WHEN half of the criminal appeals heard by a country’s apex court lead to decisions that the trials were a nullity or fatally defective in some way and that conviction and sentence must be set aside, you know there is a problem. This is the situation in Tanzania where the court of appeal considered almost 30 criminal appeals between 29 November and 14 December 2018 and threw out the results in 13 of these cases because of some major defect during the trial in the court below. Strange to relate, however, neither Tanzania’s highest court nor the country’s justice authorities have reacted to what appears an urgent – even critical – systemic problem.
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: all of them 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 in the district court with arson (for which he was given a 30 year sentence) and grievous harm (for which he was given seven years). “Irritated” by the outcome, according to the appeal judges, he first challenged 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 the evidence was “shaky” and that 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 “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, Daniel and Mushi v R, 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, Daniel and Mushi, 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 of the trial, “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, Mwasila v R, 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 “nonexistent in the penal code”. And since the accused had been charged “on a nonexistent matter” it was “tantamount to not being charged at all”.
The numbers indicate the prevalence of these problems in the trial courts: From November 29 to December 14 2018, the Court of Appeal delivered 44 judgments. Of these 15 involved civil appeals, and the balance – 29 in all – were criminal appeals. Of the criminal appeals nine were not actually heard by the court because the case was not ready, was not properly before the court or for some other reason. In five cases the appeal was dismissed. In two cases the sentence was changed.
But here are the telling statistics – in two cases the appeal was upheld because of “shortcomings” in the prosecution evidence, and the accused declared wrongly convicted. In addition, the appeal was upheld in a further 11 cases because the trial was a “nullity” due to fundamental defects in the way the matter was conducted, and the accused was to be set free. Thus of 20 criminal appeals actually heard, more than half the trials were declared “a nullity”.
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 such 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 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 are 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. 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 to follow if they do not.
* First appeared as "A matter of justice", Legalbrief