SP Christopher Bageni Justice: A Cry for Reform in Tanzania’s Criminal System

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This discourse does not absolve SP Bageni or any of the suspects in the execution of the four men. It is using this case study to point out that the way our criminal justice system is structured cannot deliver justice to the victims and their accused. Our criminal justice system heavily depends on eyewitnesses and uncorroborated evidence of sometimes single eyewitnesses at the expense of scientific breakthroughs in forensics, fingerprints, DNA, digital data and ballistic tests on guns. As a result, either innocent people are wrongfully imprisoned and sent to the gallows or criminals are let off the hook. This article analyzes the setting aside of the ruling of the High Court and the death sentence conviction on SP Bageni by the Appeals Court. 

It all began when a couple of miners left their domicile place in Mahenge Morogoro with gemstones they wanted to sell and get money to support themselves and their families. It was a trip to Dar-es-Salaam via Arusha. In Arusha, they were able to dispose of some of their gemstones and send some money back home to their families. It was on the second leg of their trip to Dar-es-Salaam where, hell, the unthinkable happened. 

In Dar-es-Salaam, they were able to sell the gemstones. We learnt From phone conversations with their loved ones that they were planning to go back home. It was unclear how much cash they had received from the proceedings of the gemstones sale, but the gutter press alleged it was over a hundred million. Somewhere along Sam Nujoma road, a robbery took place, and the victims, unrelated to the gemstone sellers, were robbed of Tshs 5,000,000/. The police were informed and commenced the investigation to nab the robbers and their loot. 

It is unclear how the police received a tip that the gemstone dealers were the ones who had committed the robbery at Sam Nujoma Road. It was also unclear how the police were able to trace the gemstone dealers so quickly and arrest them. A number of police were involved in the arrest, with two police pickups. The gemstone dealers were remanded in a police station. Somewhere during the night, certain police officers decided to execute them for reasons that both the High Court and the Appeals Court did not consider vital. 

In murder cases, motives are crucial to understanding who were the suspects or persons of interest and what drove them to commit the murder. Lack of motive establishment will later narrate why both the High Court and the Appeals Court drew up wrongful findings, and the latter Court convicted an innocent person contrary to the evidence act. What was glaring to the eye was SP Bageni was convicted by one eyewitness who distanced himself completely from the murders but successfully sustained a specious claim he was permitted to witness it all like a tourist! 

The courts noted that phone records of the first and the second respondents’ communications were not availed in court as evidence to establish who was the mastermind of the crime. Still, the Appeals court, despite this conspicuous irregularity, convicted SP Bageni of murder and sentenced him to be hanged until he died! The two courts believed the so-called star witness without fact-checking his allegations. I will cite a few of the contradictions from his evidence. 

First, the star witness claimed that the first respondent did show up at the police station where the gemstone dealers had been remanded and had talked to the second respondent, SP Bageni. Neither Mr. Bageni nor the first respondent corroborated this allegation. The second claim of the star witness was he did not board the police pickup that had carried the gemstone dealers to their execution. Neither the drivers of those two vehicles nor SP Bageni was interrogated to sustain an allegation. First, there were two pickups involved, and second, the star witness was not in the pickup that had carried the four deceased young men. 

This is crucial evidence to assess the credibility of the star witness impartially. This is because the star witness later contradicted himself when he claimed after arriving at Pande Forest, where the murders were committed, he had heard SP Bageni issuing orders to the other two police officers to disembark with their guns. Later, the star witness heard a flurry of gunshots, presumably coming from the guns of the other two police officers. 

This evidence is incompatible with the star witness who claimed it was SP Bageni who was issuing orders for directions on where to go. The star witness didn’t know a thing and was not involved in the shootings. SP Bageni could not have been in the pickup that was coming second, but the leading one was the one who instructed the alleged directions of the fateful journey. The two couldn’t have been in the same pick-up unless they were both in the first leading pick-up. How the High Court and the Appeals Court found the evidence of a single witness reliable defies all known principles of the admission of evidence! 

The star witness claimed there were two pickups, but the drivers’ names and the number plates remained a well-guarded secret. What kind of trial and appeal Court would not see that those two drivers ought to have given their side of stories? The lack of corroborating evidence from the two drivers was a miscarriage of justice of the highest order. Suppose there were no two pickups as had been alleged by the star witness, then the claim of the star witness that he had no role in the murders would have come down unstuck. The courts wouldn’t have placed weight on his claims of a tourist taken against his will just to hear the gunshots and witness the murders. Logic and commonsense instruct that superiors are accompanied by their juniors if they have roles for them. They will never take them just to be passive standby roles. It just makes no sense at all! 

Then there is an issue of obstruction of justice that both courts did not investigate. The so-called star witness didn’t say anything to his superiors about the murders of four innocent people until two investigatory committees were formed by the IGP and later by the then president Jakaya Kikwete. After being summoned by those committees, he began to squeak like a carrot. Why did he withhold the evidence until it was convenient for him to slap the murderer on SP Bageni and another junior police who had vanished without a trace? Withholding information is a serious felony of obstruction of justice. 

This obstruction of justice went to the root of the matter because it allowed the evidence in the hands of telephone companies to expire and was, therefore, deleted, depriving the courts of the tools to nail the masterminds of the horrific murders. The only mitigating factors against obstruction of justice happen when the accused has entered a plea bargain to accept a lesser charge and conviction to help the prosecution zero in on the main suspects. It was not stated in court documents that the star witness had entered those agreements to save his own skin. 

Both the High Court and the Appeals were swift to make a finding that SP Bageni was a compulsive liar based on a slate of lies he had committed earlier. However, lying about many things does not make him the one who ordered the four deceased to be murdered. The burden of proof could not be attenuated by a character enmeshed in lies but by having solid evidence that he had ordered the murders. His seniority in the group of soldiers that were allegedly present when the assassinations took place was also exploited to hang all four murders on his neck. SP Bageni, too, could have been allegedly obeying orders from his superiors, assuming he was present at the crime scene. 

Whenever a single witness offers exculpatory evidence, caution has to be taken not to permit perjury to decide a case. This is why collaborative evidence is inescapable. One piece of the collaborative evidence was whose guns were used in executing the four deceased. That was easier to achieve by bringing in ballistic test specialists to evaluate the size and nature of the wounds inflicted by the gunshots and compare them with the actual shots from the suspected guns. 

Neither the High Court nor the Appeals were even interested in appraising the lack of this crucial evidence. Seven fatal gunshots were fired, and the courts did not even know which guns were involved and whose guns were. The code of practice of the police in issuing guns to its police is known. The guns have registration numbers, and logbooks indicate dates, hours, and places of issuance. It was excruciating to reflect on the conviction of SP Bageni when nobody knows whether the police guns were used in the murders. Without the logbooks and the results of the ballistic gun tests, SP Bageni has no case to answer. There was no way a court of law could have established that the police were involved in the shootings, let alone it was the police who executed the four deceased. 

For arcane reasons, the courts did not make a finding the first respondent had lied before the court but were quick to let him off the hook. From the evidence of the star witness, the first respondent knew that the four deceased were in police remand but went on in public to claim they were criminals shooting at the police in a different area. If SP Bageni was a habitual liar, so was the first respondent because their evidence sublimely fitted like a glove to a hand. When the court treated SP Bageni differently from the first respondent, bias came into play. Bageni had no chance of a fair hearing because his goose was cooked abinitio! 

The star witness had claimed that after the executions, SP Bageni ordered the bodies of the four deceased to be carried by a police pick-up to the Muhimbili Hospital. Who carried the dead bodies from the ground to the pickup, and who were the police who handed the bodies to the Muhimbili Hospital? Whoever did these two critical tasks was not interrogated and, therefore, did not substantiate the offence of murder against SP Bageni. 

There was no evidence connecting SP Bageni with whatever happened at Pande Forest, considering that the alleged perpetrators were ghosts, so to speak. Ghosts kill nobody unless you believe in witchcraft and the kingdom of darkness. Looks like ghosts carried the bodies of the deceased from the ground where they were executed, packed them in a police pick-up and handed them to the Muhimbili Mortuary. Shoddy criminal investigations should lead to an unequivocal acquittal but certainly not a death penalty conviction. 

Arising from who carried the dead bodies, why was DNA not collected to establish the police who carried the bodies? Why was the crime scene not tested for blood splutters and shells of bullets? How come a crime scene that speaks for itself needed the mouth of a star witness to 

speak for it? Personally, I really see criminal justice in Tanzania as so backwards that it is inflicting injustices against the innocent and rewarding the criminals. We deserve better than this. The more I cogitate on what is wrong with the injustices inflicted on SP Bageni, the more I am very doubtful whether the convicts are really the ones or just fall guys for others with better means. 

I have gone through many decisions of the Appeals Court that dealt with sexual offences, and I saw the same repetitions. Convictions are made on oral evidence, while a crime scene speaks for itself. Cases of an underage dripping with semen are not taken to task to establish through DNA whose sperms were those, but oral evidence is presumed to be a “holy grail”, and a man is slapped with life imprisonment. My problem has always been that oral evidence may be secured through coaching and grooming to exact revenge or may be obtained through duress to turn one innocent person into a fall guy. 

Until forensic science is used to administer criminal justice, we shouldn’t trust the decisions in criminal cases solely made by a lone ranger who harbours powerful incentives to save his own skin.