IN THE HIGH COURT OF TANZANIA

AT MAFINGA

• ORIGINAL JURISDICTION
(Iringa Registry)

CRIMINAL SESSION CASE NO. 3 OF 2006

THE REPUBLIC

VERSUS

BISEGE MWASOMOLA

JU D G M EN T

WEREMA. J .

This is rather a technical matter involving the offence

of manslaughter. As a criminal offence, it is governed by

principles of criminal law. The offence of manslaughter is

not a strict liability offence and as such recklessness or

knowledge on the part of the accused must be proved as

the mens rea of the offence. If the mens rea is not

proved or inferred conviction cannot be found. I must

also state at this early moment that the standard of proof

of culpability in manslaughter is proof beyond reasonable

doubt and not the civil standards which are based on the

balance of probability. The onus of proof is always on the

prosecution and the duty of the accused person is to raise

reasonable doubts on prosecution's evidence. This case is

sensitive in that it involved death of younger prim ar/

school pupils in what appear to be lack of supervision by

teachers. It is likely that sentim ental feelings, which are

obvious in a human nature, can have an upp^i hand u,

infer culpability. That should not happen to courts ot 'aw

The facts are as hereunder.

The accused, Bisege Mwasomola, Vvas a H^ad teacher

at Kimaia Prim ary School in Kilolo District Iringa region, k

is a school with more than 700 scholars of grades one to

seven. These grades are known as standards and are alsc

classified as Classes one to seven. The scnool goers are

pupils but I will refer tc them as scholar:. Hn i i Mnrch

2004, the accused announced in a parade of scnolars anc

in the presence of m em bers of teaching staff that on the

following day, those in grades 3 to 7 com e v/ith utensilr

such as buckets, baskets, sufurias and bags and that thev

were required to go and carry sand at a place known as

Holowa, a distance of about 6 kilom etres from me school

That announcem ent cam e after the Head teacher ana

m em bers of the teaching staff em erged from a meeting

where it was agreeo that the scholars be usee co fetch

sand. There is no denial that the announcem ent was

made and that it was made by the accused person.

From those who testified it woulc appear chat the

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age group of scholars involved was between 9 years and

15 years. I think, such age group, requires attention and

supervision by teachers even if there are prefects among

their peers. There is no doubt, ana I so hold, that the

scholars required not only supervision but care.

The sand was to be used as a building material Dy

masons who were at that time construct!;'^ :!r:cr, '‘ X T , :

ana a staff room the properties o :nar lower school.

Indeed, in the m orning of 12 Marcn 2004 the scholars

came atthe schools with such utensns. mey were

num bered and at about 07.15 am left ror nolowa R is

estim ated that m ore than 500 scholars left for Holowa.

This num ber is not merely numerical but it snows that

supervision and care was required to m anage them regard

being to their aae. According tc the defence, the

instructions to the scholars were to carry sand which was

pdug Dy the parents on the previous aay. it was riot to

enter into the gully/gorge to dig for the sard. But in my

opinion, w hether the sand was to be fetched *:o be duq

it does not matter. Either way, supervision was a

requirem ent. The prosecution's version is that when the

scholars arrived at the scene they did not rind any heap uf

collected sand as they were told. Be as it may, the

scholars are said to have entered into the gully which was

about 9ft deep and started to dig sana using sucks.

Mom entously, the gully collapsed ana some scholars were

trapped. 8 of the scholars died on the spot ana anoche-

died as he was beinq rushed -to the dispensary. This

happened at about 07.45 a.m.

The accused and Mr Alphonce Nyakunaa who was a

m aster on duty on 12 March 2.004 were all arrested and

charged for the offence of m anslaughter. Mr Nyakunga

was later discharged after the prosecution filed p. r»o!fe

prosequi in his favour. The accusec was charged with

the offence of m anslaughter of the nine pupiis who aied

on that ratefui day. Me has pleaded not guilty ic the nine

counts. The Prosecution called five witnesses while the

defence called four including the accused. The substance

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of the Prosecution evidence is that the accusea let the

scholars to go to Holowa without an appropriate or

adequate supervision and that those deaths could have

been prevented if the accused had provided or ensured

adequate supervision and care of the scholars.

It is not disputed that nine scholars of Kirnala

Prim ary School died. The post mortem reports on the

exam ination of bodies of the deceased snow that the

cause of death was asphyxia which is lack of oxygen to

the lungs leading to suffocation and ultim ately to death

The fact of the m atter is that the scholars were buried in

rubble when they were inside the gorge. It is not

disputea that the overhanging earth of the gorge wab

w ater logged and could not withstand its own unsupported

weight. It not disputed either that the scholars enrerec

into the gorge or were digging sand using sticks, "i nose

facts a r 2 not disputed.

I have already said that it is not a dispute that the

accused .directed scholars to come with utensils and

disclosed the purpose for which the utensils were to be

used. ' Initially, except during final address, the

prosecution implied that the scholars were not allowed to

engage in such tasks. If indeed it was so, then the

accused directions and his conduct was m isconduct in a

public office. It is so because as a public officer he wilfully;
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neglected to perform his duty and wilfully m isconduct

him self to such a degree as to am ount to an abuse of the.

public trust w ithout reasonable excuse or justification

Here the point is that if the law, including any of ch-

deiegatea iegislation under the Education Act prohibited

che use of scholars in such labour works, then the accuse.:-

conduct was a breach of such law. But that would non i>*

the end by itself, the law must be clear to m ake the

accused aware of the existence of a duty to act -r

otherwise the prosecution must prove that the accused

was subjectively reckless as to the existence of such duty.

The test for recklessness applied will be whether in

particular circum stances a duty arose at all as well as m e

conduct of the accused if it did. The test will oe suojecc

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test which m ust be applied both to reckless indifference co

the legality of the act: or omission and m relation to me

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consequences of that act or omission. This is a legal issue

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and a technical one at that. I am not bound by Common
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Law cases decided by courts in England. However, those

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decisions have a highly persuasive value in the

developm ent of law. In the case of ATTO RNEY GENERAL'S

REFEREIMCEfNO.3/2003) which is reported in [200514

ALL.E.R 303 the issue arose in a case where a police

officer was acquitted upon charges of m anslaughter and

m isconduct in public office. The facts in m at case were

that a man was assaulted. He fell or the ground hitting

his head. He was taken to hospital where the police

officers attended with a view to investigating the assault.

He was arrested on the ground of an apprehended breach

of the peace. When asked whether the person was fit to

be detained, the Doctor treating him agreed. The police

took him to the police station in a van. On arrival, though

still seated in a position in which he had been placed, he

did not respond to the officers. He was placed on the

floor in a sem i face down position, not the recover,

position. His breatning was audibly obstructed and

several m inutes later he stopped breathing. Attem pts on

resuscitation failed. He died. The police officers were

charged with m anslaughter by a conduct am ounting tc

gross negligence and m isconduct in a public office. The

specific allegations were that the officers had failed to put

the man in a better position, had failed to ensure that his

airway was clear and had failed to obtain medical

assistance. At the close of the prosecution case the trial

judge ruled that there was no evidence wnicn 10 found a

conviction for m isconduct in public office on the basis of

recklessness. He directed acquittal. The Attorney General

referred to the Court of Appeal the question of what were

the ingredients of the Com m on law offence of m isconduct

in public office and in particular, w hether it was necessary

for the prosecution to prove bad faith.

On the issue referred to it the Court held that the

test of recklessness applied to the question of

w hether in a particular circum stances a duty arose

at all as well as to the conduct of the accused if it

did and the subjective test applied botn to reckless

indifference to the legality of the act or omission

and in relation to the consequences of the act or

om ission.

I have carefully considered this decision. 1 am

im pressed by it. I think it provides for me an entry point

to resolve the riddle in this case.

There is evidence of dissenting opinion from

m em bers of the teaching staff objecting v the use of

scholars for that task. Some thought the use of scholars

in such tasks was prohibited. The use of the word

"prohibited" is in the ordinary sense and not legal sense. I

think the issue w hether the use of scholars in labour

works such as sand fetching can be discerned from a

circular letter which was tendered and adm itted as EXH

"C " for the Court. This Circular letter

R A S / I R / E .1 0 / 6 5 / 1 0 1 dated 21 Septem ber 1999

addressed to all Head teachers, among others, does not

prohibit the use of scholars. This Circular was issued after

10 scholars of Igom twa Primary School in Mufindi District,

Iringa region were buried by landslide when they were

digging sand in a gorge for purposes of building a school

toilet. In that circular letter, the Heads of School were

directed as follows:

1. W anafunzi wa Shule za Msinqi na Sekondari

wai .awajibika kushiriki kwenye Kazi za

M ikono kwa ajili ya Maendeleo ys Shule zao;

2. ...walimu waandae utaratibu mzuri wa

kusim am ia utekelezaji wa kazi za mikono

wanazopangiw a wanafunzi;

3. kam w e wanafunzi w asiachw e peke yao

kufanya kazi za nje ya darasa bila usimamizi

mzuri wa walimu;
 4 wakuu wa shule/w alim u wakuu na walimu

lazima waainishe kazi am bazo zinaweza

kufanywa. na wanafunzi bila kuleta au

kusababisha athari kwa maisha yao;

5. wakuu wa shule/w alim u wakuu na walimu

w ahakikishe kuwa wam ekagua vizuri

m aeneo am bayo wanafunzi watafanya Kazi

za nje kabla ya siku ya kazi yenyewe. Hii

itasaidia kuweka utaratibu m zun wa

utekelezaji.

6. Kila rnara Mkuu wa Shuie /M w alim u Mkuu

ashauriane na Bodi/ Kamati ya shule kuhusu

utaratibu mzuri wa kuwashirikisha wanafunzi

kwenye kazi zinazohusiana na ujenzi wa

m ajengo ya shule. Kwa shule za rnsingi

Serikali ya Kijiji pia wahusishwe. Hii m

kuw afanya wazazi washiriki kwenye kazi

ngum u k.m kuchimba m changa, mawe na

w anafunzi wasaidie kubeba;

7. Licha ya kazi za mikono, wakuu wa shule

/w alim u wakuu wanaagizw a kukagua

m aeneo yote ya shule na Kutambua

m ajengo na maeneo m engine ya hatari ili

kuwazuia wanafunzi wasiende hukc. !\i!

vem a m ajengo hayo ya hatari kwa maisha

ya watu yakacham buliw a na kutumwa

kw enye mamlaka zinazohusika.

There is no doubt from the contents of the circular

that the greatest concern of the Regional Education Officer

of Iringa was the safety of a child for which all scholars in

the case of Kimala Primary School were. The child, by

reason of his physical and mental im m aturity, needs

special safeguards and care, including appropriate !ega!

protection. This requirem ent is a universal obligation

arising from the International Convention on the

Rights of the Child, a Convention adopted by the United

Nations General Assem bly resolution 44/25 of 20

Novem ber 1989 a n J which entered into force on the 2

Septem ber 1990. Tanzania is a signatory ana aia

according to Article 63 of the Constitution duly ratify it.

For ratification alone does not make the Convention part

of m unicipal laws, what the state has done so far after

ratification show that the Convention is a higher order,

which under international custom ary law read together

with the spirit of our Constitution binds the state and its

institutions. For exam ple, Tanzania has continuously

subm itted to the Com m ittee established under A rtid e 43

of the Convention reports on the m easures she has

adopted which give erfect to the rights recognized by the

Convention and progress made to thei r realization.

Further, there is now in the set up of the Executive

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I - m inisterial allocation of responsibilities a specific ministry
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responsible for children. State behaviour in im plem enting

its obligations under a treaty, I think should be taken into

account in determ ining the status of such a treaty in the

dom estic law, the duality practice of som e states like

Tanzania, notwithstanding. This is the essence of

universality of international human rights standards which

such conventions offer and this is the im plication tc

ratification of such conventions.

W hatever decision or interpretation we may take or

give on the circular and use of scholars use in manual

labour, our prim ary consideration should be the best

interests of the child. That is the m inimum standard

under which we shall not allow ourselves to descend. I

will not traverse the legality or the legal basis of the

Circular but I assum e it is consistent with the law

' governing education. I did not benefit from the Bar in this

regard but having read the relevant law anc. regulation

thereof I am satisfied that the circular is not utra vires

the Education Act. My interpretation of the C ircular is that

it is not prohibitive. The Convention, in Article 29, direct

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State Parties to ensure that education of a Child shall be

directed to, am ong other things:

(a) The developm ent of the Child's personality,

talent-3 and mental and physical abilities to

their fullest potential;

(b) The preparation of the child for responsible

life in a free society...

The environm ent surrounding our scholars requires

education for self reliance. This, I think is still the lynch

pin of our prim ary school education as it should be for

secondary and tertiary levels. So I do not agree that it

was illegal or that the Head teacher was prohibited to use

the scholars for the purpose for which they were sent to

Holowa. It was regular. That will settle the issue of

m isconduct to a degree am ounting to abuse u f the public

trust. The accused breached no law.

There are a few contentious and serious issues. The

first and most contentious of all is whether the scholars

were under supervision while at the gorge on that fateful

morning. The second one will be w hether the accused

was tne person to provide that supervision; anu the thiru

would be w hether the accused was reck.ess in the

supervision or not supervising the scholars. There are

many other side issues connected to the main issues

which I will raise in the course of this judgm ent.

I will be fast in concluding that as the testim onies

indicate there were no teachers at the gorge on the

morning of 12 March 2004. The accused's explanation is

that he detailed teachers to supervise scholars at the

gorge on 11 March 2004. One of such teac. »ers was Mr

Aiphonce Nyakunga. According to PW1 Telia Maliga and

PW2 Christina Kisom a and PW5 A/Insp Nicolaus

none of the teachers were at the gorge on that morning.

This is equally confirm ed by the defence in the testim ony

of DW3 Corw in Mbelwa who was in grade seven and a

head prefect then. He was not on site but was detailed to

supervise safe passage of scholars at the bridge. As there

was no accident at the bridge I assum e his was a

successful im plem entation of the accused directions. I did

not see any serious contention to the accused's

explanation in respect to detailing teachers to accom pany

scholars. I therefore take his version as correct and true.

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 The defence position is that scholars were not

expected to enter into the gorge because the sand was

not in the gorge but out of it. They were also expected not

to dig or scratch for the sand but to collect sand which

was dug by villagers on the previous day. This position is

supported by accused and DW 2 Mrs Mary Ndegela, a

member of the teaching staff at the school; DW 4 Festo

M tenga, VEO; PW 2 Christina Kisom a and PW1 Telia

Maliga. The principle of criminal law is that where there

is a situation like the one here the balance of scales must

tilt to the benefit of the accused. I therefore hold that the

scholars were to collect sand which was dug from the

gorge on the previous day. I have already said that this

alone did not make supervision redundant. Is it

reasonably expected of a child not to wonder in areas of

interest to him? We must bear in mind, as I do here, that

a child is mentally immature and his mental faculties will

not stop to take him to spots that a mature person cannot

dare go. Of course chasing hare, birds or venturing into

gullies, gorges, hill top, running or chasing each other are

common games for a child. A child can only be restrained

by a supervisor and in case of scholars, their teachers.

Prefects may do so but for a number of scholars that went

to Holowa, it is a mammoth task for prefects. It is not

difficult for a reasonable man to see how important it was

for special safeguards and care of scholars at the gorge.

This special safeguards and care was not provided. PW2

Christina Kisom a's testimony is evidence of lack of this

safeguard and care. She testified that "w e arrived at

Holowa at about 08.00 we w ere not accom panied by

any teacher including the Head teacher. W e found

no heap of sand as w e were told. O thers scholars

picked up sticks and started digging. I did not enter

into the gorge but I w as collecting sand left on the

pathw ay. I w as jo in ed by other scholars. The gorge

w as 9ft deep. W e noticed that the gorge w as about

to collapse. W e alerted our peers w ho w ere inside

the gorge to get out but th ey ignored us.

Im m ediately the gorge collapsed".

The warnings by other scholars were ignored. It is

possible that there were many and uncoordinated shouts

which confused those who were inside. These warnings

did not come from prefects and were easily ignored. That *

is the effect of absence of a leader in a situation like the

one we had at Holowa. According to the witness even

those prefects who were around were also mining sand.

The unfortunate conclusion is that there was no

supervision. The children were left on their own in such a

risky area. Though teachers expected that sand was

available in a non risk area they were reckless in not

accompanying the children to Holowa. I must infer that

whoever was responsible for accompanying children to

Holowa did not do it. This omission and conduct was

nothing but reckless or grossly negligent.

I am thankful to the Bar. Both counsel with the usual

zeal and eloquence argued their positions well. The

prosecution argued and asked the assessors to find that

the accused was reckless, meaning he ought to have

foreseen the risks or risk that was facing the pupils at

Holowa and that he did not exercise reasonable care in

the supervision of the pupils there. The Case of R V

Selemani Rashid [1985] T.L.R 95 was cited as an

authority to support this position. I must say here that

this authority does not make manslaughter a strict liability

offence. To the contrary, it seems to me, it requires proof

of a state of mind in the commission of manslaughter.

Negligence, like recklessness is a state of mind. As I have

shown below, the standard of proof of negligence in a

criminal culpability is not at the same rank as proof of

negligence is a civil tort. In criminal culpability, the

standards are higher as those required to prove any other

offence. In the proper context, the case does not advance

the argument made by Mr Mmbando, the Learned State

Attorney. This case as both sides have shown, and as I

have pointed earlier, is centred on the mental element or

mens rea known as recklessness. Mr Onesmo Francis, the

Learned Advocate for the defence was so kind to provide

his written submissions, which course should be

encouraged. In his submissions, which he eloquently

expanded also touched on recklessness as a fundamental

issue here. He cited a paragraph in Watkin L.J speech in

West London Coroner, ex-parte Gray f 19881 O.B 467 for

which I am grateful. That speech defines recklessness

and set a test that should apply to it. It is one of the

cases that provide a historical perspective of recklessness

in England. But there the matter is statutory unlike the

way it is in our own jurisdiction.

 I invited the - honourable Assessors to determine

whether even if the accused did not intend injury or death

of the pupils, he had foreseen that sending them to

Holowa unattended might have caused injury or death.

They dutifully returned a verdict of not guilty in favour of

the accused. I commend them for their time and

concentration. I am not bound by their decision but they

have spoken on an issue of fact. The culpability of the

accused on the charge facing him is thus negated by the

Assessors.

On the basis of an old English case, ANDREWS V

DPP r 1937^ 2 ALL.ER 552 a high degree of negligence

such the one I see here or indifference to the risk that

faced scholars, would justify conviction for manslaughter.

That was Lord Atkin's judgment. At the time, the doctrine

of constructive manslaughter whereby death resulting

from unlawful act, whether intrinsically likely to injure or

not, was manslaughter. But development of the law

appears to have overturned this thinking. R V LOWE

(1973) 57 Cr. App. 365 appears to have given the

doctrine a coup de grace. This omission can support a

charge for the offence of manslaughter if it can be proved

that the accused's recklessness involved foresight of

possible consequences of the omission. I think inspite of

the coup de grace, Lord Atkin's judgment is good law

where it guides that negligence in civil law of tort should

not be confused with the concept of recklessness which is

a common law concept in mens rea in criminal law. This

is the central theme of this case. Lord Diplock's speech

in R V SHEPPARD T19801 3 ALL.E.R 899 has impression on

Lord Atkin preposition and I think it is relevant here. He

stated eloquently that:

"The con cept of a reasonable man as providing

the standard by w hich liability of real persons for

th eir actual con du ct is to be determ ined is a concept

of civil law, particularly in relation to the tort of

negligence, the obstruction in crim inal law of

conform ity w ith the notional conduct of the

reasonable man as relevant to crim inal liability,

though not know n, is exceptional and should not be

extended. If failure to use the hypothetical pow er

of observation, ratiocination and foresig h t of

con sequ en ces possessed by this adm irable but

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purely exem plar is to constitute an ingredient of a

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crim inal offence it m ust surely form part not of the

actus reus but o f m ens rea".

Let me say the obvious that recklessness is a state of

mind of the accused. Intention, recklessness and

knowledge are the basis of liability in criminal law. They

all fall under the mens rea window. All of them will

require proof. Recklessness postulates foresight of

consequences and requires either an actual intention to do

the particular kind of harm that was actually or in fact

done or reckless indifference whether the harm could

occur or not. It is obvious that it is neither limited to, nor

does it require, any ill-will or bad faith towards the person

injured. Common law cases are many on this point, but

the old case of R V CUNNINGHAM T195712 ALL.E.R 412 is

also worthy reading for an historical perspective. It may

help to decide as a matter of fact whether, even if the

accused did not intend injury or death of the scholars, he

foresaw that sending more than 500 scholars unattended

might have caused injury to the pupils.

The accused explanation was that he detailed a

teacher on duty and other teachers to accompany pupils

to Holowa. That piece of evidence has not been

contradicted. What the accused is saying is that he

exercised reasonable care befitting a Head teacher to put

down structures of administration and supervision of

pupils while they were proceeding to and while at Holowa.

His instructions according to the evidence were not

followed by his fellow teachers. The prosecution did not

give evidence to show that the accused did not give such

instructions. Each of those teachers had a duty of care to

the scholars and the deceased scholars in particular. A

charge may stand if it is proved that they did not exercise

that duty as it seems here. This amounted to a wilful

neglect of children, not by the accused but by those

teachers who were instructed by the accused to

accompany the scholars to Holowa and who are not in the

dock. I did not see evidence which indicated that the

accused knew that his instructions would not be honoured

by teachers he had detailed. None of them had

demonstrated such a degree of administrative

insubordination in public when the announcement was

made. Neither did or do I see a postulation of foresight

consequences that a land slide or the gorge would likely

collapse on the part of the young teacher, the accused.

Culpable negligence on his part, as I discern, will be

farfetched.

Like Lord Bingham in R V G r200411 A.C 1034, I find

and hold that an accused person could not be culpable

under criminal law of doing something involving a risk of

injury to another or damage* to property if he did not

genuinely perceive the risk. Applying this rule here, I find

to be a salutary principle that conviction of serious crime,

which manslaughter is, should depend on proof not simply

that the accused caused by act or omission, an injurious

result to another but that his state of mind when so acting

was culpable. This is not a new rule. It is a restatement

of actus reus facit reum nisi mens sit rea. It means

that in the absence of exculpatory factors, the accused

state of mind is all important where recklessness is an

element of the offence charged. I think from all of these

authorities some principles emerge. They are as follows:

(a) that a person is reckless in respect of

circumstances when he was aware of a

risk that it existed or would exist;

(b) that a person is reckless in respect of a

result when he is aware of a risk that

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would occur, and it was, in the
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circumstances known to him, unreasonable

to take the risk;

that it is a salutary principle that

conviction of a serious crime should

depend upon proof not simply that the

accused had caused by act or omission, an

injurious result to another, but that his

state of mind when so acting was culpable;

that the most obviously culpable state of

mind was an intention to cause injurious

result;

That indifference of an appreciated and

unacceptable risk of causing an injurious

result or a deliberate closing of the mind to

such risk would be readily acceptable as

culpable too;

That it is clearly blameworthy to take an

obvious and significant risk of causing

injury to another but it is not clearly

blameworthy to do something involving

the risk of injury to another if, for reasons

 other than self induced intoxication, one

does not perceive the risk. Such a person

may fairly be accused of stupidity or lack

of imagination, but neither of those failings

should expose him to conviction of serious

crime or the risk of punishment.

In applying these principles to the case before me, I

do not see any scintilla of recklessness on the part of the

accused. The accused cannot shoulder responsibilities of

those teachers that he had detailed to go to Holowa

because the principle of vicarious liability does not apply

in criminal law to the extent that omission of other

teachers subordinate to the accused would be inferred on

him. On the facts of the case and testimonies of

witnesses, the accused instructions were ignored by the

Teacher on duty. The Prosecution did not call him to

explain what happened or show the culpability of the

accused at least. To me, it seems, he is the person who

could be in the dock. But hypothetically, even if he could

be the one to stand trial, evidence on his mens rea would

still be a tall hurdle to jump. There is, in my considered

judgment, no evidence which could safely found

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conviction on the basis of recklessness or failure to

exercise due care.

I find the accused not guilty of the offence of

manslaughter as charged. I subsequently acquit him

absolutely.

Judgement is read in the presence of the accused

person, counsel, Assessor, Court Clerk and in the open

court.

Court: The Honourable Assessors are thanked and

discharged honourably.

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