Mwangosi Case Judgment

Mwandwanga · 2016-07-25T17:29:12+00:00

Background of the case High court of Iringa registry found G. 2573 Pacific Cleopas guilty of manslaughter. On 2cd September 2012, Chanel Ten Television Journalist, Daudi Mwangosi had gone to cover the opening of a Chama cha Demokrasia na Maendeleo (CHADEMA) party office in Nyololo village, Mufindi South, when the police tried to use teargas canisters to forcefully disperse the party’s supporters who had gathered to witness the ceremony. Daudi Mwangosi died instantly after one of the teargas canisters that had been fired into the crowd exploded against him, ripping through his stomach. On June 2016, the only Police officer Pacificus Cleophase was found with the case to answer by the High court. High court at Iringa registry today 25th July 2016 issued a judgment with regard to criminal case number 45 of 2013 Republic v G.2573 Pacific Cleopas, in this case a police officer G.2573 Pacific Cleopas was charged with murder contrally to section 196 of the Penal Code. Case proceedings Judge Dr. Paul Kiwelo while reading the judgment stated that prosecution side brought 4 Witness and 5 exhibits includes a map of the scene, report from examination from the Doctor, weapons used and register of the army from police, while Defense side only used only one witness who was accused himself, as Defense witness One (DWI). While reading the judgment, Judge said he considered the following principles reaching the court verdict; • Principle that you may not convicted if no enough evidence. • Principle that the duty of proof in criminal case, lies to prosecution side under section 110 (1) of Evidence Act and section 112 respectively. • That in criminal cases the burden of proof is beyond reasonable doubt. • Section 28 of the Evidence Act which provides that confession to a justice of peace if made under voluntary is admissible • Principle that in murder case it is not enough to proof that a person was killed but you must proof intention/ malice aforethought of the killer. Prosecution witness number one (PW1) was officer in charge who was given order by RPC Michael Kamuhanda. PW1 testified that he came to notice that the person who killed a journalist Mwangosi was accused after he saw that the accused person looked alike with the person he saw on Mwananchi newspaper, the newspaper which published seven police officers which were surrounding a journalist while pointing the gun in stomach, though in the proceeding of the court, the newspaper was not admitted as evidence in the court was only admitted for Identification. The photographer was not summoned to explain how he took the photo that was the reason as to why the newspaper was not admitted by the court as evidence. Also based on the criteria that as the picture to be submitted as evidence on the court it should had been taken by registered publisher, therefore the evidence didn’t met requirements under according to the law. Prosecution witness number two (PW2) Mwambapa was also officer who was given order by OCSD to send section in Nyororo, he testified that, during the fatefully day all police were given order to return in their cars after the serenity of the area, but they didn’t obey the order, then as he was leaving the area, he heard the voice of person seeking for help, as he was helping the person he heard explosion and faint instantly. During the second day in the hospital he was told that accused person is the one who killed the journalist and left him injured. Prosecution witness number three (PW 3), a magistrate she produce document “Exhibit no 3” as evidence of confession of the accused person. The magistrate testified that she took all procedure under the law while taking confession from accused person. The court admitted Pacific confession, whereby PW 3 while reading she said the person confessed that he killed accidentally the journalist. Despite the fact that defense counsel challenged the confession, that the accused made the statement with pressure from RPC, RCO, DCI Manumba(by then), and Commander Siro as head of operation by then. During the proceeding accused said that he was instructed to make confession and the instruction was given to the magistrate by RCO. Court declined the arguments of accused person and his learned Advocate, instead court argued that it was supposed to be rejected as the evidence from the beginning, and simply court said the rejection was not valid thought after the prosecution closed their case. Prosecution witness number four (PW4) a Police officer in charge of Army registry at police station, he testified that all 22 bombs were used on the fatefully day. He also testified that there is a possibility of gun to trigger accidently. In making the decision judge raised three issues; i) Whether Accused person killed a journalist Daudi Mwangosi ii) Whether Accused person killed with intention iii) Whether he is guilty of offence charged Judge remarks In analyzing the issues and the evidences of the case Judge had the following to conclude. With regard to issue number one, Judge disregarded the evidence of PW1, PW 2 and PW 4 for the fact that evidences produced were contradicting and found their evidence unreliable. The court relied the evidence by PW3 which was voluntary statement made by accused before the Justice of peace. Therefore relying on the evidence of PW3 court answered the first issue that is trite clear that accused person killed Daudi Mwangosi. On the second issue as whether the killing was with intention. Court disregarded evidences by PW2 and PW 4 and court used evidence o f PW 3, court said that prosecution failed to provide proof whether there was malice aforethought, and court considered that PW 4 admitted the possibility of army to explode accidentally .The court also noted that RCO, RPC and other senior police officers were not called by prosecution, given the fact that they were key witness and had a role in the investigation and in decision making. Court pointed the primafacie role of prosecution side to proof the case. Therefore the court found no malice in the killings. In responding the last issue as to whether accused was guilty of offense charged, which is murder contrally to section 196 of the Penal Code. Court found that he is not guilty of murder and as per court’s power under section 300(2) of the Criminal Procedure Act the court changed it into minor offense which is manslaughter and therefore Pacific convicted with manslaughter. When the parties case were invited by the court asking for aggravating and mitigation, prosecution side prayed to the court for life imprisonment as per section 198 of the Penal Code. Defense counsel in his side among others reasons he prayed the court to invoke section 38(2) of the Penal Code which provides for conditional discharge, simply because the accused was in lawfully duty and he already has been served in prison for 4 years now. This case will be summoned again for mention on 27th July 2016 for Court Sentence. Our engagement We have been closely doing trial follow up with Tanzania Press Club and by sending our advocate to monitor the whole trial along with journalists on making sure the public is fully aware of the trial progress. THRDC will also provide whole analysis and way forward after formal perusal of the judgment, meanwhile we are in same line with other freedom of expression activist, that this case was not effectively investigated nor prosecuted.

Thread starter Mwandwanga
Start date Jul 25, 2016

Mwandwanga

JF-Expert Member

Jul 25, 2016

Mp Kalix2

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