Thanks kwa clarifications na nimeisoma vyema,kwa kina hiyo habari.
Nini kilitokea hadi watuhimiwa washikiliwe kwa kipindi chote hiko??ingawa swali hilo wewe siyo muhusika nalo,pili why wawe watu sita ili hali taarifa inaonesha kuwa alierusha hiko kilipuzi alikuwa ni mshukiwa mmoja??hao sita wanahusika katika angle ipi??
Hizo tuhuma ni kubwa sana why zisiwe na majibu kwa miaka yote hiyo??why haki icheleshwe kupatikana kwa kias hiko na kuna watu wasio na hatia wameuawa??
Mbaya zaidi kichwa cha habari kinasema ni masheikh,implication yake ni kuwa hao ni viongozi wa dini ya kiislam,wanajaribu kucreate kitu gani??
Hii wala sio ngumu kufikiria hao watano walipatikanaje
Jibu ni kwamba hukumu ya kesi haikuamuliwa siku ya tukio eti kwasababu alionekana mmoja.
Tukio la kurusha bomu ni jambo sensitive sana ambalo linakuwa na mikono mingi ya watu.
Nakupa hints tu kwa ufupi
Kwamba huyo mmoja aliyeonekana akirusha bomu, hilo bomu alitengeneza yeye?
No bila shaka alipewa na mtu. Sasa huyo mtu sio sehemu ya ujangili?
No ni lazima awe sehemu ya ujangili kwasababu sheria ziliishawekwa kuonesha vitu visivyokuwa halali watu kumiliki.
Sasa tukisema tumchukue huyu mmoja tumfunge tutakuwa tumemaliza mzizi wa tatizo?
Jibu ni hapana kwasababu huyu amekamatwa na bomu moja kuna uwezekano alikutoa hilo bomu moja yapo mengine kama mia.
Hii itaongeza wasiwasi na hatari zaidi endapo hukumu itaishia kwa mtu aliyekutwa eneo la tukio.
Kwa hiyo tukio lililotokea halikuwa ni la wizi au la ukibaka ni tukio la kijangili na hili linakuwa operated na crew
Na hivyo linahitaji muda mrefu kulichunguza ili kumpata hadi mtu wa mwisho
Huyo mmoja angedakwa unafikiri kwa akili ya kawaida ingetosha kufikiri kuwa alikuwa peke yake kwenye hiyo plan?
No haiwezi kuwa hivyo, lazima tu iwe ni organization ya watu wengi ambao wengine walikuwa wana operate remotely (hawapo eneo la tukio lakini bado wana assist)
Huyo mmoja akibanwa atataja wapi kapata hilo bomu na nani yuko nyuma yake.
Baada ya huyo jamaa kuwataja wenzake, polisi hawaendi kumkamata tu na kumtia hatiani eti kwakua ametajwa
Zipo procedure za kiupelelezi ambazo zinafanywa ili ku match na maelezo aliyotoa yule wa kwanza.
Vipi kama hao masheikh walikutwa na vidhibiti kuonesha kweli walihusika?
Leo hii mtu akutaje wewe kuwa ni jambazi mwenzake na kuwa silaha za kufanyia uhakifu huwa mnaifadhi kwako.
Polisi wakaja kwako wakafanya upekuzi wakakuta silaha zipo chember ambazo ni illegal
Wakakuta na baadhi ya mali za watu ambazo zimewahi kuripotiwa na wamiliki halali ambao walifungua jalada mahakamani kwa kuvamiwa na majambazi
Pamoja na michoro ya ramani ya hilo eneo ambalo huyo jambazi mwenzako amedakwa, unafikiri utaachwa kwasababu wewe haujaonekana kwenye tukio?
Umefuatilia msamaha wa Rais juzi kwenye maadhimisho ya miaka 62 ya uhuru ?
Rais alitoa msamaha kwa wafungwa 263 ambao waliachiwa huru
Wafungwa wawili waliohumukumiwa kifo walibadirishiwa adhabu na kuwa kifungo cha maisha jela. Na wafungwa 1979 walipunguziwa adhabu.
Unasemaje Rais hana mamlaka ya kumbadilishia mfungwa adhabu ?
Mimi mwenyewe napendekeza adhabu ya kifungo cha maisha gerezani
Adhabu ya kifo ni adhabu nyepesi sana na ndio maana wengine wanaona rahisi kujitoa mhanga.
Ila wakipewa kifungo cha maisha halafu na adhabu ya viboko au mateso yeyote kila siku, basi hiyo itakuwa adhabu nzito sana na wataomba bora wangenyongwa tu
Akisoma hukumu hiyo Jaji Nkwabi aliwaachia huru Masheikh watatu ingawa mmoja miongoni mwao amerejeshwa jela kwa sababu ya kukabiliwa na tuhuma nyingine.
The culprits of the bombing of the congregation at Roman Church in Tanzania are condemned to death by hanging
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(ARUSHA SUB-REGISTRY)
AT ARUSHA
CRIMINAL SESSION CASE NO. 64 OF 2022
REPUBLIC
VERSUS
ABASHARI HASSANI OMARI..............1st ACCUSED PERSON
YUSUPH ALLY HUTA @ HUSSEIN......... 2nd ACCUSED PERSON
ABDULRAHMAN JUMANNE HASSAN........3rd ACCUSED PERSON
RAMADHIN HAMAD WAZIRI........4th ACCUSED PERSON
ABDUL HASSAN JUMA @ ABDUL MASTER.......5th ACCUSED PERSON
KASSIM IDRISA RAMADHAN.........6th ACCUSED PERSON
AMAN MUSA PAKASI.......7th ACCUSED PERSON
JAFARI HASHIM LEMA.........8th ACCUSED PERSON
ABDUL MOHAMED UMUDI @ WAGOBA..... 9th ACCUSED PERSON
JUDGMENT
27/11 & 12/12/2023
NKWABI, J.:
The incident leading to this criminal proceeding is unprecedented one in
our jurisdiction. It is unprecedented when one apprehends that when the
Roman Catholic, Burka parish church believers were to celebrate the most
significant religious ritual of anointing a new parish from an outstation, the Olasiti outstation (kigango), a bomb blasted in the middle of the believers. More than fifty believers sustained injuries of various degrees
Page 1
being permanent incapacitation to serious injuries (serious harm). Three
persons lost their precious lives due to the bomb blast. The church
leaders, including the Pope's ambassador who was to lead the mass, were
miraculously, however, unharmed. The mass and the ritual were
thereupon suspended due to horror, panic, chaos and intimidation. The
believers were ordered to vacate the church premises. Meanwhile, in the
days thereafter, masses at the church premises were conducted
(cerebrated) under the police security.
The bomb blast occurred on the 5th day of May 2013 at Olasiti area within
Arusha City which is located in the northern part of Tanzania. The police
cordoned off the scene of the blast with cordoning tape. Then, the police
guarded the church premise. On the next day, a forensic team from the
police headquarters - Dar-es-Salaam joined the forensic team which
is/was stationed in Arusha. They inspected the scene of the blast and
traced exhibits and collected the exhibits they were able to find at the
scene of the blast.
An investigation was mounted and according to the 8th accused person
namely Jaffar Hashim Lerna (DW.9), apart from involving police officers,
the Tanzania People's defence Force and the security officers were also
involved. However, it was not until July, 2014 when some suspects were
Page 2
arrested. Others were arrested later. The accused persons who have
stood trial for the incident to date, are Abashari Hassan Omari (the 1st
accused person), Yusuph Ally Huta @ Hussein (2nd accused person),
Abdulrahaman Jumanne Hassan (the 3rd accused person), Ramadhan
Hamad Waziri, (the 4th accused person), Abdul Hassan Juma @ Abdul
Master (the 5th accused person), Kassim Idrisa Ramadhani (the 6th
accused person), Aman Musa Pakasi (the 7th accused person), Jafari
Hashim Lerna (the 8th accused person) and Abdul Mohamed Umudi @
Wagoba (the 9th accused person). In the course of this judgment, I will
use the names or the respective number of an accused person for
convenience.
In this criminal case, the accused persons are, nevertheless, charged with
the following offences:
1. Conspiracy to commit terrorist acts which is contrary to section 4(1),
3 (i) (i) and 27(c) of the Prevention of Terrorism Act, No.21 of 2002.
2. Commission of terrorism act contrary to sections 4(1), (3) (i) (ii) of
the Prevention of Terrorism Act, No. 21 of 2002. The counts of this
nature are 22. All the 23 counts are against all accused persons.
The rest of the counts, save the 25th one, are in the alternative to
the 23 counts.
Page 3
3. On the 25th count, the 4th accused person is charged in isolation to
other accused persons, for use of property for commission of
terrorism act which is contrary to section 4(1), (3) (i)(i) and 15(a)
of the Prevention of Terrorism Act, No. 21 of 2002 because he used
part of his house located at FFU Kwa Mrombo area for conducting a
meeting concerned with an act of terrorism, thus facilitating the
commission of an offence.
The information, which was lodged in this Court indicates that out of
terrorism acts, the accused persons caused the death of Regina Loningo
Kuresoi (the subject of the 2nd count), James Gabriel Kessy (the subject
of the 3rd count) and Patricia Joachim (the subject of the 4th count). The
next, 19 counts concern causing serious bodily harm to persons
mentioned in the information. That, according to the evidence of the
prosecution, the bomb blast incident happened after the accused persons
had convened and held several conspiratorial meetings at the home of the
4th accused person and mosque premises and executed their ill intention
of detonating a hand grenade at the public gathering at St. Joseph the
worker Parish church premises. As a result, three persons died and more
than fifty persons sustained serious bodily harm just as I have already
indicated above.
Page 4
All the accused persons resolutely disputed to have committed the
offences they are charged with. They ardently claimed that they are good
citizens like others, and were simply doing their ordinary shores which
earn them their daily bread. Their chores range from banking official,
Imam and a primary school teacher, shopkeeper, bus agent, petty
business (hawker), and a casual worker on construction. They staunchly
maintained in their defence that this case is fabricated by the police.
Those, who had caution statements and an extra-judicial statement either
repudiated or retracted the same. In essence, the accused persons
maintained that they are innocent.
Nonetheless, the prosecution was able to bring 39 witnesses and tendered
38 exhibits. On its side, the prosecution is satisfied, as could be seen in
its final written submissions, that it brought to the Court sufficient
evidence to prove the charge against the accused persons beyond any
reasonable doubt. On the defence side, all accused persons defended
themselves on oath. They had neither exhibit to tender nor any defence
witness to support their account of events.
In this case, the prosecution was efficiently represented by Ms. Bibiana
Kileo, Mr. Basilius Yusuph Namkambe, Mr. Nassoro Katuga and Ms. Ester
Martine, learned Senior State Attorneys, Mr. Nestory Mwenda, Mr. Charles
Page 5
Kagilwa and Ms. Witness Muhosole, learned State Attorneys. At some
point in the proceeding, there was the representation of the Republic by
Mr. Seif Ahamed, learned Principal State Attorney.
The accused persons, were represented by Mr. Fridolin Bwemelo, learned
counsel who represented all the accused persons. He represented them
in conjunction with Mr. Nerius Rugakingira, learned counsel for the 1st
accused person, Mr. Alexander Shillah, learned counsel for the 2nd accused
person, Mr. Alpha Ngondya, learned counsel for the 3rd accused person,
Mr. Stephano James, learned counsel for the 4th accused person, Mr.
Mitego Methusela, learned counsel for the 5th accused person, Mr.
Emmanuel Shio, learned counsel for the 6th accused person, Mr. Goodluck
Michael, learned counsel for the 7th accused person, Ms. Taiyon H. Mtei,
learned counsel for the 8th accused person and Ms. Zalfina Abdalla,
learned counsel for the 9th accused person. The defence counsel formed
an admirable team which defended the accused persons.
I am enormously indebted to the teams of advocates for both sides, the
prosecution and the defence, for their extremely helpful advocacy and
views in this quest for justice to both parties to this criminal proceeding.
Page 6
At this moment in time, I illustrate what is at stake between the parties
by specifying the issues as underneath:
1. Whether the accused persons conspired to commit terrorism acts.
2. Whether the accused persons committed terrorism acts.
3. Whether the 4th accused person used his property or premises (his
house) for committing terrorism act.
I will now move straight forward and embark to consider and determine
the 1st issue which is whether the accused persons conspired to commit
terrorism acts. For clarity, I begin with making reference to the authorities
which will guide me into coming to a just decision on this issue. It is part
of our law that a person who joins a conspiracy is responsible in law for
all the acts of his fellow conspirators done in furtherance of the conspiracy,
whether done before, during or after his participation. That is the position
of the law as enunciated in the case of Stanley Musinga v. Republic
[1951] EACA211 at page 216.
I also find myself constrained to borrow leaf from the wisdom found in
the decision in the case of Republic v. Gokaldas Karia [1949] 16 EACA
116 where it was stated authoritatively that:
Page 7
"Conspirators do not normally meet together and execute a deed
setting out the details of their common unlawful purpose. It is
common place to say then an agreement to conspire may be
deduced from any acts which raise the presumption ofa common
plan."
Going by the evidence that is in the record of this case, it is clear that the
accused persons held conspiratorial meeting at the house of Ramadhan
Hamad Waziri. The conspiracy was perpetrated by Yahaya s/o Sensei, the
ring leader who is still at large, Yussuf Ally Huta @ Hussein, Kassim o/o
Idrissa, Ramadhan, Abdul Hassan @ Abdul Master, Amani Pakasi and
Abashari Hassan Omar. This is according to exhibit P. 9, the caution
statement of the Yussuf Ally Huta @ Hussein (the 2nd accused person).
The meeting had its end result, the bombing of the congregation of
believers at St. Joseph the Worker parish premises on 05/05/2013. The
2nd accused person confessed before the Justice of Peace to have
committed the offence. The confession is exhibit P. 8. There is nothing to
suggest that the 2nd accused person was forced to say anything before
the Justice of Peace, due to the fact that the statement at the police
(exhibit P. 9) is longer than that which is in exhibit P. 8. This conspiratorial
meeting is confirmed by Ramadhani s/o Hamad Waziri (the 4th accused
person) in his caution statement (exhibit P. 38).
Page 8
It is in exhibit P. 38 where it is disclosed how the culprits got the
information about the inauguration ceremony of St. Joseph the Worker
Parish which was to be done on 05/05/2013 that it was Jafari Lerna, the
8th accused person who told them as such. Exhibit P. 38 explains clearly
what was discussed and the agreements reached during the meeting on
what to do to bomb the congregation. That is the essence of conspiracy.
My position regarding the conspiracy and its agreement thereof is fortified
by Richard Ndege v. Republic, Criminal Appeal No. 11 of 1979,
(Unreported) (CAT) at Mwanza where it was stated that:
"Of course, the appellant did not fire the bullet that killed the
deceased but under the doctrine of common intention "where two
or more persons set out armed with lethal weapons with the
common intention ofstealing, and one ofthem (as in this case) in
order to fulfill theirpurpose, kills the custodian ofthe goods, all are
liable to be convicted ofmurder."
Further, the decision in the case of Wanjiro Waimath v. Republic
[1955] EACA 116 cannot escape my eye in the circumstances of the case
under my determination. In Wanjiro's case it was held that:
"Common intention is notnecessary to be arrangedbut can develop
in the course ofthe act."
Page 9
It is trite principle of law in our jurisdiction as submitted by the defence
counsel in their final written submissions to the effect that in criminal
cases doubts are resolved in favor of the accused however slight they may
be; backing their stance with the case of Zakaria Japhet @ Jumanne
& 2 Others v. The Republic, Criminal Appeal No. 37 of 2003, the
decision of the Court of Appeal of Tanzania. However, I am of a firm view
that this case is not the situation.
I am, however, impressed by the submission of the prosecution that it has
proved the offence of conspiracy. It reinforced its view with the decision
in Michael Charles Kijangwa v. The Republic, Criminal Appeal No.
280 of 2017 CAT. I accept the position as stated by the prosecution. Thus,
I reject the view that is held by the defence.
Having discussed as I have done hereinabove, I answer the 1st issue in
the affiramative and the accused persons namely Abashari Hassan Omari,
Yussuf Ally Huta, Ramadhan Hamad Waziri, Abdul Hassan Juma @ Abdul
Master, Kassim Idrisa Ramadhani and Jaffari Hashim Lerna are guilty of
conspiracy to commit terrorism act.
Next, I turn to scrutinize and decide the 3rd issue which is whether the 4th
accused person namely Ramadhan Hamad Waziri used his property or
Page 10
premises (his house) for committing terrorism act. On this issue, based
on the evidence which is in the case file, the prosecution is emphatic that
it proved its case that the 4th accused person used part of his property
(the house where he was residing) to conduct a conspiratorial meeting on
04/05/2013. There is his caution statement (exhibit P. 38) in which he
confesses that a meeting to discuss how to bomb the congregation at St.
Joseph the Worker parish church premises. He proceeds in that caution
statement and states:
"... baada ya kupewa taarifa hiyo tuiikubaiiana kesho yake tarehe
05/05/2013 tukutane nyumbani kwangu mapema saa mbili
asubuhi,... Siku ya tarehe 05/05/2013 saa mbili asubuhi waiikuwa
wamefika nyumbani kwangu na YAHAYA S/O SENSEI a/ituonyesha
bomu ambaio litalipuliwa kwenye sherehe..."
The prosecution further submitted that there is an oral confession of the
4th accused person and another oral confession of the 9th accused person.
It is urged by the prosecution that the oral confessions are sufficient to
ground conviction as per Posolo Wilson @ Mwalyango v. Republic,
Criminal Appeal No. 613 of 2015 and Peter Didia Rumala v. Republic,
Criminal Appeal No. 421 of 2019 both are the decisions of the Court of
Appeal of Tanzania.
ii
Page 11
I accept the stance of the prosecution that there is corroborative evidence
from lies in evidence by the 4th accused persons and the other accused
persons in their defences. The authority that guides me in this approach
is Pascal Kitigwa v. Republic, [1994] T.L.R. 65 CA where it was held
that:
"Corroborative evidence may be circumstantial and may as well
come from the words or conduct ofthe accused, and may as well
also corroborate evidence ofa co-accused."
The 4th accused person denied to have committed the offence which is
charged on the 4th count. He claimed that he does not own a house at the
material place, and he never rented a house thereto. I am not impressed
by the defence of the 4th accused person at all, so, I reject it.
Indeed, it must be borne in mind that, the end result of such conspiratorial
meetings conducted at the premises of the 4th accused person is the bomb
blast at the church premises which caused the death of three persons and
wounded more than 50 persons. I am satisfied beyond reasonable doubt
that the 4th accused person used his premises (house be it rented or
personal property) for terrorism act. I reject his defence and hold that he
is guilty as charged on the 25th count on the charge sheet. Thus, the 3
issue is answered by this Court in the affirmative.
Page 12
Lastly, I regress and direct my mind on the 2nd issue. Now that I have
already decided that the accused persons are guilty of conspiracy to
commit terrorist acts, I have also held that, the 4th accused person used
part of his property for terrorist act, my task in determining the 2nd issue
becomes effortless.
Even the defence, admits that there occurred a bomb blast at the premises
of St. Joseph the Worker parish church premises on the material date.
The bomb blast caused death of three persons and injuries to more than
fifty persons. Credible eye witnesses including two priests came and
testified that indeed the bomb blast occurred and three persons died who
later were buried inside the church building. Such witnesses too testified
that over fifty persons were injured and sent for treatment.
There are testimonies from medical doctors who conducted postmortem
examination to the deceased and the medical doctors who treated the
persons who sustained injuries. Their testimonies are authentic and
credible. The post mortem examination reports and the PF3s which were
admitted in evidence are maintainable, I thus hold that they are reliable.
In the circumstances, I sustain the position that is maintained by the
prosecution that they have proved that due to the bomb blast, three
people died (were murdered) and more than fifty persons sustained
Page 13
severe bodily harm. My position is supported by Agness Liundi v.
Republic [1980] T.L.R. 46 CAT where it stated that:
"The court is not bound to accept medical testimony if
there is good reason for not doing so. At the end ofthe
day itremains the duty ofthe trial court to make a finding
and in so doing, it is incumbent upon it to look at and
assess, the totality ofthe evidence before itincluding that
ofmedical experts."
The defence, in cross-examination to the witnesses of the prosecution,
and in the testimonies of the accused persons in their defence, pointed
out to some contradictions which are in the prosecution case. Truly, in
final submission, the defence counsel pointed out to contradictions. It
started with the terrorist meeting (conspiratorial meetings) which PW1
said they were done at Masjid Quba in Arusha City while some of the
prosecution witnesses said such meetings were conducted in Ngusero
area and others in the house of the 4th accused person at FFU area.
I have examined the complaint about the contradiction about where the
conspiratorial meetings were conducted prior to the bomb blast and after
the bomb blast. I do not see any contradiction instead; it proves the truth
Page 14
that the conspiratorial meetings were conducted at different places. It will
be naive of this Court to decide that and think that there was only one
conspiratorial meeting which was conducted at the house of the 4th
accused person. After all, there is no any witness of the prosecution
witnesses who witnessed any of the meetings being conducted. So, the
prosecution depends on the caution statements and secret informant(s).
The defence also whined against the prosecution's case that the
prosecution did not summon material witness, the secret informer and
urged this Court to accord adverse inference against the prosecution.
They backed their criticism with the case of Paschal Mwinuka v.
Republic, Criminal Appeal No. 258 of 2019 CAT (unreported). I agree
with the principle enunciated by the Court of Appeal in that case. I am
also aware of the position of the law that what would have been said by
secret informants who are not called to testify in Court is hearsay evidence
as per Rashid Ally & Another v. Republic, Criminal Appeal No. 40 of
2001, CAT (unreported), yet secret informants be it a person, institution
or business, in these unprecedented times, must be protected and cannot
be revealed. I am of the firm view that even if there is witness protection,
it is the choice of the prosecution to call the secret informer as a witness
or not else, secret informers cannot be discouraged in any way because
Page 15
it may be left to the government to deal with such serious offences which
reach a stage of eliminating of criminal offenders by use of drones as done
by some of governments in the world. To me that sounds to be abdication
of duties by the Courts of law where by suspects are killed by use of
drone, thus, not afforded their fundamental right to a hearing, which may
appear to be necessary but bizarre. See also Sangaru Lugaira Mathias
v S.M.Z, Criminal Appeal No. 183 of 2005 (CAT) at DSM. In Nyerere
Nyague v. Republic, Criminal Appeal No. 67 of 201, CAT (unreported)
it was held that:
"It is not therefore correct to take that every apparent
contravention of the provisions of the CPA automatically leads to
the exclusion ofthe evidence in question."
I, however, insist that each case must be decided according to its
particular facts and circumstances as stated in Nyakisia v. Republic
[1971] H.C.D. No. 195. Duffus P., Spry V. R & Lutta J. A. (E. A. C. A.).
There is also a complained contradiction in respect of the time when the
4th accused person was arrested in comparison to the time he was
recorded his caution statement (exhibit R 38). I do not accept this
complaint because, it was explained sufficiently to the satisfaction of this
Court that there were other investigative actions which were going on,
Page 16
like the 4th accused person sending the police officers to the home of
another suspect which assisted in arresting that suspect. It should also be
borne in mind witnesses were testifying on an incident of arrest that
occurred about ten years ago, according to, Dmitrive Kosya Koff and
Another v. Republic, Criminal Appeal No. 1 of 2001 (Unreported) (CAT)
(Arusha) it was underscored that:
"We agree that there may ive// be some discrepancies in their
evidence regarding such reckoning of time or the door through
which the appellants entered the house. After all it is not unusual
thatin the course ofnormal life witnesses to the same incidentgive
description of the incident variously. What is important is the
essence of the matter and not the fine and minor details. The
incident took place in 1997 and they were testifying in 1999. So,
variation or discrepancies of this nature are a common
phenomenon in such cases. We think such variation and
discrepancies were, but minor, they did not go to the root of the
evidence."
Thus, such discrepancies are to be expected.
The next complaint on contradictions about the prosecution evidence is
on the number of metal fragments (shrapnel) removed from the bodies of
the victims of the offence. The defence concludes that there is doubt as
Page 17
to how many fragments were removed from the bodies of the victims.
This complaint, will not detain me much because the situation in this case,
has ever happened within our jurisdiction. I adopt as mine the words of
his Lordship, Makame, J., as he then was, in the case of Republic v.
Agnes Doris Liundi [1980] TLR 38, whose decision was upheld by the
Court of Appeal, that:
W9 said that the letters found in the house were six, whereas
Tenga PW.5, the superiorpolice officer PW.9 accompaniedand who
took custody ofthe letters, said that they were merely four, I am
satisfied that PW.9's recollection on this was faulty and that the
letters were in fact four, the ones produced in court, and PW.5said.
I do not place much significance on the disharmony regarding the
number of vomits."
One may also wish to have a look at the decision in Hussein Ally Dotto
v. Republic, Criminal Appeal No. 42 of 1996 (Unreported) (CAT). (DSM)
where it was emphasized that:
"... The two additional grounds ofappeal are that first, a knife was
tendered in evidence instead of a panga which was said to have
been used in the course ofthe robbery.
„..We agree that although a knife was seized from the room in
which the appellant was arrested and it was tendered in evidence
Page 18
it had no probative value in the case. The complainant in the case
together with Hamis Saturn were dear in their evidence that the
robbers used pangas during the robbery. But the fact that pangas
were not found in the room where the appellant was arrested does
not prove anything either way. For two and halfmonths there was
ample time to dispose of the pangas if the appellant was the
robber."
See also Mukami Wankyo v. Republic [1990] T.L.R. 46 (CAT) where it
was stated that:
'77 the contradictions are severed from the centra/ story and the
confessions contain nothing but the truth they can safely be relied
upon to convict the appellant asper the case of Tuwamoi v. Uganda
[1967] E.A. 84"
The defence, too while accepting the legal principle that it is dangerous
to act on a repudiated or retracted confession unless it is corroborated, or
may be acted upon if the Court is satisfied that the confession could not
but be true while making reference to Kashidye Meli v. Republic [2002]
T.L.T. 374 and Tuwamoi v. Uganda [1967] EA 84 just to mention a few,
the defence counsel urge me to disregard exhibit P. 8, P.9, P. 13, P. 20, P.
21, P. 32, P.36, P. 37 and P. 38 because they were retracted or repudiated,
not corroborated and the stories therein are not related to each other in
Page 19
respect of where the bomb was purchased, how the accused persons
reached at the scene of the offence as well as who kept the bomb.
Admittedly, the principle on how to rely on confessions, was clearly stated
in William Mwakatobe v. Republic, Criminal Appeal No. 65 of 1995
(Unreported) (CAT) (Mbeya) where it was stressed that:
"... In this case we are with respect to the learned trial Judge fully
satisfied that the appellants confessions to the justice of peace
were so detailed, elaborate and thorough that no other person
would have known such personal details but the appellants.
Appellants retracted confessions were clumsy attempts to evade
the consequences oftheir criminal acts."
See also Magongwa v. Republic, Criminal Appeal No. 31 of 1979
(Unreported) (CAT) (MWANZA) where it was stated that:
"... Parliament in its wisdom ... feit it safe to render admissible
statements made by suspects to Justices ofthe peace presumably
on the basis that the Justices of the peace and the courts would
carry out their duties seriously and thereby safeguard the legal and
human rights ofsuspects."
Regarding the extra-judicial statement of the 2nd accused person, he
claimed that he was tortured and sustained wounds due to the torture,
but the Justice of Peace who recorded the extra-judicial statement
Page 20
testified that the 2nd accused person had no any wounds. In the situation,
I follow the decision of the Court of appeal in Stephen Jason & Others
v. Republic, Criminal Appeal No 79 of 1999 (unreported), the Court of
appeal observed that:
"Where an accused claims that he was tortured and is backed by
visible marks ofinjuries it is incumbent upon the trial court to be
more cautious in the evaluation and consideration ofthe cautioned
statement, even ifits admissibility had not been objected to; and
such caution statement should be given little if not, no weight at
all."
In the premises, I do not accept the view of the defence. I understand
that, apart from being truthful and detailed that no other person could
know apart from the accused persons in this case who confessed, the
confession statements are corroborated by the lies during the defence
hearing of the accused persons who confessed. On my decision on this
point, I am also guided by Paschal Kitigwa v. Republic Criminal Appeal
No. 161 of 1991 (Unreported) (CAT) (MWANZA) where it was clearly
stated that:
"...it is common ground that corroborative evidence may well be
circumstantial or may be forthcoming from the conduct or words of
the accused. On this, numerous decisions have been made by the
Page 21
then court of Appeal for Eastern Africa- see R v Said Magombe
(1946) EACA 1645 and Migea Mbinga v. Uganda (1967) EA 71."
See also Richard Matangule & Another v. Republic [1992] T.L.R. 5
in which the Court of Appeal of Tanzania held that:
"... these deliberate lies and the refusal to give an explanation
corroborate the case for the prosecution that the appellants are
responsible for the death ofthe deceased."
A position in the like terms could also be seen in R. v. Sebastiano s/o
Mkwe [1972] H.C.D. No. 217 (E.A.C.A.) SPRY, AG. P., and Ali s/o
Mpaiko Kailu v. Republic [1980] T.L.R. 170 Kisanga, J. In the same
vain, I reject the complaint about the exhibit P. 37 that the video was
tampered with since there is a contradiction as to the length of the video.
I am not moved by the defence.
There is also a criticism by the defence against the caution statements
that they were either not certified in accordance with the law, and were
not recorded under the proper section of the Criminal Procedure Act.
Verily, the defence counsel cross-examined at length on these complaints.
I do not find any substance in the criticism, rather I accept the explanation
given by the prosecution. In that regard, the case cited by the defence
which is Juma Omary v. Republic, Criminal Appeal No. 568 of 2020
Page 22
CAT (unreported) is distinguishable to the present case. My perception is
also supported by the decision in Chacha Jeremiah Murimi & 3 Others
v. The Republic, Criminal Appeal No. 551 of 2015, CAT at Mwanza
(unreported) where it was underscored that:
"However, the nature of the matter being of high public interest
and taking into account the complications in its investigation and
having looked at the caution statements in issue, which contains
information relevant to the fact in issue, there is no way, they can
be said that the omission to comply with provisions ofsection 50 of
the CPA and lack of certificate amounted to an irregularity which
goes to the root of the matter so as to invalidate the caution
statements in question. What was contravened was procedural
matter which does not affect the weight attached to the substance
in the cautioned statements"
See also DPP v. Nuru Mohamed Gulamrasul [1988] T.LR. 88 (CAT)
and Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010, CAT
(unreported). In fact, the glaring falsehoods found in the defences of the
accused persons cannot go unnoticed. They affect the defence of the
accused persons just as stated in Mathias Timoth v. Republic [1984]
T.LR. 86 HC Lugakingira, J.
Held: (1) "In testimony of a witness, where the issue is
one offalse evidence, the falsehood has to be considered
Page 23
in weighing the evidence as a whole; and where the
falsehood is glaring and fundamental its effect is utterly
to destroy confidence in the witness altogether, unless
there is other independent evidence to corroborate the
witness."
In respect of the complaint that exhibit P. 13 contains two different names
and signature of the accused person who confessed, thus bringing doubt,
I am also not persuaded by that claim by the defence. As to recording the
year 2022 by P. 36 whose testimony was recorded as PW. 23, that could
be a slip of the pen, it is not fundamental and does not go to the root of
the matter.
It is also the argument of the defence that confession of a co-accused
should not be used to ground conviction of another accused person. They
referred me to section 33 (2) of the Evidence Act, Cap. 6 R.E. 2022 and
the case of Asia Iddi v. Republic [1989] T.L.R. 174. This can be true of
Abdulrahman Jumanne Hassan, Aman Musa Pakasi and Abdul Mohamed
Umudi @ Wagoba. See also MT 38870 PTE Rajab Mohamed and
Others v. Republic, Criminal Appeal No. 141 of 1992, CAT (unreported)
where it was held that:
Page 24
"The only evidence against the third appellant was the confession
of a co-accused which was not corroborated. As there was no
tenable evidence against him his appeal is allowed."
Next, I consider the lamentation by the defence that there was weak dock
identification. With respect to the defence counsel, this lamentation is
weak because, no witness testified to see any accused person blast the
bomb. The witnesses who did identify the accused persons on the dock
were the arresting officers or those who recorded caution statements of
the accused persons. They were identifying as such for the purpose of
identifying the persons whom they arrested or recorded caution
statements. In that regard, the case of Bakari Jumanne @ Chigalawe
& 3 Others v. Republic, Criminal Appeal No. 197 of 2018 CAT
(unreported) is distinguishable.
The defence is also finding fault on the prosecution case against the
accused persons based on a chain of custody. It argues that the chain of
custody is broken beyond repair about the shrapnel or metal fragments
found in the bodies of the victims of the bomb blast. To bolster their
argument, the defence cited the case of Paul Maduka & 4 Others v.
Republic, Criminal Appeal No. 110 of 2007 CAT (unreported).
Page 25
On my evaluation of the evidence, I am not persuaded by the argument
of the defence and I dismiss it. My position is backed by Joseph Leonard
Manyota v. Republic, Criminal Appeal No. 485 of 2015 CAT
(unreported) in which it was held that:
"... it is not every time that when the chain of custody is broken,
then the relevant item cannot be produced and accepted by the
court as evidence, regardless ofits nature. We are certain that this
cannot be the case say, where the potential evidence is not in the
dangerofbeing destroyed, orpolluted, and/or in any way tampered
with. Where the circumstances may reasonably show the absence
ofsuch dangers, the court can safely receive such evidence despite
the factthatthe chain ofcustody may have been broken. Ofcourse,
this will depend on the prevailing circumstances in everyparticular
case."
See also Chacha Jeremiah Murimi's case (supra).
Failure to tender important exhibits, is a cavil raised by the defence. It
pointed out that despite being listed as exhibit intended to be tendered
by the prosecution, the prosecution did not tender PF. 16 to see if the
exhibits were handled (chain of custody). It was also criticised that the
prosecution did not tender the detention register to prove the presence
of the 1st, 2nd, 4th, 5th, 6th, and 8th accused persons at the police station.
Page 26
In their defences, some of the accused persons put up some purported
alibies. I reject their alibis in accordance with Makula Kiula v. Republic,
Criminal Appeal No. 2 of 1983 (Unreported) (CAT) where it was insisted
that:
"Ifa person charged with a serious offence alleges that at the time
when it was committed he was in some other place where he is
well known and yet he makes no effort to prove that fact, which if
true, could easily be proved, the court must necessarily attach little
weight to his allegations."
Somewhere during the proceeding of this case there was a complaint
about testimony detailed than police statement. The answer to that
complaint can be found in Hatibu Gandhi v. Republic [1996] T.L.R. 12
where it said that:
"As to her testimony in court being more detailed than her police
statement, we think this is also explicable on the ground that a
police statement is not meant to be as detailed and as thorough as
the testimony given in a trial court. We are satisfied that PW24 is a
credible witness..."
As to the complaint that the charge sheet is defective, with respect to the
defence, I am unimpressed and dismiss it because, the charge sheet is
perfect.
Page 27
I wish to remind the accused persons and the public at large that the law
is clever. It envisages that criminal offenders have intellect to try to dodge
the law. The law has mechanism to nail them down. See for instance, a
case law which gives answers to the mens rea of the culprits of the offence
in this case, the case of Enock Kipela v. Republic, Criminal Appeal No.
150 of 1994 (unreported)
"... usually an attacker will not declare his intention to cause
death or grievous bodily harm. Whether or not he had that
intention must be ascertained from various factors, including
the following: (1) the type andsize ofthe weapon, ifany used
in the attack; (2) the amount offorce applied in the assault;
(3) the part orparts ofthe body the blow were directed at or
inflictedon; (4) the numberofblows, although one blow may,
depending upon the facts ofthe particular case, be sufficient
for this purpose; (5) the kind of injuries inflicted; (6) the
attackers utterances, ifany, made before, during or after the
killing; and (7) the conduct of the attacker before and after
the killing."
The law of this country has placed duties to the Court and the prosecution
when dealing with criminal cases. The duty of the court first to collect,
Page 28
analyse and assess the evidence and see how far, if at all, it touches upon
accused person; see James Bulolo & Another v. Republic [1981]
T.L.R. 283. I hope, this Court has observed that law. On the prosecution,
there is also that duty assigned to it. The general duty could be seen in
Woodmington v. DPP [1935] AC 462 where it was stated that it is the
duty of the prosecution side to prove its case and the standard of proof is
beyond all reasonable doubt. The duty of the prosecution in criminal cases
related to murder/killing of a person was stated in Mohamed Said Mtula
v. Republic, [1995] T.L.R. 3 (CA)
"Upon a charge ofmurder being preferred, the onus is always on
the prosecution to prove not only the death but also the link
between the said death and the accused; the onus never shifts
away from the prosecution and no duty is cast on the appellant to
establish his innocence."
The prosecution has discharged its duty in this case albeit to only some
of the accused persons. At this point, I feel indebted to commend the
police and whoever they collaborated with the police for their tireless work
that led to the culprits of the bombing of the congregation at Roman
Catholic parish premises at Olasiti area to be nabbed and brought to
justice. I am not the first to commend the police. I remember the Court
of Appeal did so in the case of Hatibu Gadhi (supra).
Page 29
With the above discussion I resolve the 2nd issue in the affirmative against
the accused persons namely Abashari Hassan Omari, Yusuph Ally Huta @
Hussein, Ramadhan Hamad Waziri, Abdul Hassan Juma @ Abdul Master,
Kassim Idrisa Ramadhani, and Jaffari Hashim Lerna. I have found them
guilty of committing the offences they respectively stand charged with
and as listed in the information.
Consequently, I convict the convicts for the offences they stand charged
with and those in the alternative counts forthwith as follows:
1. Conspiracy to commit terrorist acts which is contrary to section 4(1),
3 (i) (i) and 27(c) of the Prevention of Terrorism Act, No.21 of 2002,
the subject of the 1st count.
2. Commission of terrorism act contrary to sections 4(1), (3) (i) (ii) of
the Prevention of Terrorism Act, No. 21 of 2002. The counts of this
nature are 22, the subject of the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th,
10th, 11th, 12th, 14th, 15th 16th, 17th, 18th, 19th, 20th, 21st, 22nd and
24th counts on the charge sheet. All the 23 counts are against all
accused persons.
3. Participating in a terrorist meeting contrary to section 4(1), (3) (i)(i)
and 5(a) of the Prevention of Terrorism Act No. 21 of 2002.
Page 30
4. On the 25th count, where the 4th convict is charged in isolation to
other convicts, for use of property for commission of terrorism act
which is contrary to section 4(1), (3) (i)(i) and 15(a) of the
Prevention of Terrorism Act, No. 21 of 2002 because he used part
of his house located at FFU Kwa Mrombo area for conducting a
meeting concerned with an act of terrorism, thus facilitating the
commission of an offence.
I, however, acquit the accused persons namely Abdulrahman Jumanne
Hassan, Aman Musa Pakasi and Abdul Mohamed Umudi @ Wagoba
forthwith.
It is so ordered.
DATED at ARUSHA this 12th day of December 2023.
J. F. NKWABI
JUDGE
PREVIOUS RECORDS
Ms. Mlenza: The convicts are the first offenders. We pray for severe
punishment to address the offences, given the nature of the offences the
convicts are charged with. They affect the community economically,
Page 31
security and diplomatic also to be a lesson to the convicts and other
persons.
Diplomatically, the country had its image tarnished, regard to the fact that
at the incident there was the Pope's ambassador. For counts which involve
murder/ causing death, we pray for sentence for death to hanging under
section 197 of the Penal Code. In offences which are attempted murder,
we pray for severe sentence.
MITIGATION
Mr. Bwemelo: Since I represent all the accused persons, I will speak on
behalf of the rest defence counsel. We pray for a lenient sentence for the
following reasons:
1. The convicts are the first offenders,
2. The convicts are remorseful of the offence. They are persons of
good character.
3. They are still young and some are having children and relatives who
depend on them. We pray for lenient sentence including reducing
the time they stayed in remand. That is all.
SENTENCE
Page 32
Court: There is only one punishment for the offence of murder, under
the 26th count on the charge sheet that is, sentence to suffer death by
hanging. As such I condemn the convicts namely Abashari Hassan
Omari, Yusuph Ally Huta @ Hussein, Ramadhan Hamad Waziri,
Abdul Hassan Juma @ Abdul Master, Kassim Idrisa Ramadhani,
and Jaffari Hashim Lerna to death by hanging in terms of section 197
of the Penal Code Cap. 16 R.E. 2022.
Because of the reason that I have imposed capital punishment on the
convicts for one offence, I will not impose any punishment to the convicts
on the offences they have been convicted.
It is so ordered.
J. F. NKWABI
JUDGE
12/12/2023
Court: Sentence delivered this 12th day of December, 2023 in open Court.
IF. NKWABI
JUDGE
Court: Physical exhibits be disposed of in accordance with the law.
J.F. NKWABI
JUDGE
12/12/2023
Sasa wewe mkristo Kwanza kuchinja unajua??nguruwe wenyewe wale maskini ya mungu mnatandika magogo na marungu ya kichwa akifa ndo mnapitisha shoka la ubavu ndiyo kuchinja kwenu Huko,Sasa nani umlishe kibudu??
Hata dunian huko ukienda unaambiwa kabisa hotel hii ni special halal foods....
Haya,nikikuambie uchinje,utachinja Kwa jina la Nani?jina la yule mzungu??
Mahakama Kuu Kanda ya Arusha leo tarehe 12/12/2023, imewasomea hukumu Masheikh tisa miongoni mwa wale wanaoshikiliwa na Serikali kwa zaidi ya miaka kumi katika Gereza Kuu la Kisonge Mkoani Arusha.
Masheikh hao wanatuhumiwa na Serikali kwa Ugaidi wa kulipua Kanisa Katoliki la Ole sita mkoani Arusha mwaka 2013.
Akisoma hukumu hiyo Jaji Nkwabi aliwaachia huru Masheikh watatu ingawa mmoja miongoni mwao amerejeshwa jela kwa sababu ya kukabiliwa na tuhuma nyingine.
Aidha Jaji Nkwabi alionesha kuridhishwa na ushahidi wa Polisi kwamba Masheikh sita katika shauri hilo akiwemo imamu mkuu wa Msikiti mashuhuri Masjid Quba Arusha, Sheikh Jaafar Hashim Lema waliripua Kanisa Katoliki na kusababisha madhara makubwa.
Kwa sababu hiyo Jaji Nkwabi aliamua kuwahukumu adhabu kali ya kunyongwa mpaka kufa.
Masheikh hao waliokaa gerezani kwa zaidi ya miaka kumi na hatimaye kuhukumiwa kifo ni:
1. Imam Jaafar Hashima Lema.
2. Yusuf Ali Huta
3. Ramadhani Hamadi Waziri.
4. Abdul Hassa Masta.
5. Kassim Idrisa. Na-
6. Abashari Hassan Omari.
Masheikh hao pamoja na wenzao kumi walio hukumiwa kunyongwa hivi karibuni mkoani Tanga, watanyongwa baada ya Rais Samia Suluhu Hassani kutia saini.
Wataenda kukutana na wake 72 bikra kwaajili ya kutembeza NDIZI kama mchwa! Sijui watakuwa wanazaa na huko au ni NDIZI MPINGO tu?
Hivi wanawake wakifa na kwenda huko nao watakutana na wanaume lijali 72 kwa kila mwanamke?
Kweli imani zingine zinafurahisha!
Wanasema akili za kuambiwa changanya na zako!
Hivi kweli kesi inakaa zaidi ya miaka kumi mbona hatari hii? Yani wanakuachia wanasema hauna hatia na hapo ushakaa zaidi ya miaka 10? Kwakweli sjui upelelezi wetu ukoje ....
JamiiForums uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
By continuing to use this site, you are consenting to our use of cookies.
