ground that he also informed the magistrate to the effect that he had not been tortured while in police custody. Was there anything in his conduct or  physical appearance to suggest the contrary? We can see none. There is of course the suggestion made in his evidence given in the trial within the trial that he could not have told the magistrate otherwise because Mr Masolwa, that is, PW71, and his team were present when the magistrate inquired about the possibility of torture. We do not think that the fifth appellant's evidence on this point is cogent, because this suggestion was not put forward to Mr Masolwa or the magistrate under cross-examination. The suggestion seems to be an afterthought on the part of the fifth appellant. The fifth appellant also testified in his trial within the trial that he was given notes by E PW71 to use and that he actually used such notes while giving his extra-judicial statement to the magistrate.  

This evidence was, however, contradicted not only by PW71 but also by the magistrate in question. Part of the fifth appellant's evidence in his F trial within the trial is to the effect that he was tortured by the police and the national security men while under police custody being taken to the magistrate. The torture was applied to his private parts so severely that those organs from which he had been suffering from a venereal disease got swollen up. This evidence, however, is G contradicted by the evidence of PW75, a medical assistant who examined and treated the fifth appellant in connection with his venereal disease and a fever. The medical assistant noticed nothing wrong with the fifth appellant's private parts apart from this venereal disease which had nothing to do with this matter. The fifth appellant, while giving his evidence in his defence in the main trial before the H court including the assessors, repeated his assertion about the torture. This assertion was, however, made in unsworn testimony given by the fifth appellant and was therefore not open to cross-examination by the prosecution. It was quite improper on the part of I the fifth appellant to repeat this assertion before the assessors when he was not prepared to give evidence on oath and be cross-examined to test the veracity of his assertion. In the case of Ezera A Kyabanamaize and Another v R (5) the Court of Appeal for East Africa adopted the disapproval expressed by the Court of Criminal Appeal in England in the case of O'Neill and Ackers v R by stating at 313--314: 

`However, what the court desires to call attention to is this: having suggested this to the police, and having repeated the suggestion before the jury, counsel did not call his client to support what he had been instructed to say, and the court has no hesitation in saying that that is not the proper practice ... C In this case a violent attack was made on the police. It was suggested that they had done improper things ... the applicants had the opportunity of going into the witness box at the trial and explaining and supporting what they had instructed their counsel to say. They did not dare to go into the witness box and, therefore, counsel, who knew that they were not going into the witness box, ought not to have D made these suggestions against the police. It is one thing to cross-examine properly and temperately with regard to credit, it is however, entirely wrong to make such suggestions as were made in this case, namely that the police beat the prisoners until they made confessions, and then, when there is the chance for the prisoners to substantiate what has been said by going into the E witness box, for counsel not to call them. The court hopes that notice will be taken of this, and that counsel will refrain, if they do not intend to call their clients, from making charges which, if true, form a defence but which, if there is nothing to support them, ought not to be pursued.'  

The present case is on all fours with what was said in O'Neill's case. Counsel for the appellants who confessed, cross-examined prosecution witnesses extensively before the assessors suggesting that those appellants had been tortured. The appellants when G giving their unsworn statements in their defence before the assessors repeated the suggestions of torture already raised by counsel under cross-examination. This was quite improper. Counsel ought not to have raised the suggestion of torture in the main trial unless their clients were ready to go into the witness box and be crossexamined by the prosecution to test the assertions. H On our own evaluation of the totality of the evidence, we are satisfied that the fifth appellant was not subjected to any torture to induce him to make the extra-judicial statement which he made to the magistrate. We find, therefore, that the extra-judicial I statement of the fifth appellant was properly admitted as evidence in the trial. We turn to the extra-judicial statement of the sixth appellant to see whether there are any A circumstances to suggest that the statement could have been involuntarily made. In the evidence given by the sixth appellant in his trial within the trial, it is apparent that he is another person who told the magistrate concerned that he had not been tortured while in B police custody. 

On the evidence, it would seem that there was nothing either in his conduct or his physical appearance to contradict the information communicated by him to the magistrate, except the admitted fact that the sixth appellant used notes while making his statement to the magistrate. The use of these notes may mean one of three C things: Firstly, it may mean that the sixth appellant was using the notes to assist him to tell a detailed coherent and long story. Secondly, it may mean that the appellant was using the notes to assist him to remember details which are otherwise difficult to remember, such as specific dates in the long past. Thirdly, the sixth appellant could D have used the notes to prompt him to remember a story previously memorised by him. It is contended on the part of the sixth appellant that the third alternative was actually what happened in the present case. Undoubtedly, the extra-judicial statement of the sixth E appellant is a very long and detailed one; it covers eight pages of fullscap paper. According to the evidence of the sixth appellant, given in his trial within the trial, he was given a long and detailed statement by the police to memorise at the CID Headquarters on 18 January 1983. Thereafter, he was returned to his police cell where he remained F until 20 January 1983, when he was taken to the magistrate to make his extra-judicial statement. The sixth appellant did not say in his trial within the trial how long it took him to memorise the police statement at the CID Headquarters on 18 January 1983. But G from his unsworn testimony in his defence in the main trial, it would appear that he was at the CID Headquarters between 10.00 am and 2.00 pm. 

Whatever be the case, such a long and detailed statement requires much more than four hours to memorise. Not only that, the sixth appellant would need time to rehearse and refresh his memory before being taken to the magistrate on 20 January 1983, if he was to reproduce it H successfully. On the evidence it does not seem that the sixth appellant was given the opportunity to rehearse or refresh his memory. On the contrary, he spent the whole day of 19 January 1983 in his unpleasant police cell. Such a place was conducive to forgetfulness about details that he might have memorised the previous day. We are I satisfied that under these circumstances, with or without notes, it would have been impossible 1996 TLR p41 NYALALI CJ for the sixth appellant to reproduce such a long detailed story memorised about two A days before. Moreover, there was evidence adduced by the prosecution to contradict the assertion that the police gave him the notes. It would seem that the sixth appellant got the notes in a manner best known to himself and used them to assist him to remember B some details of his past experience and to tell them in coherent manner. What about the possibility of the sixth appellant being tortured while in police custody before being taken to the magistrate? The learned Jaji Kiongozi specifically considered the point and concluded that there was no such torture. One of the factors which led the C learned Jaji Kiongozi to that conclusion is stated in his ruling thus: `If the security and the police had decided to torture Captain Roberts to obtain a statement, why should they have chosen to do so in broad daylight in such a place as the open grounds of D Gymkhana grounds?' We think this is a cogent point, and we concur with the learned Jaji Kiongozi in his conclusion concerning the torture. He was right in admitting the sixth appellant's extra-judicial statement as evidence in the trial. E Next we come to the confession of the seventh appellant.  

On the evidence adduced in the trial within the trial, including the extra-judicial statement of the seventh appellant, it is apparent that he was one of the persons who informed the magistrate concerned to the F effect that he had not been tortured while in police custody. There was nothing either in his conduct or his physical appearance to suggest the contrary. His assertion made in his evidence in his trial within the trial, to the effect that he had been previously tortured while at the CID Headquarters was contradicted by the evidence given on the G prosecution side. On our own evaluation of the evidence, we think that the CID Headquarters is the most improbable place for suspects to be tortured either by the police or the national security men. One would need very cogent evidence to show that such a thing can be done at such a place. There is no such evidence here. H The learned Jaji Kiongozi was of course aware that torture by the police and the national security men has happened in the past in this country; but such tortures happened at places inaccessible to members of the public. Unfortunately, this awareness on the part of the learned Jaji Kiongozi appears to have had an improper influence on him concerning this case. This can be seen in his ruling where he stated:  A `We know that tortures by the police and members of the security do happen and could very well have happened with Mbogoro.' This statement of the learned Jaji Kiongozi would seem to indicate that he accepted the probability of the seventh appellant having been tortured while under police custody. If B that is what the learned Jaji Kiongozi thought, then he should not have accepted the extra-judicial statement in evidence. 

The learned Principal State Attorneys who appeared for the respondent have complained that the learned Jaji Kiongozi allowed himself to be C improperly influenced by matters extraneous to the present case, that is, by cases that he might have heard in the past. We think that the criticism by the learned Principal State Attorneys is justified. The learned Jaji Kiongozi ought to have confined himself to the evidence adduced in the present case concerning the allegations of torture and D decided the matter accordingly. However, we are satisfied that had he done so, he would, on the evidence before him, still have come to the same conclusion as he did, that the statement was voluntary and therefore admissible as evidence in the trial. We now come to the total case in respect of each of the appellants. We start with the E first appellant. The prosecution case against him, as already stated, has many arrows or aspects directed against him. To begin with, it is alleged that he was one of the four originators of the coup plot. The only evidence concerning the first appellant's F participation in conceiving and hatching up the coup plot is his retracted confession.  

The law regarding the value and weight to be attached to retracted confessions has been settled in East Africa in a number of cases, culminating with the case of Tuwamoi v Uganda. One of the major legal propositions in Tuwamoi's case is that a court can G convict the maker of an uncorroborated retracted confession if it warns itself of the danger of acting upon such an uncorroborated retracted confession, and is fully satisfied that the retracted confession cannot but be true. In the present case, the learned Jaji Kiongozi was aware of the correct legal position. In our considered opinion, if this retracted confession is truthful, it implicates the first H appellant beyond reasonable doubt with the overt act of conspiracy charged in Counts 1, 2 and 3. On our own evaluation of the evidence, we are satisfied that the retracted confession of the first appellant is nothing but cogent and truthful. We therefore find him I fully implicated in the overt act of conspiracy charged in Counts 1, 2 and 3. We may also point out at this stage  that the evidence of PW1 clearly shows that the role of the first appellant did not end with A the conception and hatching up of the coup plot but he continued to participate in the conspiracy until the very end. We turn next to his alleged role in arranging or facilitating the entry into the country of a B fellow conspirator, namely, the late Mahomed Tamimu alias Martin Tamimu. As already mentioned, this conduct on the part of the first appellant constitutes overt act number 3 charged in Count 3. The relevant material evidence on this issue is that given by PW22 (Mohamed Omari Hatibu), PW23 (Bakari Daudi Shoka), PW24 (Rehema Samuel C Mayanza), PW25 (Athumani Bakari), PW26 (Hussein Salum Sarai), PW27 (Ramadhani Ali) and PW28 (Bakari Saidi). 

The totality of this evidence is to the effect that some time in November 1982 the first appellant travelled from Dar es Salaam to Makorora in Tanga D and sent PW22 to Mombasa in Kenya to fetch the late Mohamed Tamimu alias Martin Tamimu and accompany him to Tanzania, where the first appellant met them at Duga and travelled with them by taxi first to Tanga and thence to Dar es Salaam. Mr Lakha has made a number of criticisms regarding the two crucial prosecution E witnesses on this point, that is, PW 22 and PW24. PW24 testified about the arrival of the first appellant in company of PW22 at her home in Tanga and their subsequent return thereto accompanied by a third person who was introduced to her as Martin. On the evidence of PW22 this third person is no other than the late Mohamed Tamimu alias Martin Tamimu. F Mr Lakha's main submission is that the evidence of PW22 and PW24 cannot be relied upon, firstly because PW22 is a self-confessed lying witchdoctor and an accomplice, and secondly because PW24 is uncertain about the time of certain events and her G testimony in court contains certain details which are missing in her police statement. As we shall demonstrate later in this judgment, the fact that PW22 is proved to have used deception in his practice as a witchdoctor does not necessarily make him generally unreliable, because the deception involved was part and parcel of his practice. H As to the issue of being an accomplice, we agree with Mr Lakha that PW22 was at least an accomplice on the alternative charge of misprision of treason, as he failed to report the treasonable conspiracy to the authorities. However, the evidence of PW24, if accepted, amply corroborates PW22 in material I particulars. We have considered the criticisms levelled against PW24.  

We find the uncertainty about dates and hours explicable on the ground that the witness was testifying about events that took place many years back, and her memory was thus affected by the long lapse of time. As to her testimony in court being more detailed than her police statement, we think this is also explicable on B the ground that a police statement is not meant to be as detailed and as thorough as the testimony given in a trial in court. We are satisfied that PW24 is a credible witness and that her evidence corroborates that of PW22 in material particulars. The massive and substantially coherent evidence of PW22, PW23, PW24, PW25, C PW26, PW27 and PW28 is not contradicted by other evidence. On the basis of this evidence, there is no doubt whatsoever that the first appellant brought the late Mohamed Tamimu alias Martin Tamimu into the country. What we have to ask ourselves here is whether this conduct of the first appellant was in furtherance of the coup plot. The only D evidence which links the said Mohamed Tamimu alias Martin Tamimu with the coup plot is the extra-judicial statement made by the first appellant. In that statement the first appellant mentions him as one of those who conceived and hatched up the coup plot. On the totality of the evidence, we have no doubt whatsoever that the first appellant E brought his fellow conspirator into the country in furtherance of the plot. It follows, therefore, that overt act number 3 charged in Count 3 is proved against the first appellant. 

The next prosecution arrow specifically aimed at the first appellant is that he was assigned and accepted to recruit some elements of the airwing and commandos of TPDF, and towards that end recruited the fourth, fifth and sixth appellants as well as PW11, that is, Captain Albert Ballati. Although the recruitment of the fourth, fifth and sixth appellants was not specifically averred as an overt act in any of the counts charged, we G think that in law proof of an overt act not specifically charged has the effect of aggravating the offence or offences charged and may, therefore, be relevant to sentencing. The evidence concerning the recruitment of elements from the airwing, particularly the fourth, fifth and sixth appellants, consists solely of the extra-judicial statements of the H first and fifth appellants. The extra-judicial statement of the first appellant does not specifically mention the names of those recruited from the airwing, but this lacunae in the evidence is filled in by taking into consideration the exta-judicial statement of the fifth appellant. Under the provisions of s 33(1) of the Law of Evidence Act 1967, that I subsection states: `When two or more persons are being tried jointly for the same offence, or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the Court may take that confession into consideration against that other person.' The confession of the fifth appellant, if taken into consideration, clearly shows that among those recruited from the airwing were the fourth, fifth and sixth appellants. 

But what value or weight is to be attached to this extra-judicial statement of the fifth appellant C on this matter? The confession was retracted by the fifth appellant. However, as already mentioned earlier in this judgment, a retracted confession can be a basis for conviction without corroboration if the court is satisfied that such confession cannot but be true, and warns itself of the danger of convicting without corroboration. The learned D Jaji Kiongozi was satisfied that the fifth appellant's confession was nothing but the truth. This finding of the learned Jaji Kiongozi has been the subject of a strong attack by the advocates for the appellants, who pointed out that there were numbers of proven untruthfulness in the statement. These alleged falsehoods include the alleged E involvement of foreign powers in the coup plot; the alleged involvement of Major Silas Mayunga in the same coup plot; the alleged presence of Father Tom at the Christmas party on 25 December 1982; the alleged conspiratorial meetings on 27 December 1982 F and 28 December 1982; the alleged presence of the first appellant at a meeting at house No 1127 along Chole Road on 31 December 1982, when the first appellant is claimed to have been away from Dar es Salaam, and in Zanzibar; the alleged conspiratorial meeting on 1 January 1983 at house No 1127 along Chole Road when G such meeting never took place, according to the evidence of Steven Buberwa and Oscar Ngaiza, that is PW36 and PW34, respectively; and the alleged presence of the second and third appellants at house No 80B Drive-In on 26 December 1982, and on 27 December 1982, as well as 28 December 1982; while on the evidence of Ibrahim Issa (PW96) these persons never came to that house. H We agree that on the authority of Aneriko's case a confession which contains material falsehoods, knowingly made by the person confessing, is valueless unless such falsehoods can be separated from the body of the confession.  

Can it be said that in the present case these falsehoods were knowingly made by the fifth appellant? We do not I think so. The fifth appellant was not among the originators of the coup plot and could therefore easily have been duped into believing that foreign A countries were involved in the coup plot and duped also into believing that Major General Silas Mayunga was involved. It would seem that the originators of the coup plot were engaged in recruitment propaganda to win followers. With regard to the other falsehoods, they appear to have one common factor. They all B relate to specific dates when certain things are said to have happened or to have been done. Since the fifth appellant in his confession appears to have participated in a number of conspiratorial meetings, there is every likelihood of confusing dates and events, and C thereby giving rise to the misleading impression of lying. Under those circumstances, it cannot be said that the fifth appellant knowingly told lies on these matters. We are satisfied that the confession of the fifth appellant is not disqualified by the rule in Aneriko's case and can therefore be relied upon to inform us about the names of D persons the first appellant recruited from the airwing. We are satisfied, on the evidence, that it was the first appellant who recruited the fifth, sixth and seventh appellants into the coup plot. 

However, the recruitment exercise was not made a specific overt act charged against the first appellant. It only aggravates the offences charged. E Next we consider the recruitment by the first appellant of PW11 which constituted overt act number 7 in Count 3. The relevant evidence on this point is that of the extra-judicial statement of the first appellant and the evidence of PW11. In his extrajudicial statement, F the first appellant does not specifically mention the person whom he recruited from the Commando Units in Zanzibar, but this lacunae in the evidence is filled in by the testimony of PW11. We have already considered the evidence of PW11 at length in connection with the common criticisms made by the learned advocates concerning the G prosecution witnesses who claimed to have reported the conspiracy to the authorities. While so considering, we found PW11 to be a credible and reliable witness. His evidence, to the effect that the first appellant visited Zanzibar several times in December 1982, is fully supported by other prosecution witnesses, such as PW12 (Mchuwao H Safisa) and PW13 (Sunday George Matola) as well as by the unsworn testimony of the fourth appellant. On the basis of the testimony of PW11 supported as it is by this other evidence, there can be no doubt that the first appellant recruited PW11. Thus the overt act charged as number 7 in Count 3 is fully proved against the first appellant. I The next arrow in the prosecution arsenal aimed at the first 1996 TLR p47 NYALALI CJ appellant is an allegation to the effect that apart from the first appellant's participation in A the recruitment exercise, he also participated in a number of conspiratorial meetings aimed at consolidating the conspiracy. The evidence of PW41, that is, Hope Banyikwa, shows that the first appellant hosted a number of meetings at house No 80B Drive-In.  

She, of course, does not know the nature of those meetings, since she was not one of the participants and was not allowed to hear what went on. The main criticism directed against PW41's evidence concerning these meetings was made by Mr Lakha to the effect that she was uncertain about the exact dates when the meetings took place. We C think there is a reasonable explanation to this uncertainty. The witness was testifying about events that took place many years back, and because of that, her memory could have been afforded by the long lapse of time. Now, were these meetings conspiratorial? The prosecution case relied mainly on the extra-judicial statements of the fifth and sixth D appellants. The extra-judicial statement of the fifth appellant implicates the first appellant in a number of conspiratorial meetings at the Drive-In house towards the end of December 1982. This extra-judicial statement of the fifth appellant places these meetings on the 26, 27 and 28 December 1982; and clearly shows that they were E conspiratorial except that the one on 26 December 1982 was preceded by a Christmas party, and did not become conspiratorial until the innocent guests had left. The extra-judicial statement of the fifth appellant tallies with that of the sixth appellant except that the extra-judicial statement of the sixth appellant does not disclose the nature of F those meetings. On the appellant's side, it has been submitted to the effect that the evidence of PW41, Hope Banyikwa, is inconsistent with these extra-judicial statements concerning the dates when the alleged meetings were held. 

It has however been pointed G out that PW41 is uncertain about the dates, because of the long lapse of time. PW41's uncertainty cannot therefore be used to contradict the information given in the two extra-judicial statements which were made not long after the event. But can these two extra-judicial statements be safely acted upon? H We have already dealt with the extra-judicial statement of the fifth appellant and arrived at an affirmative answer. With regard to the extra-judicial statement of the sixth appellant, similar grounds of complaint were raised concerning the falsehoods contained I therein. We think the answers to these complaints are the same as those given in respect of the extra-judicial statement of the fifth appellant. That is not however the end of the problem. PW41 is not the only A witness to these meetings. There was Ibrahim Issa (PW96) who testified about participating in these meetings and to the effect that they were not conspiratorial but purely social. The learned Principal State Attorneys appeared to provide the answer to B this problem. They pointed out in their submissions to the effect that the meetings in respect of which PW96 testified could not be the same meetings in respect of which PW41 testified. Those in which PW96 participated were attended by about two guests, whereas those in respect of which PW41 testified were attended by about five to six persons. This larger group of people tallies substantially with the meetings mentioned in the two extra-judicial statements. On the totality of the evidence, there is no doubt that these larger meetings which the first appellant hosted at house No 80B Drive-In were conspiratorial meetings concerning the coup plot and served the purpose of consolidating the original conspiracy.  

Another meeting in which the first appellant is said to have taken part was at house No 1127 along Chole Road in Masaki, Dar es Salaam. On the evidence of PW36, Steven Buberwa, and PW43, Oscar George Ngaiza, this meeting which took place on two E consecutive days was hosted by Pius Mutakubwa Lugangira alias Father Tom. There is a conflict of evidence by these two witnesses concerning the exact dates of these meetings. But bearing in mind the fact that these witnesses were testifying about events which took place many years back, such conflict is to be expected. In substance, the F two witnesses are in agreement that the meeting took place some time towards the end of December 1982. The only evidence which implicates the first appellant with participation in the meetings on the two consecutive days at house No 1127 along Chole Road, Masaki, is to be found in the extra-judicial statements of the fifth, sixth and G seventh appellants. These statements also are the only evidence which disclose the nature of the meetings as being conspiratorial. We have already dealt with the veracity of the extra-judicial statements of the fifth and sixth appellants. It is now the turn of the extra-judicial statement of the seventh appellant. There are three major complaints concerning the veracity of this extra-judicial statement. H The first two concern the alleged involvement of foreign countries in the coup plot as well as the alleged involvement of Major Silas Mayunga in the same coup plot. We have already dealt with these complaints, particularly in respect of the extra-judicial statement I of the fifth appellant. The answers there apply here.

The third complaint concerns the alleged recruitment of the seventh appellant by the A fourth, fifth and sixth appellants at New Africa Hotel in the evening of 31 December 1982. It is said that this cannot be true since the seventh appellant was, at the material time, celebrating the end of the year at Msasani Officers' Mess. According to the extra-judicial B statement of the seventh appellant, the recruitment took place at New Africa Hotel between 5.15 and 6.00 pm. According to PW8, that is, Staff Sergeant Boniface Temu, the seventh appellant was at Msasani Police Officers' Mess at about 6.00 pm. This time given by PW8 is, in our view, no more than an estimation made many years after the C event. It cannot, therefore, be taken at face value. There is also the evidence of PW9, Cpl Mussa Ramadhani, the Officers' Mess attendant, who testified to the effect that on 31 December 1982 the seventh appellant came to the Officers' Mess at about 8.00 pm. This again is at best no more than an estimate made by the witness many years after D the event. In any case it is not inconsistent with the allegation that the seventh appellant was recruited at New Africa Hotel between 5.15 and 6 pm as stated in the extra-judicial statement of the seventh appellant. It is also to be noted that, unlike the testimony of PW8 and PW9, the extra-judicial statement of the seventh appellant was made not long E after the event and is therefore in that respect more relivable. For this reason, it cannot be said that on the evidence adduced by the prosecution, the extra-judicial statement of the seventh appellant is false when it states that the seventh appellant being recruited at F New Africa Hotel between 5.15 and 6 pm. On the basis of the provisions of s 33(1) of the Law of Evidence Act 1967, the extra-judicial statements of the fifth, sixth and seventh appellants can be taken into account against the first appellant in respect of his participation in the meetings at house No 1127 along Chole Road in Masaki, Dar es G Salaam, if there is a substratum of evidence adduced against the first appellant which can be reinforced by these extra-judicial statements.  

Do we have such substratum of evidence against the first appellant? The answer must be in the negative. Apart from these extra-judicial statements, there is no other evidence H which places the first appellant at the meeting in house No 1127 Chole Road, Masaki, Dar es Salaam. We note, however, that this meeting along Chole Road was not averred by the prosecution as a specific overt act against the first appellant. So failure to prove it is not a fatal setback to the prosecution case against the first appellant. I The position concerning the meeting which is alleged to have been the last one and to have taken place at a house in Kinondoni Makaburini is the same as A that at house No 1127, Chole Road. As to the activities of the first appellant and his friends at the house at Kinondoni Makaburini, the prosecution case does not suggest any conspiratorial activities there. Undoubtedly, there is overwhelming evidence to show B that the first appellant visited this house many times with his friends but for social purposes such as meals and drinks. The first appellant has put up an alibi as part of his defence. The alibi covers the period between 31 December 1982 and 5 January 1983. During that period he claims to have been away from Dar es Salaam and was at Mkaramo in Tanga region, where he had gone, together with DW1, that is, Abdallah Hassan Enzi, to pay condolences to his bereaved mother who had lost a husband. The learned Jaji Kiongozi dismissed this alibi as bogus.  

It was pointed out in the course of this appeal by learned Principal State Attorneys that this alibi by the first appellant is groundless. This submission is based upon the conduct of the first appellant towards one Issa Akida, that is PW30, who testified to the effect that he met the appellant in Dar es Salaam on 6 January 1983, and spent a night with the first appellant at Kunduchi Beach Hotel. PW30 had come from E Mkaramo where the first appellant's mother lived. On the evidence, the first appellant made quite a lot of inquiries about his mother. It is obvious from the nature of the inquiries that the first appellant had not seen his mother at Mkaramo for quite a long time. The relevant part of the evidence of PW30 was not put in doubt under F cross-examination by advocate for first appellant. On the basis of this evidence, we agree with the view of the learned Jaji Kiongozi that the first appellant's alibi is bogus. The next set of prosecution arrows directed at the first appellant concerns the allegation G that the first appellant purchased some batteries for walkie talkie radios intended for use in execution of the coup plot. Also there is the allegation concerning his efforts to immunise himself against harm from bullets through the use of charms. The prosecution case in respect of the purchase of batteries for use in walkie talkie radios H rests on the evidence of PW1 and PW79. The evidence of PW1 is to the effect that on 7 January 1983 the first appellant purchased a set of batteries and informed PW1 that they were for use in walkie talkie radios in connection with the coup plot. His evidence is also to the effect that after the purchase of the batteries, PW1 and the first appellant visited I the home of the sixth appellant.  

The evidence of PW79, is to the effect  that a set of walkie talkie batteries was found at the home of the sixth appellant in the A course of a police search after his arrest. On the basis of this evidence, we are satisfied that the first appellant did purchase the said batteries and left them at the home of the sixth appellant, and for that reason we find overt act number 5 in Count 3 proved against the first appellant. B As to the charms against harm by bullets, the prosecution case rests on the evidence of the two witchdoctors, that is PW22, Mohamed Omari Hatibu and PW23, Bakari Daudi Shoka. The learned trial Jaji Kiongozi accepted the evidence of these witnesses on this point. Mr Lakha has strongly submitted in this appeal that the evidence of these C witnesses ought not to have been accepted since they were self-confessed liars in that they knew that the charms which they purported to provide to the first appellant and his companion would not help them. And yet they proceeded to cheat the first appellant and his companion to obtain their money. D We think in a case like this one involving the use of witchcraft, witchdoctors are invariably the most competent witnesses to testify about their tricks, since they are directly involved in the matter. The weight to be attached to their evidence would depend E in each case on the totality of the evidence relevant to the issue at hand. It has to be borne in mind that there is still a large section of the population in our country which is inclined to seek help from witchdoctors, as a matter of course, whenever faced with problems or challenges of life. The efficacy of such conduct is a matter of controversy F outside the scope of this case.  

What we have to ask ourselves is whether the matters testified to by PW22 and PW23 are probable. Is it probable for the first appellant and his companion to seek charms to immunise them against harm by bullets? Bearing in mind about what happened during the Maji Maji uprising in our history, and also what G happened recently in connection with Alice Lakwena's Holy Spirit Movement in Eastern Uganda, we are satisfied that it is probable for the first appellant and his companion to seek such charms. But can we safely rely on the evidence of PW22 and PW23 to go beyond mere probability and find as a fact that the first appellant and his companion H actually sought such charms? Mr Lakha has submitted that PW22 and PW23 are at least, on the totality of the evidence, accomplices since they did not report the treasonable conspiracy to the authorities. There is merit in this submission, since the first appellant also faced a I charge of misprision of treason in the alternative. The evidence leaves no doubt that the first appellant and his companion made a full confession to these witnesses in the course of their request for charms to protect them against harm A by bullets. We are satisfied on the evidence that PW22 and PW23 are accomplices whose evidence needs corroboration. So we have to look for corroboration. We find it in the evidence of PW1, whom we have B already found to be a credible witness. His evidence on this aspect of the case particularly under cross-examination is to the effect that the drove the first appellant and his companion to see the two witchdoctors.  

On the evidence of PW22 and PW23 supported by that of PW1 we are satisfied that the first appellant and his companion C actually sought charms to immunise themselves against harm by bullets which they might face in the course of implementing the coup plot. So overt act number 6 in Count 3 is proved against the first appellant. It is ironical that the first appellant's companion, D that is, Mohamed Tamimu alias Martin Tamimu was shot dead not long afterwards. This incident demonstrates the impotence of charms against bullets. On the side of the first appellant, it was submitted by Mr Lakha that he did not have a fair trial; since he was driven into a position by certain remarks made by the Jaji Kiongozi on the basis of which it was pointless for him to defend himself in the main trial. It was for E that reason that he elected to remain silent. The relevant remarks appear in the ruling of the Jaji Kiongozi made in the trial within the trial of the first appellant. In concluding the ruling to admit the extra-judicial statement of the first appellant, the learned Jaji Kiongozi stated as follows: F `First accused's demeanour and bearing in the witness box left me with a clear impression in my mind that he is the type of person who can choose to say anything to suit his convenience.' 

This description of the character of the first appellant apparently disarmed him and when his turn to defend himself came round, and was informed about his rights in his defence, he informed the court in Kiswahili as follows: H `Nimeshasema awali kwamba sina utetezi wowote wa kutoa zaidi katika Mahakama hii kufuatana na remarks ambazo zimetolewa dhidi yangu wakati wa ruling yangu kwenye trial within a trial.' We are satisfied that the learned Jaji Kiongozi erred in law in making a finding on the I general character of the first appellant in a trial within a trial. The ruling ought to have been confined to the matter in issue, that is, the admissibility of the extra-judicial statement made by the first  appellant. The issue of general character of the first appellant lay outside the scope of the trial within the trial, and fell within the scope of the main trial. We have now to ask ourselves whether this irregularity on the part of the learned Jaji Kiongozi had the effect B of denying the first appellant a fair trial. We have examined the record of the proceedings very closely. It is apparent that the defences of the first appellant were fully disclosed under crossexamination of the material witnesses for the prosecution and also through the single defence witness who was called by the first appellant to testify to the alibi. It is C apparent also that neither the assessors nor the Jaji Kiongozi took into account the general character of the first appellant in their view of the whole case. Moreover, these remarks were made in the absence of the assessors, whereas the defence of the first appellant was expected and did actually proceed in the presence of the assessors when the single defence witness testified to the alibi. under these circumstances, we do not think that the first appellant was denied a fair trial.  

The appellant appears to have over-reacted in response to the remarks made by the Jaji Kiongozi at his trial within the trial, and he consequently denied the assessors and the Jaji Kiongozi the opportunity to E hear him in his defence. We now turn to the case in respect of the second appellant. The prosecution case against the second appellant is two-pronged. The first thrust seeks to implicate the second appellant in the conspiratorial meetings at house No 80B Drive-In as well as at F house No 1127 along Chole Road, Masaki, Dar es Salaam, and at a house at Kinondoni Makaburini. The second thrust concerns treasonable declarations allegedly made by him to PW2, Lt Iddi Mushi Stambuli, in Arusha. With regard to the second appellant's alleged participation in the meetings at house No 1127 Chole Road, and the house at Kinondoni G Makaburini, the only evidence on this point consists of the retracted extra-judicial statements of the fifth, sixth and seventh appellants. These retracted confessions can only be taken into consideration by virtue of the provisions of s 33(1) of the Law of Evidence Act, to reinforce other evidence adduced against the second appellant. There H is, however, no substratum of evidence which can be reinforced by these extra-judicial statements. In other words, these extra-judicial statements have no leg upon which to stand. The prosecution case, therefore, insofar as it concerns conspiratorial meetings at house No 1127 Chole Road, and at the house at Kinondoni I Makaburini falls to the ground. 

As to the meetings at house No 80B Drive-In, the extra-judicial statements of the fifth A and sixth appellants can be taken into consideration to reinforce the evidence of PW41, that is, Hope Banyikwa, who identified the second appellant as one of the persons who participated in the meetings. The appellant's defence on this point is a general denial. B However, the extra-judicial statements of the fifth and sixth appellants, and especially that of the fifth appellant, clearly show that these meetings were conspiratorial in nature. On the basis of the evidence of PW41, supported by these extra-judicial statements, there can be no doubt that the second appellant joined the conspiracy at some stage C after it was conceived and hatched up. This means that the overt acts of conspiracy charged in Counts 1, 2 and 3 are proved against the second appellant. With regard to the treasonable declarations alleged to have been made by him in Arusha, the only cogent prosecution evidence on this point is that of PW2. D This witness and his testimony has already been dealt with in connection with his reporting of the conspiracy to the authorities. On the defence side, there is an alibi to the effect that the second appellant was at the material time in Dar es Salaam and did not go to Arusha. But this alibi appears to be inconsistent with the line adopted in cross-examining E PW2 in that respect. It was put to this witness that the second appellant had gone to Arusha on a return air ticket and could not therefore have gone to the bus stand to make arrangements for travel back to Dar es Salaam. On p 155 of the stenographers' transcript of the proceedings, it is recorded in Kiswahili: F `Lakha: Basi wewe ni muongo. Ikiwa yeye amerudi kwa regular flight, basi wewe ni muongo? Stambuli: Mimi sio muongo. Lakha: Sasa huko Bus stand alikuwa anafanya nini? G Stambuli: Labda baada ya kukosa ticketi ya bus akaamua kurudi kwa ndege. Lakha: Lakini alikuwa na ticket ya regular flight bwana.' We are of the view that on the basis of this line of cross-examination of PW2, the alibi H put forth by the second appellant falls to the ground. We are satisfied that the second appellant did make the treasonable declaration as stated by PW2. But does the declaration amount to an overt act? I Mr Jadeja, learned advocate, made submissions in respect of the ninth appellant which are relevant also to the second appellant.  

The submissions were to the effect that in law mere words do not amount to overt acts on a A treason charge. He cited Hale's Pleas of the Crown published in 1778. On p 115 of vol 1 there appears the following statement in old English: B `Therefore though this be regularly true, that words alone make no treason or an overt act, yet it hath these alleys and exceptions.' Eight exceptions are mentioned therein. One of the exceptions concerns words which explain treasonable conduct. This exception would cover declarations made by the C second appellant to PW2, because the declaration explained why the second appellant had gone to Arusha. According to him, he had gone to Arusha to seek ammunition to be used in the coup plot. On the basis of this evidence, there can be no doubt that overt act number 2 charged in Count 1 is proved against the second appellant. D We next turn to the case in respect of the third appellant. The prosecution case is on one front, and that concerns the allegation that the third appellant participated in conspiratorial meetings held at house No 80B Drive-In and also at house No 1127 Chole Road, and the house at Kinondoni Makaburini. 

The prosecution evidence in respect of the meetings at house No 1127 Chole Road, and at the house in Kinondoni Makaburini is similar to that adduced against the second appellant. It consists only in the extra-judicial confessions of the fifth, sixth and seventh appellants. These confessions can only be taken into account to reinforce a substratum of evidence adduced against the third F appellant. Is there such substratum of evidence? As in the case of the second appellant, there is none. The prosecution case therefore falls to the ground in so far as the meetings at house No 1127 Chole Road, and at the house in Kinondoni Makaruni are G concerned. We remain with the meetings at house No 80B Drive-In. Here there is a substratum of evidence given by PW41 implicating the third appellant with participation in the meetings. The extra-judicial statements given by the sixth and seventh appellants can therefore be taken into consideration to reinforce the evidence of PW41. H Before we can do so, however, we have to consider the case for the defence on this aspect. On the third appellant's side, it is alleged that at the time when the conspiratorial meetings are said to have taken place, he was busy studying at the Dar es Salaam University where he was preparing for his final examinations.  

The third appellant did not call any one from the University of Dar es Salaam to show whether the  third appellant was so busy that he could not have attended the conspiratorial meetings. A The failure by the third appellant to call such a witness to support him clearly undermined his alibi. This position was stated by this Court in the case of Lusabanya Styantemi v Republic (7). There is another reason given by the Jaji Kiongozi in his judgment which shows that the B third appellant's defence cannot hold water. The learned Jaji Kiongozi stated: `If he was so busy, why did he so hurriedly leave the country to Kenya. Apparently Maganga did not C think it important to tell the Court why he left his studies and fled to Kenya when he defended himself.' These views of the learned Jaji Kiongozi were of course not based on the evidence adduced before the assessors, but on evidence given by the third appellant himself in D his trial within the trial concerning the admissibility of a statement he made to the police at Dodoma. The evidence is contained in answers given by the third appellant under cross-examination. Mr Lakha submitted before us that it was improper for the learned Jaji Kiongozi to take this evidence into account as it was not given in the main trial, but in a trial within a trial in the absence of the assessors. A Privy Council decision was cited in support of this contention. 

This is the case of Wong Kam-ming v R (8). At 943 of the relevant report their lordships stated: `As part of this case on the main issue, may the prosecution lead evidence regarding the testimony given by the accused on the voire dire. As already related the trial judge originally thought that this question required a negative answer. But he was led to change his mind by the decision in R v Wright G where the Supreme Court of South Australia held that the Crown was entitled to lead such evidence subject to the discretion of the trial judge to disallow it. But the weight of Judicial authority is against such conclusion. The earliest relevant decision appears to be that of the Federal Supreme Court of Southern Rhodesia in Chitambala v R where Clayden, ACJ said: H "In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the crown case. To regard evidence given by him on the question of admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of the statement or that to preserve that right he must abandon I another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him. To me it seems clear that deprivation of rights in this manner and a change in a trial of admissibility to a full investigation of the merits cannot be part of the fair criminal trial." Yet in the instant appeal counsel for the Crown felt constrained to submit that even were the trial judge to exclude a confession on the ground that torture has been used to extort it, any damaging statement made by the accused on the voire dire could nevertheless be adduced as part of the prosecution case. Boldness could go no further.  

Fortunately, for justice, their lordships have concluded that where the confession has been excluded, the argument against ever admitting such evidence as part of the Crown case must prevail. But what C if the confession is held admissible? In such circumstances, it is unlikely that the prosecution will need to do more than rely on the confession itself. Nevertheless, in principle should they be prevented from proving in addition an admission made by the accused on the voire dire? This question has exercised their lordships a great deal. But even in the circumstances predicated it is D preferable to maintain a clear distinction between the issue of voluntariness, which is alone relevant to the voire dire and the issue of guilt falling to be decided in the main trial. To blur this distinction, can lead, as has already been shown, to unfortunate consequences, and their lordships have therefore concluded that the same exclusion of the evidence regarding the voire dire proceedings E from the main trial must be observed regardless of whether the challenged confession be excluded or admitted.' It is apparent that the decision of the Privy Council in Wong's case differed from the earlier position that had prevailed in a number of jurisdictions including England and Wales concerning the matter. 

The earlier position is illustrated by the case of R v Hammond (9). According to the earlier position, incriminating statements made by an accused person at a trial within a trial could be used against him in the main trial. The prevalence of this G earlier position was referred to in Wong's case when their lordships of the Privy Council stated at 942: `Although much criticised, that decision has frequently been followed in England and Wales and in many other jurisdictions.' H The question which arises in this case is whether in this country we should adopt the position as laid down by the Privy Council in Wong's case or follow the earlier position which prevailed a number of Commonwealth jurisdictions as illustrated by Hammond's I case? We think the position in Hammond's case is more appropriate to 1996 TLR p58 NYALALI CJ this country where criminal justice is required to be administered not as a game of A football but as a serious business of acquitting the innocent and convicting the guilty in a reasonable and sensible manner according to law. This Court has emphasized this approach in a recent case, that is, the case of DPP v Peter Rowland Vogel (10). 

We notice that the decision in Wong's case is predicated upon the principle that an accused person ought not to be placed in a dilemma where he has to choose between his right to challenge the admissibility of evidence against him and his right to remain C silent in his defence in the main trial. We also notice, however, that the right of the public to see justice done by the Courts in a reasonable and sensible way according to law was not considered at all by the Privy Council in Wong's case. We think that consideration of this right of the public to see justice done is quite fundamental, since D invariably a trial within a trial takes place in public, and evidence given within such a trial is known to the public, notwithstanding the absence of the jury or assessors as the case may be. Since the authority of the courts depends ultimately upon public confidence in the courts, it is important that a proper balance be maintained between the rights of an E accused person on the one hand and the rights of the public on the other. In the present case, we have evidence adduced by the third appellant in his trial within the trial, and which was properly admitted within the scope of such a trial, to the effect that he and the second appellant fled to Kenya upon learning that the police were looking F for him and his companion. This evidence was given in the presence of members of the public and the appellants, though in the absence of the assessor. What would the public and the appellants think of our courts if it was said by the Trial Judge that, through some legal fiction, such evidence though properly admitted in the trial within the trial, did G not exist for purposes of determining the guilt of the appellant?  

They would be justified, in our view, in thinking that the trial was just a game and not a serious business of determining guilt and innocence. Such an attitude, particularly on the part of the public, is dangerous to the rule of law. Our legal system ought not to encourage it. The prosecution case against the fourth appellant has two fronts: The first thrust concerns the allegations that he, together with the first appellant, was involved in the I recruitment of PW11, that is, Captain Albert Ballati. The second thrust concerns the allegation that he participated in the conspiratorial meetings at house No 80B Drive-In as well as at house No 1127 along Chole Road, in Masaki, Dar es Salaam, and A at a house in Kinondoni Makaburini. Let us start with the first allegation. The evidence on this aspect is similar to that adduced against the first appellant, although in addition there is the unsworn testimony given by the fourth appellant in his defence. It is common B ground that the fourth appellant visited Zanzibar several times in December 1982. He claims, on his part, that his visits were innocently connected with his purchase of building materials. But the evidence of PW11 clearly implicates him to the same extent as the first appellant with the recruitment of PW11. 

On the basis of this evidence, we are C satisfied that the fourth appellant was involved in the recruitment of PW11. Therefore, overt act number 2 charged in Count 3 is proved against the fourth appellant. The evidence concerning his participation in conspiratorial meetings at house No 1127 Chole Road, and at the house in Kinondoni Makaburini, consists solely of the retracted D confessions of the fifth, sixth and seventh appellants. These confessions can be taken into consideration to reinforce an existing substratum of evidence against the fourth appellant. There is, however, no such substratum of evidence and therefore this allegation, which is not a subject of a separate overt act, has not been proved. What E about the meetings at house No 80B Drive-In? We have the evidence of PW41, that is Hope Banyikwa who mentioned the fourth appellant as one of the participants in the meetings she described. The evidence of PW41 provides the necessary substratum of evidence which can be reinforced by the F confessions of the co-accused against the fourth appellant. With regard to the alibi of the fourth appellant to the effect that he could not have participated in the conspiratorial meetings as he was busy attending to his sick relative, that is one Oscar, the answer to this is that the meetings at House No 80B Drive-In took place before the fourth appellant G became tied up with attending to his sick relative early in January 1983. According to the prosecution evidence, these particular meetings at this particular place took place in December 1982. The retracted confessions of the fifth and sixth appellants, when taken into account, clearly show that the fourth appellant was one of the conspirators in H respect of this particular meetings at house No 80B Drive-In.  

It follows, therefore, that the overt act of conspiracy charged in Counts 1, 2 and 3 is proved against the fourth appellant. We next turn to the case in respect of the fifth appellant. The prosecution case against the fifth appellant is also two-pronged. The first thrust I concerns the allegations that the fifth 1996 TLR p60 NYALALI CJ appellant participated in the conspiratorial meetings at house No 80B Drive-In as well as A at house No 1127 Chole Road, and at the house in Kinondoni Makaburini; also at Banana Bar in Ukonga on the 4 January 1983. The second thrust concerns the allegation that the fifth appellant attempted to recruit PW46, that is, Captain Mohamed Suleiman Mape. Let us start with the first allegation. The prosecution evidence B concerning the alleged participation by the fifth appellant in the conspiratorial meetings at house No 80B Drive-In, and at the house along Chole Road in Masaki in Dar es Salaam, as well as the house at Kinondoni Makaburini, consists entirely at the extra-judicial C statements of the fifth, sixth and seventh appellants. There is, however, no substratum of evidence adduced against the fifth appellant which can be reinforced by these confessions. In her evidence, PW41 did not mention the fifth appellant as one of those D who attended the meetings at house No 80B Drive-In. As it is, these confessions have no leg upon which to stand. The prosecution case therefore collapses insofar as it concerns the allegation of participation in conspiratorial meetings at these places. We may point out that this allegation is not a subject of a separate overt act charged against the appellant. 

There remains the meeting at Banana Bar on 4 January 1983. The prosecution case E rests on the evidence of PW8, that is, Staff Sergeant Boniface Temu. We have already dealt with this witness in connection with his credibility and the report he made to the authorities concerning the conspiracy. His evidence clearly shows that the fifth appellant F was one of those who attended the mini-conspiratorial meeting at Banana Bar in Ukonga on 4 January 1983. On the basis of this evidence, the overt acts of conspiracy charged in Counts 1, 2 and 3 are proved against the fifth appellant. As to the allegation of attempting to recruit PW46, the prosecution case rests on the G testimony of PW46 and the retracted confession of the fifth appellant himself. PW46 refused to join the plot, but he never reported the incident to the authorities. We are satisfied that on that basis this witness is liable for misprision of treason, contrary to s 41(b) of the Penal Code. Since this offence was charged in the alternative against the H fifth appellant, we hold that PW46 was no less than an accomplice whose evidence requires corroboration before it can safely be acted upon. Is there such corroboration? It has been submitted by learned Principal State Attorneys in this appeal, that the retracted confession of the fifth appellant can be used to corroborate the evidence of PW46.  

On I the face of it, this submission seems to go against a commonly held belief to the effect that a retracted confession cannot corroborate other evidence, A because it also requires corroboration. But there is authority to support the contention of the learned Principal State Attorney. The case of Palalar Melaram Bassan and Wathiobia s/o Kyambuu v R (11) was cited on the point. In that case the Court of Appeal for East Africa stated at 530: B `As regards the learned Judge's reference to the statements of each appellant providing corroboration as against that appellant of the accomplice evidence given by Tanganyika, it is true that those statements were retracted. But we see no reason why they should not be taken into account as C corroboration of Tanganyika's evidence. It is of course a well established rule of prudence that it is unsafe to act upon a retracted confession in the absense of corroboration of the confession in a material particular.... It is true that as a general rule evidence which itself requires corroboration cannot provide D corroboration for other evidence also requiring corroboration. But retracted statements are not the same quality as accomplice evidence. We think that a statement made by an accused whether amounting to a confession or not may in a proper case amount to corroboration of accomplice evidence.' E We think the rationale for this proposition is based upon the evidential value of a retracted confession which is found by the courts to contain nothing but the truth. On the F authority of the case of Tuwamoi v Uganda at 91 supra, such confession is sufficient to support the conviction of the confessor. If a retracted but truthful confession is capable of supporting a conviction against the confessor, why should it not be capable of corroborating other evidence against the confessor? We therefore hold that the retracted G confession of the fifth appellant which, as already found, is truthful, corroborates the evidence of PW46. The appellant on his side does not deny meeting PW46 on the material day. He claims, however, that he did so innocently, in connection with a request by him to PW46 to H arrange transportation of some fridges from Zanzibar. The evidence of PW46, however, shows that apart from this innocent purpose, the fifth appellant subsequently attempted to recruit PW46. On the basis of the prosecution evidence, we find the allegation against the fifth appellant proved. 

This allegation has of course not been made an overt act on I any of the counts of treason charged. But as we have already stated, proof of an overt act which is not specifically 1996 TLR p62 NYALALI CJ charged against an accused person has the effect of aggravating the offence charged A and is therefore relevant to sentencing. Let us now turn to the case in respect of the sixth appellant. The prosecution is presented on one front only concerning the allegation that the sixth appellant participated in the conspiratorial meetings at house No 80B Drive-In, as well as B at house No 1127 Chole Road in Masaki, Dar es Salaam; and subsequently at a house in Kinondoni Makaburini. These meetings were, of course, not made the subject of a separate overt act against this appellant. The only prosecution evidence in respect of the meeting at Kinondoni Makaburini consists of the retracted confessions of the C fourth appellant and seventh appellants. In his own retracted confession, the sixth appellant is silent on the meeting at Kinondoni Makaburini. In law, the retracted confessions of the fifth appellant and seventh appellants can be meaningful only if there D is a substratum of evidence against the sixth appellant which can be reinforced by taking these retracted confessions into account. There is no substratum of evidence against the sixth appellant and the prosecution case therefore falls to the ground insofar as this particular meeting is concerned. This leaves us with the meetings at house No E 80B Drive-In and at house No 1127 along Chole Road in Masaki, Dar es Salaam. There is the evidence of PW41, that is, Hope Banyikwa. She mentions the sixth appellant as one of the persons who participated in the meetings in respect of which she F testified.  

The evidence of PW41 provides the necessary substratum of evidence against the sixth appellant. The retracted confession of the fifth appellant is however relevant to these meetings. When this confession is taken into account, there can be no doubt that the sixth appellant was one of the conspirators who participated in the meetings at house No 80B Drive-In. G As to the meeting at house No 1127 along Chole Road in Masaki, Dar es Salaam, there is the evidence of PW43, that is, Oscar George Ngaiza, who claims to have identified the sixth appellant as one of those who came to participate in the meeting on the second H day. The basis for his identification is that the sixth appellant arrived much earlier at the meeting place before any one else had come, and so PW43 had good reason to notice him. The testimony of PW43 is, however, contradicted on this point by the testimony of PW36, that is, Steven Buberwa. PW36 testified to the effect that the first person to arrive I at the meeting place on the second day was Pius Mutakubwa Lugangira. Because of this contradiction, we felt 1996 TLR p63 NYALALI CJ that it would be unsafe to act upon the evidence of PW43 regarding the identification of A the sixth appellant. The evidence, therefore, proves beyond reasonable doubt that the sixth appellant participated only in the meetings which took place at house No 80B Drive-In. 

These meetings are sufficient evidence of the overt acts of conspiracy charged in Counts 1, 2 and 3. B The prosecution case against the seventh appellant is also two-pronged: The first thrust concerns the allegation that the seventh appellant recruited PW8 and instigated him to sabotage a military installation in furtherance of the conspiracy. The second thrust concerns the allegation that the seventh appellant participated in a mini-meeting at C Banana Bar in Ukonga Dar es Salaam on 4 January 1983. Let us start with the second allegation. The prosecution case rests entirely on the evidence of PW8. We have already dealt with this witness and his testimony in connection with his report of the conspiracy to the D authorities. On the basis of the evidence of that witness, there can be no doubt that the seventh appellant participated in the mini-meeting at Banana Bar in Ukonga on 4 January 1983; and that that meeting was conspiratorial. It follows therefore that the overt acts of conspiracy charged in the first, second and third Counts are proved against the seventh E appellant. As to the recruitment of PW8 and the instigation by the seventh appellant made to him to sabotage an important military installation, the prosecution case also rests entirely on F the evidence of this witness. In the course of this appeal, some special criticism was directed against PW8's evidence on this aspect of the case. It was submitted that PW8 gave the impression that the seventh appellant was on duty when he is said to have recruited and instigated him. With due respect to Mr Jadeja, learned advocate who made this criticism, we think that the criticism is unjustified. Firstly, because the point was not put to PW8 under cross-examination at the trial; and secondly, because there was no evidence to suggest that the seventh appellant could not, while on leave, visit this military camp where PW8 worked. After all, the seventh appellant was normally the man in charge of that military installation. According to PW8 his recruitment was made by the seventh appellant when they met early in the afternoon outside the military camp on 4 January 1983; and that the instigation to sabotage the military installation was made to him by the seventh appellant at Mawenzi Hotel on the evening on 6 January I 1983. The seventh appellant on his side denied recruiting or instigating PW8 as alleged by the prosecution.  

On the basis of the evidence of PW8, whom we have already found to be credible and A reliable, and on the strength of the retracted confession of the seventh appellant, which is truthful, there can be no doubt that the seventh appellant did recruit PW8 and instigated him to sabotage the relevant military installation in furtherance of the coup plot. B It follows, therefore, that overt acts numbers 14 and numbers 15 charged in Count 3 are proved against the seventh appellant. We next turn to the case in respect of the eighth appellant. The prosecution case against the eighth appellant is on two fronts: Firstly there is the C allegation that the eighth appellant participated in conspiratorial meetings at house No 1127 along Chole Road as well as the house at Kinondoni Makaburini. Secondly, there is the allegation that the eighth appellant did sabotage a vital military installation on 6 January 1983 in furtherance of the coup plot. We start with the first allegation. The only evidence concerning this allegation consists of the extrajudicial statements of the fifth and seventh appellants. The extra-judicial statement of the sixth appellant is silent as far as the eighth appellant is concerned. Now, these retracted confessions of the fifth and seventh appellants can be taken into consideration only to reinforce an existing substratum of evidence adduced against the eighth appellant concerning his participation in these meetings. 

There is no substratum of evidence adduced against the eighth appellant on this aspect of the case. This means that the retracted confessions of the fifth and seventh appellants have no leg upon which to stand, and the prosecution F case therefore insofar as it concerns conspiratorial meetings at house No 1127 along Chole Road and the house at Kinondoni Makaburini falls to the ground. These meetings cannot, therefore, be used as evidence of the eighth appellant's involvement in the G conspiracy charged. We must look for other evidence of conspiracy, if any. We go back to the evidence of PW8, that is, Staff Sergeant Boniface Temu. He testified to the effect that in the evening of 6 January 1983 he and the seventh appellant went to H Mawenzi Hotel where they saw the eighth appellant. After the seventh appellant had some conversation with the eighth appellant, he instructed PW8 to sabotage a vital military installation the following day, and required PW8 to report to the eighth appellant about the results of his assignment. He further testified to the effect that the following I day on 7 January 1983, after sabotaging the relevant military installation, he reported to the eighth appellant and the eighth appellant instructed him not to sleep that day before seeing the seventh appellant.  

The conduct of the eighth appellant as disclosed by the evidence of PW8, clearly shows that he was acting in concert with the seventh appellant, who, as already found, was one of the conspirators. By virtue of the provisions of s 12 of the Evidence Act 1967, the B conspiratorial conduct of the seventh appellant in respect of which the eighth appellant acted in concert, can be used as evidence to show that the eighth appellant was also a party to the same conspiracy. On his side, he denies involvement. However, the evidence of PW8 is so compelling that we are led to find that the overt acts of conspiracy charged in Counts 1, 2 and 3 are proved against the eighth appellant. C As to the allegation of his sabotaging the relevant military installation, it is common ground that on 6 January 1983, the eighth appellant visited Battery No 2 and handled the potential meters of that battery. It is common ground also that the battery then appeared D to be very defective. This was at about 10.30 am. Evidence was given at the trial by PW31, that is, Captain Shabani, and PW32, that is, Lt Christopher Kyariga, to the effect that earlier that day in the morning at about 7.20 am the installation had been checked and found to be functionally in good working order. Thereafter, according to the evidence of PW31 and PW34, that is Major Henry Jeremia, some Russian experts came to the installation and they left after being informed that everything was in good working order. 

According to PW31, the eighth appellant thereafter appeared at the scene at about 10.30 am. He handled the potential meters by moving them from left to right, for a declared F purpose of checking the functioning of the installation. The installation was then seen to be very defective. The question then arises, how could this serious defect arise in the light of what had gone before the arrival of the eighth appellant? The prosecution contends that the eighth appellant must have dislocated the installation under the guise G of carrying out a normal checking. The eighth appellant denied this contention. The appellant testified in his defence that he went to check the installation at the material time to enable him to give an accurate report to a special meeting of the regiment which was arranged to take place that day to discuss matters of range practice in which the H installation in question was to be used. This testimony was, however, contradicted by the testimony of PW34 and PW35, that is Lt Colonel Mataji, who was then the Commanding Officer in charge of the relevant air defence regiment. The evidence of I these witnesses shows that the meeting in question had nothing to do with discussions concerning range practice, but was an ordinary executive meeting of the regiment. Moreover, there is an inherent flaw in the testimony of the A eighth appellant. According to him there was a second installation which was to be used in the range practice.  

This was Battery No 4. The eighth appellant did not check this installation before going to the meeting in question. If the purpose of checking the other B installation, that is, Battery No 2 was to enable the eighth appellant to give an accurate report about the installations that were going to be used in the range practice, how accurate could such a report be said to be without covering the condition of Battery No 4? His testimony on this point is not cogent, and consequently his line of defence on this point collapses. C There is however a second line of defence on the side of the eighth appellant. It is to the effect that sabotaging Battery No 2 was pointless since the air defence system could have had no role in the coup plot. We think this line of defence is untenable. The D prosecution case, supported by evidence, is to the effect that the conspirators intended to place the air defence system of the City of Dar es Salaam in the hands of fellow conspirators; and for that purpose they intended to move standby situation from Battery No 2 to Battery No 1 where the seventh appellant was in charge. There is evidence also E to the effect that at the material time the remaining batteries, that is, Battery No 3 and Battery No 4 were not in working condition. Undoubtedly, the conspirators would not have failed to realise the importance of having control of the sky over the city of Dar es Salaam. It was necessary to cover the eventuality of a counter coup from the air. In that F respect, the evidence given in the extra-judicial confessions of the fifth and seventh appellants which show that under the coup operation plan, Dar es Salaam International Airport was to be secured by the conspirators on the fateful day is significant. On p 319 of the stenographers' record of the proceedings, there is evidence given by G PW32, that is, Christopher Beatus Kyariga, to the effect that a serious defect known as `Mistuning' could be occasioned to an air defence battery by mishandling the potential meters, such as rotating them higgledly-piggledly. 

It is common ground that a mistuning H of the air defence battery concerned was reported by Russian experts who were called subsequently to rectify the defect. On our evaluation of the totality of the evidence, we are satisfied that the eighth appellant must have mishandled the potential meters and rendered the installation defective in furtherance of the conspiracy. We thus find overt I act number 20 charged in Count 3 proved against the eighth appellant. We finally turn to the case in respect of the ninth appellant. The prosecution case A against the ninth appellant is presented only on one front which concerns the allegation that the ninth appellant made treasonable declarations to PW3, that is, Lt Augustine Pancras Ndejembi. We have already dealt with the credibility of this witness in B connection with his testimony about reporting the conspiracy to the authorities. That evidence shows that the ninth appellant was a party to the conspiracy. On his side, he denies any involvement. In his unsworn testimony given in his defence, he claims to have come to Dar es Salaam not in connection with any coup plot, but for medical C treatment. DW1, that is, Lt Charles Chabruma gave evidence on his side. His unsworn testimony and the testimony of DW1 shows only that the ninth appellant had medical treatment at Lugalo Military Hospital in Dar es Salaam early in November 1982. The evidence does not show that he was still undergoing medical treatment when he met D PW3 towards the end of December 1982 and the beginning of January 1983.  

There is a suggestion in his unsworn testimony to the effect that he remained in Dar es Salaam until the time of his arrest, waiting to appear before a medical board, which was to determine whether or not the ninth appellant should continue serving in the army. E This suggestion, however, could not be tested under cross-examination as the ninth appellant testified without being sworn. In our view, it is no more than a suggestion and is completely overwhelmed by the evidence of PW3. We are quite satisfied that the ninth appellant made the treasonable F declarations as testified by PW3. Mr Jadeja, learned advocate, has submitted in the course of this appeal that as a matter of law the declaration made by the ninth appellant to PW3 does not amount to an overt act. We have already dealt with this point in respect of one of the appellants, but there is G one aspect which we need to point out here. Although it is correct to say that in law, words as a general rule do not constitute overt acts, we think that that legal position applies only to treason by individual persons. It does not apply to treason by more than one person acting under a conspiracy. This is because in law the conspiracy itself H constitutes an overt act and a conspiracy is usually expressed by words spoken by the conspirators. There is a further point here. The treasonable declarations made by the ninth appellant to PW3 are not only evidence showing that he was a party to the conspiracy, they also I show why the ninth appellant left Nachingwea, where he was normally posted, and came to Dar es Salaam. On p 40 of the Judge's notes of the proceedings PW3 testified: `He said he had come to Lugalo from Nachingwea on the pretext that he was being sick and was being treated at Lugalo.' 

This declaration, therefore, falls within the exceptions listed in Hale's Pleas of the Crown cited earlier, and was properly charged as a separate overt act against the ninth appellant. We now turn to consideration of the guilt of each of the appellants. In respect of the first C appellant, the learned Jaji Kiongozi found the overt acts of conspiracy charged in Counts 1, 2 and 3 proved against the first appellant. We have found the same. The overt acts numbers 2, 5, 6 and 7 in Count 3 were also found established in the court below. We have also come to the same conclusion. We have not considered the overt acts D which were not established at the trial since no appeal was made by the prosecution. As to the second appellant, the overt acts of conspiracy charged in Counts 1, 2 and 3 as well as overt acts number 2 in Count 1 and number 10 in Count 3 were found established by the trial court. We have also found the same in this appeal. E With regard to the overt acts concerning the third appellant, the trial court found established the overt acts of conspiracy charged in Counts 1, 2 and 3. There was no other overt act concerning him. We have also come to the same conclusion. F Turning to the overt acts concerning the fourth appellant, the trial court found established the overt acts of conspiracy charged in Counts 1, 2 and 3 as well as overt act number 7 in Count 3. We have also come to the same conclusion. With regard to the overt acts concerning the fifth and sixth appellants, the trial court G found established against each of these appellants the overt acts of conspiracy charged in Counts 1, 2 and 3. Similarly overt act number 13 was found established against the fifth appellant.  

We have come to the same conclusion concerning the overt acts of conspiracy, but we have not found sufficient evidence in respect of overt act number 13 in Count 3. H We turn next to the seventh appellant. The trial court found established the overt acts of conspiracy charged in Counts 1, 2 and 3. Similarly overt acts numbers 14 and 15 charged in Count 3 were found established. We have also come to the same conclusion. As to the eighth appellant, the court below found established the overt acts I of conspiracy charged in counts 1, 2 and 3 as well as overt  act number 20 in Count 3. We have also arrived at the same conclusion. A Finally, we turn to the overt acts concerning the ninth appellant. The court below found established the overt acts of conspiracy charged in Counts 1, 2 and 3. We have also come to the same conclusion. B The learned Jaji Kiongozi proceeded to convict each of the appellants upon proof of the overt acts concerned without considering the other ingredients of the offence of treason. With due respect, this was an error on his part. Proof of an overt act on a charge of treason-contrary to s 39(2)(a) of the Penal Code does not necessarily lead to a C conviction.  

The court must also satisfy itself that the accused had the appropriate intention and was under allegiance to the United Republic at the material time. In the present case, there can be no doubt on the evidence that each of the appellants intended to cause or effect the illegal purposes of the treasonable conspiracy while D under allegiance to the United Republic. The convictions therefore cannot be disturbed by this Court. We now turn to the sentences imposed by the trial court. Each of the appellants was sentenced to life imprisonment. The maximum penalty for the offence of treason is death. It has been argued by learned advocates for the E appellants that the sentence of life imprisonment is excessive in the present case, since at the time when the appellants were arrested the coup plot had not been implemented and no life or property had been lost or put in danger by the conspirators. It was further F argued that the different roles played by the appellants was not taken into account in imposing the sentence and that the appellants were sentenced not for what they had actually done, but for the probable consequences of their conspiracy. We have seriously considered these arguments and we must point out that the offence of treason, by its G nature and under the circumstances of a coup plot, is a unique offence for which an accused person, if convicted, is invariably sentenced for the probable consequences of his action. This is because, if the coup plot succeeds, the plotters are never tried, never convicted, and never sentenced. It is a reality of life that when a treasonable coup plot H succeeds, the treason ceases to exist. 

There is another important point which we must mention. In the new countries of the third world, history shows that coup d'etats do have disastrous consequences on the future of countries which have experienced such events. Most of them have become I what are known jocularly as `Banana Republics' without domestic or international respect. Everyone knows that our country enjoys great international respect. A Because of this state of affairs every Tanzanian, in spite of our current national economic under-development, is able to hold his head high in the international community. Had the appellants succeeded in implementing their coup plot, Tanzania B would have inevitably become a Banana Republic, riddled with coups and countercoups, and fit only for ridicule by the enemies of Africa for many generations to come. That appalling prospect cannot be ignored in determining an appropriate sentence. It was also submitted that the appellants acted as they did not out of lust for power, but  in a genuine belief that they could remedy the problems facing the national economy by changing the established Government through a coup d'etat. In considering this argument, we bear in mind the fact that with the exception of the first appellant, the remaining appellants were senior officers in the army. Moreover, on the evidence, all the appellants appear to be well educated.  

They must have known that coup d'etats, as opposed to progressive revolutions, have never solved problems of the national economy in the third world, and instead such coup d'etats have made economic problems worse in the countries affected. E As to the submissions concerning failure by the Jaji Kiongozi to take into account the different roles played by the individual appellants, it is true that there was such a failure. What we have to ask ourselves is whether the learned Jaji Kiongozi would have imposed lesser sentences to all or any of the appellants if he had made a distinction F concerning the different roles played by the appellants. We think the position here cuts both ways. It is probable that some of the appellants, particularly those who played a leading role, could have attracted a heavier sentence-that is the maximum sentence. We think that in the circumstances of this case, it would be unjust to consider a G reduction of the sentences in respect of some of the appellants without considering the possibility of the Jaji Kiongozi enhancing the sentences in respect of some of the appellants. But since we did not hear arguments on either side on the issue of enhancement, we are not in a position to do so now. H One of the cardinal principles upon which an appellate court may interfere with a sentence imposed by a trial court on the basis of severity of sentence is to the effect that an appellate court will not interfere unless such sentence is manifestly excessive. In the present case, we do not think that the sentences imposed by the trial court are manifestly excessive under the circumstances of this case, since it is probable that the learned Jaji Kiongozi could have imposed higher sentences if he had considered the separate roles played by the appellants. For this reason, the appeals against the sentences cannot succeed. In the final analysis, therefore, we now dismiss the appeals of all the appellants in their entirety.

1996 TLR p71

C