Parties to Offenses

There exists a category of individuals who are guilty of a crime, even though their involvement is not directly tied to a situation where the offense is committed by more than one person. Each individual may be held criminally liable, but the question arises as to the extent of their liability and how it should be determined. This occurs when multiple offenders play different roles in the execution of a common unlawful act.

(a) Parties to Offenses in England

i. Accessory Before the Fact

This refers to a person who is not present at the time of the offense but procures, counsels, commands, or abets another person to commit the crime. To be deemed an accessory before the fact:

- They must have known of the particular act contemplated.

- They must have approved it.

- Their approval must have been expressed in a way that encouraged the principal to carry out the act.

These elements must have existed prior to the commission of the offense. If the offense is carried out in a different manner than instructed by the accessory, it does not exempt them from liability. For example, if A hires B to poison C, but B shoots C instead, A remains liable as an accessory before the fact. Additionally, if B mistakenly kills C’s brother instead of C, A would still be liable.

ii. Principal Offenders in the First Degree 

This is the individual who actually carries out the criminal act. Generally, no one can be a principal offender unless they are present, but exceptions exist, such as in cases of willful poisoning, where the poison is administered in the absence of the principal offender. Another example includes using an innocent agent, such as a child or an animal, to commit the offense. It is possible to have more than one principal offender in the first degree, especially in cases of joint participation in the prohibited act.

iii. Principal Offenders in the Second Degree 

These include individuals who aid or abet the commission of a crime. For example, a person who provides a vehicle for a robbery or who keeps watch during a theft may be considered an aider or abettor. A person can become an aider or abettor without being physically present at the crime scene, provided their assistance was intentional.

iv. Accessory After the Fact

This refers to someone who, knowing that a crime has been committed, shelters or aids the offender to help them evade justice. This includes rescuing the offender from arrest or intentionally providing shelter. To convict someone as an accessory after the fact, it must be proven that they actively assisted the offender; mere sympathy is insufficient.

(b) Parties to Offenses in Tanzania

The legal framework in Tanzania differs from that in England. Under Tanzania laws, there is no distinction between accessories before the fact and principal offenders. Tanzania law recognizes two categories of parties to offenses: principal offenders and accessories after the fact.

i. Principal Offenders

According to section 22 of the Penal Code, the following individuals may be deemed to have participated in committing an offense:

- A person who directly commits the act or omission.

- A person who enables or aids another person to commit the offense.

- A person who aids or abets the commission of the offense.

- A person who counsels or procures another person to commit the offense.

For instance, if A persuades B to murder C, and C provides B with a gun, while D drives B to the crime scene and keeps watch, the following would apply:

- A falls under section 22(d) for counseling the offense.

- B falls under section 22(a) for committing the act.

- C and D fall under section 22(b) or (c) for aiding or abetting the crime.

It is possible to convict an individual even if they did not directly commit the act constituting the offense. A person charged under section 22(d) may be convicted of either committing the offense or counseling its commission. If they procured someone else to commit the act, they are held responsible as if they had done it themselves.

When multiple persons are charged with an offense, and it is unclear who committed the act, all must be acquitted unless a common intention to commit the offense is established. Mere presence at the crime scene is not sufficient to convict someone as an aider or abettor, as established in Damiano Petro and Jackson Abraham v. R. [1980] T.L.R. 260. In this case, the court found that merely being present at the crime scene or fleeing with the principal offender is not enough to constitute aiding or abetting. To convict, there must be some active participation with the intent to instigate the principal offender.

Similarly, in Jackson Mwakatoka and Two Others v. R. [1990] T.L.R. 17, the court held that the mere presence of an individual at the crime scene was insufficient to establish common intention for a murder conviction. Active participation is required.

If it is proven that individuals participated in committing an offense, they can all be convicted, as demonstrated in George Walter and Two Others v. R. [1980] T.L.R. 313. In this case, the appellants conspired to defraud their employer, and all were found guilty of forgery and attempting to obtain money by false pretenses.

Thus, under section 22 of the Penal Code, where conspiracy to defraud is proven, all parties involved are liable for conviction.

ii. Common Intention by Joint Offenders

Under Section 23 of the Penal Code (PC), for individuals to be charged as joint offenders, the following criteria must be met:

- Multiple Persons Involved: There must be two or more individuals participating.

- Common Intention: They must share a common intention to pursue an unlawful purpose.

- Commission of Unlawful Purpose: The unlawful purpose must be carried out.

- Probable Consequence: The commission of the unlawful act must be a probable outcome of their common intention.

Fulfillment of Section 23 Requirements:

It is not necessary for there to be a prior agreement among the parties before committing the offense. Common intention can arise spontaneously during the execution of the unlawful act.

Case Illustrations:

1. Mathias Mhenyi and Another v. R. [1980] T.L.R 290

   - Facts: The first appellant enlisted the second appellant to assault the deceased, whom he suspected of having an affair with his former concubine. The second appellant restrained the deceased, preventing him from fleeing or defending himself.

   - Court's Decision: The Court of Appeal determined that the second appellant was a principal offender due to his active participation in the assault, which facilitated the first appellant's malicious act. Since the death was a probable consequence of their common unlawful purpose, both parties were guilty of murder.

2. Msengi Mkumbo v. R. (1955) E.A.C.A 500

   - Facts: Two appellants went to a maize field to steal maize cobs, armed with sticks. The deceased confronted them, and the second appellant struck the deceased with a stick, resulting in death.

   - Court's Decision: The court held that both appellants were guilty of murder. Their intent to commit theft and willingness to use violence established the necessary malice aforethought under Section 200(1) PC.

3. Mughuira Bwaya and Another v. R. (1943) 10 E.A.C.A 105

   - Facts: Nine appellants conspired to burgle a house during a famine. During the burglary, one appellant armed with a spear killed the homeowner.

   - Court's Decision: Despite only one appellant being armed, the court ruled that the unlawful nature of the burglary and the probable use of violence to overcome resistance brought all appellants within the doctrine of common intention, resulting in their murder convictions.

4. Shene Kimboka v. R. (1968) H.C.D No.52

   - Facts: Five accused individuals assaulted a tax driver and passenger, resulting in injuries and theft of property. It was unclear if any of the accused directly stole valuables.

   - Court's Decision: The court convicted the accused for assault based on their participation and shared intention to prosecute an unlawful purpose, even though it was not clear if they committed robbery.

5. Jumanne Salum Pazi v. R. [1981] T.L.R 246

   - Facts: The appellant was involved in transporting bags containing elephant tusks disguised as rice. The court examined whether there was joint possession of the tusks.

   - Court's Decision: The court concluded that the appellant had a vested interest in the bags and participated in their transportation, making him a principal offender under Section 22 PC.

6. Tabulayenka Kirya v. R. (1943) 10 E.A.C.A 51

   - Facts: Individuals attacked a pedestrian suspected of theft without prior agreement.

   - Court's Decision: The court held that common intention can be inferred from the individuals' presence, actions, and failure to dissociate from the assault, even in the absence of a premeditated agreement.

Exemptions from Joint Criminal Responsibility:

A person jointly charged with an offense can only exempt themselves from criminal responsibility if they meet one of the following conditions:

- Disassociation from Common Purpose: By taking steps to prevent the offense or reporting it to authorities.

- Lack of Probable Consequence: Demonstrating that the committed offense was not a probable result of the intended unlawful purpose.

Important Note:

Joint responsibility under Section 23 P.C does not merely require that the offense was likely to occur as a result of the individuals acting together. It is essential to establish the existence of a common intention and demonstrate that the act committed was in furtherance of that common intention.

iii. Counseling Another to Commit an Offence

A counselor is an individual who advises, encourages, or persuades another person to commit an offense. Under Section 24 of the Penal Code (PC), for the offense of counseling to be established, the following conditions must be met:

- Counseling to Commit an Offense: A person must counsel another individual to commit an offense.

- Commission by the Recipient: The offense must be carried out by the person to whom the counseling was given.

- Nature of the Offense: It does not matter whether the offense committed is the same as or different from the one counseled.

- Manner of Commission: It is irrelevant whether the offense was committed in the same manner as counseled.

- Probable Consequence: The offense committed must be a probable consequence of carrying out the counseling.

Case Study: R. v. Biguli S/O Lwemara (1947) 14 E.A.C.A 115

The second appellant counseled the first appellant to set fire to the deceased’s house. The deceased died in the fire. On appeal, the court ruled that the counseling did not extend beyond instructing the first appellant to burn the house. Since loss of life was not a probable consequence of arson per se, the second appellant could not be rightfully convicted of murder.

Choitram v. R. (1952) 26 K.L.R 93

The accused handed a diamond necklace to an agent with instructions to remove the diamonds and return them. The agent provided false statements to the police. The accused was convicted of counseling another to give false statements. On appeal, the court upheld the conviction, emphasizing that differing the mode of commission slightly does not absolve liability.

Key Points:

- Manner of Commission Irrelevant: Whether the offense is committed in the same way as counseled does not affect liability.

- Probable Consequence Essential: The committed offense must be a probable result of the counseling for liability to attach.

- Circumstantial Dependence The specific circumstances under which the crime is committed will determine liability. For instance, committing arson at night without warning does not automatically make loss of life a probable consequence unless such circumstances were part of the counseling.

iv. Accessory After The Fact

Under Section 387 of the Penal Code (PC), an accessory after the fact is defined as a person who receives or assists another person, knowing them to be guilty of an offense, with the intent to help them evade punishment. To convict someone as an accessory after the fact, the prosecution must establish the following:

- Commission of an Offense: The primary offender has committed an offense.

- Knowledge of the Offense: The accessory knew or believed that the first person had committed the offense, even if they did not know the identity of the offender.

- Intent to Impede: The accessory performed an act with the intent to hinder the apprehension or prosecution of the offender.

- Lack of Lawful Authority or Reasonable Excuse: The act was done without lawful authority or a reasonable excuse.

Illustrations:

1. Case Study: Andrea Nicodemo v. R. (1969) H.C.D No.25

The first accused stole a bicycle and took it to the second accused's house. The second accused kept it for several days and assisted in removing the saddle. The bicycle was later recovered by the police. On appeal, the court held that there was insufficient evidence that the second accused took steps to help the offender escape punishment, leading to the overturning of the accessory after the fact conviction.

2. General Examples:

   - Aiding Escape: A person offers shelter to a murderer with the intention of helping them evade punishment.

   - Destroying Evidence: Assisting an offender by destroying incriminating evidence to prevent their apprehension.

   - Hiding the Body: Helping to hide the body of a murder victim, knowing that the person was murdered, constitutes accessory after the fact.

Exceptions:

- Self-Preservation: If a person buries a dead body out of fear for their own safety, they cannot be convicted as an accessory after the fact to the murder or manslaughter.

- Spousal Immunity:

  - A wife cannot be an accessory after the fact by receiving or assisting her husband in escaping punishment.

  - Similarly, a husband cannot be an accessory after the fact by receiving or assisting his wife to evade punishment.