KISUTU Resident Magistrate’s Court in Dar es Salaam yesterday refused to dismiss the seditious charges against nine senior officials of Chama cha Demokrasia na Maendeleo (CHADEMA), including National Chairman Freeman Mbowe.
Principal Resident Magistrate Wilbard Mashauri instead ordered the prosecution to amend the charges,
which he said had little defects. The magistrate reached into the decision when determining some preliminary points of laws advanced by the defence.
Advocate Peter Kibatala, for the accused, had advanced eight grounds to object to the charges preferred by the prosecution. In his ruling, however, the magistrate overruled all the preliminary points, except two of them, which were allowed. The court upheld the two preliminary points, affecting four out of 11 charges against the officials of the opposition party to the extent of suffering duplicity defects.
Magistrate Mashauri was, however, quick to point out that the remedy available was for the prosecution to make amendments. After the court’s decision, Advocate Kibatala rose up and informed the court that his clients have not been satisfied by the decision to uphold the charges and that they were registering a notice of intention to appeal to the High Court.
He referred the court to provisions of section 359 (1) and 361 (1) of the Criminal Procedure Act (CPA), which allow any person aggrieved by any finding, sentence or order made or passed by a subordinate court to appeal to the High Court. Nevertheless, Principal State Attorney Paul Kadushi, for the prosecution, hit back, submitting that the court ruling was not appealable.
He argued that the ruling was interlocutory as could not dispose of the trial into finality. The trial attorney, who was assisted by two other Principal State Attorneys Faraja Nchimbi and Dr Zainab Mango, submitted further that rights of appeal provided under section 359 (1) and 361 (1) of the CPA could only be exercised if the impugned decision is appealable.
He said from the Miscellaneous Amendments Act No. 25 of 2002, all interlocutory decisions are not subject for either appeal or revision. After the legal arguments, the magistrate adjourned the proceedings to today when he will deliver his ruling. Apart from Mbowe, other accused are Vicent Mashinji, who is the party’s Secretary General, John Mnyika, the Deputy Secretary General (Mainland) and Salum Mwalimu, Deputy Secretary General (Zanzibar).
Others are Peter Msigwa, Member of Parliament for Iringa Urban, Ester Matiko, Tarime Urban MP, Halima Mdee, Kawe MP, John Heche, Tarime Rural MP and Ester Bulaya, Bunda Urban. They are charged with 11 counts of with conspiracy to commit offences, unlawful assembly, rioting after proclamation, raising discontent and ill-will for unlawful purposes, sedition and inciting commission of offences.
The charges are alleged to have been committed between February 1 and 16, 2018 in the city. The prosecution alleges that on February 16, 2018 along Kawawa Road at Mkwajuni area, being assembled with intent to carry out a common purpose, jointly and together, all accused conducted themselves in a manner as to cause fear of breach of peace.
It is claimed further that on the same day and place, with over 12 other persons not in court, having riotously assembled, in disobedience of proclamation given by a police officer, the accused failed to disperse and continued to take part in the riot.
According to the prosecution, the accused breached peace and terrified the public, leading to death of a National Institute of Transport Student, Akwilina Akwiline Baftaa and injury of two police officers, Police Constable Fikiri and Corporal Rahim Msangi.
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