Link to pdf of original judgement
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM
(CORAM: SAMATTA, C.J., MROSO, J.A., and MUNUO, JA.)
HAMISI RAJABU DIBAGULA APPELLANT
THE REPUBLIC RESPONDENT
SAMATTA, C.J. :
This is an appeal from a decision of the High Court (Chipeta, J., as he then was) affirming, while exercising revisional jurisdiction, a conviction for uttering words with the intent to wound religious feelings. The appellant, Hamisi Rajabu Dibagula,
had been convicted of that offence by the District Court of Morogoro, which sentenced him to 18 months' imprisonment. The learned Judge set aside that sentence and substituted therefor such v sentence as was to result in the immediate release of the appellant from custody. The appeal raises one or two questions of considerable public importance concerning the limits, if any, of the right to freedom of religion, guaranteed under Article 19 of the Constitution of the United Republic of Tanzania, 1977, hereinafter referred to as "the Constitution."
It is necessary, before we embark upon the task of examining the merits or otherwise of the appeal, to state the facts of the case. They are, happily, uncomplicated. They may, we think, be outlined as follows. In the afternoon of March 16, 2000, the appellant, a member of an Islamic organisation known as Almallid, and some of his colleagues organised a religious public meeting at Chamwino in Morogoro town. They had secured a "permit", issued by the Police Officer Commanding District, to organise the meeting. Acting on some information he had received from a member of the public, the Regional C.I.D. Officer of Morogoro Region proceeded to the place where the meeting was taking place. He fourjd the appellant addressing the meeting. At that point in time the appellant was saying "Yesu si Mwana wa Mungu, ni jina la mtu kama mtu imvingine tu."
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The C.I.D. Officer had no doubt that the utterance constituted a
criminal offence under section 129 of the Penal Code. He
proceeded to arrest the appellant (his colleagues took to their heels
and vanished into thin air) and took him to a police station. Four \ days later the appellant was taken before the District Court where a
charge under the aforementioned section was laid at his door. It
was alleged in the particulars of offence that the appellant -
"on the 16th day of March 2000 at about 18.00 hrs at
Chamwino area within the Municipality, District and
Region of Morogoro, with deliberate intention did utter
words to wit YESU si mwana wa MUNGU bali ni jina,
words which are wounding (sic) the religious feelings
of christian worshippers".
Section 129 of the Penal Code provides:
"129. Any person who, with the deliberate intention of
wounding the religious feelings of any person, utters
any word, or makes any sound in the hearing of that
person, or makes any gesture in the sight of that person,
or places any object in the sight of that person, is guilty
of a misdemeanour, and is liable to imprisonment for
one year."
The appellant protested his innocence. He denied to have preached
"against the Christian religion." One Athuman Abdallah, his only
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witness, told the trial magistrate that the appellant had urged non-muslims to embrace Islamic faith and pronounce that Jesus Christ is not the Son of God. At the end of the trial the learned magistrate entertained no doubt of reasonable kind that the evidence laid before her proved the appellant's alleged guilt. After entering a conviction, as already pointed out, she sentenced the appellant to 18 months' imprisonment. The High Court, upon becoming aware of the decision, and in exercise of its powers under section 372 of the Criminal Procedure Act, 1985, hereinafter referred to as "the Act", called for the record of the case for the purpose of satisfying itself as to the correctness of the decision. The Court later proceeded to conduct a revisional proceeding in respect of the case. Only the Director of Public Prosecutions was given opportunity to be heard at that proceeding. At the end of it the learned Judge was satisfied that the appellant has been rightly convicted. He was, however, of the opinion, a correct one in our view, that the sentence of eighteen months' imprisonment was illegal because it exceeded the maximum sentence of twelve months' imprisonment fixed by law for the offence. He set it aside and, as already stated, substituted iherefor such sentence as was to result in the appellant's immediate release from custody. Consequently, the appellant regained his personal liberty. He
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believed, however, that the learned Judge's decision did not constitute a complete triumph for justice. Hence the instant appeal. The learned Judge's decision is impugned on the following five grounds:
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v 1. The revising Judge erred in law and in fact by holding that the prosecution in [the] Lower Court did prove its case beyond reasonable doubt.
2.
The revising Judge erred in law by agreeing with the submission of the State Attorney that the Prosecution in the trial Court proved the case beyond reasonable doubt without valuating the evidence tendered in the lower court and assigning reasons therefor.
3.
The revising Judge erred in law by not considering the fact that the nature of the offence the Appellant was convicted of presupposes the existence of a person who was directly wounded by the words uttered by the Appellant or that the prosecution should be able to prove who and hovy a person would have his feelings injured.
4.
The revising Judge erred in law in embarking on revisional proceedings in the presence of the Republic but in the absence of the accused person whose legal interests were being looked into by the court.
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5. The court erred in law by holding that there was a. judgment of the trial Court while in fact the so-called judgment was in law not judgment. Speaking through his advocate, Mr. Taslima, who was assisted by Prof. Safari, the appellant has strongly urged us to quash his conviction. Mr. Mlipano, State Attorney, declined to support it.
Is Jesus Christ the Son of God? Millions of persons would sharply disagree as to the correct answer to this question. Some would entertain no doubt whatsoever that an answer in the affirmative is the correct one; to others, "No" would, without the slightest doubt, be the correct answer. Whichever is the correct answer, the -question is a purely religious one and, therefore, cannot fall for determination by a court of law. It is not, therefore, one of the questions which the instant appeal can possibly answer. The pivotal issue before us is whether merely making an utterance in the hearing of another person that Jesus Christ is not the Son of God constitutes a criminal offence under section 129 of the Penal Code.
Before we proceed to examine the merits or otherwise of the arguments addressed to us by the learned advocates, we deem it useful to state some of the general principles governing the enjoyment of the freedom of religion in this country. The right to
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that freedom is guaranteed under Artie;; 19 ^\ the C nsiirution.
which reads:
"19. - (1) Every person has me right to the freedom of "thought or conscience, belief c>\- faith, and choice in matters of religion, including ihc freedom to change his religion or faith.
(2)
Without prejudice to the relevant laws of the United Republic the profession of religion, worship and propagation of religion shall be five and a private affair of an individual; and the affairs and management of religious bodies shall not be pun of the activities of the state authority.
(3)
In this Article refei to the word "religion" shall be construed as including reference to religious denominations, and cognate expressions shall be construed accordingly."
The freedom enshrined in this Article mciiLes the right [o profess, practise and propagate religion. Sine. ;;ufession, practice or propagation of religious faith, belief or worship is also a form or manifestation of a person's expression, it must be correct to say, as we do, that freedom of religion is also impliedly guaranteed under Article 18(1) of the Constitution. Thai, freedom, like other freedoms, is not an absolute right. The exercise of it, just as the
exercise of other freedoms, is subject to the requirements of public peace, morality and good order, which are requisites of the common good .of society. As was pointed out by the Supreme Court of India in The Chairman. Railway Board and Others v Mrs. ChaAdrima Das and Others, 1 S.C.R. 480, at pp. 501 - 502, primacy of the interest of the nation and security of State must be read into every provision dealing with fundamental rights. The freedom to transmit or spread one's religion or to proselytize has to be exercised reasonably, that is to say, in a manner which recognises the rights, including religious rights, of other persons. It must be exercised in a manner which demonstrates respect for the freedoms of persons belonging to other religions, atheists and agnostics. In a human society, rights may be in conflict; they must, therefore, be subject to law. As far as human rights and freedoms are concerned, this legal position is succinctly stated in # Article 30(1) of the Constitution, which provides:
"30. - (1) The human rights and freedoms, the principles of which are set out in this Constitution, shall not be exercised by a person in a manner that causes interference with or curtailment of the rights and freedoms of other persons or of the public interest." Having stated these principles, we propose now to deal with the arguments addressed to us. But before we do so, we desire to
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observe that the charge which was laid at the door of the appellant in this case was not a model of accuracy or elegance in charge drafting. Some vital words of section 129 of the Penal Code concerning mens rea were omitted from the particulars of offence. \t leaps to the eye that the words "of wounding the religious feelings of any person" are missing there. Did this omission occasion any miscarriage of justice? We think not. First, the wording of the statement of offence, section and law in the charge reasonably informed the appellant of the requisite mens rea of the offence he was charged with. Secondly, judging from the tenor of his defence during cross-examination of the Regional C.I.D. Officer and P.W.4, D/Cpl. Zeno, and his own testimony, it is patently clear"that the appellant was aware that it was the case against him that, in uttering the alleged words, his intention, a deliberate one, was to wound the religious feelings of those hearing him. Rightly, his counsel before this Court did not appear to think that any arguable point arose from the omission.
Having made that observation, we proceed to deal with the first ground of appeal. It was forcefully contended by Mr. Taslima that the learned Judge erred in law because, as the learned advocate put it, he did not direct himself on the vital question of mens rea in the case. The learned advocate went on to submit that even the learned trial magistrate did not address her mind to that issue. Mr.
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Taslima drew our attention to Surah 19 : 88 - 91 of the Quran,
and then proceeded to submit that when he told his audience that
Jesus Clirist is not the Son of God the appellant was doing no more
than preaching his religion. The four verses read as follows:
\ "88. They say: "The Most Gracious
Has betaken a son!
89. Indeed ye have put forth A thing monstrous!
90. At it the skies are about To burst, the earth
To split asunder, and The mountains to fall down In utter ruin,
91. That they attributed
A son to The Most Gracious." With respect to the learned Judge, we are clearly of the opinion that Mr. Taslima's criticisms are unanswerable. No offence is committed under section 129 of the Penal Code where the deliberate intention of the perpetrator of the alleged misconduct -was other than wounding the religious feelings of those on the scene. Neither the learned trial magistrate nor the learned Judge appears to have addressed her/his mind to the question of mens rea
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in this case. In the course of her judgment the learned trial
magistrate said:
"In this case [there is] no dispute that the accused
person was at Chamwino preaching Islamic religion.
\ The questions in this case are:-
1. Whether the accused got permit to preach.
2. Whether the accused used abusive words to abuse (sic) another religion.
Nowhere in the judgment is there evidence which shows that the learned trial magistrate was aware that the prosecution had the onus to prove that the appellant had the deliberate intention to wound the religious feelings of those within the hearing range. The issues she posed were clearly irrelevant. She made no attempt to consider, among other things, whether, in making the utterance complained against, the appellant did more than exercise his constitutional right to freedom of religion. The learned Judge, on his part, discussed the validity or otherwise of the conviction only in three sentences, two of which are fairly short, when he said:
"I now turn to the case at hand. I respectfully agree with the learned state attorney that the prosecution's evidence proved the offence against the accused beyond reasonable doubt. The conviction, therefore was justified."