Africa-Press – Tanzania. THE Court of Appeal at Bukoba Registry has ordered fresh hearing of the murder trial of Kibeta Primary School Discipline Master, Respicius Patrick, alias Mtanzangira, who was sentenced to death by hanging for killing a pupil, Sperius Eradius, by administering him several strokes of the cane.
Justices Stella Mugasha, Lugano Mwandambo and Ignas Kitusi reached into the decision after nullifying the proceedings of the High Court, which had conducted the murder case against Patrick, the appellant, and another teacher of the school, Herieth Gerald, who was acquitted of the offence.
They agreed with the submissions presented by both prosecution and defence that the High Court had not conducted the trial with the aid of assessors as required under section 257 of the Criminal Procedure Act, as well as adequately summing up the silent features of the case to them as per section 298(1) of the Act.
The justices, therefore, held that the assessors were not properly addressed for them to correctly give their opinions in the case. In other words, they said, the assessors were deprived of their right to express their opinions as required of them under section 298 (1) of the CPA.
“As rightly observed by both counsel, the trial cannot be said to have been conducted with the aid of assessors as mandated by section 265 of the CPA. The effect of it was to render the trial and the resultant conviction a nullity so was the sentence meted out to the appellant,” the justices ruled.
They noted further that the gist of the evidence of two medical doctors, one from Regional Hospital and the other from Bugando Referal Hospital was conspicuously missing in the summing up notes.
According to them, apart from the detailed summing up notes, they were unable to see the trial Judge addressing the lay assessors whom he referred to them at the beginning as judges of facts, vital points explaining to them the essential ingredients of murder.
The justices observed further that although there was reference to common intention, the trial Judge did not go further and explain what it meant by common intention relevant to the case involving two accused persons.
“Under the circumstances, we are compelled to exercise our powers vested on us by section 4 (2) of the (Appellate Jurisdiction Act) to nullify the proceedings from the stage of the commencement of hearing and quash the judgment and conviction that followed and set aside the sentence meted out to the appellant,” they declared.
The justices directed a retrial of the case against the appellant as early as possible by a different Judge and a panel of assessors in accordance with the law. The order for retrial will not involve Herieth Gerald, who was the second accused during the trial because she was acquitted by the High Court for lack of evidence.
The appellant and the second accused were both teachers at Kibeta Primary School within Bukoba Municipality. Over and above teaching Mathematics and Science subjects, the appellant was the School Discipline Master appointed by the Head Teacher of the School.
The late Sperius Edward was a standard V student at the school. On August 27, 2018, the appellant reported at the school at about 06.45 a.m. whilst the second accused reported half an hour later.
It turned out that upon arrival at the school, the second accused was received by some pupils who helped out with her baggage, including a wallet. However, moments later, she discovered that her wallet was missing. Her efforts to trace it amongst the pupils did not succeed.
Further enquiry resulted into a disclosure by some of the pupils that it was the deceased who had taken the wallet from the female teacher. Later on, the second accused reported the deceased to the appellant; the School Discipline Master.
Upon interrogation by the appellant, the deceased denied involvement in the theft of the wallet. He maintained that stance even after the infliction of corporal punishment by the appellant involving three strokes.
From that moment, the appellant is alleged to have applied excessive force against the deceased, entailing beatings in several parts of the deceased’s body in a bid to extract a confession from him within and outside the school compound.
Such incident took several hours, until when the deceased’s mother, who had been tipped of her son’s condition, found the deceased at a nearby area, severely beaten, lying on the ground whilst the appellant was standing over him, holding a stick in his hands.
It was not disputed that the mother found the appellant with the deceased and that she took her child to the regional hospital where he was put on oxygen but was later pronounced dead.
Later in the day, the appellant and the second accused were arrested by the police in connection with the death and were subsequently charged with murder.
