John Straton Bihigimondo vs Republic [1987] TZHC 31 (28 September 1987)


Chipeta, J.: In Shinyanga District Court, the appellant, John Straton Bihigimondo, was charged with and convicted of the offences of unlawful presence in Tanzania and giving H false information c/ss 26 (1)(i) and 26(2), and s.26(1)(a) of the Immigration Act, 1972, respectively.  He was sentenced, respectively, to pay a fine of Shs. 10,000/= or three years imprisonment, and a fine of Shs. 5,000/= or one year imprisonment.  He I failed to pay the fines and so was committed to prison.

The prosecution's evidence from a single witness was that the appellant was taken to the A Immigration Office at Shinyanga on suspicion, and there he was interrogated by an immigration officer, one Robert Msemakweli (P.W.1) as to the appellant's legality of stay in Tanzania.  At first, the appellant lied and told P.W.1 that he was born at Mpanda, B that his mother was born at Sikonge, Tabora while his father was born at Kalema.  On further interrogation by P.W.1 the appellant owned up and said that he was from Rwanda, that he came to Tanzania with his parents in 1964 as a genuine refugee, that he had since applied for citizenship but was yet to be registered as such, and that he was C registered at Mwese Settlement in Mpanda District.
These replies did not satisfy P.W.1 who, without further inquiry into those statements, prosecuted the appellant in Shinyanga District Court.
In his defence, the appellant reiterated his story that he entered the country in 1964 as a D genuine refugee, that in 1967 they were given refugee permits and settled in Mwese Settlement, and that he had since applied for citizenship.  He called one witness who fully corroborated his story.
In respect of this second count the appellant stated that he at first told lies to P.W.1 E because P.W.1 threatened to deport him to Rwanda and that in fact there was a motor vehicle outside P.W.1's office which P.W.1 said would be used to ferry him back to Rwanda.
On that evidence the trial court convicted the appellant as charged. F
During the hearing of this appeal, Mr Matupa, learned state attorney for the Republic, declined to support the convictions; and the appellant made available to the court documents which reveal his status in Tanzania.
I will first deal with the appeal against the conviction on the first Count.  The defence G evidence that the accused entered the country in 1964 as a genuine refugee and had a permit and that he has been in Tanzania ever since was not controverted by the prosecution.  I would add that official documents made available to this Court by the H appellant conclusively prove that the appellant entered the country as a genuine refugee and that his status as such has not been revoked.  Among those documents is a letter from the Mpanda District Immigration Officer dated 17th February, 1987, and a letter from the Divisional Secretary of Mwese, Mpanda District. I

That being the position, the defence evidence ought to have raised reasonable doubt in A the mind of the trial Court; and as pointed out above, the documentary evidence now available clearly demonstrate the appellant's innocence.  Indeed, I think Mr Matupa hit the nail on the head when he stated in his submissions that the manner in which P.W.1 B dealt with the appellant demonstrated harassment.  I say so because P.W.1 could easily have obtained the documents now available to this court if he seriously intended to find out the truth.  He made no such attempt!
Even assuming for the sake of argument, that the appellant's papers as a refugee had expired and not renewed (there is no evidence to that effect), the appellant's lawful C presence in the country could still have been justified by proviso (ii) to subsection 91) of section 10 of the Immigration Act, 1972 which provides that where any permit or pass expires or is cancelled no further permit or pass is issued, the presence in Tanzania of the former holder to thereof is not unlawful by reason only of the provisions of that D subsection unless the Minister otherwise directs.  Those provisions, as Mr Matupa rightly pointed out, ought, to be read together with those of section 26 of the Act.
In short, the appellant's guilt in respect of the first count was far from proved - let alone E beyond reasonable doubt.
I now turn to the evidence in respect of the second count. Like Mr Matupa, I am inclined to believe the appellant's story that he made the false statements because P.W.1 F subjected him to threats.  Mr Matupa went on to submit thus since the materially false statements were made as a result of threats, those statements were involuntarily made and so were inadmissible under section 27 of the Evidence Act, 1967.
With respect, I am unable to go along with that logic.  I do not think that the provisions G of section 27 of the Evidence Act, 1967 are relevant here.  Those provisions talk of the admissibility and inadmissibility of confessions.  In the present case, it has not been suggested that the materially false statements amounted to confessions.  What P.W.1's evidence amounts to on this point is that in the court of the interrogation the appellant made statements which were a mixture of truth and falsehood.  The appellant admitted H this.
In my view, the question for decision here is whether the false statements made by the appellant in those circumstances justified a conviction.  The offence created by section I 26 (1)(a) of the Immigration Act, 1972, it seems to me, has the same elements as

those creating a similar offence by section 122 of the Penal Code.  If am right in this A view, then it must follow that for a false statement made to an immigration officer to be an offence, the maker must have made it knowing that such officer would act or omit to act in a manner as to be detrimental to some person or contrary to what such officer would have done if the true facts had been known. B
In the present case, P.W.1 was given false as well as truthful statement.  He was, therefore, unlikely to act to the detriment of any person or contrary to what an immigration officer would act because he knew the true facts.  To my mind, therefore, such false statements, made in the circumstances as those in which the appellant made to C P.W.1 are not those which the legislature in its wisdom could have had in mind.
This once again supports my inclination that the summary manner in which the appellant was dealt with is suggestive of harassment. D
On the basis of the foregoing, I hereby quash both the convictions and set aside the sentences.  Should the appellant be still in custody, he shall be released forthwith unless otherwise lawfully detained.  If he subsequently paid the fine, the same shall be refunded to him forthwith. E
Appleal allowed.


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