22 January 2019

Tanzania: Alarming Number of Trial Errors Nullify Serious Convictions

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As I read the decisions of Tanzania's highest court for its last session of 2018, I was shocked by what I found. In one appeal after another the judges agreed that the trial court had made errors so serious that they 'vitiated' the proceedings, and the accused had to be released at once.

These included cases of gang rape, a case in which a man allegedly pleaded guilty to raping a child, and another in which a man was allegedly found by a witness in the act of raping a child he held on his lap: serious cases in which the evidence suggested the accused ought to be given a long sentence. But because of procedural or other technical legal problems, the outcome was set aside and the accused set free.

Take as an example, the case of Mtangi Masele, charged with arson (for which he was given a 30-year sentence) and grievous harm (for which he was given seven years by the district court). 'Irritated' by the outcome, according to the appeal judges, he first challenged the conviction and sentence at the High Court and when that failed, took his complaint to the Appeal Court.

Before the apex court, representatives of the state conceded that there were grave problems: the record showed that Masele 'was not convicted before sentence was passed'. This was 'fatal' and vitiated the whole judgment. And though the state's legal team at first urged that the case should be sent back to the trial court for proper sentencing, they later conceded that since the evidence was 'shaky', Masele should be set free.

The judges said the court had 'time and again' held that 'failure to convict an accused person before sentencing' was 'a fatal ailment'.

Absent a 'conviction' in Masele's case, the Appeal Court had to 'declare a nullity'.

But it was also correct that the 'evidence was too shaky to mount a conviction'. It would not be appropriate to order a retrial because the evidence was inadequate. 'In the circumstances ... we think an order for the release of (Masele) will make justice smile.'

In the gang rape case, as well as in several other cases involving charges of rape, the Appeal Court found that the accused had not been properly informed of the charges they were facing.

During argument of the appeal, the state attorney had 'assailed' the charge against the accused, saying that the charge sheets did not state the 'definition and category of rape' that the accused faced. Rather, it simply stated that they were charged with 'gang rape contrary to Section 131A (1) of the Penal Code'. In fact, said the appeal judges, the charge sheet should have quoted section 130 (1) (2) (a) of the Code and should have cited the provision for punishment if convicted. Without this information the accused did not know, from the start, when they had to plead, and 'what would be the punishment' on conviction.

Not to do so meant that the trial had been 'fatally defective' and the trial of the accused was not fair. Both conviction and sentence were set aside and the judges ordered that the two accused were to be released from prison 'unless they are otherwise lawfully held'.

In another case, a man was convicted of raping a five-year-old child and sentenced to 30 years, eight strokes of the cane and a fine. On appeal, the state had again to concede problems with the way the charge was handled on trial: the section under which the man was charged was 'non-existent in the penal code'. And since the accused had been charged 'on a non-existent matter' it was 'tantamount to not being charged at all'.

It is an extraordinary thought that the highest judges in a country must repeatedly inform the lower courts that an accused person has to be formally found guilty before sentence may be passed or the trial will be nullified. This is an obvious prerequisite - and yet the judges say they have often warned about the problem, and they list some cases in which this issue has been raised.

To read these criminal appeal judgments is alarming. Obviously, there is a major problem: some police, prosecutors, magistrate and judges in the trial courts are not observing the technicalities and procedural demands of the Tanzanian legal system. And as a result, time after time, people convicted and sentenced for serious crime are released because the trial results are declared a 'nullity'.

The judges must surely be frustrated at having to point out and repeat the basics that are not being followed during trials. But there must be plenty of other frustrations. The police, having investigated a crime and brought a suspect to book; families affected by crime who thought to find closure once the accused was caught and sentenced; the public seeing that the courts repeatedly set people free even though they appeared to have been convicted and sentenced - all of these groups would surely want urgent action.

But there is no sense of urgency in the appeal decisions; no recognition that there is a serious problem nor recommendations of what to do next.

From this distance it seems that part of the answer must surely be compulsory training. The lower courts obviously need help to identify the technicalities and procedures that must be followed. And then, equipped by proper training, they must do their work properly - with consequences if they do not.

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