Rule of Law vs. Rulers of Law. Justice Barnabas Albert Samatta's Road To Justice: Justice Barnabas Albert Samatta's Road To Justice

Judgement of The Court: IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: SAMATTA, C.J., MROSO, J.A., and MUNUO, J.A.) Criminal Appeal No. 53 of 2001

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: SAMATTA, C.J., MROSO, J.A., and MUNUO, J.A.) Criminal Appeal No. 53 of 2001 BETWEEN HAMISI RAJABU DIBAGULA APPELLANT And THE REPUBLIC RESPONDENT (APPEAL FROM THE DECISION OF THE HIGH COURT OF TANZANIA AT DAR ES SALAAM) (CHIPETA, J.) DATED THE 24TH DAY OF AUGUST, 2001 IN H/C Criminal Revision Cause No. 19 of 2001 JUDGEMENT OF THE COURT SAmAttA, C.J.: This is an appeal from a decision of the High Court (Chipeta, J., as he then was) affirming, while exercising revisional jurisdiction, a conviction for uttering words with the intent to wound religious feelings. The appellant, Hamisi Rajabu Dibagula, had been convicted of that offence by the District Court of Morogoro, which sentenced him to 18 months’ imprisonment. The learned Judge set aside that sentence and substituted therefor such sentence as was to result in the immediate release of the appellant from custody. The appeal raises one or two 200 RULE OF LAW VERSUS RULERS OF LAW questions of considerable public importance concerning the limits, if any, on the right to freedom of religion, guaranteed under Article 19 of the Constitution of the United Republic of Tanzania, 1977, hereinafter referred to as “the Constitution”. It is necessary, before we embark upon the task of examining the merits or otherwise of the appeal, to state the facts of the case. They are happily, uncomplicated. They may, we think, be outlined as follows. In the afternoon of March 16,2000, the appellant, a member of an Islamic organization known as Almallid, and some of his colleagues organized a religious public meeting at Chamwino in Morogoro town. They had secured a “permit”, issued by the Police Officer Commanding District, to organize the meeting. Acting on some information he had received from a member of the public, the Regional C.I.D. Officer of Morogoro Region proceeded to the place where the meeting was taking place. He found the appellant addressing the meeting. At that point in time the appellant was saying (in Kiswahili): “Yesu si Mwana wa Mungu, ni jina la mtu kama mtu mwingine tu”. (Jesus is not the son of God, it is a name of a person like the name of any other person) The C.I.D. Officer had no doubt that the utterance constituted a criminal offence under section 129 of the Penal Code. He proceeded to arrest the appellant (his colleagues took to their heels and vanished into thin air) and took him to a police station. Four days later the appellant was taken before the District Court where a charge under the aforementioned section was laid at his door. It was alleged in the particulars of offence that the appellant – on the 16th day of March 2000 at about 18.00 hrs at Chamwino area within the Municipality, District and Region of Morogoro, with deliberate intention did utter words to wit, YESU si mwana wa MUNGU bali ni jina, words which are wounding (sic) the religious feelings of Christian worshippers. Section 129 of the Penal Code provides: 129. Any person who, with the deliberate intention of wounding the religious feelings of any person, utters any word, or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, is guilty of a misdemeanor, and is liable to imprisonment for one year. The appellant protested his innocence. He denied to have preached “againsttheChristianreligion”.OneAthumanAbdallah,hisonlywitness, JUdGEmENt OF tHE COURt 201 told the trial magistrate that the appellant had urged non-Muslims to embrace Islamic faith and pronounce that Jesus Christ is not the Son of God. At the end of the trial the learned magistrate entertained no doubt of reasonable kind that the evidence laid before her proved the appellant’s alleged guilt. After entering a conviction, as already pointed out, she sentenced the appellant to 18 months’ imprisonment. The High Court,uponbecomingawareofthedecision,andinexerciseofitspowers under section 372 of the Criminal Procedure Act, 1985, hereinafter referred to as “the Act”, called for the record of the case for the purpose of satisfying itself as to the correctness of the decision. The Court later proceeded to conduct a revisional proceeding in respect of the case. Only the Director of Public Prosecutions was given opportunity to be heard at that proceeding. At the...