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

B

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

C 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. I

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 F 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 I perpetrator's appropriate intention and his allegiance to the Republic at

the material time.

1996 TLR p14

A (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: B

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. I

The trial of this case took about a year to conclude. The prosecu-

1996 TLR p15

NYALALI CJ

tion 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 G

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. I

1996 TLR p16

NYALALI CJ

A 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 C 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.

D 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 con-

1996 TLR p17

NYALALI CJ

secutive 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 H 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.

1996 TLR p18

NYALALI CJ

A 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.

1996 TLR p21

NYALALI CJ

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

1996 TLR p22

NYALALI CJ

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 B

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 Attor1996

TLR p23

NYALALI CJ

neys 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 TLR p24

NYALALI CJ

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,

1996 TLR p25

NYALALI CJ

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

1996 TLR p26

NYALALI CJ

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, E 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

1996 TLR p27

NYALALI CJ

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. E

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

1996 TLR p28

NYALALI CJ

view of the fact that the witness was testifying about events that took place many

years A 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

1996 TLR p29

NYALALI CJ

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 B 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 C 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 D 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 E 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

1996 TLR p30

NYALALI CJ

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.' B

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 E 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:

H `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.'

1996 TLR p31

NYALALI CJ

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: C

`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

1996 TLR p32

NYALALI CJ

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.

1996 TLR p33

NYALALI CJ

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 C 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. D 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.

1996 TLR p34

NYALALI CJ

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'. E

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

1996 TLR p35

NYALALI CJ

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:

B `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 F

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 G 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.'

1996 TLR p36

NYALALI CJ

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 H 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

D 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 E 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'

1996 TLR p38

NYALALI CJ

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. B

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 C 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 D 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

1996 TLR p39

NYALALI CJ

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: B

`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.' F

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.

1996 TLR p40

NYALALI CJ

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 I concerning this case. This can be seen in

his ruling where he stated:

1996 TLR p42

NYALALI CJ

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

1996 TLR p43

NYALALI CJ

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

1996 TLR p44

NYALALI CJ

levelled against PW24. We find the uncertainty about dates and hours explicable on

the A 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 F

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:

1996 TLR p45

NYALALI CJ

`When two or more persons are being tried jointly for the same offence, or for

different offences A 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.' B

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

1996 TLR p46

NYALALI CJ

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. B 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

1996 TLR p48

NYALALI CJ

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 C 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. D

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.

1996 TLR p49

NYALALI CJ

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

1996 TLR p50

NYALALI CJ

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 C 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 D 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

1996 TLR p51

NYALALI CJ

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

1996 TLR p52

NYALALI CJ

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.' G

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

1996 TLR p53

NYALALI CJ

matter in issue, that is, the admissibility of the extra-judicial statement made by the

first A 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 D 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.

1996 TLR p54

NYALALI CJ

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

1996 TLR p55

NYALALI CJ

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. E 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. I The third appellant

did not call any one from the University of Dar es Salaam to show whether the

1996 TLR p56

NYALALI CJ

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 E 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: F

`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

1996 TLR p57

NYALALI CJ

A 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 B 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

F 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). B

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 H 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

1996 TLR p59

NYALALI CJ

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

1996 TLR p61

NYALALI CJ

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 G 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 H 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.

1996 TLR p64

NYALALI CJ

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 D 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 E 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

1996 TLR p65

NYALALI CJ

him not to sleep that day before seeing the seventh appellant. The A 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 E 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

1996 TLR p66

NYALALI CJ

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.

1996 TLR p67

NYALALI CJ

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

1996 TLR p68

NYALALI CJ

came to Dar es Salaam. On p 40 of the Judge's notes of the proceedings PW3 testified:

A

`He said he had come to Lugalo from Nachingwea on the pretext that he was

being sick and was being treated at Lugalo.' B

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

1996 TLR p69

NYALALI CJ

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

inter-

1996 TLR p70

NYALALI CJ

national 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 C 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 D 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 high-

1996 TLR p71

er sentences if he had considered the separate roles played by the appellants. A 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. B

1996 TLR p71

C