butron
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Bila shaka walikamatwa na kuwekwa ndani wakati wa utawala wa Ndugu yenu katika imani Jakaya Kikwete!
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Masheikh 6, leo ijumaa terehe 1/12/2023, wameshinda kesi lakini wamechukuliwa tena na vyombo vya dola
Masheikh 6, leo ijumaa terehe 1/12/2023, wameshinda kesi lakini wamechukuliwa tena na vyombo vya dola
- Thread starter Roving Journalist
- Start date
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Petro E. Mselewa
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- Dec 27, 2012
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Mkuu Proved, pamoja na maumivu yatokanayo na jambo hili, kisheria jambo hilo linaruhusiwa. Hufanyika pale ambapo Ofisi ya Mkurugenzi wa Mashtaka/Ofisi ya Mashtaka Nchini inapowasilisha hati au kauli ya kutokuwa na nia ya kuendelea kushtaki kesi fulani ya jinai ambayo haijafika hatua ya kutolewa hukumu yake.
Yaweza kuwa baada ya kuanza kusikiliza ushahidi wa Jamhuri/Mshtaki/Mkurugenzi wa Mashtaka au la. Au hata baada ya kukamilika kwa ushahidi wa Jamhuri na kuanzwa kwa utetezi. Ni kabla ya hukumu tu.
Nionavyo mimi, njia hii ya kisheria hutumika pale ambapo Jamhuri inahitaji kufanya marekebisho au maboresho ya mashtaka dhidi ya washtakiwa. Ndiyo maana washtakiwa wanapoachiwa hukamatwa na kusomewa tena, siku hiyohiyo, mashtaka mapya.
Kimsingi, utaratibu huu unauma na kuumiza washtakiwa ambao labda walishakaa mahabusu muda mrefu na walishaanza kusikiliza kesi zao wakitarajia kesi hizo kumalizwa punde. Kusomewa mashtaka mapya ni kuuanza mchakato mzima upya. Si jambo zuri na kuvutia.
Hata Kikosi Kazi cha Haki Jinai chini ya Jaji Mkuu Mstaafu Mohamed Chande Othman kililiona hili na kushauri lishughulikiwe kwa namna ya kuliondoa. Mchakato unaendelea.
ras jeff kapita
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Hakuna Gaza wala bibiake Gaza Tanzania ni nchi ya amani
Msanii
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Serikali ya Tanzania ina unyama mwingi sana
ras jeff kapita
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Unaelewa maana ya kushinda kesi!!??
Hao ni watuhumiwa kama watuhumiwa wengine.
usipende kuchanganya dini ya mtu na utuhumiwa wake.
HAKI KWA WOTE
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Katika orodha tajwa hapo juu kuna Mungu hapo katajwa?acha kumuingiza Mungu kwenye mambo ya kihanithi
Mhanga wa operesheni Abdallah Maginga Wambura dhidi ya ugaidi aliyekaa gerezani miaka 10 na kufutiwa kesi
View: https://m.youtube.com/watch?v=LSg3VlGutEo
Nilipelekwa kituo maarufu cha Guantanamo na kutundikwa kwenye chuma nikawa mithili ya mshikaki na kuteswa .... kupigwa kuhojiwa miguu kupigwa marungu, nikasomewa mashitaka hospitalini mguu mmoja umevimba sana na kukatwa mguu ... kisha kidonda kilivyopona kutupwa magereza .. ushahidi wa DVD, CD za masheikh wa Mombasa zilizokutwa nyumbani ziliniponza ....
View: https://m.youtube.com/watch?v=LSg3VlGutEo
Nilipelekwa kituo maarufu cha Guantanamo na kutundikwa kwenye chuma nikawa mithili ya mshikaki na kuteswa .... kupigwa kuhojiwa miguu kupigwa marungu, nikasomewa mashitaka hospitalini mguu mmoja umevimba sana na kukatwa mguu ... kisha kidonda kilivyopona kutupwa magereza .. ushahidi wa DVD, CD za masheikh wa Mombasa zilizokutwa nyumbani ziliniponza ....
Abdallah Maginga Wambura asimulia jinsi majirani walivyokuwa wanaogopa kutoa msaada kwa familia yake yeye akiwa gerezani. Watu wenye huruma walikuwa wananyata usiku na kwenda kutupa misaada dirishani wasionekane ...
View: https://m.youtube.com/watch?v=_hE2aUYs-qw
View: https://m.youtube.com/watch?v=_hE2aUYs-qw
Sol de Mayo
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Mambo gani ya kihanithi? Kuwekwa gerezani waislamu pasina hatia yoyote ndio kihanithi!! Chuki mbaya, hebu jotathmini upya kisha tafakari kabla hujaongea
Sol de Mayo
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Kuna nchi nyingi tu amani imetawala, yani tz sidhani kama ipo top10
KUTATABHETAKULE
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Majaji na waendeaha mashtaka hawahusiki na kukamatwa tena kwa hao mashehe. Waulizeni polisi watawaelezeni amri ya kuwakamata tena na kuwarudisha rumande wameitoa wapi.
Sol de Mayo
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Siku polisi yanawakuta ya kuwakuta wasitake msaada wa huruma kwa wananchi, anaefanya ukatili/mauwaji kwa mwenzie nae ipo siku yatamkuta
tuletee ushahidi wa hao magaidi wanauwa huko msumbiji
Sol de Mayo
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Hapa mh rais naomba uliangalie hili, wala sio la kupuuza. Mtu mpaka anakatwa mguu na kuchukuliwa hela zake, kweli ni haki!! Huo sio ubinadamu, hao polisi wajitafakari upya, waache kunyanyasa watu kisa wametofautiana imani, endeleeni tu na ukatili wenu siku Waislamu wakilianzisha mtakimbiana ohoo.
Sol de Mayo
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Huyu jamaa 4by94 ana chuki mbaya sana dhidi ya waarabu na waislamu kwa ujumla, nipo hapa kama atakuja na ushahidi
Sol de Mayo
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Allah anaona yote wanayo yafanya
KESI YA UGAIDI :
MISCELLANEOUS CRIMINAL APPLICATION No. 23 OF 2022
DIRECTOR OF PUBLIC PROSECUTIONS......APPLICANT
VS
- ABDALLAH ATHUMAN LABIA @ BROTHER MOHAMED ,.........1ST RESPONDENT
- ALLY HAMISI KIDAANYA... 2nd RESPONDENT
- ABDALLAH MAGINGA WAMBURA...................3rdRESPONDENT
- RAJABU PIRI AHMED........4thRESPONDENT
- HASSAN ZUBERI SAID.......5thRESPONDENT
- ALI HAMISI JUMANNE......6thRESPONDEN
- YASIN HAMIS SANGA.......7thRESPONDENT
- SHABAN ABDALLAH WAWA..........8thRESPONDENT
- IBRAHIM LEONARD HELMAN @ ABUU ISMAIL.......... 10th RESPONDENT
RULING
08th & 12th April, 2022
TIGANGA, J
Under the Certificate of Urgency certified by Mr. Nestory I. Mwenda, State Attorney, from the National Prosecutions Services, duly authorized to act for and on behalf of the Director of the Public
Prosecutions, who is the applicant in this application, filed this application exparte by the chamber summons made under sections 34(3(a) and (b) & (4) of the Prevention of Terrorism Act No. 21 of
Page 1
34(3(a) and (b) & (4) of the Prevention of Terrorism Act No. 21 of
2002 and section 188(1) & (2) and 392A(1) of the Criminal Procedure Act [Cap 20 R.E 2002] as amended.
The same was supported by a 14 paragraphs affidavit sworn by
Mr. Nestory Innocent Mwenda, learned State Attorney and
another affidavit of 14 paragraphs sworn by ACP Joshua
Mwafulango, the Regional Crime Officer, RCO Arusha, an officer
vested with the mandate to suppress and overseeing criminal
investigations within Arusha Region hence conversant with what is deposed to in the supporting affidavit.
In the chamber summons a total of four substantive orders are
sought which are as follows:
(i) That this hounourable court be pleased to order that the
witnesses' testimony be given through video conference.
(ii) That this honourable court be pleased to order none
disclosure of identity and whereabouts of the witnesses
for their security reasons during committal proceedings
and during trial.
Page 2
2
(Hi) That this honourable Court be pleased to order non
disclosure of the statement and documents likely to lead
to the identification of witnesses for their security reasons
during committal proceedings and during trial,
(iv) That this honourable court be pleased to order trial of this
matter be in Camera and Video Conference,
(v) That this honourable court be pleased to order any other
protection measures as the court may consider
appropriate for the security of the witnesses including but
not limited to:
a) Prohibition on dissemination and publication of any
documentary evidence and any other testimony
bearing identity without prior leave of the court.
b) Prohibition on dissemination and publication of the
information that is likely to disclose location, resident
and where about of the prosecution witnesses or any
other close relative.
Page 3
The affidavits filed in support of the application advance the
reasons for the application and the grounds upon which the applicant
asks for the orders in the chamber summons.
It is deposed in the affidavits that, the respondents stand
charged before the Resident Magistrates' Court of Arusha in PI No.
06 of 2022 with offences of murder, attempted murder, committing
terrorism acts and participating in a terrorist meeting. The said
offences are alleged to have been committed on 13th day of April
2014 at Arusha Night Park Bar @ Matako Bar at Mianzini area within
the city and region of Arusha by detonating a hand made grenade
which exploded and consequently caused death of one person and
many others were fatally injured.
Following the act, the police mounted massive investigation
which resulted into the arrest of the respondents. However, some of
the conspirator and the offenders who committed the offence
together with the respondents were not arrested; therefore they are
still at large. And that through the affidavit sworn and filed by ACP
Joshua Mwafulango, RCO Arusha the investigation reveals that, the
respondents and their associates who are at large intend to use
page 4
whatever means necessary including infliction of physical harm upon
the intended prosecution witnesses in order to stop them from
testifying in court. It is for that reasons the Director of Public
Prosecutions has filed this application seeking for the above listed
orders which calls the importance of granting them for the applicant
not to disclose the identity of the witnesses for security reasons.
At the hearing of this application, the applicant was
represented by Mr. Kauli Makasi, learned Senior State Attorney
assisted by Mr. Valence Mayenga also learned Senior State Attorney.
In the submissions made in the in support of the application, the Mr.
Mr. Kauli Makasi submitted that, under the provision cited herein
above, this court has power to hear and determine this application
exparte. After adopting the affidavits filed in support of the
application, he said the type of evidence which the applicant intends
to submit in court during trial is oral testimony from the persons who
will be called as witnesses, documentary and physical evidence.
He submitted further that, the witness intended to be called are
not secured therefore there is fear that if they will be revealed they
may be harmed or threatened. On that base he warned on the...
Page 5
impending danger of disclosing the identity of the witnesses thereby
exposing them and their families to danger taking regard to the fact
that some of the suspects have not been arrested. In his view given
the circumstance of this case, the court be pleased to grant the
application as prayed as it will be for the interest of justice to do so.
He asked the court to be persuaded by the decisions of this
court in the case of the DPP vs Said Adam Said & 10 Others,
Criminal Application No. 09 of 2022 High Court of Tanzania, Mwanza,
Hon. Siyani J as he then was and DPP vs Fundi Hamisi Kamaka @
Fundi Hamisi @ Mohamed Fundi & 4 others, Misc. Criminal
Application No. 202 of 2021, High Court of Tanzania, Dar es Salaam,
Hon. Mgonya, J. He in the end asked the application to be granted as
prayed.
Having summarized the contents of the affidavits and the
arguments by the applicant as well as the cases cited to me, it is
instructive to say that, this application was heard exparte without the
involvement of the respondent. This was done in accordance to
section 188 of the Criminal Procedure Act, (supra). It is also
instructive to find that, the application of this nature is not novel to
Page 5
READ THE JUDGEMENT:
Source : Director of Public Prosecutions vs Abdallah Athuman Labia @ Brother Mohamed & 8 Others (Misc. Application 23 of 2022) [2022] TZHC 961 (12 April 2022)
June 2023 ushahidi mbele ya mahakama:
Muendelezo wa kesi ya ugaidi, shambulizi la bomu lilivyojeruhi watu katika baa
ARUSHA SUB-REGISTRY
AT ARUSHA
CRIMINAL SESSION NO. 63 OF 2022
REPUBLIC
VERSUS
1. ABDALLAH ATHUMAN LABIA@BROTHER MOHAMED
2. ALLY HAMISI KIDAANYA
3. ABDALLAH MAGINGA WAMBURA
4. RAJABU PIRI AHMED
5. HASSAN ZUBERI SAID
6. ALLY HAMISI JUMANNE
7. YASSIN HASHIM SANGA
8. SHABANI ABDALLAH WAWA
9. IBRAHIM LEONARD HERMAN@ABUU ISMAIL
JUDGEMENT
6th & 19th June 2023.
Rwizile, J
Perhaps it is no longer the case today, but nearly a decade ago, one could
not completely enjoy the beauty of Arusha, without visiting Arusha Night
Park Bar, known for its famous name "Matako Bar1' according to the charge
sheet. The place was not only good for Nyama Choma, and English Premier
League, but also famous for its "heavyweight" waitresses.
Page 1
This package, therefore, did not excuse the bar from attracting terrorist
attacks. When Liverpool fans were enjoying three goals win over Manchester
City and the Blues preparing for its encounter with Swansea, at about
7:00pm, on 13th April 2014, the ill-fated event happened.
A big explosion occurred at the bar followed by heavy smoke. The whole city
was taken at bay. The attack was severe and of its own kind, which left
several people injured and caused the death of Sudi Ally Ramadhani days
thereafter.
It was factually stated that out of the normal cause of doing things, two male
adult persons appeared as normal customers. One of them held a small black
bag. It was placed under one chair at a table that was vacant. This was on
the front side of the bar, in the corridor with tents, close to the main
entrance. The table had only one chair. When one of the female attendants
was watching the conduct of the two customers who didn't sit, planning to
get them another chair, they left towards the main building leaving their
small black bag behind.
No sooner had they left, than the waiters started smelling unusual smoke.
To their surprise, soon thereafter, a big explosion occurred. The place was
thrown into pandemonium. Some attendants and customers were severely
Page 2
injured on the legs, feet, and thighs. In an emergency, they were helped to
the two hospitals namely Arusha Lutheran Medical Center© Selian and the
Regional Government Hospital© Mount Meru. They were attended to and
treated. Unfortunately, on 13th May 2014, one Sudi Ally Ramadhani died due
to severe bleeding from wounds sustained on the right leg around the knee
joint.
In this situation, the state intelligence, forensic, and investigative machinery
hurried onto the crime scene. P was a senior police officer dealing with high-
profile cases in Arusha District. In the company of his team, arrived at the
crime scene a few minutes thereafter. Apart from dealing with victims, he
directed forensic police officers to surround the crime scene with yellow tape.
The crime scene had blood, bent nails of 5 to 6 inches, chairs turned upside
down and damaged, broken bottles and small electric wires.
Exhibits were collected, PF-3s were taken to the hospitals for victims, and
statements of witnesses were taken down making the commencement of the
investigation. It was discovered that the bombing was from a homemade
bomb.
At different places and times, the accused persons were arrested in
connection and arraigned on 14 counts of terrorism under section 4(1)(3)
Page 3
(I) (i) and section 5(a) of the Prevention of Terrorism Act, No. 21 of 2002
(to be referred herein as the Act). Allegedly, they were participating in a
terrorist meeting held at the Magugu area of Babati District in the Manyara
Region on 7th April 2014. According to the charge sheet, this forms the first
count.
The second count also faces all accused persons which is under section
4(1)(3) (I) (i) and section 15(a) of the Act, which is the use of the property
for the commission of a terrorist act. The accused persons are alleged to
have used a homemade bomb to blast Arusha Night Park Bar @ Matako bar
on 13th April 2014.
Further, in the 3rd to the 14th count, all accused persons are charged with
committing a terrorist Act, contrary to section 4(1)(3) (I) (i) of the Act, where
by using a homemade bomb, blew up, Arusha Night Park Bar@ Matako Bar
on 13th April 2014, as the result Sudi Ally Ramadhan died, Joyce William
Patrice, Loyce John, Suzan Jackob, Anterus Vicent, Nathan Charles, Stephen Cosmas, Peter James Bukerebe, Oberd Mbasha, Zakaria Mmassy, Everast
Richard and Mariam Juvenary Hans, respectively, sustained serious bodily
injuries.
Page 4
.........
The prosecution, cast with the duty to prove its case, called 23 witnesses,
who were assigned names and so testified in the following order; P25, P7,
P33, P28, P3, P29, P34, Pl, Pl 1, P38, P4, P13, P22, PIO, P17, P30, P39, P23,
P, P16, P20, P8 and P21 and will be so referred in this judgment.
The prosecution team of Attorneys was led by Ms. Ajuaye Bilishanga a
Principal State Attorney, assisted by Mr. Nassoro Katuga, Mr. Kauli Makasi
Senior State Attorneys, Ms. Alice Mtenga, Ms. Ashura Mnzava and Mr. Tony
Kilomo learned State Attorneys. The defence team was led by Mr. Peter
Madeleka, for the 1st accused person, who was assisted by Mr. Sylvester
Kahunduka. For the second accused was assisted by Lectony Ngeseyan, for
the 4th accused was assisted by Matuba Nyirembe, while for the 7th accused
was assisted by Mr. Richard Manyota learned advocate. The 3rd accused is
represented by Mr. Yoshua Mambo, 5th accused by Ms. Fatma Amir. The 6th
accused was represented by Mr. Vincent Stewart, the 8th accused by Mr.
Kennedy Chando, and the 9th accused was represented by Mr. Victor Jonas,
learned advocate. Upon closing the defence case, Attorneys were allowed
closing submissions which were filed, as scheduled.
It was the opinion of the prosecution, that cast with the duty to prove the
case as under section 3(2)(a) and 110 of the Evidence Act [Cap. 6 R.E 2022],
Page 7
(The Evidence Act), and that in the strength of the case of, Anthony
Kinanila and Another v R, Criminal Appeal No. 83 of 2021, (CAT) the
Prosecution has to prove all ingredients of terrorism in order to win a
conviction. Accordingly, it was submitted that there was a meeting attended
by the accused persons and discussed how to commit terrorist acts. The
acts, it was argued were committed prejudicial to the National security that
intimidated the population falling in the purview of the provisions of section
4(1) and (3) read together with sections 5, 6, 7,8,9 and 10 of the Prevention
of Terrorism Act, No. 21 of 2002.
In a complete package of witnesses, in view of the prosecution, which is
composed of Victims of the explosion at Arusha Night Park @ Matako Bar,
Doctors who attended the said victims at different hospitals here in Arusha,
arresting officers who recorded confession statements, an expert witness a
Government Chemist Analyst, investigators and independent witnesses, it
was argued that the case was proved. In the endeavour to demonstrate so,
the prosecution held the view that based on the confession statement of the
6th Accused person, Ally Hamisi Jumanne which was tendered and admitted
as exhibit PE-14 without objection, proved that the meeting held at Magugu
on the 7th April 2014 was called by the 2nd Accused person, Ally Hamisi
Page 8
Kidaanya at Mbugani Mosque which planned to establish Islamic State, start
a Jihad war by fighting against kafir, blowing-up churches, Government
offices and other public gatherings in Arusha Region. According to the
prosecution, the 8th accused person, Shabani Abdallah Wawa, and Hassan
Zuberi Said, the 5th accused confessed so in exhibits PE-12 and PE-15
respectively. The meeting, it was argued, was the result of the bombing of
Arusha Night Park bar @ Matako Bar on 13th April 2014. To cement the
argument, they referred this court to the case of Ally Mohamed Mkupa v
R, Criminal Appeal No. 2 of 2008 (Unreported), on page 13 where the court
stated as follows;
"...the very best evidence is of a person who confesses freely and
voluntarily to have committed the offence in any criminal trial that is
an accused person who confesses his guilty".
Fortifying the argument, the prosecution submitted that the evidence of the
4th accused Rajab Piri Ahmed, in his confession statement, exhibit PE-10, 1st
accused person Abdallah Athumani Labia in his confession statement, exhibit
PE-9 coupled with the 3rd accused Abdallah Maginga Wambura's confession
statement exhibit PE-6, the accused persons admitted to having travelled
from Magugu to Arusha, made two bombs that exploded Arusha Night Park
Page 9
Bar @ Matako Bar and attempted to do the same at Washington Bar. Further,
the prosecution held the view that despite the 1st, 2nd,3rd- and 4th accused
persons retracting their confessions, as long as they were admitted in
evidence, this court should not hesitate to find conviction based on them.
The prosecution fetched support in the cases of Michael Luhiye vs R
[1994] TLR 181 where the Court of Appeal held that;
"It is always desirable to look for corroboration in support of retracted
confession before acting on it but a court may convict on a retracted
confession even without corroboration."
And in the case of Tuwamoi vs Uganda (1967) E.A84, The Court of Appeal
for East Africa stated;
''But corroboration is not necessary in law and the court may act on
confession alone if it is fully satisfied after considering all the material
points and surrounding circumstances that the confession cannot but
be true."
The above notwithstanding, the prosecution was of the firm view that
evidence of PIO and P8 respectively, corroborated the confession
statements. That there was indeed a meeting on the 7th of April, 2014 at
Magugu, and that a homemade bomb was found at Washington Bar on the
Page 10
io
13th of April 2014. As well, it was argued that accused persons 2nd, 4th, 6th'
and 8th, according to the prosecution evidence were arrested there, which
shows the coherence and consistency of the prosecution evidence leading to
credibility. Support was sought in the case of Goodluck Kyando v R (2006)
TLR 363,
The prosecution further submitted that evidence of P was clear that he
visited the crime scene immediately after the bombing and found the
remains of the bent nails, a safety delay fuse, small wires, and broken
bottles. The remains, it was added were materially similar to the bomb found
at the Washington Bar. These facts, the prosecution went on submitting
were not disputed by the defence or even cross-examine on the same. The
facts, it was stated must be held as admitted by the defence.
The prosecution was of further submission that the 3rd and 4th accused
persons were identified at the parade and in the dock as they were at the
scene of the crime. Pl and P8, it was argued properly made such
identification. Equally, the prosecution made it clear that all accused persons
even though they were not at the crime scene as 3rd and 4th, still, there is
evidence of a common intention to commit the offences charged under
section 12 of the Evidence Act which provides that;
Page 11
.....
I was also asked to refer to the case of Wilfred Lwakatare and Another
v R, Misc. Criminal Application No. 14 of 2013, High Court of Tanzania,
(Unreported). To prove the meeting was held, it was added, the prosecution
ought to tender the minutes of the meeting and the agenda as well as a list
of those who attended the meeting. It was further argued that even PIO,
who allegedly attended the meeting, told the court, he went late and found
the meeting done but was asked to attend another meeting on some future
date, which he did not attend.
According to the defence, there is no evidence to prove that any of the
accused persons appeared at the crime scene. It was stated that since the
bombing happened on 13th April 2014 at Arusha Night Park, at 7:30 pm,
there ought to be evidence of identification of the culprits. The defence held
the view that in the absence of direct and proper evidence on visual
identification, it cannot be said that the accused persons were identified at
the scene of the crime. It was added, the evidence in the circumstance was
not watertight as respectively held in the cases of Joseph Melkior Shirima
@ Temba v R, Criminal Appeal No. 261 of 2014, (CAT), citing with approval
the case of Waziri Amani v R [1980] TLR 250 and in Andrea August
Page 22
......
He said the two suspects are namely Abdallah Maginga and Rajab Piri
Ahmed. (3rd and 4th accused persons). They were paraded in between 6th
and 7th persons in a line of 12 people making the number of the persons
attending the parade 14. The two, according to his evidence, were identified
by being touched on their shoulders. Upon, finishing, it was the evidence of
P13 that he filled and filed PF-186 which was admitted as PE- 5.
As to how the 3rd and 4th accused persons were arrested, it is gathered from
the evidence of P and PIO. Witness PIO was a resident of Himiti village of
the Manyara Region. He said, he knew and was in contact with Shaban
Abdallah Wawa- the 8th accused person who wanted a gun. He could not get
one for him but asked for the price of the same. He further told the court
that, the same person called him at the meeting at Magugu on 7th April 2014,
it is unfortunate to him that he arrived late and found the meeting postponed
to 1st May 2014. He said, the meeting, he was told was for Jihad. On 18th
May 2014, he was asked by Shaban Wawa to seek permission for them to
sleep in the Mosque at Himiti, which he successfully did. They slept at the
Mosque that night. The following day early in the dawn, on 19th May 2014,
he was asked to locate them by the police officers who came to his home
with Ally Hamis Kidaanya.
Page 39
He led them to the Mosque and they were arrested. They were Rajabu Piri-
4th accused, Shaban Abdallah Wawa- the 8th accused and Ally Hamis
Jumanne -the 6th accused. They were brought to Arusha at the central police.
Perhaps, the most crucial evidence for the prosecution was from P. Witness
P, the police officer who was in charge of the investigation of high-profile
cases in Arusha at that time.
He arrived at the crime scene immediately after the bombing. He found the
crime scene in a state of mayhem. There were many people injured, blood
spread all over. He found bent nails of about 5 to 6 inches and wires.
After witnessing that situation, he assigned duties to the investigators who
were at the crime scene. Forensic police were told to surround the crime
scene with yellow tape. They were also asked to collect all exhibits. He
further, directed police officers to record the statements of the people who
witnessed the incident. Others were directed to go to collect PF-3s and take
them to the hospital where the victims were taken to. The information at the
crime scene, according to him, was that, over 10 people were injured and
taken to different hospitals in Arusha. He said they opened up for the people
who had information and were willing to supply the same.
Page 40
On the next morning, he got informed about a locally made bomb at
Washington Bar close to the Daladala bus stand. He went to the place and
found; it was indeed a homemade bomb in a bottle of Jack Daniel. P
henceforth called experts from the JWTZ at Monduli who were left to manage
the same. This event was as well testified by P8, who witnessed the same
thing the previous night with Washington bar attendants before he informed
the police about it.
P, testified further that on 17th May 2014 at about 6:30 am at Magugu in
Babati District, one person was arrested called Ally Hamis Kidaanya, 2nd
accused, who was involved in both incidents, in Arusha Night Park Bar and
Washington Bar. After his arrest, he added, he admitted to having been
doing such crimes and mentioned his fellows. These included Rajab Piri
Ahmed-4th accused, Shaban Abdallah Wawa- 8th accused, and Ally Hamis
Jumanne- 6th accused, as well as the corporal of the prisons who was at
Mang'ola, and who was training them on how to make explosives. He said a
follow-up was made.
On 19th May at about 1.00 am, they arrived at Himiti and met the person
called Ally Hamis whom he was in contact, he led them to the Mosque and
managed to arrest Rajab Piri Ahemed, Shaban Abdallah Wawa, and Ally
Page 41
As to P30, a police officer, is the one who arrested Abdallah Athuman Labia-
the 1st accused. He alleged to have arrested him at Karatu on 25th April 2014
and brought him to Arusha. According to his evidence, he was in possession
of different sim cards for Airtel, Vodacom and Safaricom.
It is the 3rd accused whose cautioned statement was recorded by P39 on the
day he was arrested. P39 testified that in his evidence.
The statement on caution was recorded on 25th April 2014 at the central
police station. There was no objection to the caution statement when
tendered. It was therefore admitted as PE-9. P39 also recorded the caution
statement of Ally Hamis Kidaanya, the 2nd accused, whose statement was
admitted as PE-11 following the inquiry into its voluntariness. It was his
evidence that he recorded the statement on 17th May 2017. He said the
accused admitted the offence he was warned of.
P17 is a government Chemist Analyst from the office of the Chief
Government Chemist Laboratory Authority. It was his evidence that he got
exhibits from the Forensic Commission and they were from the RCO's office-
Arusha. According to him, they were nails, a detonator, safety delay fuse
and remains of the black bag each exhibit was in an envelope. Upon
examining the same, he found nails and remains of the bag had traces of
Page 44
nitrates which is a chemical used to make explosives. He tendered a report
as exhibit PE-8.
Apart from Pl and P3, other victims of the bombing at Arusha Night Park are
P4, P7, P25 and P34. They also testified and described the nature of their
injuries. They were also attended at Mount Meru Regional Hospital. Their
PF-3s were tendered in court.
P4 was attended by P28 who tendered PE-2, and P25 was attended by P29
who tendered the PF3 as PE-3. Whereas P7 was attended by P38 and the
PF3 tendered in that respect is PE-4. Despite testifying, P34 had no medical
proof of her injuries that was tendered.
In terms of the defence case, which more details will be regressed to later,
surfaces to say at this juncture, that the accused persons testified and did
not call witnesses. In all, they denied the commission of the offences
charged. The basic and common defence in all was to deny generally and in
particular that the whole prosecution case was fake and actuated by torture
to obtain the confessions.
The point made by the defence is that there were no confessions made and
those that were made did not have any grain of truth as they were a result
of torture done at Kisongo police station also referred to as Guantanamo. In
Page 45
Dw2 is Abdallah Athman Labia, 1st accused in his evidence, he said was
arrested on 24th May 2014 at Mang'ola, and brought to Arusha via Karatu on
25th April 2014. It was his evidence that on arrival at Arusha Central police
station at 10:30 am, he was taken to Kisongo police station and tortured.
He said he was forced to sign papers on 27th April 2014, like Dwl, he was
brought to court on 29th May 2014 to answer these charges.
Ibrahim Leornard Herman @ Abuu Ismail, 9th accused testified as Dw3. His
evidence was that his arrest was on 12th July 2014 at Mwanza, and then
transferred to Arusha to Kisongo Police Station where on 17th July was taken
to Engutoto police post. He was later charged with different cases. He
tendered the chargesheets of PI 65 and 59 of 2014 as exhibit DI collectively.
He never alleged was tortured or mistreated in any way. He is the only
accused who did not have the cautioned statement recorded. He was joined
with the rest of the accused persons on 28th February 2022.
Dw4 is the 2nd accused, Ally Hamis Kidaanya. His evidence is that he was
arrested on 17th May 2014, at Kilombero Market at 8:00 am. He was taken,
to Kisongo police station, and tortured in order to admit involvement in the
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Arusha night park bar bombing on 13th April 2014, which he signed. To prove
he was tortured he tendered a PF-3 as exhibit D2 and alleged his charges
with fellow co-accused persons were on 29th May 2014.
It was the defence of Dw5, Hassan Zuberi Said the 5th accused person that
he was arrested on 19th April 2014 at Shinyanga and then brought to Arusha.
On 13th May 2014 was taken to Kijenge police Station and then Kisongo
police station on 20th May 2014. At Kisongo was forced to sign papers after
being tortured. He was allegedly charged on 29th May 2014.
Dw6, Abdallah Maginga Wambura 3rd accused, his evidence on defence was
that he was arrested on 19th May 2014 at Kilombero Market at 8:00am. He
was taken to Kisongo police station. He was tortured to admit events that
occurred at Arusha Night Park bar on 13th April 2014. He signed papers on
26th May 2014 because he was seriously injured and was to be taken to the
hospital. He was taken to Mount Meru hospital and admitted on that day
because following the beating he had received; his leg had sustained serious
injury. On 1st June 2014, he said, his left leg was amputated due to the
injuries caused by torture. On 29th May 2014, according to him, charges were
read to him at Mount Meru Hospital, when others were in court.
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Dw7, Ally Hamis Jumanne, 6th accused said was arrested on 15th May 2014
at Mgori village and then brought to Arusha. He was taken to Njiro Police
Station. On 19th May 2014, according to his evidence was taken to Kisongo
police station where due to torture, he collapsed. As he regained his
consciousness, he was forced to sign papers which he did and henceforth
charged on 29th May 2014
Dw8 Shaban Abdallah Wawa, 8th accused, was arrested on 25th April 2014
at 7:00am at Karatu bus stand. In his evidence, he told the court, he was
brought to Arusha. He did not know what to do but was promised to be
released, provided he signs papers by affixing his thumbprint which he did.
Instead of being released as promised, he was joined with others and
charged on 29th May 2014.
Dw9, Rajab Piri Ahmed, 4th accused testified that he was arrested at Bereko
on 13th May 2014. Upon, his arrest, he was brought to Arusha at Kisongo
police station where he was tortured and forced to sign on 14th May 2014
and on 19th May 2014. He was brought to court on 29th May 2014 with others.
He further raised a defence of <s//Z?/that, he went Tabora on 06th April 2014
and came back to Kwachuli village on 14th April, 2014. To prove his
statement, he tendered bus tickets which were admitted as exhibit D3 and
Page 79
Finally, after examining the evidence on record both for the prosecution and
defence, I am convinced that it is not sufficient to prove all counts charged.
Before I pen off, I wish to comment though briefly that terrorist acts have
long been experienced in the world and they are here to stay. The supreme
court of Pakistan in Ghulam Hussain & 4 Others v The State (supra) at
pages 6 to 7 was in agreement with the publication of David C. Rapoport,
Professor Emeritus of Political Science at the University of California, Los
Angeles, in the year 2004, (published in hisjournal Terrorism and Political
Violence). According to the court, his article propounded the theory known
as the 'waves of terrorism' theory. According to Prof. David, modern
terrorism can be divided into four waves which are divided into the epoch as
thus;
Page 91
i. 1880s-1920s,
ii. 1920s-1960s
iii. 1960s-1990s
iv. 1990 to date.
He maintains that each wave came and died out and that these waves have
also at times overlapped. In his view, the common factor in all those waves
is that all the relevant acts of violence were and are universally recognized
as terrorism. He went on to say that they are so recognized because the
unlawful use of violence was and is meant to achieve political, ideological or
religious goals. It was his understanding that by now the international
community understands quite well that terrorism is a species quite distinct
from all other usual and private crimes howsoever heinous or gruesomely
executed.
The court further referred to the book called, 21 Lessons forthe 21st Century
(Published by Random House LLC, New York in 2018) where the author Yuval
Noah Harari came up with a very interesting, and quite apt analysis of how
terrorists operate and succeed in their objectives. The most relevant part of
the text is how states should deal with terrorism. The author proposed the
following solutions which may be a successful counter-terrorism struggle.
Page 92
According to him, the fight against terrorism, should be conducted on three
fronts: First, governments should focus on clandestine actions against the
terrorist networks. Second, the media should keep things in perspective and
avoid hysteria. The theatre of terror cannot succeed without publicity. The
third, front is the imagination of each and every one of us. The success or
failure of terrorism, therefore, depends on us. He added, if we allow our
imagination to be captured by the terrorists and then we overreact to our
own fears, terrorism will succeed. He went further, if we free our imagination
from the terrorists and then we react in a balanced and cool way, terrorism
will fail.
I concur with the findings of the author and think in order to achieve that in
such situations, things must be done very fast. Referring to this case, it has
taken 9 good years to come to the finality. The accused persons have all that
time been in custody in heinous offences that are not bailable. Since 29th
May 2014, when they were brought to court under pretext of Committal
proceedings, the decision to prosecute them in a competent court was made
on 19th April 2022, when the Director of Public Prosecutions consented
prosecution on the current charges be staged. There is also evidence that
Page 93
the even some police officers who took part in the investigation recorded
their statements to that effect in 2020.
I do not hesitate to say, things were well. I have had a chance to see all
23 witnesses testify. It was indeed sad to see how they were struggling to
recall events that occurred 9 years ago.
Taking 9 years waiting for a trial in my view is shockingly and abysmally, as
good as punishing the accused unheard. Indeed, if I may be pardoned for
saying this, it is against the principle of fair trial enshrined under article 13(6)
of the Constitution of the United Republic of Tanzania, 1977 as amended.
To sum up, I have to invite the wise words of the Court Appeal of the United
Kingdom in the case R v. Chaaban, [2003] EWCA Crim 1012, in respect of
fair and speedy trial of cases as it held;
"... Time is not unlimited. No one shouldassume thattrials can continue
to take as long or use up as much time as either or both sides may
wish, or think, or assert, they need. The entitlement to a fair trial is
not inconsistent with properjudicial control over the use oftime.
Atthe risk ofstating the obvious, every trial which takes longerthan it
reasonably should is wasteful oflimited resources. It also results in
delays tojustice in cases still waiting to be tried, adding to the tension
Page 94
and distress of victims, defendants, particularly those in custody
awaiting trial, and witnesses. Most important ofall it does nothing to
assist thejury to reach a true verdict on the evidence..."
Having said all I have said, it is worth pronouncing, that based on the
evaluation of evidence. The prosecution has failed to prove the case beyond
a reasonable doubt. All the accused persons, namely ABDALLAH ATHUMANI
LABIA@BROTHER MOHAMED, ALLY HAMISI KIDAANYA, ABDALLAH
MAGINGA WAMBURA, RAJABU PIRI AHMED, HASSAN ZUBERI SAID, ALLY
HAMISI JUMANNE, YASSIN HASHIM SANGA, SHABANI ABDALLAH WAWA
and IBRAHIM LEONARD HERMAN@ABUU ISMAIL are in terms of section
235(1) of the CPA acquitted of all 26 counts as charged.
A. K. RWIZILE
JUDGE
19.06.2023
Court: Judgment delivered this 19th day of June, 2023 in the presence of
Mr. Tonny Kilomo (SA) and Ms. Alice Mtenga (SA) for the Republic, all nine
(9) accused persons are represented by their advocates who are all present.
Page 95
ENDELEA SOMA KURASA 96 ZA KESI HII KWA UKAMIIFU
Source : The Republic vs Abdallah Athuman Labia @Brother Mohamed & 8 Others (Criminal Session 63 of 2022) [2023] TZHC 18161 (19 June 2023)
Muendelezo wa kesi ya ugaidi, shambulizi la bomu lilivyojeruhi watu katika baa
ARUSHA SUB-REGISTRY
AT ARUSHA
CRIMINAL SESSION NO. 63 OF 2022
REPUBLIC
VERSUS
1. ABDALLAH ATHUMAN LABIA@BROTHER MOHAMED
2. ALLY HAMISI KIDAANYA
3. ABDALLAH MAGINGA WAMBURA
4. RAJABU PIRI AHMED
5. HASSAN ZUBERI SAID
6. ALLY HAMISI JUMANNE
7. YASSIN HASHIM SANGA
8. SHABANI ABDALLAH WAWA
9. IBRAHIM LEONARD HERMAN@ABUU ISMAIL
JUDGEMENT
6th & 19th June 2023.
Rwizile, J
Perhaps it is no longer the case today, but nearly a decade ago, one could
not completely enjoy the beauty of Arusha, without visiting Arusha Night
Park Bar, known for its famous name "Matako Bar1' according to the charge
sheet. The place was not only good for Nyama Choma, and English Premier
League, but also famous for its "heavyweight" waitresses.
Page 1
This package, therefore, did not excuse the bar from attracting terrorist
attacks. When Liverpool fans were enjoying three goals win over Manchester
City and the Blues preparing for its encounter with Swansea, at about
7:00pm, on 13th April 2014, the ill-fated event happened.
A big explosion occurred at the bar followed by heavy smoke. The whole city
was taken at bay. The attack was severe and of its own kind, which left
several people injured and caused the death of Sudi Ally Ramadhani days
thereafter.
It was factually stated that out of the normal cause of doing things, two male
adult persons appeared as normal customers. One of them held a small black
bag. It was placed under one chair at a table that was vacant. This was on
the front side of the bar, in the corridor with tents, close to the main
entrance. The table had only one chair. When one of the female attendants
was watching the conduct of the two customers who didn't sit, planning to
get them another chair, they left towards the main building leaving their
small black bag behind.
No sooner had they left, than the waiters started smelling unusual smoke.
To their surprise, soon thereafter, a big explosion occurred. The place was
thrown into pandemonium. Some attendants and customers were severely
Page 2
injured on the legs, feet, and thighs. In an emergency, they were helped to
the two hospitals namely Arusha Lutheran Medical Center© Selian and the
Regional Government Hospital© Mount Meru. They were attended to and
treated. Unfortunately, on 13th May 2014, one Sudi Ally Ramadhani died due
to severe bleeding from wounds sustained on the right leg around the knee
joint.
In this situation, the state intelligence, forensic, and investigative machinery
hurried onto the crime scene. P was a senior police officer dealing with high-
profile cases in Arusha District. In the company of his team, arrived at the
crime scene a few minutes thereafter. Apart from dealing with victims, he
directed forensic police officers to surround the crime scene with yellow tape.
The crime scene had blood, bent nails of 5 to 6 inches, chairs turned upside
down and damaged, broken bottles and small electric wires.
Exhibits were collected, PF-3s were taken to the hospitals for victims, and
statements of witnesses were taken down making the commencement of the
investigation. It was discovered that the bombing was from a homemade
bomb.
At different places and times, the accused persons were arrested in
connection and arraigned on 14 counts of terrorism under section 4(1)(3)
Page 3
(I) (i) and section 5(a) of the Prevention of Terrorism Act, No. 21 of 2002
(to be referred herein as the Act). Allegedly, they were participating in a
terrorist meeting held at the Magugu area of Babati District in the Manyara
Region on 7th April 2014. According to the charge sheet, this forms the first
count.
The second count also faces all accused persons which is under section
4(1)(3) (I) (i) and section 15(a) of the Act, which is the use of the property
for the commission of a terrorist act. The accused persons are alleged to
have used a homemade bomb to blast Arusha Night Park Bar @ Matako bar
on 13th April 2014.
Further, in the 3rd to the 14th count, all accused persons are charged with
committing a terrorist Act, contrary to section 4(1)(3) (I) (i) of the Act, where
by using a homemade bomb, blew up, Arusha Night Park Bar@ Matako Bar
on 13th April 2014, as the result Sudi Ally Ramadhan died, Joyce William
Patrice, Loyce John, Suzan Jackob, Anterus Vicent, Nathan Charles, Stephen Cosmas, Peter James Bukerebe, Oberd Mbasha, Zakaria Mmassy, Everast
Richard and Mariam Juvenary Hans, respectively, sustained serious bodily
injuries.
Page 4
.........
The prosecution, cast with the duty to prove its case, called 23 witnesses,
who were assigned names and so testified in the following order; P25, P7,
P33, P28, P3, P29, P34, Pl, Pl 1, P38, P4, P13, P22, PIO, P17, P30, P39, P23,
P, P16, P20, P8 and P21 and will be so referred in this judgment.
The prosecution team of Attorneys was led by Ms. Ajuaye Bilishanga a
Principal State Attorney, assisted by Mr. Nassoro Katuga, Mr. Kauli Makasi
Senior State Attorneys, Ms. Alice Mtenga, Ms. Ashura Mnzava and Mr. Tony
Kilomo learned State Attorneys. The defence team was led by Mr. Peter
Madeleka, for the 1st accused person, who was assisted by Mr. Sylvester
Kahunduka. For the second accused was assisted by Lectony Ngeseyan, for
the 4th accused was assisted by Matuba Nyirembe, while for the 7th accused
was assisted by Mr. Richard Manyota learned advocate. The 3rd accused is
represented by Mr. Yoshua Mambo, 5th accused by Ms. Fatma Amir. The 6th
accused was represented by Mr. Vincent Stewart, the 8th accused by Mr.
Kennedy Chando, and the 9th accused was represented by Mr. Victor Jonas,
learned advocate. Upon closing the defence case, Attorneys were allowed
closing submissions which were filed, as scheduled.
It was the opinion of the prosecution, that cast with the duty to prove the
case as under section 3(2)(a) and 110 of the Evidence Act [Cap. 6 R.E 2022],
Page 7
(The Evidence Act), and that in the strength of the case of, Anthony
Kinanila and Another v R, Criminal Appeal No. 83 of 2021, (CAT) the
Prosecution has to prove all ingredients of terrorism in order to win a
conviction. Accordingly, it was submitted that there was a meeting attended
by the accused persons and discussed how to commit terrorist acts. The
acts, it was argued were committed prejudicial to the National security that
intimidated the population falling in the purview of the provisions of section
4(1) and (3) read together with sections 5, 6, 7,8,9 and 10 of the Prevention
of Terrorism Act, No. 21 of 2002.
In a complete package of witnesses, in view of the prosecution, which is
composed of Victims of the explosion at Arusha Night Park @ Matako Bar,
Doctors who attended the said victims at different hospitals here in Arusha,
arresting officers who recorded confession statements, an expert witness a
Government Chemist Analyst, investigators and independent witnesses, it
was argued that the case was proved. In the endeavour to demonstrate so,
the prosecution held the view that based on the confession statement of the
6th Accused person, Ally Hamisi Jumanne which was tendered and admitted
as exhibit PE-14 without objection, proved that the meeting held at Magugu
on the 7th April 2014 was called by the 2nd Accused person, Ally Hamisi
Page 8
Kidaanya at Mbugani Mosque which planned to establish Islamic State, start
a Jihad war by fighting against kafir, blowing-up churches, Government
offices and other public gatherings in Arusha Region. According to the
prosecution, the 8th accused person, Shabani Abdallah Wawa, and Hassan
Zuberi Said, the 5th accused confessed so in exhibits PE-12 and PE-15
respectively. The meeting, it was argued, was the result of the bombing of
Arusha Night Park bar @ Matako Bar on 13th April 2014. To cement the
argument, they referred this court to the case of Ally Mohamed Mkupa v
R, Criminal Appeal No. 2 of 2008 (Unreported), on page 13 where the court
stated as follows;
"...the very best evidence is of a person who confesses freely and
voluntarily to have committed the offence in any criminal trial that is
an accused person who confesses his guilty".
Fortifying the argument, the prosecution submitted that the evidence of the
4th accused Rajab Piri Ahmed, in his confession statement, exhibit PE-10, 1st
accused person Abdallah Athumani Labia in his confession statement, exhibit
PE-9 coupled with the 3rd accused Abdallah Maginga Wambura's confession
statement exhibit PE-6, the accused persons admitted to having travelled
from Magugu to Arusha, made two bombs that exploded Arusha Night Park
Page 9
Bar @ Matako Bar and attempted to do the same at Washington Bar. Further,
the prosecution held the view that despite the 1st, 2nd,3rd- and 4th accused
persons retracting their confessions, as long as they were admitted in
evidence, this court should not hesitate to find conviction based on them.
The prosecution fetched support in the cases of Michael Luhiye vs R
[1994] TLR 181 where the Court of Appeal held that;
"It is always desirable to look for corroboration in support of retracted
confession before acting on it but a court may convict on a retracted
confession even without corroboration."
And in the case of Tuwamoi vs Uganda (1967) E.A84, The Court of Appeal
for East Africa stated;
''But corroboration is not necessary in law and the court may act on
confession alone if it is fully satisfied after considering all the material
points and surrounding circumstances that the confession cannot but
be true."
The above notwithstanding, the prosecution was of the firm view that
evidence of PIO and P8 respectively, corroborated the confession
statements. That there was indeed a meeting on the 7th of April, 2014 at
Magugu, and that a homemade bomb was found at Washington Bar on the
Page 10
io
13th of April 2014. As well, it was argued that accused persons 2nd, 4th, 6th'
and 8th, according to the prosecution evidence were arrested there, which
shows the coherence and consistency of the prosecution evidence leading to
credibility. Support was sought in the case of Goodluck Kyando v R (2006)
TLR 363,
The prosecution further submitted that evidence of P was clear that he
visited the crime scene immediately after the bombing and found the
remains of the bent nails, a safety delay fuse, small wires, and broken
bottles. The remains, it was added were materially similar to the bomb found
at the Washington Bar. These facts, the prosecution went on submitting
were not disputed by the defence or even cross-examine on the same. The
facts, it was stated must be held as admitted by the defence.
The prosecution was of further submission that the 3rd and 4th accused
persons were identified at the parade and in the dock as they were at the
scene of the crime. Pl and P8, it was argued properly made such
identification. Equally, the prosecution made it clear that all accused persons
even though they were not at the crime scene as 3rd and 4th, still, there is
evidence of a common intention to commit the offences charged under
section 12 of the Evidence Act which provides that;
Page 11
.....
I was also asked to refer to the case of Wilfred Lwakatare and Another
v R, Misc. Criminal Application No. 14 of 2013, High Court of Tanzania,
(Unreported). To prove the meeting was held, it was added, the prosecution
ought to tender the minutes of the meeting and the agenda as well as a list
of those who attended the meeting. It was further argued that even PIO,
who allegedly attended the meeting, told the court, he went late and found
the meeting done but was asked to attend another meeting on some future
date, which he did not attend.
According to the defence, there is no evidence to prove that any of the
accused persons appeared at the crime scene. It was stated that since the
bombing happened on 13th April 2014 at Arusha Night Park, at 7:30 pm,
there ought to be evidence of identification of the culprits. The defence held
the view that in the absence of direct and proper evidence on visual
identification, it cannot be said that the accused persons were identified at
the scene of the crime. It was added, the evidence in the circumstance was
not watertight as respectively held in the cases of Joseph Melkior Shirima
@ Temba v R, Criminal Appeal No. 261 of 2014, (CAT), citing with approval
the case of Waziri Amani v R [1980] TLR 250 and in Andrea August
Page 22
......
He said the two suspects are namely Abdallah Maginga and Rajab Piri
Ahmed. (3rd and 4th accused persons). They were paraded in between 6th
and 7th persons in a line of 12 people making the number of the persons
attending the parade 14. The two, according to his evidence, were identified
by being touched on their shoulders. Upon, finishing, it was the evidence of
P13 that he filled and filed PF-186 which was admitted as PE- 5.
As to how the 3rd and 4th accused persons were arrested, it is gathered from
the evidence of P and PIO. Witness PIO was a resident of Himiti village of
the Manyara Region. He said, he knew and was in contact with Shaban
Abdallah Wawa- the 8th accused person who wanted a gun. He could not get
one for him but asked for the price of the same. He further told the court
that, the same person called him at the meeting at Magugu on 7th April 2014,
it is unfortunate to him that he arrived late and found the meeting postponed
to 1st May 2014. He said, the meeting, he was told was for Jihad. On 18th
May 2014, he was asked by Shaban Wawa to seek permission for them to
sleep in the Mosque at Himiti, which he successfully did. They slept at the
Mosque that night. The following day early in the dawn, on 19th May 2014,
he was asked to locate them by the police officers who came to his home
with Ally Hamis Kidaanya.
Page 39
He led them to the Mosque and they were arrested. They were Rajabu Piri-
4th accused, Shaban Abdallah Wawa- the 8th accused and Ally Hamis
Jumanne -the 6th accused. They were brought to Arusha at the central police.
Perhaps, the most crucial evidence for the prosecution was from P. Witness
P, the police officer who was in charge of the investigation of high-profile
cases in Arusha at that time.
He arrived at the crime scene immediately after the bombing. He found the
crime scene in a state of mayhem. There were many people injured, blood
spread all over. He found bent nails of about 5 to 6 inches and wires.
After witnessing that situation, he assigned duties to the investigators who
were at the crime scene. Forensic police were told to surround the crime
scene with yellow tape. They were also asked to collect all exhibits. He
further, directed police officers to record the statements of the people who
witnessed the incident. Others were directed to go to collect PF-3s and take
them to the hospital where the victims were taken to. The information at the
crime scene, according to him, was that, over 10 people were injured and
taken to different hospitals in Arusha. He said they opened up for the people
who had information and were willing to supply the same.
Page 40
On the next morning, he got informed about a locally made bomb at
Washington Bar close to the Daladala bus stand. He went to the place and
found; it was indeed a homemade bomb in a bottle of Jack Daniel. P
henceforth called experts from the JWTZ at Monduli who were left to manage
the same. This event was as well testified by P8, who witnessed the same
thing the previous night with Washington bar attendants before he informed
the police about it.
P, testified further that on 17th May 2014 at about 6:30 am at Magugu in
Babati District, one person was arrested called Ally Hamis Kidaanya, 2nd
accused, who was involved in both incidents, in Arusha Night Park Bar and
Washington Bar. After his arrest, he added, he admitted to having been
doing such crimes and mentioned his fellows. These included Rajab Piri
Ahmed-4th accused, Shaban Abdallah Wawa- 8th accused, and Ally Hamis
Jumanne- 6th accused, as well as the corporal of the prisons who was at
Mang'ola, and who was training them on how to make explosives. He said a
follow-up was made.
On 19th May at about 1.00 am, they arrived at Himiti and met the person
called Ally Hamis whom he was in contact, he led them to the Mosque and
managed to arrest Rajab Piri Ahemed, Shaban Abdallah Wawa, and Ally
Page 41
As to P30, a police officer, is the one who arrested Abdallah Athuman Labia-
the 1st accused. He alleged to have arrested him at Karatu on 25th April 2014
and brought him to Arusha. According to his evidence, he was in possession
of different sim cards for Airtel, Vodacom and Safaricom.
It is the 3rd accused whose cautioned statement was recorded by P39 on the
day he was arrested. P39 testified that in his evidence.
The statement on caution was recorded on 25th April 2014 at the central
police station. There was no objection to the caution statement when
tendered. It was therefore admitted as PE-9. P39 also recorded the caution
statement of Ally Hamis Kidaanya, the 2nd accused, whose statement was
admitted as PE-11 following the inquiry into its voluntariness. It was his
evidence that he recorded the statement on 17th May 2017. He said the
accused admitted the offence he was warned of.
P17 is a government Chemist Analyst from the office of the Chief
Government Chemist Laboratory Authority. It was his evidence that he got
exhibits from the Forensic Commission and they were from the RCO's office-
Arusha. According to him, they were nails, a detonator, safety delay fuse
and remains of the black bag each exhibit was in an envelope. Upon
examining the same, he found nails and remains of the bag had traces of
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nitrates which is a chemical used to make explosives. He tendered a report
as exhibit PE-8.
Apart from Pl and P3, other victims of the bombing at Arusha Night Park are
P4, P7, P25 and P34. They also testified and described the nature of their
injuries. They were also attended at Mount Meru Regional Hospital. Their
PF-3s were tendered in court.
P4 was attended by P28 who tendered PE-2, and P25 was attended by P29
who tendered the PF3 as PE-3. Whereas P7 was attended by P38 and the
PF3 tendered in that respect is PE-4. Despite testifying, P34 had no medical
proof of her injuries that was tendered.
In terms of the defence case, which more details will be regressed to later,
surfaces to say at this juncture, that the accused persons testified and did
not call witnesses. In all, they denied the commission of the offences
charged. The basic and common defence in all was to deny generally and in
particular that the whole prosecution case was fake and actuated by torture
to obtain the confessions.
The point made by the defence is that there were no confessions made and
those that were made did not have any grain of truth as they were a result
of torture done at Kisongo police station also referred to as Guantanamo. In
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Dw2 is Abdallah Athman Labia, 1st accused in his evidence, he said was
arrested on 24th May 2014 at Mang'ola, and brought to Arusha via Karatu on
25th April 2014. It was his evidence that on arrival at Arusha Central police
station at 10:30 am, he was taken to Kisongo police station and tortured.
He said he was forced to sign papers on 27th April 2014, like Dwl, he was
brought to court on 29th May 2014 to answer these charges.
Ibrahim Leornard Herman @ Abuu Ismail, 9th accused testified as Dw3. His
evidence was that his arrest was on 12th July 2014 at Mwanza, and then
transferred to Arusha to Kisongo Police Station where on 17th July was taken
to Engutoto police post. He was later charged with different cases. He
tendered the chargesheets of PI 65 and 59 of 2014 as exhibit DI collectively.
He never alleged was tortured or mistreated in any way. He is the only
accused who did not have the cautioned statement recorded. He was joined
with the rest of the accused persons on 28th February 2022.
Dw4 is the 2nd accused, Ally Hamis Kidaanya. His evidence is that he was
arrested on 17th May 2014, at Kilombero Market at 8:00 am. He was taken,
to Kisongo police station, and tortured in order to admit involvement in the
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Arusha night park bar bombing on 13th April 2014, which he signed. To prove
he was tortured he tendered a PF-3 as exhibit D2 and alleged his charges
with fellow co-accused persons were on 29th May 2014.
It was the defence of Dw5, Hassan Zuberi Said the 5th accused person that
he was arrested on 19th April 2014 at Shinyanga and then brought to Arusha.
On 13th May 2014 was taken to Kijenge police Station and then Kisongo
police station on 20th May 2014. At Kisongo was forced to sign papers after
being tortured. He was allegedly charged on 29th May 2014.
Dw6, Abdallah Maginga Wambura 3rd accused, his evidence on defence was
that he was arrested on 19th May 2014 at Kilombero Market at 8:00am. He
was taken to Kisongo police station. He was tortured to admit events that
occurred at Arusha Night Park bar on 13th April 2014. He signed papers on
26th May 2014 because he was seriously injured and was to be taken to the
hospital. He was taken to Mount Meru hospital and admitted on that day
because following the beating he had received; his leg had sustained serious
injury. On 1st June 2014, he said, his left leg was amputated due to the
injuries caused by torture. On 29th May 2014, according to him, charges were
read to him at Mount Meru Hospital, when others were in court.
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Dw7, Ally Hamis Jumanne, 6th accused said was arrested on 15th May 2014
at Mgori village and then brought to Arusha. He was taken to Njiro Police
Station. On 19th May 2014, according to his evidence was taken to Kisongo
police station where due to torture, he collapsed. As he regained his
consciousness, he was forced to sign papers which he did and henceforth
charged on 29th May 2014
Dw8 Shaban Abdallah Wawa, 8th accused, was arrested on 25th April 2014
at 7:00am at Karatu bus stand. In his evidence, he told the court, he was
brought to Arusha. He did not know what to do but was promised to be
released, provided he signs papers by affixing his thumbprint which he did.
Instead of being released as promised, he was joined with others and
charged on 29th May 2014.
Dw9, Rajab Piri Ahmed, 4th accused testified that he was arrested at Bereko
on 13th May 2014. Upon, his arrest, he was brought to Arusha at Kisongo
police station where he was tortured and forced to sign on 14th May 2014
and on 19th May 2014. He was brought to court on 29th May 2014 with others.
He further raised a defence of <s//Z?/that, he went Tabora on 06th April 2014
and came back to Kwachuli village on 14th April, 2014. To prove his
statement, he tendered bus tickets which were admitted as exhibit D3 and
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Finally, after examining the evidence on record both for the prosecution and
defence, I am convinced that it is not sufficient to prove all counts charged.
Before I pen off, I wish to comment though briefly that terrorist acts have
long been experienced in the world and they are here to stay. The supreme
court of Pakistan in Ghulam Hussain & 4 Others v The State (supra) at
pages 6 to 7 was in agreement with the publication of David C. Rapoport,
Professor Emeritus of Political Science at the University of California, Los
Angeles, in the year 2004, (published in hisjournal Terrorism and Political
Violence). According to the court, his article propounded the theory known
as the 'waves of terrorism' theory. According to Prof. David, modern
terrorism can be divided into four waves which are divided into the epoch as
thus;
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i. 1880s-1920s,
ii. 1920s-1960s
iii. 1960s-1990s
iv. 1990 to date.
He maintains that each wave came and died out and that these waves have
also at times overlapped. In his view, the common factor in all those waves
is that all the relevant acts of violence were and are universally recognized
as terrorism. He went on to say that they are so recognized because the
unlawful use of violence was and is meant to achieve political, ideological or
religious goals. It was his understanding that by now the international
community understands quite well that terrorism is a species quite distinct
from all other usual and private crimes howsoever heinous or gruesomely
executed.
The court further referred to the book called, 21 Lessons forthe 21st Century
(Published by Random House LLC, New York in 2018) where the author Yuval
Noah Harari came up with a very interesting, and quite apt analysis of how
terrorists operate and succeed in their objectives. The most relevant part of
the text is how states should deal with terrorism. The author proposed the
following solutions which may be a successful counter-terrorism struggle.
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According to him, the fight against terrorism, should be conducted on three
fronts: First, governments should focus on clandestine actions against the
terrorist networks. Second, the media should keep things in perspective and
avoid hysteria. The theatre of terror cannot succeed without publicity. The
third, front is the imagination of each and every one of us. The success or
failure of terrorism, therefore, depends on us. He added, if we allow our
imagination to be captured by the terrorists and then we overreact to our
own fears, terrorism will succeed. He went further, if we free our imagination
from the terrorists and then we react in a balanced and cool way, terrorism
will fail.
I concur with the findings of the author and think in order to achieve that in
such situations, things must be done very fast. Referring to this case, it has
taken 9 good years to come to the finality. The accused persons have all that
time been in custody in heinous offences that are not bailable. Since 29th
May 2014, when they were brought to court under pretext of Committal
proceedings, the decision to prosecute them in a competent court was made
on 19th April 2022, when the Director of Public Prosecutions consented
prosecution on the current charges be staged. There is also evidence that
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the even some police officers who took part in the investigation recorded
their statements to that effect in 2020.
I do not hesitate to say, things were well. I have had a chance to see all
23 witnesses testify. It was indeed sad to see how they were struggling to
recall events that occurred 9 years ago.
Taking 9 years waiting for a trial in my view is shockingly and abysmally, as
good as punishing the accused unheard. Indeed, if I may be pardoned for
saying this, it is against the principle of fair trial enshrined under article 13(6)
of the Constitution of the United Republic of Tanzania, 1977 as amended.
To sum up, I have to invite the wise words of the Court Appeal of the United
Kingdom in the case R v. Chaaban, [2003] EWCA Crim 1012, in respect of
fair and speedy trial of cases as it held;
"... Time is not unlimited. No one shouldassume thattrials can continue
to take as long or use up as much time as either or both sides may
wish, or think, or assert, they need. The entitlement to a fair trial is
not inconsistent with properjudicial control over the use oftime.
Atthe risk ofstating the obvious, every trial which takes longerthan it
reasonably should is wasteful oflimited resources. It also results in
delays tojustice in cases still waiting to be tried, adding to the tension
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and distress of victims, defendants, particularly those in custody
awaiting trial, and witnesses. Most important ofall it does nothing to
assist thejury to reach a true verdict on the evidence..."
Having said all I have said, it is worth pronouncing, that based on the
evaluation of evidence. The prosecution has failed to prove the case beyond
a reasonable doubt. All the accused persons, namely ABDALLAH ATHUMANI
LABIA@BROTHER MOHAMED, ALLY HAMISI KIDAANYA, ABDALLAH
MAGINGA WAMBURA, RAJABU PIRI AHMED, HASSAN ZUBERI SAID, ALLY
HAMISI JUMANNE, YASSIN HASHIM SANGA, SHABANI ABDALLAH WAWA
and IBRAHIM LEONARD HERMAN@ABUU ISMAIL are in terms of section
235(1) of the CPA acquitted of all 26 counts as charged.
A. K. RWIZILE
JUDGE
19.06.2023
Court: Judgment delivered this 19th day of June, 2023 in the presence of
Mr. Tonny Kilomo (SA) and Ms. Alice Mtenga (SA) for the Republic, all nine
(9) accused persons are represented by their advocates who are all present.
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ENDELEA SOMA KURASA 96 ZA KESI HII KWA UKAMIIFU
Source : The Republic vs Abdallah Athuman Labia @Brother Mohamed & 8 Others (Criminal Session 63 of 2022) [2023] TZHC 18161 (19 June 2023)