R. v. Kasella Bantu and other, Crim. Sass. 47-TABORA-1969, 21/4/69, Georges C.J.

R. v. Kasella Bantu and other, Crim. Sass. 47-TABORA-1969, 21/4/69, Georges C.J.

The seventeen accused persons in this case were jointly charged with the murder of four men. It was alleged that the first accused, Joseph Kasella Bantu, the then member of Parliament for Nzega East, counseled and procured the killing of these four persons and that the other sixteen accused were part of a large group of villagers who set out with the intention of killing all cattle thieves, in accordance with the counsel and advice given by the first accused. Of the latter group, fourteen were found guilty of murder on the grounds that they were members of an alarm group formed after a cattle theft, and that they shared in the common intention of the group to kill thieves – “not all thieves, as contended for by the prosecution, but rather thieves who were suspected of having taken part in this particular theft or of having information with regard to it which they would not disclose”. The remaining two were acquitted. The findings in this part of the judgment are complex and largely factual, and for this reason are not reported here. As for the first accused, due to the distinctive nature of the charge against him, the court dealt separately with him, making separate findings of law and fact which are selectively reported, below, together with a preliminary procedural point.

A)   Procedural Holding

“At the beginning, of the case, an objection was taken to the form of the charge in that it included more than one count of murder against each of the accused person. I allowed the charge to stand in the form in which it was presented, because it appeared to me that having regard to the nature of the case being put forward by the prosecution, it would be quite unreal to select the death of any particular individual, charging some of the accused persons in respect of that death. It was clear also that it would not have been possible to lead evidence to establish responsibility for the death of any one of the deceased persons without including references to the death of the other deceased and the involvement of the accused persons therein. Authorities were quoted from the Digest of East African Criminal Law Cases, although, unfortunately, none of the law reports themselves was available. It is clear that it has been held that in Tanganyika there is a rule of practice amounting almost to a rule of law that no more than one count of murder should be included against any one person in a charge. The Court of Appeal, however, has held that unless there is prejudice to an accused person, a trial will not be set aside merely on the ground that more than one count of murder has been included in a charge. There is nothing in the language of the Criminal Procedure Code itself which seems to make the course unlawful, and exercising my discretion judicially in this case, I was of the view that the charge as framed would clearly allow a proper determination of the matter and would in no way prejudice any of the accused persons”.

B) Selected Evidence and Findings Relating to the First Accused, Kasella Bantu.

(1) Evidence

It was agreed by the prosecution and the defence that Kasella Bantu addressed a meeting at Sungwizi on 20 September 1968. The court found (a) that this meeting lasted some two to three hours, beginning somewhere between 9.00 and 10.00 a.m. and ending somewhere between 12.00 and 1.00 p.m.; (b) that the principal subject for discussion was the problem of cattle theft; and (c) that the accused spoke on the subject of cattle theft for perhaps one to one and a half hours. The main disputed point between prosecution and defense was what was said during that time. The prosecution brought three principal witnesses to testify on the content of the speech. The evidence of the third one, Isubi Kasegeno, was rejected by the court on the grounds that he was evidently not speaking the truth. The two other witnesses were Tadeo Kamwizi, the Chairman of the meeting, and Paulo Simon, and Assistant Divisional Executive Officer who was present during the meeting. Their testimony, as summarized in the judgment, was as follows: “Tadeo Kamwiizi states that the accused opened the meeting by pointing out that cattle stealing in the area had become far too common, that Government had attempted to deal with the matter by detaining cattle thieves, that this had not worked, that he, the first accused, had become known among his fellow Members of Parliament as the member for cattle thieves, a description shared by only one other member, the representative for Iramba West. In these circumstances, he says, he had brought medicine for cattle thieves. He described this medicine by the Kinyamwezi word “binjage”, which can generally be translated as “remove them”, but could have meanings varying with the context in which it is used. Tadeo Kamwizi stated that the crowd then asked how they to be removed were and the accused replied with an illustration. He asked his audience whether they knew a person called Kaselle. The audience replied that they did, whereupon he asked where was Kaselle now. The audience replied that he had been killed. The first accused asked where were the persons who had killed him? The audience replied that they had all been acquitted and were at home. Thereupon, the accused stated that when people killed in a group, the Government took no action. Tadio Kamwizi’s evidence is that the people thereupon understood the meaning of the Kinyamwezi word “binjage” and clapped their hands. They also asked whether they should start killing immediately as there were thieves there present at the meeting. The accused replied that they should not but that they should wait until a theft had taken place. Whenever a cattle theft occurred, there should be an alarm raised people should gather, search for the known thieves in the village, arrest them and kill them the Assistant Divisional Executive Officer, Paulo Simon, also stated that the accused complained that detention of cattle thieves had not stopped stealing, complained that he was known as the Member of Parliament for cattle thieves and that some

other medicine should be found. He also testified that the accused used the word “binjage” and that a voice asked “How should we move?” There upon, the accused replied that there had been a person at Kinga called Kaselle and that person had been killed because of cattle stealing and that the persons who had been arrested for killing him had been set free. He then advised the villagers to follow that example. One of the villagers asked when should they start, and he said not immediately. He said that they should wait until the thieves stole and then that work should be started. An alarm should be raised, all people should respond to the alarm and go to look for the thieves. After getting the thieves, they should be killed. According to his understanding, the accused was referring not only to the thieves who had been responsible for the particular theft, but all thieves. He was quite firm that the illustration about Kaselle had not been brought out by way of question and answer between the first accused and the audience, but had been directly narrated by the accused in answer to the question “How shall we move them?”. “The witness Paulo Simon had been cross-examined at some length at the preliminary enquiry. In addition to what has been set out as his evidence in chief earlier on, he agreed that the first accused at that meeting had said that he was going to attend Parliament and if the thieves stopped stealing, he would not be angry with them, but if they did not stop, he would prescribe strong medicine. He also admitted that the accused had said that when a thief stole, he should not be followed to retrieve the stolen cattle, and if the thief used weapons, the same would be used against him. He also agreed that the accused had said that the people should not be afraid of the Government as others had used force under the circumstances in respect of one Kaselle and they were taken to Court and released. He agreed that the accused said that when cattle were stolen there should be a hue and cry against the cattle thieves, but that the Divisional Executive Officer himself should not attend but should remain behind to deal with the rounded up thieves. He agreed that the accused advised that the Divisional Executive Officer should then detain the rounded up thieves for twenty-four hours and question them so that they should reveal which of their fellow thieves had stolen the cattle, and that if they did not co-operate they should be briefly released and then the arrested again, until such time as they decided to talk. These admissions had been made on the first day of his cross-examination the preliminary enquiry. There had been an adjournment of the Court, and on the following morning after the resumption, the witness had stated that he had been mixed up on the day before, that the accused had not in fact said any of the things that he agreed that he had said at the Sungwizi meeting and that some of these things ad been said at a meeting held some time the year before at Ulaya.” The only witness for the defence was the accused himself, who gave the following account of his speech at the meeting: “He said that he had mentioned various solutions to the cattle stealing problem which had been discussed in Parliament, including cutting off the hands of thieves, blinding them and killing them, that so far he had not taken any active part in these discussions but that now he had come to ask their permission to propose a bill in Parliament to deal with this problem of cattle stealing, that the bill should provide that villagers should raise a hue and cry and follow cattle thieves, and that if the thieves used force in resisting capture, the persons in the hue and cry should be allowed to use force against them and that if death resulted, none of them should be tried. He further proposed that cattle thieves after their sentence should be sent to Mafia. The accused agreed that he used the word “binjage” with reference to this removal of cattle thieves to Mafia. In the meanwhile, pending the proposal of this matter in Parliament and its acceptance, as a temporary measure, when cattle were stolen a hue and cry should be raised and villagers should set out, round up all the local reputed cattle thieves and take them to the Divisional Executive Officer, who should question them as to who had stolen the cattle. He made this suggestion because he was satisfied that local cattle thieves could always give useful information about any theft of cattle which had taken place in their area. In this way, detection of the thief would be stepped up. If the thieves proved unco-operative, then the Division Executive Officer should release the men after twenty-four hours, but quickly rearrest them for further questioning. He stated that he used the example of Kaselle in reply to a question as to what should be done with brazen thieves who threatened to break into their houses at night and use violence on them unless they supplied drink. In question and answer from, he brought out from his audience that one Kaselle had been killed in such circumstances and his killers had not been punished. He ended by warning people who behaved in that way that the fate of Kaselle might befall the.”

(2) Findings

(a)          The court found that the evidence of Paulo Simon was unreliable, in view of his admissions under cross-examination, and his later attempt to repudiate them. The court stated: “It is obviously of the greatest importance in a case in which it is alleged that an accused person indicted others by words to commit an offence that the words used should be very strictly proved. Reports of words spoken at public meetings where no notes or other records are kept are notoriously liable to distortion and misreporting. The prosecutions have cited authorities in support of the general proposition that where rural Africans are concerned, Courts are generally not expected to look for the same standards of precision that one might seek in other societies where general standards of education are higher and powers of observation and recollection perhaps more highly developed as a result. I would accept this proposition. On the other hand, I do not think that it can be used to replace the standard of sureness and certainty which must in any case be reached before an accused person can be convicted. The admissions made by Paulo Simon as regards the contents of the speech delivered by the first accused appear to me to go a long way towards supporting the version given by the accused. At the lowest, it appears to me that the fact that his recollection of events changed overnight after an adjournment is a matter of considerable suspicion. It may be that on reflection he realized that the admissions which he had made to a large extent negatived the strength of his evidence, and he wished as far as it was within his

power to correct that. I find it my self difficult to believe that the witness would have mixed up two meetings held by the first accused at two different places and at two different times at least a year apart.” (b) The court further remarked, concerning the witness Tadeo Kamwizi that he did not impress the court in the witness box as a responsible person whose word could be acted upon. (c) The court rejected the prosecution’s argument that the accused’s guilt was indicted by the fact that he failed to call witnesses, who were available, to support his story. The court stated: “I would agree that there are circumstances in which the failure on the part of an accused person to call a witness whom he could have called might lead to an inference adverse to him being drawn. This case does not appear to me to fall within this category. It is the duty of the prosecution at all times to prove with certainty that which they set out to prove. Apart from this, I would have no doubt in my mind at all that the accused would not find it easy to persuade anyone to come and testify on his behalf. He is now in detention, from which it and reasonably be inferred that he is a person who is considered to have acted in a manner prejudicial to the security of the State, or at least on likely so to do. It is only natural that people should not seek close association with such an individual. Accordingly, failure to call witnesses in support of his version of his speech is not a cogent factor from which an adverse inference should be drawn against him.” (d) Finally, the court found that: “On a full consideration of all the evidence led in this matter, I am not satisfied that the accused did use the words that Tadeo Kamwizi said that he did. The report of the speech which the accuse himself has given; including therefore to the death of Kaselle, appears to me to be quite reasonable. Looking at this as a speech, I am not satisfied that it was an order to kill, nor indeed has the prosecution so argued. It was, in my view, a dangerous speech in that it could easily have been misunderstood to mean that he use of violence against cattle thieves was desirable. There is evidence to establish that a section of the group who killed the decease persons were saying that the order had been given by Kasella Bantu. I accept this as true. It is clear also from the evidence of Minza Sengu and Lyongo Islila and Kasindi Kulimba that this was not the leading section of the group most directly connected with the violence, but a middle section. This evidence cannot, in my view, establish that the first accused ever gave such an order. It is easy to understand in a setting where the use of violence against all thieves is more widely held than is generally appreciated, that the words which the first accused  said he used could have been understood by the angry villagers as a licence to extract information by violence from all known thieves and beat severely those suspected. The emphasis should always be on the need for close adherence to the normal processes of law enforcement through community self-help, rather than on community self-help pure and simple, since the course of this can never be accurately predicted. This does not, however, in my view, make the first accused guilty of the offence of counseling and procuring the death of the cattle thieves in the circumstances alleged by the prosecution.

Accordingly, I would find the first accused not guilty as charged on any of the counts.” (e) In the summing up to the assessors, the court gave, obiter, the following interpretation of the offence of counseling: Advocate for the first accused in this case argues that ….. There must be a counsel or an advice to kill a particular person. He argues that unless the accused person had said “Go and kill Kidirigi” or “Go and kill Makukilo”, then he could not be held responsible if Makukilo or Kidirigi was killed. That is, he said the particular felony which is counseled must be clearly particularized. Now, I will tell you as a matter of law, which you must accept, that I do not think that this proposition is correct. Once there is an advice to go and commit a particular felony – as in this case to kill – and once the group is small enough so that its members can be identifiable as the persons intended to be killed, then I think it can be said that there has been a counsel or procurement to do that killing. So, for example, what is important in this case, assuming the first accused did say what it is said he said, is whether or not the group of persons who would be suspected cattle thieves in Sungwizi is a group small enough to be readily identifiable as the persons whom the accused intended should be killed. For example, you heard the discussion which I had with the advocate for  the first accused; if, for instance, someone stood up in Tabora and said all Wanyamwezi should be killed, and someone set off to kill them, it would be extremely difficult to so that that person who said all Wanyamwezi should be killed was responsible for the death of any particular Mnyamwezi who happened to be killed shortly afterwards, because the number of Wanyamwzi in Tabora is so large that it is difficult to say that he intended the death of any particular person; and this offence would become another offence, which we know in law, called “incitement to violence.” On the other hand, if, for instance, somebody stood up in Tabora, where he knows there are only two lawyers, and says that all the lawyers in Tabora should be killed, and someone immediately sets out to kill them, it would not be difficult to say that there was an incitement to kill those particular persons because the group would be so small as to be readily identifiable as those particular individuals. So in law, therefore what you will have to make up your mind about is that the group of persons known as cattle thieves in Sungwizi was so small as to be readily identifiable as the persons the accused intended to be killed if he said what It is alleged that he said. That is a question of fact which you will have to decide as the assessors.”