Mustafa, J.A. delivered the following judgment of the court: B
The appellant was convicted of murder and sentenced to death. He is appealing.
The prosecution case is as follows. The appellant, as a resident at Tinai Village, had not taken part in cultivating in the village development programme. The village Chairman sent four militiamen, among whom C was the deceased, on the material day, at about 4.00 p.m., to arrest the appellant and to bring him before the Chairman. The four men, all unarmed, went to the house of the appellant to arrest him. The militiamen had no letter from the Chairman, nor had they a warrant of arrest. Apparently the appellant was to be D arrested and brought before the Chairman for not participating in village development activities. Earlier the same day it appeared that the appellant was before the village committee and had refused the demand of the village committee to pay compensation ("udoba") of shs. 50/= and costs for the militiamen of shs. 25/= E ("Kilatu") arising out of his failure to participate in village development, and had left the meeting in a defiant mood.
The four militiamen went to a place where the appellant was repairing a house. When the appellant saw the four militiamen at a distance, he called out to them not to enter his compound. However the deceased F nevertheless went on in order to arrest the appellant. The other three followed. As the deceased neared the appellant, the appellant hit the deceased with stick on the thigh. Despite that the deceased held the appellant. The other three militiamen rushed forward to help the deceased. The appellant managed to free G one of his arms from the clutch of the deceased and drew out a knife from his waist. The deceased thereupon released the appellant, and all the 4 militiamen ran away. They were then inside the cattle boma of the appellant. The militiamen ran towards the exit of the boma, which was a narrow one, chased by the appellant. It appears that the deceased somehow was behind the appellant, and seized or tried to seize the H appellant. As the deceased was in that act the appellant turned and stabbed the deceased in the chest. The deceased then ran a few paces, jumped over the fence of the cattle boma, and fell a short distance away. He died shortly thereafter. According to medical evidence the cause of death was hemorrhage due I to the
A stab wound which penetrated the chest and pierced through the lung and punctured the heart. Considerable force must have been used to have caused such a wound. A sharp instrument like the knife produced in court could have caused it.
B Briefly the above account was testified to by P.W.1, P.W.2, and P.W.3, the militiamen who had accompanied the deceased in the arrest expedition and who were eye witnesses to the stabbing.
The appellant gave a different version of the events. He said that on the material day, in the morning he was sent for, and he went to the village CCM Office. He was asked why he did not participate in working C the village shamba. He alleged he was exempted from such duties because he was suffering from T.B. The CCM Office told the appellant to pay some compensation, and if the appellant did not pay that day, the appellant would be put under custody, and he was in fact kept in custody. At about 4.00 p.m. he was D given permission to go out and eat. While he was repairing his house 4 militiamen, including the deceased, arrived. He heard them say "Umekimbia mvua lakini umande hutaukimbia", and was frightened. He thereupon wanted to run back to the CCM Office. As he did so, a militiaman kicked him and he fell. It E was the deceased who had kicked him. The appellant stood up and as he had a stick, he hit the deceased on the left thigh with it. The deceased held him and the other three also attacked him. He alleged P.W.1 Danial took out a knife to stab the appellant, but the appellant managed to snatch away the knife. The F appellant realised that he himself was carrying a knife in his pocket. He pulled out his knife and the militiamen, on seeing this, scattered. The appellant remained standing waving his knife in a circle, telling the militiamen not to approach him. Three militiamen, i.e. P.W.1 and P.W.2 and P.W.3 were in front of the appellant, and the deceased was somehow standing behind the appellant. As the appellant was waving G with his knife, he suddenly found that he had struck something, and heard that some one has been stabbed. He turned and saw the deceased running away and falling down, badly injured. The appellant then ran to a police station to report.
H The trial judge, and his assessors, considered and assessed the evidence adduced at the trial, and concluded that the prosecution witnesses, especially P.W.1, P.W.2 and P.W.3 had told the truth. In our view that conclusion was justified. We will decide the appeal on that basis.
Accepting the prosecution version of events, certain matters arise for consideration. Were the militiamen I in fact effecting an unlawful and illegal arrest? In this connection the trial judge stated:
In view of the submissions by learned counsel for the defence it may now be asked whether the militiamen were A justified in going for the accused and in arresting him if necessary. I think they were. First, it will be recalled that the accused had defied the village reconciliation tribunal, in effect the village government in a matter arising from the B accused's absenteeism at shamba work. Under s. 12(1)(d) of Act No. 21 of 1975 (since repealed) village governments were enjoined to encourage village residents in undertaking and participating in communal enterprises. And under sub-sec. (2) thereof village governments had power to do all such acts and things as appeared to them to be C necessary, advantageous or convenient for or in connection with the carrying out of their functions or to be incidental or conducive to their proper discharge. I think, with respect, that giving sub-sec. (2) its true intendment, village governments had thereby been vested with power to summon and secure the appearance of uncooperative villagers D for the purpose of questioning and reconciliation. It is otherwise difficult to see how a village government could function effectively. It might perhaps be argued that this power did not include the power of arrest which is a judicial E power. I note, indeed, that under S. 18 of the Act aforesaid specific provision was made giving discretion to the President, where he considered it necessary or desirable so to do, by order to vest in a village government any power, including any judicial, quasi-judicial or administrative power, but my investigations have not revealed that the F President exercised that discretion in relation to any area. I think, however, that the absence of such an order does not vitiate the mission in the instant case, there being no evidence of an intention to arrest the accused if he had agreed to go and eschewed violence. I am therefore of the view that the village chairman properly sent for the G accused and the militiamen rightly went for him.
We find it difficult to understand this passage. Obviously, according to the evidence at the trial, the H village Chairman or the village committee or the militiamen had no power of arrest, and the President had not exercised his discretion in granting any judicial, quasi-judicial or administrative powers to the village committee in terms of sec. 18 of Act 21 of 1975. The Chairman was not otherwise vested with any powers I of arrest. The power of arrest and the
A circumstances in which such power can be exercised, to deprive a person of his liberty, must be clearly spelt out, and cannot be deduced from any so-called "intendment". Clearly, therefore, the arrest of the appellant was unlawful. Learned State Attorney for the Republic before us conceded that this was so, as B he was unable to find any legislation vesting in the village Chairman the power to arrest somebody who abstains from village communal work.
Here a show of force by the village authority is evident. Four militiamen were sent to arrest the appellant at the appellant's own home. The appellant had not committed any act which could result in his being C arrested, with or without a warrant. Before the militiamen entered his compound, the appellant had warned them not to approach. They nevertheless did so. The deceased was bent on arresting the appellant. The appellant tried to ward off the deceased by beating the deceased with a stick but the deceased and his D companions were still determined to arrest him. It was only when the appellant pulled out a knife that the militiamen scattered. Even then the deceased tried to arrest the appellant from behind. It was at that stage that the appellant stabbed the deceased. The appellant had acted in self-defence to prevent an illegal E arrest and to preserve his liberty. It was for the prosecution to justify the arrest, and no lawful justification was forthcoming.
However in this case, the appellant knew why the militiamen had come for him. He knew that his presence was needed by the village Chairman and the village committee. So the purpose of the illegal and unlawful F arrest was comparatively a minor matter. The appellant was clearly entitled to resist an unlawful arrest, but was he entitled to use a knife in the circumstances of this case? Was he justified in stabbing the deceased on the chest? The resistance should bear some relationship to the evil to be averted. Each case G has to be decided on its own facts. In our view the appellant was justified in forcibly resisting the unlawful arrest. However, we are of the opinion that the appellant had used excessive force in the circumstances. He could have chased the militiamen away, as he was in the process of doing so when he produced the knife. Even when the deceased was trying to grab him from behind the appellant could have H prevented the arrest, as the appellant was armed and the deceased was not. And the appellant well knew that all the militiamen wanted to do was to compel him, by force if necessary, to go before the village Chairman. That compulsion was of course unlawful, but it was not a matter so grave or of such great I moment as to justify the amount of force the appellant had used in repelling that attempt.
In our view the appellant had used excessive force in legitimate self-defence, in terms of the provisions of A section 18(3) of the Penal Code.
We allow the appeal, quash the conviction of murder and set aside the sentence of death imposed. We substitute therefor a conviction of manslaughter and since the appellant has been in custody since 1983, B we sentence the appellant to 3 years imprisonment.