PRELIMINARY TRIAL OBSERVATION REPORT ON THE CASE FACING
HON. FREEMAN MBOWE & THREE OTHERS
Hon. Freeman Mbowe with his fellow accused persons under escort
1.1 About Watetezi Tv
Watetezi Tv is a non-profit online YouTube platform established in June 2018 to air programs related to human rights and the specific work done by Human Rights Defenders. Watetezi Tv commits to develop and broadcast online content addressing a broad range of issues related to human rights defenders including journalists, educate and entertain the public about civil discourse essential and relevant to the Tanzanian society.
1.2 Arrest and Detention
This is a preliminary trial observation report concerning the arrest, detention, charges, conduct and recusal of Hon. Judge Elinaza Luvanda from handling the economic case number 16 of 2021: Republic Versus Halfan Bwire Hassan, Adam Hassan Kasekwa @Adamo, Mohamed Abdillahi Lingwenya and Freeman Aikael Mbowe. Hon. Freeman Mbowe is the Chairman of the opposition party in Tanzania; Chama cha Demokrasia na Maendeleo (CHADEMA). He was arrested and detained in Mwanza city just hours before he was due to launch a programme calling for constitutional reform in Tanzania on 20th July 2021. He was transported to his home in Dar es Salaam, a search to his house was conducted by the Police and some of his belongings such as personal computers were confiscated by the Police.
After the search, Hon. Mbowe was detained at Oysterbay Police station until 26th July 2021 in the evening when he was arraigned before the Resident Magistrates’ Court of Dar es Salaam at Kisutu in absence of his advocates and family members. He was charged for two unbailable offences jointly with other three accused persons in economic case no 63 of 2020. After the charges being read against him, he was remanded at Ukonga Prison.
|According to the research conducted by Watetezi Tv, procedures for arresting the accused persons were not followed as required under the Criminal Procedure Act, Cap 20 R.E 2019 and under the Police General Orders – Watetezi Tv researcher|
CHARGES & THE FIRST CATEGORY OF PRELIMINARY OBJECTION
Hon. Freeman Mbowe is facing two criminal charges while the other three persons charged with him are facing four criminal charges. The charges against them are as follows
First count for all accused;
|Conspiracy to blow up fueling stations and other public gatherings contrary to Section 4 (3)(i)(i) and 27(c) of the Prevention of Terrorism Act No. 21 of 2002 read together with Paragraph 4 of the First Schedule to, and Section 57 (1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R:E 2019.|
Second count for Hon. Mbowe only;
|Provision of funds to commit terrorist acts contrary to Section 4 (3)(i)(i) and 13 of the Prevention of Terrorism Act No 21 of 2002 read together with Paragraph 24 of the First Schedule to, and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R:E 2019.|
Third count for the three accused persons only;
|Collection of funds to commit terrorist acts contrary to Section 4 (3)(i) and 13 of the Prevention of Terrorism Act No 21 of 2002 read together with Paragraph 24 of the First Schedule to, and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R:E 2019.|
Fourth count for the second accused only;
|Unlawful possession of firearm contrary to Section 20(1)(b) of the Firearms and Ammunition Control Act No 2 of 2015 read together with Paragraph 31 of the First Schedule to, and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R:E 2019.|
Fifth count for the second accused only;
|Unlawful possession of ammunitions contrary to Section 20(1)(b) of the Firearms and Ammunition Control Act No 2 of 2015 read together with Paragraph 31 of the First Schedule to, and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R:E 2019.|
Sixth count for the first accused only;
|Unlawful possession of fire arm contrary to Section 20(1)(b) of the Firearms and Ammunition Control Act No 2 of 2015 read together with Paragraph 31 of the First Schedule to, and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R:E 2019.|
NB: All the counts are alleged to have been committed between 1st May and 1st August 2020 in Moshi, Arusha, Morogoro and Dar es Salaam.
The Resident Magistrates’ Court of Dar es Salaam at Kisutu is a committal court, it lacks jurisdiction to hear and determine offences of terrorism. It’s powers are limited to issuance of a committal order referring the case to the High Court of Tanzania for a hearing.A committal order was issued on 23rd August 2021 by the Resident Magistrates’ Court of Dar es Salaam, at Kisutu in terms of Section 178 of the Criminal Procedure Act, Cap 20 R.E 2019, referring the case tothe Corruption and Economic Crimes Division of the High Court (Economic case no 16 of 2021). The Court scheduled for a plea taking and preliminary hearing of the case on 31st August 2021.
|The way how charges are framed, lacks a certain important element/qualifying word as mandatory required under Section 4(3)(i)(i) of the Prevention of Terrorism Act No 21 of 2002, the missing words on the charge/information are “and is made for the purpose of advancing or supporting acts which constitutes terrorism” – Watetezi Tv Researcher|
2.2 What Transpired on 31st August 2021?
The Corruption and Economic Crimes Division of the High Court did not conduct the plea taking and preliminary hearing of the economic case no 16 of 2021 because, on August 30, the defence counsel filed a notice of a preliminary objection that the Corruption and Economic Crimes Division of the High Court lacks jurisdiction to determine the six counts (terrorism offences) charged to the accused persons.
2.3 Preliminary Objection
The preliminary objection raised by the defense counsel was to the effect that;
|“The Corruption and Economic Crimes Division of the High Court lacks jurisdiction to determine the six counts (terrorism offences) charged to the accused persons”.|
During the hearing of the above preliminary objection, the accused persons were represented by fourteen (14) Advocates under the lead counsel Mr. Peter Kibatala and Jeremiah Mtobesya while the Republic/Prosecution side was under the lead of Mr. Robert Kidando Senior State Attorney assisted by other four state attorneys.
Advocate Kibatala addressed the court that the six counts charged against the accused persons have been brought under the auspices of the Prevention of Terrorism Act No 21 of 2002 and the Economic and Organized Crime Control Act, Cap 200 R.E 2019. He further submitted, this court is a specified/ specialized court to try corruption and economic offences as established under Cap 200 lacks the requisite jurisdiction to try all counts charged against the accused persons in view of Section 11 of the Prevention of Terrorism Act No 21 of 2002. He supplemented his argument with the case of KSF Kisombe versus Tanzania Harbours Authority under pages 7, 8 and 9 where it was held that the issue of jurisdiction is paramount. Another case cited was criminal session no 01 of 2021 Republic versus Farid Haji Ahmed and 35 Others, it was decided that an issue of jurisdiction must be decided first and the court must state whether it has jurisdiction or not.
Counsel Kibatala further submitted that under paragraph 24 of the First Schedule to and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act (EOCCA), Cap 200 R.E 2019, all economic offences shall be triable by the Corruption and Economic Crimes Division of the High Court. However, there is a caveat under Section 11 of the Prevention of Terrorism Act (PTA) No 21 of 2002.
Section 11 of PTA states that
|“The Provisions of this Act shall have effect notwithstanding anything inconsistent with this Act contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act” According to counsel Kibatala, PTA has supremacy provisions, hence it is a specific statute while EOCCA is a general statute.|
2.3 Jurisdiction of the Court
While addressing the jurisdiction of the court, counsel Kibatala submitted that under Section 34 of the Prevention of Terrorism Act (PTA) No 21 of 2002, the High Court has jurisdiction to try offences under the Act. Section 3 of PTA defines the High Court to mean the High Court of Tanzania and as the case may be the High Court of Zanzibar. He insisted the High Court referred to is the one established under Article 108 of the Constitution of the United Republic of Tanzania, Cap 2 R:E 2002 and not a specialized division of the High Court as well as the High Court Registry Rules. There is nothing under PTA that shows by way of enactment that the provisions thereof are made subordinate to the provisions of EOCCA. It is a cardinal principle of interpretation that where there is a conflict between a specific statute and a general statute, the provisions of a specific statute prevail, hence PTA is not subjected to the Economic and Organized Crime Control Act (EOCCA), Cap 200 R.E 2019.
Thus, the High Court under PTA and the division of the High Court under EOCCA are different on the following reasons
First; PTA was enacted earlier than the amendments to EOCCA via Act No 03 of 2016 which established the Corruption and Economic Crimes Division of the High Court and no amendments were made to PTA to bring it in line with the amendments of EOCCA.
Second; its establishment is completely different, specialized, it is a division of the High Court and not a regular court, even judges are specialized, as per Section 8 the remuneration is different, under Section 9 even the seal is specialized and even the definition under Cap 200, court means the Corruption and Economic Crimes Division of the High Court.
Heading to close his submission in chief, counsel Kibatala argued that, terrorism offences are triable strictly and solely by the regular High Court. Section 11 of EOCCA empowers the Corruption and Economic Crimes Division of the High Court to inquire into economic offences while terrorism offences are not economic offences.
2.4 What Can the Court do?
Advocate Kibatala posed a question, what should the court do if it agrees with our submission? Counsel Kibatala, submitted that the answer is under Section 12 of the Economic and Organized Crime Control Act, Cap 200 R:E 2019 as follows:
- To order the proceedings to be instituted in a proper court (the High Court of Tanzania)
- To order for bail if prayed for by the accused persons, however, the accused persons shall be deemed to have been discharged by the court.
- Lastly, counsel Kibatala prayed for costs to be granted by the court.
2.5 Reply by the Prosecution
In the reply Mr. Kidando, the senior state attorney submitted that an issue of court’s jurisdiction is very important to be decided at the earliest time. However, he disputed the submission made by counsel Kibatala stating that what has been submitted is not a correct interpretation of the law. He went further stating that the Written Laws (Miscellaneous Amendments) Act No 03 of 2016 and Section 4A(1) of the Judicature and Application of Laws Act gives power to the Chief Justice to establish a division of the High Court like the Corruption and Economic Crimes Division to try certain matters. The High Court and its division is the same thing, it is just the High Court. What counsel Kibatala submitted is a misconception and not correct in the eyes of the law. Section 11 of the Prevention of Terrorism Act No 21 of 2002 is applicable where there is inconsistency but under this case, there is no inconsistency. Section 347 of the Criminal Procedure Act, Cap 20 R.E 2019 provides under what circumstances cost can be granted to the accused persons, it is only when they are acquitted by the court. The arguments made by counsel Kibatala lacks merit and hence should be disregarded by the court.
2.6 Rejoinder by the Defense Counsel
In his rejoinder submission, counsel Kibatala mostly clarified his submission in chief that terrorism offences were simply put under paragraph 24 of EOCCA as economic offences on one hand but Sections 11 and 34 of PTA on the other hand are specific jurisdictional provisions visa vis terrorism offences and they have been left intact by whatever amendments to EOCCA including Act No 03 of 2016. Section 34 of PTA is clear that terrorism offences are triable by the High Court and not the High Court Division like the one established under EOCCA.
Counsel Jeremiah Mtobesya in supplementing the submission made by counsel Kibatala submitted that section 3, 11 and 34 of PTA gives powers to the High Court of Tanzania to try terrorism offences. He admitted that there are two statutes (PTA and EOCCA) giving powers to two sets of court to try terrorism offences. But the rules of statutory interpretation dictates that where there is a conflict between specific law and general law, specific law should take supremacy. EOCCA is a general law while PTA is a specific law. He invited the court to read and apply section 11 of PTA and rules of statutory interpretation and strongly submitted that the court will come to a conclusion that it is the High Court of Tanzania that has jurisdiction to try offences under PTA. Upon such finding, a consequential order should be issued in the manner stated under section 12 of the EOCCA as prayed by counsel Kibatala.
Counsel Mtobesya further disputed the argument made by the prosecution side that the High Court and its division is the same thing, he argued that; it is a misconception that divisions of the High Court to be regarded the same as the High Court because there must be an instrument bringing into birth a division of the High Court. It is that instrument that gives power to that court to adjudicate particular matters. Thus, the Corruption and Economic Crimes Division of the High Court cannot entertain land or labour matters, special divisions deal with those particular matters only and their powers are drawn from the statute. Reading Section 3, 11 and 34 of PTA, the Corruption and Economic Crimes Division of the High Court lacks jurisdiction to entertain offences to which the accused persons are charged with. Concluding his submission, counsel Mtobesya, humbly requested the court to grant the prayers and consequential orders prayed for.
2.7 Order of the Court
Hon. Judge Luvanda adjourned the case to 1st September 2021 at 09:00 am for issuing a ruling in respect of the preliminary objection raised and submission made.
Defense Counsel Mr. Peter Kibatala briefing the media
2.8 Ruling Issued by Hon. Judge Elinaza Luvanda
On 1st September 2021 the Corruption and Economic Crimes Division of the High Court ruled that it has jurisdiction to hear and determine terrorism offences stating that
|“a mere fact that the provision of Section 3 and 34 of the Prevention of Terrorism Act No 21 of 2002 were not amended, on itself cannot be taken to have wholly ousted the jurisdiction of this court to try terrorism offences”|
|Hon. Judge Luvanda did not address Section 11 of PTA in his ruling, neither any reason nor argument was assigned by such a departure. Even an obiter dicta was not issued in respect of such a provision.|
AMENDMENT OF THE INFORMATION & SECOND CATEGORY OF PRELIMINARY OBJECTIONS
3.1 Amendment of the Information
On the same day of 1st September 2021, after the ruling was issued, the court scheduled for a plea taking and preliminary hearing to proceed, however before the commencement of plea taking, the Senior State Attorney Mr. Robert Kidando prayed before the court for an amendment of the information/charge that the word “Moshi” should be replaced with “Hai” because Aishi hotel is located in Hai district and not in Moshi district. His prayer was granted by the court as per Section 276(2) of the Criminal Procedure Act, Cap 20 R.E 2019.
After such a prayer being grated, the defense counsel Mr. Peter Kibatala notified the court that he has preliminary objections on pure points of law to raise concerning the information/charge submitted in court that, it is purely defective. The State Attorney strongly objected citing Regulation 13 of the Economic and Organised Crime Control (The Corruption and Economic Crimes Division) (Procedure) Rules GN No 267 of 2016 and requested for plea taking to proceed. By way of counter argument, counsel Kibatala vehemently stated that a preliminary objection can be raised at any time and this is underlined under the constitutional right to be heard. There is no any authority to the effect that plea taking must be discharged first before a preliminary objection is raised.
Following such argumentation, the court ruled that counsel Kibatala has a right to raise the preliminary objections. However, Hon. Judge Luvanda adjourned the case for fifteen (15) minutes giving time to the defense counsel to submit the preliminary objections in written form.
|The court exercised its discretionary powers properly. It was proper for the court to allow Mr. Kibatala to submit the preliminary objections since a preliminary objection can be raised at any time. Raising a preliminary objection is not barred however, it must be on a pure point of law and not facts. – Watetezi Tv Observer|
3.2 Pre-Hearing of the Second Category of Preliminary Objections
After the lapse of 15 minutes, defense counsel Mr. Peter Kibatala submitted three preliminary objections to the effect that the information/charge is fatally defective. Before stating the substance of the preliminary objections, counsel Kibatala informed the court that, normally the remedy available for a defective charge includes amendments. However, “amendments in our present situation have two limitations” he submitted
First, the defects that we will point out can only be amended if it retains some resemblance of validity. However, the state attorney has already exercised his right to amend the information/charge.
Second, there is a rule of estoppel against the number of times that a party to a case can be allowed to amend the charge/information because what we have now is an amended charge/information.
3.3 The Second Category of Preliminary Objections
The defense counsel under the lead of Mr. Kibatala submitted three preliminary objections
- The information is defective because, the mandatory link of the offence creating portion of the provision under the Prevention of Terrorism Act No 21 of 2002 is missing in counts number 1, 3, 4 and 6
- The information is defective as it does not disclose any offence because the word terrorist intention is not defined under section 4(2) of the Prevention of Terrorism Act No 21 of 2002
- The third preliminary objection has two elements:
- First: the information is defective because the accused persons are charged with an offence of conspiracy together with substantive/actual offence which amounts to double jeopardy
- Second; the information is defective because of duplicity.
- First preliminary objection that: The information is defective because, the mandatory link of the offence creating portion of the provision under the Prevention of Terrorism Act No 21 of 2002 is missing in counts number 1, 3, 4 and 6.
On this, counsel Kibatala stated that the information/charge is defective because the mandatory link of the offence creating portion of the provision is missing in counts number 1, 3, 4 and 6. The missing elements are mandatorily required under Section 4(3)(i)(i) of the Prevention of Terrorism Act, in fact the missing elements are “and is made for the purposes of advancing or supporting act which constitutes terrorism within the meaning of this Act”. The prosecution failed to include the mandatory link of the offence with the offence creating portion of the provision. The missing portion is completely user friendly.
One of the tools of statutory interpretation is reference to the statute in pari materia. Terrorism offences are a creation of joint international efforts to arrest certain specified acts. The work up call being the September 11, 2001 attack in the United States of America. Construction must stem from that context. Counsel Kibatala informed the court that, the defense counsel have made efforts to read terrorism laws of other three commonwealth countries. Trinidad and Tobago, Zambia and Uganda.
The Anti-Terrorism Act Cap 12:07 of Trinidad and Tobago under Section 2 terrorist act means “…and is intended to intimidate the public or a section of the public, for the purpose of advancing a political, ideological or a religious cause”. The Anti-Terrorism Act of Zambia Act No 21 of 2007 under Section 2 terrorist act means “…and is made for the purpose of advancing a political, ideological or a religious cause”. And lastly Section 7 of the Anti-Terrorism Act of Uganda, terrorist act means “… for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property”
Counsel Kibatala further submitted that the Anti-Terrorism laws were enacted not to suck the life and blood of other penal laws. He asked three questions to be responded by the prosecution as follows;
- Did they include the mandatory portion of the offence creating provision in the information?
- Without such inclusion, what jurisdiction does the court have? To regard the offences charged as terrorism offences?
- Why the language in all four statutes is identical and how this court can find their information valid? in a line of such consistence enactment?
After that, counsel Kibatala cited the case of Venance Shija versus Republic [Crm App No 140 of 2017 Court of Appeal Decision at page 7 where it was held that, “a defective charge cannot commence a lawful trial” he cited also the case of Freeman Mbowe and 7 Others Versus Republic Criminal Application No 76 of 2020 at pages 54,58,61,62 and 63. Also, Criminal Appeal No 14 of 2015 Wilfred Lwakatare and Another Versus Republic through page 15 to 18 where the court decided that a defective charge cannot commence a lawful trial. Counsel Kiabatala prayed before the court to uphold the first limb of preliminary objection and the cited counts be struck out.
- The second preliminary objection that: the information is defective as it does not disclose any offence because the word terrorist intention is not defined under section 4(2) of the Prevention of Terrorism Act No 21 of 2002
Counsel Kibatala submitted that there is no terrorism offence is created under Section 4 of PTA because the term “terrorism intention” is not defined. Principally the charged act must be committed with a terrorist intention. The parliament was very careful to endeavor to remove terrorist acts from other penal laws. Here there are two things to note
- Terrorist intention is not defined under PTA. The duty which we invite the court to do is to hold that no offence is created without defining terrorist intention. The accused persons cannot be taken through the entire process of trial for a non-existing offence.
- If the phrase/constituent element of the offence of terrorism intention is missing and the counts do not disclose that the alleged acts were committed with terrorist intention, then the cited counts are defective for failure to recite the mandatory creating offence provision or the mens rea hence they deserve to be struck out and the second limb of preliminary objection be upheld.
- The third preliminary objection
Defense counsel Mr. Jeremiah Mtobesya invited the court to pay attention stating that it has two aspects: firstly; charging the accused persons for an offence of conspiracy with other actual or substantive offence and the second; the issue of duplicity.
- Charging the accused persons for an offence of conspiracy with other actual or substantive offence
On the first aspect with regard to the offence of conspiracy, counsel Mtobesya cited the CAT Decision of Magobo Njige and Another versus Republic Criminal App No 442 of 2017 CAT sitting at Shinyanga page 11 which held that an offence of conspiracy cannot be charged with other substantive offence. He further cited the case of Steven Salvatory Vs Republic Crm App No 275 of 2015 CAT sitting at Mtwara page 89. He drew the attention of the court to two offences of conspiracy that the accused persons stand charged. If the court goes through the counts, it will come to a conclusion that the two offences of conspiracy are charged together with the other four substantive/ actual counts. The four offences are the result of alleged conspiracy. He humbly invited the court to find that the two offences of conspiracy charged to accused persons are improper, unprocedural, and deserve to be struck out from the information/charge.
The second aspect of duplicity, counsel Mtobesya submitted that, there is a long-standing principle of law that a charge will be duplex on two instances.
One instance is where two offences are charged in one count, second is where two separate offences are charged from facts emanating from one instance. This has been termed by the court to be multiplicity of counts but the generic term is duplicity.
In the charge/information before the court, there are two separate counts charged which emanates from the same instance and facts. Count number 1 and 4, the facts and instances are the same. There is a long-standing principle that “no one should be condemned twice; it is against the principle of double jeopardy. There are situations where two sections or sets of law may cover a similar instance/offence, that is a way of the legislature to make sure that every instance is covered by a particular set of law that creates a particular offence. The multiplicity of counts makes the information/charge defective, if allowed, it exposes the accused persons to double jeopardy. He invited the court to find that the two offences of conspiracy charged are duplex, suffering from multiplicity and prayed for the court to hold that such information is defective and consequently the two counts should be struck out. He concluded that duplicity is an incurable defect and he invited the court to read the case of Ahamada Musa Matimba and another versus Republic TLR 1998 Page 268
The state attorneys requested for an adjourned up to Friday on 3rd September 2021 in order for them to get enough time to prepare for their rebuttal submission. A prayer was granted by the court. Consequently, Hon. Judge Luvanda adjourned the case as prayed by the Prosecution.
3.4 Submission by the State Attorneys On 3rd September 2021
On Friday September 3, 2021 the State attorneys submitted their rebuttal as follows;
Senior state attorney Nassoro Katuga made his submission in respect of the third preliminary objection that the information does not contain actual/substantive offences (he mentioned counts 1, 4, 3-6). We submit and invite the court to refer to the information itself and it will come to a conclusion that the accused persons are charged for conspiracy to commit terrorist act of blowing up fueling stations and other public gatherings. The actual offence is to blow up fueling stations and other public gatherings. He further submitted on the second count that; the actual offence is to cause grievously bodily harm. Therefore, there is no mixture of conspiracy and actual offences.
Counts number 3, 4, 5 and 6 are independent and complete offences on their own. The case referred by counsel Mtobesya of Steven Salvatory is distinguishable because the charge was conspiracy to commit armed robbery and armed robbery itself, that is why the court held that conspiracy cannot be committed if the actual act was committed. In the current information there is no actual acts committed.
On duplicity, Mr. Nassoro submitted that the information is not duplex and he referred to the case of DPP Vs Morgan Maliki and Nyaisa Makoye [Crm App no 133 of 2013 CAT at Tanga page 8 where it was held that “a charge is said to be duplex if distinct offences are contained in the same count” thus the 1st and 4th offences are different from different counts.
Responding to the argument raised by defense counsel Mr. Mtobesya that there must be a meeting whether physical or virtue to establish conspiracy. He referred the court to section 5(a) of PTA and section 27(c) of PTA and invited the court to look at the particulars of the 1st count which shows that the accused persons did conspire to commit terrorist acts. The Black’s Law Dictionary at page 229 8th edition defines conspiracy as an agreement by two or more persons to commit unlawful acts. If the court looks at the 4th count on its particulars the key word is planning to blow up, hence no duplex to the information/charge submitted before the court thus the third preliminary objection should be struck out by the court.
The Senior State Attorney Mr. Robert Kidando responded to the first and second preliminary objections. In respect to the first preliminary objection, he said that there is no any defect to the charge/information because the provision under section 4(3)(i)(i) confines to the meaning of terrorism or terrorist acts within the meaning of the Act. The particulars of offence are clear within the meaning of section 4(3)(i)(i) of PTA. There are several principles which guide in preparation of a charge/ information. He humbly referred the court to section 31(1) of Economic and Organized Crimes Control Act (EOCCA) stating that the prosecution is only required to prepare an information containing necessary particulars to give reasonable information on the nature of the offences the accused persons are charged for. Also, he referred section 135 (e) of CPA that they considered only particulars of acts stated by the law. Thus, the particulars for counts 1, 3, 4 and 6 are complete.
He also reminded the court that during submission in chief, defense counsel Mr. Kibatala referred requested the court to consider also the three statutes of other commonwealth countries Tinidad Tobago, Uganda and Zambia. Such approach was totally wrong on two reasons, one in order for courts in Tanzania to consider the laws of other jurisdictions/countries the first thing is to look the decisions of courts of those countries on how did they interpret such provisions, he cited the case of AG versus Mugesi Anthony and 2 Others Crm App no 220 of 2011 CAT at Mwanza page 34. In his rebuttal, Mr Robert did concede that it is true that the words “and is made for the purpose of advancing political, ideological or religious purpose/cause” are not present in the information, but not accidentally.
Before the enactment of the PTA, as a country we adopted a guideline on drafting terrorism offences “the Modal Legislative Provisions on Measures to Combat Terrorism” under page 4 of the Modal, there are options of drafting and Tanzania adopted one of the options which is reflected under Section 4(3) of PTA. Thus, in drafting the information, we could not go beyond what is provided under the PTA. Therefore, the particulars of offence for count number 1, 3, 4 and 6 are complete and have stated the acts of terrorism.
Submitting on the second preliminary objection, Mr. Kidando stated that the information/charge is defective because the Act does not define terrorism intention hence there is no offence disclosed, he submitted that the words of Section 4(2) are clear, they create the offence because even under international law/modal law terrorism intention is not defined. There is no definition of terrorism intention under section 4(2) of PTA, Hence the court can define terrorism intention by virtue of section 5 of the Interpretation of Laws Act, Cap 1 R.E 2019. However, Mr. Robert stressed that, terrorism intention is confined in the acts under Section 4(2) (a-c) of PTA. Intention is known, lack of the definition cannot mean that the court cannot define terrorism intention. We used the word intended in the information which equally means the purpose. He further cited the case of Paul Nyuli Vs Republic [Criminal App No 171 of 2018 CAT at DSM Pg10 in supporting his proposition. By way of concluding, he said that the defense counsel is in fact challenging the law although he said that he should not be considered to be challenging the law. He prayed for all the preliminary objections to be struck out.
3.5 Rejoinder Submission by the Defense Counsel
The defence counsel Mr. Jeremiah Mtobesya submitted that according to the prosecution, for them it seems fine to charge the accused for conspiracy together with other actual offences. Conspiracy is one of the three types of inchoate offences. The three inchoate offences are conspiracy, attempt and solicitation. Now why are these three categorized as such? It is simply because the legislature sought of prohibiting a person from taking steps towards commission of an offence. These are not actual offences but they are steps. If a conspirator completes execution of an offence, the steps taken could be proved in the course of establishing the actual offences.
Looking at the information which is before the court specifically to the 1 and 2 counts visa vis the 3, 5 and 6 offences, the court will realize that the accused persons are charged for offences of conspiracy for taking steps towards executing of what is stated/alleged in count number 3, 5 and 6. This should not be allowed and the CAT has already defined hence the counts should suffer being struck out from the information.
He further stated that, the prosecutor further submitted that conspiracy is a separate offence from that of participating in terrorism. In actual fact, the particulars of offence in count number 1 and 4 are one and the same thing. The facts stated therein appear mutatis mutandis in terms of time, place, date and locations. That is against a long known standing principle of double jeopardy. The law does not allow a person to be prosecuted and condemned twice on the same offence, regardless of the facts that there could be two separate offences that fit a particular set of acts. This is provided under section 70 of the Interpretation of Laws Act Cap 1 R.E 2019. It strictly prohibits multiplicity of counts. He submitted that if the court proceeds to take evidence from the information suffering from multiplicity and convicts the accused persons, they will be condemned twice for two separate offences that emanates from the same set of facts which will be against the rule of double jeopardy.
Mr. Nassoro the state attorney in his rebuttal stated that to prove conspiracy there must be a common intention. On this Mr. Mtobesya stressed that such an argument is misdirected because conspiracy and common intention are two different things in criminal law, in conspiracy one must read evidence to prove that the offence of conspiracy was committed. Common intention is impliedly as per section 23 of the Penal Code Cap 16 R.E 2019.
One among of the elements to be proved in conspiracy is that there was an agreement, what did the prosecutor fail to state is that one cannot prove existence of agreement without proving that there was a meeting whether physical or virtual. Thus, meeting is a very crucial element to be proved in an offence of conspiracy, the same was held in Freeman Mbowe Vs Republic Crm APP no 76 of 2020. Counsel Mtobesya further cited a case from Malawi, The State Versus Denis Spax John Kambalane Crm Case 108 of 2002 in supporting his submission. He finally requested the court to struck out the cited counts from the information.
Counsel Kibatala for the defense came after Mr. Mtobesya to proceed with the second limb of duplicity, he insisted that, an offence of conspiracy cannot be charged along with other actual offences which stems from the initial conspiracy. He submitted that construction of PTA operates on special parameters diverse and different from offences in other penal statutes. The offences in counts number 3, 4, 5 and 6 are all capable of one set of conspiracy, the overriding character being terrorism. We are submitting that once the inchoate has matured into acts prohibited by PTA there cannot be co-existence between the two offences. The underlined feature in both counts of conspiracy are a certain set of dates, locations. They appear in almost every count equally. It appears in all six counts if even there is proof that the inchoate would mature. The conspiracy whose ultimate aim is alleged to blow up fueling stations and other public gatherings was eventually crystalized in the participation in terrorism meeting in count number 4, possession in count number 5 and 6.
Section 27 of PTA as opposed to other penal statutes provides a similar punishment to the substantive offence and this was deliberate. In the Penal Code the punishment for conspiracy is different. Blowing up is not an offence under PTA, it is a manifestation of the individual offences, we urge the court to strike out count number 1 and 2 of conspiracy based on the strength of our submission.
In respect to the rejoinder on preliminary objection number one, Mr. Kibatala stressed that the prosecution did not dispute the existence of a proviso to section 4(3)(i)(i) of PTA. There is an important reason for a legislature to put a proviso, it qualifies acts alleged as terrorist against other acts prohibited. The prosecution as no authority of leaving out the mandatory proviso creating offence of terrorism. He referred to different parts of the Modal Law for the court to consider in its ruling, he further distinguished the case of AG Vs Mugesi that it is not applicable to the case at hand as it underlined the legal principle that our legal system is not self-sufficient. The offence of terrorism must be qualified under Section 4(3)(i)(i) of PTA. counsel Kibatala further submitted that, the prosecution did not contest the case of Lwakatare, he therefore invited the court to draw inspiration from Lwakatare’s case to remove the information for failing to meet the threshold set out under PTA. On necessity of inclusion of necessary information on a charge/information, counsel Kibatala cited section 4(4) of PTA that it excludes certain acts from terrorism.
Submitting on the second preliminary objection by way of rejoinder, counsel Kibatala stressed that the prosecution did not dispute the fact that terrorism intention is not defined under section 4(2) of PTA. We explained that the definition of terrorism intention is not given but we are not inviting the court to invalidate the Act. Therefore, as long as there is no definition of terrorism intention, the information before the court cannot be valid under these circumstances.
Now what can the court do? In its ruling the court may make a note for the use of the parliament if so desires and this happened in the Court of Appeal of Tanzania in the case of Chiriku Haruni Vs Kangi Lugola and Returning Officer. By concluding counsel Kibatala humbly prayed before the court to uphold the preliminary objections and struck out the information basing on the strength of the submission made.
3.6 Order of the Court
Hon. Judge Luvanda adjourned the case to 6th September 2021 at 09:00 am for issuing a ruling in respect of the preliminary objection raised and submission made.
|The court exercised its powers properly because a part to the case cannot be taken by surprise, it is important for a part to be given enough and reasonable time to prepare to argue the case. – Watetezi Tv Observer|
3.7 Ruling by Hon. Judge Elinaza Luvanda
On 6th September 2021, the Corruption and Economic Crimes Division of the High Court through Judge Elinaza Luvanda delivered a ruling in respect of three preliminary objections raised by the accused persons through their advocates. The ruling was in respect of three issues as follows;
- That the information is defective because, the mandatory link of the offence creating portion of the provision under PTA is missing in counts number 1, 3, 4 and 6
While delivering his ruling Luvanda J held that, it is true that counts number 1, 4 and 6 do not disclose the purpose of advancing either political, ideological or religious purpose as required under Section 4(3)(i)(i) of PTA. The defense counsel Mr. Peter Kibatala referred laws from other three commonwealth countries of Tinidad and Tobago, Uganda and Zambia. However, this is not enough, it could also be proper to look into the Hansards of the Parliament on the discussion of Honorable Members of Parliament to know the reasons for enacting such provisions. It is better also to consider the political, ideological or religious aspects of each country.
|On the first preliminary objection, Hon. Judge Elinaza Luvanda did not state whether he upholds or overrules the objection – Watetezi Tv Observer|
- That the information is defective as it does not disclose any offence because the word terrorist intention is not defined under section 4(2) of PTA
The defense counsel Mr. Kibatala submitted that under section 4(2) of PTA, the term terrorist intention is not defined hence no offence is created. He also requested the court to issue a note to the Parliament to amend such a provision. Hon. Judge Luvanda ruled that, counsel Kibatala was like challenging the legality of Section 4(2) of PTA. He agreed that there is a problem in drafting counts number 1, 4 and 6; counts charged must show that the acts charged are made for the purpose of advancing or supporting act which constitutes terrorism. Counts number 1,4 and 6 are crafted with the word “intend” instead of “purpose” as reflected in the statute. The use of the word purpose is more desirable. The defect of this nature can be cured by way of amendment. Hon. Luvanda J directed the prosecution to amend the information specifically on counts number 1, 4 and 6 to reflect the above suggestion. With regard to making a note to the Parliament, Hon. Luvanda J, ruled that this is not a proper forum for the court to make a note to the Parliament regarding the legality of section 4(2) of PTA.
|Hon. Judge Luvanda directed the prosecution to amend the information/charge, however, in their submission, the prosecution did not pray for an amendment of the information/charge – Watetezi Tv Observer.|
- Third Preliminary Objection (With Two Elements)
- First: the information is defective because the accused persons are charged with an offence of conspiracy together with substantive/actual offence which amounts to double jeopardy
- Second; the information is defective because of duplicity.
On this Judge Luvanda did concede that counts number 1, 3,5 and 6 relate to each other as some particulars are the same but this does not mean that the offences are duplex. It is true that counts number 1 and 4 has the same facts, it is not mandatory to have a meeting whether physical or virtue to establish conspiracy, what is important is meeting of minds.
Finalizing his ruling, Judge Luvanda held that preliminary objections number 2 and 3 are overruled and ordered the prosecution to amend the charge/information on counts number 1, 4 and 6.
|In his ruling, Hon. Judge Luvanda did not address the precedent established by the superior court of the land, the Court of Appeal of Tanzania in the case of Wilfred Lwakatare Versus Republic. Court of Appeal decisions binds the High Court and other lower courts thereto – Watetezi Tv Observer.|
WORDS OF THE ACCUSED PERSON & RECUSAL OF THE JUDGE FROM THE CASE
4.1. Words of the accused person
On the same day, 6th September 2021 and immediately after the ruling was issued, Hon. Freeman Mbowe prayed to address the court in person, a prayer which was granted. He addressed the court as follows;
|“Hon. Judge, the decisions that have been issued by this court if do not align with the law, and if the law is not seen to have been done, I and my fellow accused persons, believe that we will be the victims of this process, our advocates submitted several provisions of the law and other authorities in building their arguments, we as accused persons, guess that most of the arguments are not effectively considered, Hon. Judge, with reference to the first ruling that you issued on the first preliminary objections, that this court has jurisdiction or powers to hear and determine our case, you did not speak anything about Section 11 of the Prevention of Terrorism Act, although our advocates used such a provision in defending their arguments. Hon. Judge this section insists on the powers of the court where there is a conflict between two laws. Hon Judge, on the ruling that you have issued today concerning the second category of preliminary objections, still we see that we are forgotten either intentionally or unintentionally on some arguments which are being submitted by our advocates, we believe if we continue in this way, our basic rights in this matter will not be available. Hon Judge, refer the arguments of our advocates from the cited case of Wilfred Lwakatare, such an argument has absolutely not been reflected in your ruling, still the first preliminary objection has not yet been finally decided. Hon. Judge it is undisputed truth that this case attracts public attention in the community and it will be fair if all the stages of hearing this case are seen and remain to be done in a justice way, with integrity without any feelings of injustice. Hon. Judge different feelings from the society on this matter can be proved by different discussions done through online platforms, which we cannot disregard them, including information published through Tanzania WikiLeaks which I am quoting for an easy reference as follows; “Judge Elinaza Luvanda is from the government and TISS, he is at the Corruption and Economic Crimes Court strategically, he has been instructed to convict and sentence Mbowe while the registrar is dealing with CHADEMA, the President will release him after a certain period of time, he will overrule every objection regardless of its legality”. Hon. Judge, we cannot disregard the feelings or words from the community, it is my request that you recuse yourself from handling this case, so as to protect your respect, respect of this court, you may be blamed for blames that sometimes maybe you don’t deserve” Freeman Mbowe.|
Hon. Freeman Mbowe
4.2 Consultation with the Senior State Attorney and Defence Counsel
Hon. Judge Elinaza Luvanda requested the Senior State Attorney Mr. Robert Kidando to address the court if he had something to say regarding the prayer sought by Hon. Freeman Mbowe. Mr. Kidando addressed the court that he is not disputing or responding to the merits of the argument raised by Hon. Mbowe but as officers of the court, we need to refer the circumstances, procedures for the court to satisfy itself before recusal of the Judge. Such principles or procedures were stated in the case of Omar Said and Others Versus Republic, Crim App No 99/01 of 2014, Court of Appeal decision sitting at Dar es Salaam at page 5 and 6 where he paraphrased the ruling stating that worries of losing the case in future should not be used as a reason for a judge to recuse from handling a case. We request you to be guided by this principle in reaching your decision.
Hon. Judge Luvanda requested the defense lead counsel Mr. Peter Kibatala to address the court if he had something to say. Mr. Kibatala submitted that, we are just employees of the accused persons, we subscribe to what the accused has said. He further submitted that there is a principle that in circumstances such as this, it is desirable for the court whose integrity is put in question to listen to its irrational accused persons.
4.3 Ruling by Hon. Judge Elinaza Luvanda on Recusal from the Case
|“I agree with both sides, the prosecution and defense counsel, what has been said by the accused is theoretical than reality, I cannot defend myself on something which does not exist. It is wise to recuse myself so as another judge is assigned to handle the case”. He accordingly adjourned the case.|
Observation: #10 and legal implication;
|Considering the first and second ruling that Hon. Judge Elinaza Luvanda issued, a proper remedy to that was for him to recuse from handling the case. The case file have to be returned the registrar in charge who has the authority to assign the case to another Judge for handling the matter.|
The right to be heard was properly accorded to both parties; accused persons, their advocates and to the state attorneys. However, some of the issues or authorities raised/submitted by the defense counsel were not properly addressed by the court in both the first and second ruling on preliminary objections.