Q&A – 6 December 2010

Surety ordered to pay expenses

Two years ago, my uncle was accused of stealing a car and the case was brought before the Mtwara District Court. My uncle denied the charges against him and bail was granted. I became his surety and signed a bond of Tshs 500,000/=. In one hearing, my uncle could not appear as he had travelled to Mwanza to attend to his sick mum. I appeared and informed the magistrate who ordered me to pay Tshs 150,000 as expenses for the witness from Dar es Salaam and Tshs 40,000 for the witness from Masasi. So as to avoid being sent to jail, I paid up. Was this a fair order.
PB, Mtwara

Assuming what you are saying is the truth and your uncle is not engaging in delaying techniques, and that his mother was really ill on the hearing day, we see no justification for the said orders issued by the trial Magistrate.

The absence of the accused had been caused by circumstances beyond his control which you could not have done anything about. It is hence not justified for you as surety to pay expenses incurred by the prosecution witness regardless of where they come from. You are at liberty to appeal to the High court to set aside the said orders. Your legal advisor can guide you further.

Compulsion to cohabitation

I got married in 1990 and our marriage is blessed with three children. In the last few months we’ve had frequent issues in our marriage as my wife does not approve of some of my habits. She has now gone back to her parents and refuses to come back to our matrimonial home. Can the Court support me by issuing an order for her to return?
BH, Musoma

Marriage is a voluntary union between a man and woman and is contracted with the consent of the parties. The Law of Marriage Act 1971 is also clear that no proceedings may be brought to compel a wife to live with her husband or a husband with his wife. Therefore the court cannot compel the two of you to live together. The only remedy for you is to refer the matter to Marriage Conciliation Board. Alternatively to save your marriage, you may want to change your habits, whatever they are.

Identification of thieves

Late at night we were attacked by a group of four people, who stormed into our house armed with guns. We were ordered to lie down whilst they searched the house for money and a substantial amount was stolen. I reported this to the police officer who was at first reluctant to register the incident saying he was disappointed that we had kept such a large amount of money at home. After some hours of discussion at the police station the incident was recorded. Four days later one of the culprits was caught and I identified him at the police station. The matter went to Court and he was surprisingly acquitted on grounds that the identification parade was improperly conducted and that there were chances that he might not be the one. This truly shocked us. Why would someone be acquitted after even being identified.
KO, Moshi

In criminal law the Courts are faced with deciding the fate of an accused person that will ultimately lead to a custodial sentence and hence the Court’s have to be extra careful that the person it convicts is the actual offender. It is a known principle of law that evidence of facial identification must be very carefully evaluated before it can be used to convict unless corroborated by some independent evidence, which does not seem to be the case here.

Additionally there are certain rules and procedures that must be followed for an identification parade to be properly carried out, failure of which the identification parade will fail in evidence. Some of the key points to note are that the accused person has a right and should be made aware of his right to have a friend, family member or lawyer present and that the officer in charge of the investigations does not carry out the parade. Additionally witnesses should not see the accused before the parade, the accused should be placed with atleast eight other persons as far as possible of same height, age and general appearance and that the accused may take any position he chooses and may change his position after each witness has come for the identification. Care must also be exercised that the witnesses are not allowed to communicate with each other after they have been to the parade and that the witness touches the person who he or she identifies (merely pointing at him is not enough). Overall the person conducting the identification parade must act with scrupulous fairness otherwise the value of the identification as evidence depreciates considerably.

In this instance there seems to be some serious failures on the part of the police to ensure that a fair identification parade is conducted, which has led to the case collapsing and the accused being acquitted. The matter is also further weakened because you indicated in your question that you were asked to lie down during the attack; generally during an attack it is very hard to remember faces of people as at the material time, one is fighting to get out of the situation alive rather then identify who it is that is committing the crime.

As for the police officer querying why you are storing funds at home, we are unaware of any law that disallows a citizen to keep cash in their homes. It is advisable to avoid keeping large sums but it is not illegal. We are truly surprised at the behavior of the police. This matter should be reported to his seniors for appropriate action.