LEKASI MESAWARIEKI v REPUBLIC 1993 TLR 139 (CA)

 

LEKASI MESAWARIEKI v REPUBLIC 1993 TLR 139 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 31 OF 1993 G

21 May, 1993

(From the conviction and sentence of the High Courtof Tanzania at Arusha, Munuo,

J.) H

Flynote

Legal Assistance - Accused allowed by the Court to prosecute his own case carrying

the death penalty - whether accused could get a fair trial without legal assistance. I

1993 TLR p140

-Headnote

A The appellant was charged with and convicted by the High Court of the offence

of murder. He was sentenced accordingly. During trial the Judge allowed the

appellant to defend himself without assistance of a lawyer and without explaining to

the accused the dangers he was facing in conducting his own defence in such a serious

charge of murder.

B The appellant appealed to the Court of Appeal of Tanzania against both

conviction and sentence.

Held: The appellant did not and could not get a fair trial without legal assistance.

Case Information

Appeal allowed.

C Case referred to:

1. Laurent Joseph and another v. Republic [1981] TLR 351.

Sabaya, for the appellant.

Mrs. Sumari, for the respondent.

[zJDz]Judgment

D Mfalila, J.A., delivered the following considered judgment of the court:

In the High Court sitting at Arusha the appellant Lekasi Mesawarieki was charged

jointly with his E fifteen-year-old son Zephania Mesawarieki with the offence of

murder. His son was acquitted, but he was convicted as charged and sentenced to

death. He lodged this appeal against both his conviction and the sentence of death.

Before us, Mr Sabaya, learned Counsel who appeared for the appellant argued two

grounds of F appeal after abandoning the second ground. In ground No 1 the

appellant complained that the learned Trial Judge erred in law and fact when she

allowed the appellant to proceed to defend himself on such a serious charge of murder

without availing him with the services of a lawyer. During the G hearing, Mr Sabaya

argued that the appellant was greatly prejudiced by being allowed to prosecute his

own case involving such a serious charge carrying the death penalty. He added that

for the same reason that this Court ordered a retrial in Laurent Joseph & Another v

Republic (1) a retrial should be ordered in the present case.

H In reply Mrs Sumari who had initially supported the appellant's conviction

arguing that he had freely informed the Court that he was prepared to proceed with

the trial on second thoughts she conceded that the appellant was prejudiced by

proceeding with the trial without Counsel, hence in her view the I appellant did not

get a fair trial.

1993 TLR p141

MFALILA JA

The record shows that when the trial of the appellant and his young son opened on 29

September A 1992 the following is what transpired:

1st accused:

If no advocate has turned up to defend us we shall conduct the defence by

ourselves. The case should not be B adjourned.

2nd accused:

Let the case proceed. We shall defend ourselves.

These statements by the appellant and his young son appear to have been given

spontaneously, for C they are not preceded by any comments or address by the

Court. After recording those spontaneous statements, there was no attempt by the

Court to explain to the accused the dangers that they were faced in conducting their

own defence in such a serious charge of murder. The Court D simply ordered the

trial to proceed as schedules oblivious of the fact that one of the accused persons was

just a child. As it turned out, the going proved too difficult for the appellant. When

cross-examined by Mrs Lyimo, he is recorded to have replied at one stage:

`I was not able to ask anything I wanted because I am not literate and the case

has many corners.' E

We think that this statement sums up graphically the difficulties which the appellant

and his son faced in the conduct of their defence at the trial. We are thus inclined to

agree with both counsel that F the appellant did not and could not get a fair trial

without legal assistance.

For these reasons we allow the appeal, quash the appellant's conviction and set aside

the sentence of death. However in view of the state of the evidence on record, we

order that the appellant be G retried before another judge in accordance with the

law.

1993 TLR p142

A