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
s
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.
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
10
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."
The learned Judge's attention was apparently not drawn to the need for him to be satisfied that the requisite mens rea was proved in the case. We have examined the record of the case with great care and have found neither direct nor circumstantial
evidence to justify the conclusion or inference that the deliberate intention of the appellant when he uttered the words in question
was to wound the religious feelings of those who were to hear him. On the contrary, the evidence clearly demonstrates, in our opinion,
that the appellant was, at the material time, on a mission to propagate his religion, Islam. At the time.the Regional C.I.D. Officer
arrived at the public meeting the appellant was merely repeating what the Qur'an unequivocally states in several surahs, including Surah 19, which we have already quoted from, and Surah 5, which, again, Mr. Taslima drew our attention to. Verse 75 of that Surah reads: "75. Christ the son of Mary
Was no more than
A Messenger: many were
The Messenger that passed away
Before him..." It is neither possible nor. desirable to list all situations which may manifest the deliberate intention of wounding
religious feelings. That intention may be manifested by the speaker declaring it in so many words, or by the circumstances surrounding
the making of
12
the utterance, sound or gesture. If, for example, a non-christian were to preach in church grounds that Jesus Christ is not the Son
of God, or if he were to interrupt a christian ceremony, function or meeting by making such a declaration, it could be inferred that
his deliberate intention in so doing was to wound the religious feelings of those christians hearing him. In the instant case the
place where, and circumstances under which, the appellant made the utterance, and the nature of the meeting, had, among other things,
to be taken into account in determining what the appellant's deliberate intension was. .
The provisions of section 129 of the Penal Code were not intended to, and do not, frown upon sober or temperate criticisms of other
persons' religions even if those criticisms are made in a strong or powerful language. It should always be remembered that what is
regarded as truth in one religion may not be so regarded in another. Even if some sections of society consider the spreading of certain
religious messages, in an area where those messages are taken to be unwanted, as being an irresponsible, insensitive or provocative
action it would not constitute a violation of section 129 of the Penal Code to spread those messages there if the deliberate intention
of the speaker was to propagate his religion or religious views, and not to wound the religious feelings of those hearing him. The
enactment of the provision was not intended to
license an unreasonable abridgment or restriction of the right to propagate one's religion or religious views. It was primarily intended to safeguard public order. Freedom of religion
is not so wide as to authorise the outrage of religious feelings of others, with a aeliberate intention.
For the reasons we have given, we agree with Mr. Taslima that in this case the prosecution failed to prove the requisite mens rea. Consequently, we find merit in the first ground of appeal. These findings ar
sufficient to dispose of the appeal, but, bearing in mind the novelty and importance of the case, we deem it useful to deal with
the other grounds of appeal, albeit briefly in each case.
We proceed, therefore, to examine the merits or otherwise of the second ground of appeal. It was the contention of Mr. Taslima here
that the learned Judge erred in law in not evaluating the evidence laid in the scales at the trial and assigning reasons for agreeing
with the findings arrived at by the learned trial magistrate. We have no doubt that this complaint has merit. We have already pointed
out, when dealing with*the first ground of appeal, that the learned Judge, when he turned to a consideration of the validity or otherwise
of the appellant's conviction, merely said that he agreed with the learned state attorney's submission that the prosecution had proved
their case beyond reasonable doubt. He made no attempt to consider how the evidence proved each ingredient of the
14
offence the appellant was convicted of, and he gave no reasons for holding that the learned state attorney's submission was well-founded.
The necessity for courts to give reasons cannot be overemphasized. It exists for many reasons, including the need for the courts
to demonstrate their recognition of the fact that litigants and accused persons are rational beings and have the right to be aggrieved.
And as was pointed out by M.K. Mukherjee, J., in Rupan Deol Bajaj and An. v Kanwar Pal Singh Gill and,An. [1995] Supp. 4S.C.R. 237, at p. 258,
"Reasons introduce clarity and minimise chances of
arbitrariness." Nowhere in his judgment in the instant case does the learned Judge appear to have noted that not only did the
learned trial magistrate frame irrelevant issues but she also made no attempt to discuss those issues. Bearing in mind what we have
said, we are driven to the conclusion that the complaint in the second ground of appeal has merit. That conclusion brings us face
to face with the third ground of appeal.
This ground of appeal can, we hasten to think, be dealt with very briefly. It was Mr. Taslima's submission that to prove a charge
under section 129 of the Penal Code the prosecution must adduce evidence from someone whose religious feelings were wounded by the
alleged utterance, sound or gesture, to the effect
that his said feelings were wounded. We can find no warrant for thinking that there is merit in this contention, it would be doing
great violence to the language of the section to hold that such proof is required. It is enough if it is proved that the accused's
deliberate \ intention was to wound someone's religious feelings. Of course, if a witness testifies that his religious feelings were
wounded, and eventually the charge is proved beyond a reasonable doubt, the proof of wounding may be relevant in the assessment of
sentence to be imposed on the accused. The offence is complete once the utterance is made. It follows that, in our opinion, Mr. Tasiima's
argument is misconceived in law.
We turn now to the fourth ground of appeal. As will be recalled, the criticism here is that the learned Judge denied the appellant
the opportunity to be heard when the revisionai proceeding was conducted. It was contended by Prof. Safari, on behalf of the appellant,
that the omission to give him that opportunity violated the provisions of Article I3(6)(a) of the Constitution and section 373(2)
of the Criminal Procedure Act, 1985. The constitutional provision reads as follows:
"(6) To ensure equality before the law. the state authority shall make procedures which are appropriate or which take into account
the following principles:
16
(a) when the rights and duties of any person are
being determined by the court or any other
agency, that person shall be entitled to a fair
hearing and to the right of appeal or other
^
legal remedy against the decision of the
court or of the other agency concerned;
(b) ...
(c) ...
(d) ...
(e) ..." In order to grasp fully what is prohibited by subsection (2) of section 373 of the Act, it is necessaiy, we think, to
quote the preceding subsection of the section also. This is how the two subsections read:
"373. - (1) In the case of any proceeding in a
subordinate court the record of which has been called
for or which has been reported for orders, or which
otherwise comes to its knowledge, the High court may-
(a) in the case of conviction, exercise any of the
powers conferred on it as a court of appeal
by sections 366, 368 and 369 and may
enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse such order, save that for the purposes of this
paragraph a special finding under subsection (1) of section 219 of this Act shall be deemed not to be an order of acquittal. (2)
No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either
personally or by an advocate in his own defence; save that an order reversing an order of a magistrate made under section 129 shall
be deemed not to have been made to the prejudice of an accused person within the meaning of this sub-section." In the instant
case it is not in dispute that the learned Judge conducted the revisional proceeding in the absence of the appellant, who was given
no opportunity to be heard in his own defence. There can be no doubt whatsoever that the omission to provide that opportunity to
the appellant was a very serious error. It offended the provisions of sub-section (2) of section 373 of the Act we have quoted a
short while ago. The decision of the learned Judge affirming the conviction did in the circumstances prejudice
the appellant. Very rightly, Mr. Mlipano, the learned State Attorney, conceded before us that the learned Judge's error is fatal to
his decision. The importance of the right to be heard has been commented upon by many eminent judges over the centuries, pearly three
centuries ago, in R v University of Cambridge, 1723, 1 Stra. 557, cited with approval by Megarry, J., in John v Rees and others, [1969] 2 All E.R. 274, Vortescue, J., used the following celebrated words to emphasize the importance:
"The laws of God and man both give the party an opportunity to make his defence, if he lias any. I remember to have heard it
observed by a very learned man upon such an occasion that even God himself did not pass sentence upon Adam before he was called upon
to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst
not eat? And the same question was put to Eve also." We are satisfied, for the reasons we have given, that there is merit in the complaint in the fourth ground of appeal.
Finally, we proceed to deal with the fifth ground of appeal. It was submitted on behalf of the appellant that no judgment was in law delivered by the learned magistrate in this case. It is common
ground that although she framed two issues in the case, she dealt with only one of them, and the one which was considered was dealt
with perfunctorily. Another criticism leveled at the learned atrial magistrate's judgment is that it scarcely contained any reasons
justifying the final conclusions amved at on the case. We have already discussed the importance of giving reasons in decision making.
We will not revert to that point. We will confine ourselves at this stage to determining whether the learned trial magistrate fully
complied with the requirements of section 312(1) of the Act, which reads:
"312. - (1) Eveiy judgment under the provisions
- of section 311 shall, except as otherwise expressly
provided by this Act, be written by, or reduced to
writing under the personal direction and
superintendence of the presiding judge or
magistrate in the language of the court, and shall
contain the point or points for determination, the
decision thereon and the reasons for the decision,
and shall be dated and signed by such presiding
officer as of the date on which it is pronounced in
open court."
While we are hesitant to travel the whole distance with counsel for
the appellant and say that the judgment delivered by the trial court
in this case is no judgment in law, we have no hesitation in holding, as we do, that the said judgment did not sufficiently meet the requirements of the subsection
we have just quoted. We wish to draw attention to what this Court said in Lutter Symphorian Nelson v (i) The Hon. Attorney General. (2) Ibrahim Said Msabaha, Civil Appeal No. 24 of 1999 (unreported) on what a judgment should contain:
"...A judgment must convey some indication that the judge or magistrate has applied his mind to the evidence on the record. Though
it may be reduced to a minimum, it must show that no material portion of the evidence laid before the court has been ignored. In
Amirali Ismail v Regina, 1 T.L.R. 370, Abernethy, J., made some observations on the requirements of judgment. He said:
'A good judgment is clear, systematic and
straightforward. Every judgment should state the
facts of the case, establishing each fact by
reference to the particular evidence by which it is
supported; and it should give sufficiently and
plainly the reasons which justify the finding. It
,
should state sufficient particulars to enable a
* Court of Appeal to know what facts are found and how/" The failure to.comply with the relevant statutory provisions as to
. the preparation of a judgment will be fatal to a conviction where there is insufficient material on the record to enable the appeal
court to consider the appeal on its merits: see Wilv John v R^ (1956) 23 E.A.C.A. 509. In the instant case the learned Judge erred, in our opinion, in not holding that the learned trial magistrate's
judgment fell short of meeting the requirements of section 312(1) of the Act.
We have clearly demonstrated, we think, that the learned Judge should not have affirmed the appellant's conviction and that, therefore,
this appeal must succeed. We desire, before we make resultant orders, to make two observations.
The first one concerns revisional powers. No one can doubt the usefulness of these powers, but they should be exercised in appropriate
cases. Save in cases where justice requires an obviously improper conviction, or illegal sentence to be at once quashed or rectified,
revisional powers should not be exercised
' before inquiry has been made whether an appeal has been or is likely to be lodged: see (T) Lobozi s/o Katabaro v R., (1956) 23 E.A.C.A. 583. In the instant case the revisional proceeding was conducted before the expiry of the period within
which an appeal
-n
against the district court's decision could be lodged. On August 6, 2001, the appellant had, through the Officer-in-Charge of Morogoro
Prison, given a notice of appeal. No inquiry appears to have been made as to whether an appeal was likely to be lodged. This should
have been done.
The second matter we desire to comment upon is religious intolerance. Religions can, and should, be a solid foundation of peace. In countries where they have not been given a chance to play that vital
role, they have launched many wars, caused endless streams of blood and rolling of thousands of heads. Religious intolerance is a
vice which must not be permitted to find a place in the hearts of our people. It must be repressed by every lawful method. When a
person embracing a religious faith or view is told by another person, whose religious faith or view is different, something concerning
religion which he considers to be untrue, he should be able to answer him by echoing the wise words of Voltaire, the 18 century French
philosopher:
"I disagree profoundly with every word that you say but I shall defend unto the death your right to say it." In the holy books of almost all major religions in the world one finds passages directly or indirectly exhorting people to religious
tolerance. In the Qur'an, for example, there are the following
verses, in Surah 109:
\
s
1. Say (O Muhamad to these Mushrikun and
Kafirun): 'O Al-Kafirun (disbelievers in Allah, in
His Oneness, in His Angels, in His Books, in His
Messengers, in the Day of Resurrection, and in
Al-Qadar)!
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