Katiti, J.: The early March, of 1981, witnessed PW3 Thomas Mushungembe happily B marrying Suzana d/o Charles, herein to be referred to as the appellant. She already had had a child born of her. The 26/3/1981 came, as PW1 Nkananga Shage, was busily engaged in her shamba, a child cry from the wilderness jerked her, and calling upon PW2 for assistance, they both anxiously went into the bush, only to find a child aged C about ten months naked, and abandoned. The child was rushed to the hospital for precautious care.
As the discovery spread like tropical fires, it was subsequently discovered that the appellant was the mother. The appellant did not venture to deny her mother-hood of the D child, but countered the allegations of child desertion in court by presenting a story, that one Easter Charles, had forcefully taken away the child, and that, she (appellant) had reported the affair to the cell leader, who promised to look into the matter. This Easter Charles, if unfictitious, was never called by the prosecution, nor by the defence. E The culmination of the prosecution was the conviction of the appellant, and a sentence of detention, at the President's pleasure. She is now appealing against the conviction, and the resultant sentence or order.
As the trial magistrate was almost reaching his conclusion to convict the appellant, he, for F the first time committed to paper his diagnosis of the appellant. For the appreciation of what he had in mind, I shall hereunder reproduce what he said and I quote:
...So in short, the accused person though not insane but can be grouped among the G simpletons or morons. And for this reason, she cannot be made to understand the proceedings. She has failed right from the beginning to understand the proceedings as adduced by the prosecution, and adduced by her, due to her imbecility. As far as the case is H concerned, there had been strong evidence to justify a conviction, and so I convict the accused as charged.
(sgd) W. Ogola, I
District Magistrate
And hurriedly following on heels, was the trial magistrate's sentence, that was worded in A the manner hereunder, and I quote for ease of reference:
SENTENCE:
The accused is one who cannot understand the proceedings. She is now sentenced under B section 169 (1) (a) of the Criminal Procedure Code Cap. 20, to be detained during the President's Pleasure.
It is with unmitigated anxiety that I should as of now, change direction from considering C the merits of the appeal generally, to first considering whether the procedure adopted by the trial magistrate to the destination reached was in the circumstances, an appropriate one. The trial magistrate assumed readiness, to apply section 169 (1) (a) of the Criminal Procedure Code Cap. 20, to order detention of the appellant during the D President's pleasure, after being satisfied, in his own view, by his own untrained diagnosis that the appellant, though not insane, was simpleton, a moron and imbecile. My worry that is here pervading is that, the trial magistrate took the unrestricted liberty to loosely use such words, which though in ordinary language have meanings connoting E degrees of inadequacy of capacity of mind, I know of no legal construction that has been attached to the same. I shall therefore, in this exercise keep as sage a distance as possible, from treating them as helpful in this case.
All the same, the trial magistrate was on the road to applying the provisions of section F 169 (1) (a) of the Criminal Procedure Code Cap. 20, as it lays down the procedure, where the accused cannot be made to understand the proceedings. For ease of reference, the same sub-section hereunder reads: G
169-(1) If the accused, though not insane, cannot be made to understand the proceedings:
(a) in case tried by a subordinate court, the court shall proceed to hear the evidence, and if at the close of the evidence for the prosecution and if the defence has been called upon, of any H evidence for the defence, the court is of opinion, that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of opinion that the evidence which it has heard would justify a conviction, it shall sentence the accused to I be detained during the President's Pleasure.
I beg to submit that the trial magistrate having observed the appellant, did obvious A develop qualms about the appellant's capacity to understand the proceedings. The magistrate was obviously not sure whether the appellant's mind was at safe distance from insanity, or whether she could not understand, or appeared not to understand because of some other medical or even linguistic problems. B
The trial magistrate in his own observation - a layman's observation - for the same magistrate is not known for medical or psychiatric qualifications ruled out insanity, but labelled the appellant a simpleton, a moron and imbecile and proceeded to apply the C provisions of section 169 (1) (a) of the Criminal Procedure Code, Cap. 20.1 make no intellectual pretensions about medicine, nor do I know if the words imbecile, simpleton, moron have medical meanings, and I consider it difficult for a layman, which the trial magistrate is, in that branch of learning to tell different forms of insanity and even D distinguish different colours of insanity from sub-normal intelligence or even from imbecility. A person who is deafmute or dumb may easily exhibit signs that a lay-man could easily mistake for those of insanity. Again, a person may suffer temporary insanity, or may even be on the brink of insanity. In view of such medical realities, it was risky for E the trial magistrate to venture his mind blind-folded into the profession that was foreign to him.
But all the same, if the circumstances facing the trial magistrate demanded the application of section 169 (1) (a) of the Criminal Procedure Code, Cap. 20, the right procedure had F to be followed. And hereunder I shall demonstrate the procedural steps that would have safely led him to the destination desired.
(a) In the first place, logically, the trial subordinate court, unless it is an obvious case of violent insanity, may not appreciate how the accused cannot be made to understand G the proceedings, unless the said proceedings have commenced. Thus where, the court initially suspects that the accused cannot understand the proceedings, the said court must proceed to see whether the said accused cannot be made to understand H the proceedings. For whether or not the accused cannot be made to understand the proceedings, it is in my view, a question of adequacy of communication to and from the accused, to the witnesses and the trial magistrate. This communication could be I through an interpreter or signs, if need be. Whether the communication
is through an interpreter, or signs, the said communication must be such that it is A adequate enough to ensure that the accused understands the evidence, that is being adduced against him on one hand, and is able to adequately appreciate and take advantages of the defence rights explained to him on the other. If as a result of this type of communication the accused understands the proceedings, then the trial must B proceed in the normal manner.
(b) Where on the other hand, with the communication available, the accused cannot be made to understand the proceedings, the trial court must make a finding to that effect C -under section 169 (1) of the Criminal Procedure Code - i.e, that, the accused cannot be made to understand the proceedings.
(c) Where the accused cannot be made to understand the proceedings and finding to that effect has been made, then on heels, is the question whether or not he is not insane. D The accused should be sent for medical examination for determination, as to his sanity or otherwise.
(d) Where the accused has been certified sane, and as above already shown he/she cannot be made to understand the proceedings the subordinate court shall under E section 169(1) (a) of Criminal Procedure Code Cap. 20, - i.e proceed to hear the prosecution and defence if called upon of any evidence, and finally determine whether or not the evidence justify a conviction. In the event the accused is convicted, he/she F has to be sentenced to be detained during the President's pleasure. In the event of acquittal, the said accused has to be discharged.
As I had earlier indicated my worries, the record does not show the above procedural steps were followed. The question of sanity or insanity was summarily, but G unprofessionally dealt with. The record on the other hand, shows that, although the accused pleaded not guilty and defended herself on oath, she never cross-examined anybody throughout the trial. I think in the interest of justice the case be sent back for re-hearing, before a different magistrate of competent jurisdiction, who will take the H procedural steps hereinshown. I do not have to go through the merits, or demerits of the appeal, in view of the above conclusion.
I Order accordingly.
A