LAW OF EVIDENCE- THE ADMISSIBILITYOF CONFESSION IN TANZANIA

1.0 INTRODUCTION The general rule both in criminal and civil cases is that any relevant statement made by a party is evidence against himself . In criminal cases for instance statement by the accused person made before the authorized person either in the court or out of the court are admissible as evidence against him. It is from this remark where we draw our need for the general understanding of the concept of confessions. 1.1 Understanding of the term Confessions. The term confessions is defined by the evidence act under section 3 to mean, word and conduct, from which whether taken alone or in conjunction with other facts proved an inference may be reasonably drawn that the person who said the words or did the acts constitutes the conduct has committed or a statement which admits in terms either an offence or statement containing an admission of all the ingredients of an offence with which the maker is charged or a statement containing affirmative declaration in which incriminating facts are admitted from which when taken alone or in conjunction with other facts proved an inference may be reasonably drown that the person making the statement has committed an offence. In the case of Republic v. Kifungu Nsurupia it was stated that the equivocal admission of having committed an act which in law amounts to a crime. In another case of Republic v. Bampamiyki the court stated that for the statement to amount to a confession it must contains all the ingredients of the crime in which the accused is charged so that the accused could be properly convicted on his own plea. Also, in the case Mathei Fidoline Haule v. Republic where the court of appeal states confession as which admits the offences charged in the crime also admits all the offence ingredients, where an admission of one or only some of the offence is not sufficient. Stephen defines the term confession as admission made by person charged with the crime . According to Phipson confession is a type of admission in relation to crime example from which an inference may be drawn that the accused committed the crime charged. In the Black’s Law Dictionary confession is a voluntary statement made by a person charged with the commission of the crime or misdemeanor, committed to another person where he acknowledges himself to be guilty of the offence charged and he disclose the circumstances of the act or the share and participation which he had in it. It follows therefore that while the term is defined by different authors is evident that the meaning or the views is nearly or is closely the same that provided under the Evidence Act, therefore for the purpose of understanding confession in Tanzania the meaning in as enshrined in the Evidence Act is the appropriate one. Confession may be divided into two classes, which are judicial and extra-judicial confession. Judicial confession is those which made before the magistrate or court in course of judicial proceeding and extra-judicial confessions are those which made elsewhere than before a magistrate or court. Extra-judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity ADMISSIBILITY OF CONFESSION IN TANZANIA The admissibility of confession is depending on the circumstance, which is made, the Law of Evidence Act provides for the circumstance which confession can be said to be made lawful. Those rules are divided into two which is substantive rules and procedural rules of admissibility of confession. Substantive rules like substantive laws which set up rights and duties substantive rules provides for some duties and the rights of the accused during making confession and procedural rules this talks about the procedures that should be observed when recording confession and the court will easily reject to admit the confession if those procedures are not complied with. 2.1 Substantive rules for admissibility of confession Generally, a confession is the acknowledgement of fault, wrongdoing made at any time by a person charged with a crime, stating, or suggesting the inference that he committed that crime charged . Therefore, for a statement to amount into confession it should have the following qualifications: - Firstly, it must be voluntary made by accused person. Confession must be freely, and voluntary made by the accused person to the police officer or a magistrates or justice of peace. According to section 27 and 28 of the Evidence Act . The law provides that the statement must be free from threats, promise or other prejudice held by police officer to whom was made or by any member of the police force or by any other person in authority. In this requirement it is upon the prosecution to prove affirmatively to the ratification of the court that it was voluntarily made and not obtained by any improper means. It was stated in the case of R v. Warringhon and R v. Thompson the court stated that “it is the duty of the prosecution to prove in case of doubt the prisoner’s statement was free made and voluntary and that they did not discharge themselves of the obligations.” However, it should be noted that not every inducement has the effect of making confession involuntary. According to Lord Goddard C. J. in the case of Kuruma Son of Kanin v. R . stated that; it is right that the rule with regard to the admission of confession, whether it be regarded as an exception to the general rule or not, is a rule of law which their lordships are not qualifying in any degree whatsoever. “The rule is that a confession can only be admitted if it is voluntary and therefore one obtained by threats or promises held out by a person in authority is not to be admitted.” In the case of Josephat Somisha Maziku v. R . the high court of Tanzania stated that “while it is trite law that the condition precedent for the admissibility of confession is its voluntariness, the said confession is not automatically inadmissible, simply because it resulted from threats, or promise.” The court inter alia stated that “it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilty.” This is also provided under section 29 of The Evidence Act . Where the act provides that “no confession which is tendered in evidence shall be rejected on the ground that promise or a threat has been held out to the person confessing unless the court is of opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilty to be made.” For instance, it is the requirement that every confession that have tendered in evidence must be made voluntary by the maker so as be admitted by the court but it is the substantive requirement of the law that the confession that the court is bound to reject is that which is untrue admission of guilty , in other hand is to say that the confession can be obtained by threat or promise and be admitted but only if it appears to be a true admission of guilty by the accused. According to The Criminal Procedure Act , a statement made by the accused person during the police interview may amount to confession if it has made to the officer whose rank is above corporal, and the prosecution as usual must prove in affirmatively that the statement of the accused was made voluntary as per section 53 of the Criminal Procedure Act . Also, the court may refuse to consider the statement of the accused as confession made by the accused before the police officer if the police officer was not cautioned the accused as per section 53 of the Act , that the accused person may refuse to answer any question put to him by the police officer other than those requiring him to give his or her personal particulars. And the court will only admit the confession made by the accused person before the police officer if it was recorded in accordance with the rules governing recording of such statement provided under section 58 of the Criminal Procedure Act . Secondly, it must be made to an authorized person. Another procedural requirement is that the for a statement to be confession it must be made to the authorized person. The Evidence Act stipulates persons who can receive confessions; a police officer as provided under section 27, a Magistrate and Justice of Peace as provided under section 28 of the Evidence Act. These are only persons who can receive confession under the evidence act. In the case of Director of Public Prosecutions v Regina Karantini & Another where a confession was made at a police post before a police officer who was not of or above the rank of corporal. The Court of Appeal speaking through Nyalali CJ (as he then was) held that: “Having taken into account the history of these provisions we are satisfied that proper interpretation of section 27 is that a confession made to a police officer only if the police officer is of or above the rank of corporal. Parliament in its wisdom enacted these provisions as a safeguard against the dangers of low-ranking police officers being tempted to obtain confessions by improper means. We must therefore conclude that the confessions said to have been made at the…police post in this case are inadmissible”. Thirdly, the statement must be made by the accused person himself. It is therefore that in order for the statement be admissible as confession it should be made by the accused himself because is the general rule that once the accused made any statement it shall be used as evidence against him in the proceedings. As the general rule it had an exception which is provided under section 33 of the Evidence Act which provides that “when two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved the court may take that confession into considerations against that other person.” In other hand is to say that confession may be made by co-accused affecting himself and the other accused and the court may take it into consideration. In the case of Jonas Nkizye v. Republic . The court said that “where in joint trial an accused goes into the witness box and his testimony, such evidence to all-purpose including against his co-accused.” The court also held inter alia that “where the co-accused’s evidence implicating the co-accused is tendered in improper motive such evidence should be received with caution.” In other hand is to say that when the court is considering the evidence of the confession of the co-accused such evidence should not be received alone rather it must be other collaborative evidence to support, this was also the matter in the case of Saidi Hatibu v. Republic . In this case the appellant was convicted of cattle theft. The trial magistrate relied on two pieces of evidence to convict the appellant. He relied of the plea of guilty of a co-accused which implicated the appellant and an identification evidence of a witness who said that he saw the accused in the bush from a distance of about one hundred yards driving some heads of cattle. The high court is considered whether or not the two pieces of evidence could support conviction. The court held that. i. “A plea of guilty is a confession of fact and may be made use of as provided for in section.33(1) of the Evidence Act, 1967 provided it is proved.” ii. the use of the word "proved" in section.33(1) of the Evidence Act would tend to suggest that evidence must be adduced to establish that the plea was made. iii. in this case it was not permissible to invoke the provisions of section.33(1) of the Evidence Act against the appellant because the plea of guilty of the co-accused was not proved. iv. it was unsafe for the trial magistrate to have accepted the identification evidence because the distance was quite long and the fact that the man was in a bush. Case Information it is therefore that the convictions cannot be based solely on the confession of the co-accused without an independence collaboration of the other evidence . That is to say the court when considering admitting evidence under section 33(1) of the Evidence Act . Must gather other evidence on support of it. Fourthly, it should contain the ingredients of the offence that the maker is charged with. Confession is a statement by the accused person in which is sought to be proved against him in a criminal proceeding, which it establishes the commission of the offence which he is charged with. In admitting the confession as evidence in the court the law require that the statement though might be relevant it must establish all ingredients of the offence which is charged. In the case of Republic V Bampamiyki the court stated that for the statement to amount to a confession it must contains all the ingredients of the crime in which the accused is charged so that the accused could be properly convicted on his own plea. On the same footing in the case of Palvindar v. State of Punjab . Whereby the accused was charged with murder and destruction of evidence for having committing murder of her husband by administering potassium cyanide poison and for causing destruction of her husband dead body. During investigation and trial, she stated. “my husband found of hunting as well as photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took liquid which was meant for washing photos. If fell down and died. Due to fear, I put body in trunk and threw into a well.” The Supreme court held that. The statement of the accused did not amount to confession. Therefore, it can be said that if statement given by the accused person can lead to conviction without adducing other evidence to collaborate it, such statement is a confession. This was clearly stipulated in the case of R. v. Mkareh, that “we think that the test is to whether statement is such that in absence of explanatory or qualification and in particular circumstances, it points clearly to the guilty of the maker. Thus statement ‘yes I killed him’ unaccompanied by any exculpatory statements and uttered in relation to a person who has died of a natural cause or to missing funds as the case may be in our view indicative of guilty and therefore a confession.” On other hand in the Criminal Procedure law, when the court need to rely on the plea of guilty of the accused person, they should first establish that the statement of plea of guilty is not an equivocal plea. In the case of Patrick Rimmer v. R . the court said, “a plea has two effect, first of all it is a confession of fact, secondly, it is a confession that without further evidence the court is entitled to and indeed in all proper circumstances will act up on it and result to conviction.” It is a prudent that before accepting confession of the accused person the court must satisfied that the accused’s reply is nothing but a clear admission of guilty. Furthermore, the accused’s plea must be of such as to leave the court of no doubt that every ingredients of the offence has been satisfied. In the case of Keneth Manda v. R . The Appellant was charged with causing bodily injury through reckless driving. He was convicted on his own plea of guilty. But the particulars of the offence in the charge sheet, and the facts stated in court by the prosecution, did not suggest any reckless driving by the Appellant. The court held that “An accused person can only be convicted on his own plea of guilty if it is ascertained that he has accepted as correct facts which constitute the ingredients of the offence charged.” Also, the same have been provided under section 228 of the Criminal Procedure Act . Fifth, it must be true. Also, in order for a confession to be admissible the law justify that it shall be true. In the case of Richard Lubilo and Mohamed Seleman v. Republic . In this case the appellants and several others were charged with 35 counts of armed robbery before the district court of Igunga. The appellants were convicted of eight counts and sentenced to imprisonment for 30 year and corporal punishment. They both appealed to the High Court where conviction and sentence were sustained in four counts. They further appealed. The only evidence which both courts bellow ware based was statement which both courts bellow treated as confession which was repudiated and retracted by the appellants during the trial. In considering the case the court had the following to say. “that in order a confession to be admitted must be voluntary as provided under sections 27 and 28 of the Evidence Act of 1967 and it is incorrect to say that involuntary confessions are admissible, under section 29 of the Evidence Act of 1967 when they are not true.” 2.2 Procedural Rules for admissibility of Confession. Hereinafter we have discussed the substantive rules of admissibility of confession, therefore procedural rules of admission of confession they are adjectival one they play its role on showing the means on how the substantive one can be enforced or exercised. As we noted hereinabove that there are two classification of confession which is judicial confession and extra-judicial confession, the early one is that which made by the accused person during the proceedings and the other one is that which the accused person is made elsewhere than the court. Therefore, it is the duty of the court to determine as to whether the confession is admissible or not. Because the court before admitting any kind of evidence it must satisfied itself on the reliability of such kind of piece of evidence, and here in confessions they need to satisfy whether such statement made extra-judicial was made voluntary or if it was involuntary, is that true statement or not. So that in the cases which is determined in the High court with the aid of the accessors the procedure to determine the admissibility of confession is called trial within a trial and in the cases, which is proceeded in the magistrate courts the procedure if namely preliminary inquiry which is also used to determine the admissibility of so-called confession. Trial within a Trial. This is the procedural practice in determination of the admissibility of the confession, where it conducted purposely in the trial held with the assessors or a jury in order to protect the assessors or a jury from hearing the evidence which might not be admissible. The general purpose of conducting this procedure was good illustrated in the case of William s/o Shimba v. R . where the court among other things held that… “it is assumed (sometimes) wrongly that since they are not legally trained, they would not be in a position to distinguish legally admissible evidence from evidence which are legally inadmissible. If they could hear in admissible evidence, it might influence their opinion which they are asked to give them regarding the verdict in the case.” Also, in the case of Bakran v. Republic the court stated the following. “The object of holding a trial within a trial is twofold. First, in cases tried with a jury or with assessors, to avoid prejudice being caused to the accused person if the jury or the assessors should hear the evidence which will subsequently be ruled inadmissible…The second advantage of holding a trial within a trial is to avoid prejudice being caused to the accused person if the court subsequently holds, in coming to the decision that the statement was improperly admitted”. Also, in Makumbi Ramadhani Makumbi and 4 Others v. The Republic , …the only way for every trial court to satisfy itself on the voluntariness of a disputed accused’s statement is by holding a trial with a trial…. Therefore, what should be done during trial within a trial was discussed in the case of Kinyori v R : which among other things the court held that “The defense will inform the prosecution before the trial commences that it desires to dispute the admissibility of any extra - judicial statement, or part thereof, made by the accused… The prosecution will therefore refrain from referring in the presence of assessors as to the statement concerned, or even to the allegation that any such statement was made unless and until it has been rules admissible…. The point to make the objection is before the confession is put in evidence (before any witness is allowed to testify in any respect which might suggest to the assessors that the accused has made the extra-judicial statement) and when that stage is reached, the defense should mention to the court that a point of law arises and submit that the assessors be asked to retire…” Preliminary inquiry in magistrates’ courts Then again, the training relevant in officers' courts is not a preliminary inside a preliminary. Where the suitability of an admission happens in a justice's court, where a preliminary inside preliminary is not stringently material, the judge should take up the matter, and ask into the conditions paving the way to the taking of the assertion, in substantially more subtleties, and ask the denounced, regardless of whether he intends to challenge the tolerability of the assertion. Assuming the blamed does not its suitability, the officer decides the subject of tolerability on the evidence as introduced . Amiri Ramadhani v R , the court held that; it is common knowledge the that in trial within a trial with the aid of assessors (in the High Court), where the admissibility of any evidence is doubtful, for example a statement imputed to a an accused person, assessors are asked to retire temporarily and trial within a trial is held during which the admissibility or otherwise of the disputed evidenced is decided. If it is decided that evidenced is not admissible because, for example, it was obtained through torture of the accused, then such evidence is excluded and the assessors will not hear it. If, however, it is found in to be admissible then the assessors will be called back into court and the evidence will be given in their presence. 3.0 CONCLUSION Therefore, from the above to the extent we have discussed critically the substantive rules and procedural rules of admissibility of confession, as the general understanding of the term confession we have discussed thereto in our introduction. But in summing up confession means the admission of fault or guiltiness by the accused on the offence charged. That the accused agree and admit all ingredients of the charge which read to him or her. Therefore, the duty of the court is to determine the voluntariness and truthfulness of the statement made by the accused through the procedure hereinabove namely trial within a trial and preliminary inquiry.