KUMSIMBI JUDGMENT

IN THE HIGH COURT OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT SHINYANGA SUB REGISTRY ECONOMIC CASE NO. 3 OF 2023 REPUBLIC VERSUS 1. Haruna Yusuph Kumsimbi 2. Hussein Farahan Juma ©Tembo 3. Fadhili Suleiman ©Runyoro Salim 4. Rashid Yahaya Musa ©Chinga 5. Hamis Abbas Daud ©Kahawa 6. Amasha Abdallah ©Mwangaa 7. Nurdin Bashir Ibrahim 8. Abdul Omary Amri @Amry JUDGMENT Date of last Order: 29th August, 2024 Date ofJudgment: 2ffh September, 2024 ISAYA, J. The accused persons namely; Salimu Haruna Kumsimbi, Hussein Farahan Juma @Tembo@Captain, Fadhili Suleiman @Runyolo, Rashid Yahaya Musa @Chinga, Hamis Abas Daud @Kahawa, Amasha Abdallah @Mwangala, Nurdin Bashir Ibrahim, Abdul Omary @Amry, being the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th accused persons respectively are arraigned before this court and are jointly charged with offences as i follows; first count: All accused persons charged with the offence of conspiracy to commit a terrorist acts contrary to section 4(l),(3)(i)(i) and 27(c) of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] as amended; the second count: for 1st accused, Recruitment Of Persons To Participate In Terrorist Acts: Contrary to section 4(1 ),(2)(b)(iii) and 21(b) of the Prevention of Terrorism Act no. 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] as amended; Third count: the 1st accused person is charged with the offence of collection of funds for the commission of terrorist acts contrary to sections 4 (1) 3 (i) (ii) and 13 of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] as amended; Fourth Count; the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th accused persons are charged with the offence of provision of funds to commit terrorist acts contrary to sections 4 (1) 3 (i) (ii) and 13 of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] as 2 amended; In the fifth Count: the 2nd accused person is charged with the offence of provision of funds to commit terrorist acts contrary to sections 4 (1) 3 (i) (ii) and 13 of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] as amended; and in the sixth count: All accused persons are charged with the offence of Participating in Meetings Relating to Terrorism contrary to section 4(l)(3)(i)(i), 5(a) both of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] as amended. From the outset, I wish to extend my gratitude and appreciation to the team of bar members for their cooperation, hard work, and attentiveness. The prosecution team included Ms Janethreza Kitaly, Ms Karen Mrango, learned Senior State Attorneys, Mr Juma Mahona, Mr Satuninus Kamala, Ms Rose Kimaro, and Mr Louis Mbwambo, Learned State Attorneys. The defence side had Mr Geofrey Tuli, Mr Shabani Mvungi, Ms Elizabeth Luhigo, Mr Timotheo Mofat Sulusi, Mr Audax Constantine, Ms Veronica Cham, Mr Chrisantus Chengula and Ms Maclean, Learned advocates for the 1st to 8th accused persons respectively. 3 The information which initiated the proceedings and the facts read out during the preliminary hearing revealed that those offences were allegedly committed on diverse dates between 1st January 2017 and 17th January 2018 in various areas including Bwawani, Nyihogo and Shunu within Kahama District in Shinyanga Region. All the accused persons denied their respective offences, thus the court conducted a full trial. In the bid to prove the case against the accused persons beyond a reasonable doubt, the prosecution paraded eleven (11) witnesses to testify, besides they produced eight exhibits which this court admitted into evidence. On the other hand, both accused persons testified under oath as defence witnesses (DW1, DW2, DW3, DW4, DW5> DW6, DW7, and DW8) and did not tender any exhibit. The bird's eye view of the prosecution case can be surprisingly easy to comprehend. The underlying trigger of all was the Trojan horse that had penetrated inside the Swadikina mosque. The police had infiltrated the undercover police officers whose guise was one of the very faithful and committed members and believers {mu'minuni} in the mosque since January 2017 and before 13/01/2018. The surveillance officers were investigating and reporting on the alleged clue on terrorism activities in the mosque. PW6 (P) an officer from the Criminal Investigation Department from the headquarters was one of the detectives in disguise 4 who, together with other infiltrators from his office, worshipped there since 2017. PW7 (PIO) and PW8-(P1) were top detective police officers in Kahama, who had planted some covert officers too at their level, working and reporting on the same clue. The high time and culmination of all was in January 2018 when both teams from the office of the DCI, Headquarters, and the office of the OCCID Kahama met and sat down together to analyze the information and reports they had. According to them, their information and reports matched. The crack of dawn for the arresting of the suspects was ripe. According to the prosecution case on 13/01/2018 PW1-P8, PW3, and other detective police officers from the office of the Director of Criminal Investigation, Headquarters Dar es Salaam were informed of the presence of the terrorist groups in Kigoma Mwanza, and Shinyanga by the DCI. The team of five detective police officers led by the officer of the rank of ACP was required to travel to the area following the intelligence information. They started the journey and arrived at Kigoma on 14/01/2018. They worked there till on 16/01/2018 when they started the journey to Kahama, Shinyanga, and arrived at 08:00 pm on the same day. They reported to the OCCID Kahama police station. The team from the Director of Criminal Investigation, Dar es Salaam and the team from Kahama received intelligence information reports in 5 exchange from both sides, analysed them, and concluded that they matched the reality on the ground, that within Kahama Municipality there was a group of Muslim believers at Swakidina Mosque who were involved in planning terrorist activities and encouraging other believers to join in that movement. Before the operation to arrest the suspects started, the team was briefed on them; the first accused person was Imam and Amiri of Swadikina Mosque Located in the Shunu area while the second, third fourth, fifth, sixth, seventh, and eighth accused were Muslim believers of the said Mosque and they used to attend prayers session and Islamic teaching at the said Mosque. Also, the suspects had firearms and grenades. On the 17th day of January 2018 the first accused person Salim Haruna Yusuf Kumsimbi, the third accused person Fadhil Suleiman Runyolo, the fifth accused person Hamis Abas Daud@Kahawa, the sixth accused Amasha Abdallah@Mwangala, the seventh accused person one Nurdin Bashir Ibrahim and the eight accused Person Abdul Omary@Amry were arrested. The fourth accused person Rashid Yahaya Musa@Chinga was arrested on the 18th day of January 2018 and the second accused Hussein Farahani Juma@Tembo was arrested on the 19th day of January 2018. PW8, the OCCID of Kahama was involved in the arrest of five accused persons (3rd, 5th, 6th, 7th' and 8th accused) in the house of Khadija 6 Nestory at Kahama. PW4, a police officer from Kahama, was in a team of nine police officers led by the OCCID (PW8-P1), he joined together with PW8-P1 to state that they went to the house of Bashir Ibrahim Mwingira, Nyahanga area Kahama on 17/01/2018. The landlady led them into the rooms of the suspects and managed to arrest Waziri Suleiman Lunyoro (3rd accused), Abdul Omari Amri (8th accused), Hamis Abasi Daud (5th accused), Nurdin Bashir Ibrahim (7th accused), and, Amasha Abdallah Mwangala (6th accused). Almost all introduced themselves as peasants except the 7th accused who introduced himself as a student. The evidence of PW3 was to the effect that he was in the team led by the ASP of Kahama District (The assistant of the OCCID of Kahama), the team comprised five police officers and was assigned the task of finding Rashid Yahaya Musa Chinga, the 4th accused person. According to him, they arrested the 4th accused at his residence Ngh'ungula area of Kahama on 18/01/2018 at about 02:00 Am. After that, they took the 4th accused to the Police station, directly into the office of the OCCID. According to PW8-P1, he interrogated Haruna Yusuph Kumsimbi, (the 1st accused person), and recorded his cautioned statement (Exhibit P2), in which the 1st accused confessed to having committed the offences charged with. He also interrogated Nuridin Bashir Ibrahim (7th accused 7 person) recorded his cautioned statement (Exhibit P3) and confessed to having committed the crime as charged in this case. On 19/01/2018 at 16:27 hours PW7-P10 recorded a cautioned statement (Exhibit Pl) of the second accused person Hussein Farahani Juma (2nd accused), According to him, he confessed to being involved in terrorist acts together with all other accused persons. On 17/01/2018 at 04.00 hours by the directive from OCCID Kahama District PW9 went to Kahama Police Station where he was assigned to conduct an interrogation and recorded the cautioned statement (Exhibit P4) of Fadhil Suleiman Runyoro (2nd accused person). On 18/01/2018 at 04.30 hours, PW9 was instructed by the OCCID to record the cautioned statement (Exhibit P5) of Rashid Yahya Musa@ Chinga (4th accused person) who was accused of being involved in terrorist acts. Both Fadhili and Rashid confessed to having participated in terrorist meetings, contributing to terrorist activities. PW10 the police officer of the rank of ASP On 04/01/2018m travelled from Dar es Salaam to Kahama. On 17/01/2018 at 04.30 hours under the instruction of the OCCID Kahama, started to conduct interrogation and recorded the cautioned statements of Abdul Omari @Amri and Amasha Abdallah© Mwangala (being the 8th and 6th accused persons). Their respective cautioned statement was admitted by the court 8 as Exhibits P6 and P7. Both the 6th and 8th accused persons confessed to having committed offences they are charged with. PW11 who had the rank of ASP for the time being, on 17/01/2018 at 04.20 hours was acting on the instruction of the OCCID Kahama he interrogated and recorded the cautioned statement (Exhibit P8) of Hamisi Abas Daudi @ Kahawa (the 5th accused person). It appears that upon the arrest the accused persons at different times were interrogated and all accused confessed to having committed the offences which they are charged with in their cautioned statement which were in due manner recorded to have participated in the conspiracy to commit terrorist acts to overthrow lawful Government and establish an Islamic State, participating terrorist meeting and collecting and providing funds to commit terrorist acts. Furthermore, the second accused person in his caution statement confessed to having provided TZS 1,000,000/= for the facilitation of Transport and Procurement of firearms from the Republic of Burundi, The first accused person also confessed to having recruited the second, third, fourth, fifth, sixth, seventh, and eighth accused persons to take part in terrorist activities and collecting funds from the above-mentioned accused persons to purchase ffrearms to be used in attacking and causing serious bodily harm to police officers and 9 other law enforcement agencies and facilitating the overthrowing the lawful government of the United Republic of Tanzania. Generally, the evidence of PW5-P4, a resident who prophesized the Muslim faith of Kahama had worshipped at Swadikina mosque in 2017, and PW6-P, a detective police officer who used to worship in the Swadikina mosque undercover, testified to the effect that the exhortations are given and the speeches were about terrorism and persuaded them to join terrorist groups to be strong. They taught about the Jihad and Hijra. They stated that the jihad aimed at overthrowing the government of Tanzania and replace with an Islamic state. The 1st accused who was the amid insisted the believers of the mosque leave for hijra, meaning that people should go to other countries governed by Islamic law such as Somalia to join with Al-Shabaab, Congo with the ADF group, Syria to join with Islamic state, Nigeria to join with Boko Haram. The first accused also collected money for purchasing firearms and bombs. The prosecution case also endeavoured to prove that the accused persons were taught to fight with the police and take their weapons ("ingawila'Q. They conducted secret meetings at Bwawani near the place of the 4th accused, Bumbura Street Kahama, and in a room that belonged to Salim. Furthermore, they were collecting money or contributing money for the purchase of weapons 10 in Burundi where they are cheap. The ones who contributed money to buy weapons were 2nd, 4th, 5th, and 6th accused. At the closure of the prosecution case, the court found that all the accused persons had a case to answer in respect of the offences charged. The accused persons firmly denied being involved in the commission of the offences. On the other hand, the defence case was characterized by a general denial. All the accused persons, more or less had a similar style of challenging the prosecution case. All alleged to be arrested for different offences but later they were charged and prosecuted with the current offences. They all denied being devoted and regular worshippers in the mosque. Before 27.02.2018 they did not know each other but came to meet and know each other in court on that day. Another common defence was that they only recorded their respective personal details at the police receptions, they all denied knowing Swadikina Mosque, they denied having made statements at the Police Station, and they made a common denial that they were not interrogated on the alleged offences on which they supposed to be arrest with, also the denial that the detention register produced in court was not the one used to record their particulars. It was the refusal and total denial of everything. ii In the main, all the accused persons denied having committed all charges laid to them and went on to fault the evidence of the prosecution on the ground that they failed to prove offences under which each accused was charged. All accused persons denied making their alleged respective cautioned statements recorded at Police Stations. Save for the 6th, 7th' and 8th accused persons, the remaining accused alleged to have been tortured in different ways and forced to sign the documents which they did not know what they contained. In his defence Salim Haruna Yusuf who testified as DW1 stated that on 08/01/2018 at 18:40 while walking from his home to town. Upon reaching the Holofea area he saw people surrounding something, he went closer to see what was happening, he saw a person on the ground who was hardly assaulted by people surrounding him for allegation of theft. While looking at him, some people started to run away chaotically thus he decided to run away too. DW1 together with other four people were arrested for the allegation of killing the person he saw on the ground. They were taken to Kagongwa Police Station, where he registered his name, tribe, age, and religion only. Thereafter, they were detained in different cellos thus he had never seen those people since then. On 17/01/2018, he was taken from the lockup and shifted to Kahama central Police Station where his 12 details were recorded again. On 19/01/2018 morning, He was tortured, thus he decided to sign the papers with a pen and a thumbprint without ! knowing what was written in them. He challenged that the prosecution case was not proved since there was no evidence of a conspiracy to invade the Police Station or the existence of the Swadikina Mosque. He maintained that he did not confess as recorded in Exhibit P2. Further evidence given by Hussein Farahan Juma, DW2 had a version that on 15/01/2018 while at his home at Mwime Street at Kahama at 16:00 hours, a cruise vehicle was at home. Two people disembarked and introduced themselves to be policemen from Kahama Central Police Station. They asked DW2 his name, and after his reply, he was arrested and handcuffed on the offence of dealing in a business of stolen oil. He was taken to the central Kahama Police Station where he was tortured and forced to sign written documents. He denied making a statement to the police. DW3 Fadhili Suleiman Runyoro stated that on 01/01/2018, he was at Majengo Kahama heading to his workplace in the Lumambo area when he met three people who stopped him and introduced themselves as policemen. DW3 introduced himself as Fadhili Suleiman Elieza. They arrested him and seized his mobile phone Techno Y3, inspected it and soon one of them exclaimed "he is the one". He stated that he was 13 arrested on the offence of being found in possession of a stofen phone. He signed some papers after torture. He denied all allegations rested against him. Rashid Yahya Musa, who testified as DW4 stated that on 10/01/2018 at noon while at his workshop, Ukondamoyo, the police vehicle went to his workplace. Three policemen approached him and asked him if he was Rashid. Upon agreeing that he was the one he was arrested for an allegation of trespassing in the BAKWATA area. He signed the documents through torture at the police station, He complained that the offences charged were different. He denied making his statement to the police. He also said that the prosecution evidence was insufficient to prove the case against him, Hamisi Abasi Daudi testified as DW5 stated that he met and knew other accused persons on 27/02/2018, he did not make a statement to Police (Exhibit P8), he does not know Bwawani, Munguia Kahama as well as Mosque Swadikina and Rugea areas, are not known to him. He said that there is no evidence which proves that he participated in the meeting, contributed money or conspired to overthrow the Government of Tanzania and worshipped at Masjid Malunga. Amasha Abdallah Muhsini (DW6) testified the effect that he was arrested on 05/02/2018 at 05:30 Mwendakulima area when he was at the 14 workplace by three policemen. He was arrested for the offence of theft of two motors. Nurdin Bashiri Ibrahim (DW7), defended that when arrested on 02/01/2018, he was 17 years old. He stated that he was arrested for the offence of being a disorderly pel$on and he used to worship at Alfalai Mosque, Mwamva area. On his part, Abdul Omari Amri (DW8), had the version that he was arrested on 02/02/2018 at Chesii Street where he went to visit his friend. On 06/02/2018, they were taken to the hall at Bwalo la Polisi where he was informed of the offence of murder. DW8 denied all charges against him and he went on to state that the prosecution evidence failed to prove charges against him. The final submission by the prosecution raised issues to include proof of conspiracy referred to this court in the cases of Michael Charles Kijangwa vs the Republic, Criminal Appeal No. 280 of 2017, CAT, (unreported) page 25; Mattaka and other Versus Republic [1971]1 EA 495; Ajay Aggarwal vs Union of India, Supreme Court India AIR 1637 Of 1993 page 19; Yakub Abdul Razak Memon vs State of Maharashtra, the Supreme Court of India Criminal Appellate Jurisdiction 12 Criminal: Appeal No. 1728 of 2007 httD://www.liiofindia.org/cgibin/disD.Dl/in/cases/cen/INSC/2 15 013/354.htm! Para 63(9) (10); and Richard Kwabena Asiamah vs Republic, Criminal Appeal No. J3/06/2020, Accra-AD 2020 pg 15 &16. Also raise the issue of cautioned statement to corroborate oral and direct evidence given by prosecution witnesses Michael Mgowole and another Versus Republic, Criminal Appeal No. 205 of 2017, CAT (unreported) page 31; Ally Mohamed Mkupa vs the Republic, Criminal appeal No 2 of 2008 (unreported) and Flano Alphonce Masalu@Singu and 4 others Versus Republic, Criminal Appeal No. 366 of 2018, CAT (unreported) page 32. Issue of proof of terrorist financing cited the report by Tanzania Financial Intelligence Unit, titled Terrorist Financing Risk Assessment Report, 2022, Revised on 2023 (terrorist financing). Proof of participating in the terrorist meeting cited the case R. vs, Dickson and Others [1959] E.A. Also raised an issue of the domain of terrorism offences in the case of Republic vs Seif Abdallah Chombo@ Baba Fatina and Five Others, Economic Case No 4 of 2022 at Songea Sub Registry page 7 and 8; Ghulam Hussain 4 Others versus the state, Criminal Appeals No. 95 and 96 of 2019, Civil No. 10 of 2017 and Criminal Appeal no 63 of 2013, Supreme Court of Pakistan pg. 56. Other issues are that, whether the defence raised any reasonable doubt in the prosecution case cited cases of, John Madata vs Republic, 16 Criminal Appeal No. 453/2017, CAT at Mbeya page 24 and 25; and Hatibu Gandhi v. Republic, [1996] TLR 12. Felix Kisinyila Versus Republic, Criminal Appeal No. 129 of 2002 CAT at Dar es Salaam, Unreported on page 6, alibi then referred the court the provision of section 194 (4) of the Criminal Procedure Act CAP 20 R.E 2022; and finally submitted on delay to arraign the accused persons to court; and age of 7th accused person Nurdin Bashir Ibrahim. When both parties have laid down their evidence on the table, it is now crystal clear that the strength of the prosecution case lies in the cautioned statements of the accused persons admitted as exhibits in this case, and the testimonies of PW5-P4, and PW6-(P), who used to worship in the Swadikina mosque undercover. Other prosecution's witnesses were involved in the arresting and recording of the cautioned statements. I should also observe that no firearms, grenades and alleged collected money were apprehended when the accused persons were arrested. The accused persons in their defence, they maintained their defence versions and focused on attacking the admitted cautioned statements. The main issue in this case is whether the charged offences have been proven to the hilt. I should start with the common complaint that the accused persons did not make statements or were forced to sign the statements they never 17 made. As a pivotal element, it is correctly true the voluntary nature of the confessions is what matters most. A confession needs to be voluntary and free from any undue influence, threat or pressure. It is important to show that the same was made by the accused person, it was voluntary and true. If the confession is untrue, procured through torture, inducement or promise should be discarded. The admissibility of the confessions made to police officers is governed by section 27 of the Evidence Act, Cap.6 R.E 2022. For ease of reference, let me reproduce it; 27 (1) A confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person. (2) The onus of proving that any confession made by an accused person was voluntarily made by him shall He on the prosecution. (3) A confession shall be held to be involuntary if the court believes that it was induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority. In essence, the law above underscores the principle that confessions can only be admitted in court if they are made voluntarily, without coercion, torture, threat or promise. In the case of Chamuriho Kirenge @ Chamuriho Julias vs. The Republic, Criminal Appeal No.597 of 2017, 18 CAT at Mwanza, the court quoted in Posoho Wilson @ Mwalyego vs Republic, Criminal Appeal No. 613 of 2015 and Tumaini Daudi Ikera vs Republic, Criminal Appeal No. 158 of 2009 (All unreported) that oral confession would be valid as long as the suspect was a free agent when he said the words imputed to him. In this case, the cautioned statements of all the accused persons were admitted after the trial within trials were conducted as stated in the cases of Tuwamoi v. Uganda[1967] EA 84 and Hatibu Ghandi and Others v. Republic [1996] TLR12. The admitted cautioned statements are as follows: Exh.Pl for the 2nd Accused, Exh.P2 for the 1st Accused, Exh.P4 for the 3rd Accused, Exh.P5 for the 4th Accused, Exh.P6 for the 8th Accused, Exh.P7 for the 6th Accused, Exh.P8 for the 5th Accused, Exh.P3 for the 7th Accused They however restated and retained the versions they made in their respective trial within trial cases in respect of the cautioned statements. The court will proceed to evaluate the evidence and truthfulness in it. This is the position in the case of Nyerere Nyegue Vs. Republic, Criminal Appeal No. 67 of 2010, CAT at Arusha, the court among other things stated that; "...even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty of 19 evaluating the weight to be attached to such evidence given the circumstances of each case" In light of the above-quoted position of the law, I tirelessly went through all the contents of the admitted cautioned statements. The common thing in their confessions is that all the accused persons were Swadikina mosque members, their spiritual leader (amid) being the first accused. They received speeches and exhortations on hijra and jihad intending to overthrow the Government, and its place establish the Islamic State. The accused persons were in a group of few people among the believers in the mosque who held secret meetings. The first meeting was held during the night in the house of the first accused. Other meetings were held in the Bwawani area. They agreed to make the collection of money which they would use to purchase firearms and bombs from Burundi. The contribution was TZS. 5000/= and above. In connection with what was stated by the accused persons are testimonies of PW5-P4, a resident of Kahama who had worshipped at Swadikina mosque in 2017, and PW6- (P), a detective police officer who used to worship in the Swadikina mosque undercover. Their evidence which I find no reason to doubt, supports the confessions in the Exh. Pl to Exh. P8. Though the accused persons in their defence have consistently challenged the cautioned and the confessions, the common things in the exhibits above, the evidence 20 of PW5-(P4) and PW6-(P) make the coherent and cogent body of evidence that the accused persons made the above statements, and as ruled out in the trial within trials, voluntarily. This takes us to another question, whether the accused persons conspired to commit the terrorist acts. In this issue, I find it wise to start with the definition of conspiracy in the cited case of Michael Charles Kijangwa Versus the Republic, Criminal Appeal No. 280 of 2017, CAT, (unreported) page 25 as well as the case Mattaka and other Versus Republic [1971] 1 EA 495, it was held that; "A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an actin itself, and the act ofeach of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or the use of criminal means" Based on the above definition, there is no gainsaying that the common things agreed by the accused persons including collecting money to fund the purchase of weapons from Burundi, waging war against the police to take firearms from them (ingawila) to remove the Government through unlawful means and replace it with the Islamic State, is nothing but the 21 conspiracy to commit terrorist acts, which are offences under the law. I agree with the prosecution submission and the principle in Ghulam Hussain & 4 others vs. The state, Criminal Appeals No. 95 and 96 of 2019, Civil No. 10 of 2017 and Criminal Appeal no 63 of 2013, Supreme Court of Pakistan, on page. 56 that; "it is no longer the fear or insecurity created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was created or not". After all, the best evidence in a criminal trial is a voluntary confession from the accused person himself, see the case of Nyerere Nyague Vs. Republic (supra) and the cited case of Ally Mohamed Mkupa Versus The Republic, Criminal appeal No 2 of 2008. Reverting now to the issue of the offences in the 2nd, 3rd, and 4th counts, I should state and find that they have not been proved to the hilt because in their confessions for instance, there is no cogent evidence to show how the 1st accused recruited the other accused persons apart from the fact that they were fellow believers in the Swadikina mosque. Yes, he was one of their leaders and made speeches and exhortations urging them to push forward their evil agenda, but there is no cogent and enough 22 evidence to show that he recruited them. The 3rd and 4th counts are about the collection of funds for terrorist acts, as well as the provision of funds to commit terrorism. In their confessions, the accused persons confessed to agree to provide funds. The first accused collected the money. However, the 1st accused in Exh.PZ said that he used the money to help the widow and the rest he used himself. The 3rd accused in Exh. P4 had asked fedha za nini? Some accused persons did not confess to contributing, though they all agreed. There is no strong evidence for the court to find that the offences were committed beyond reasonable doubt. No trace of the transaction of the money collected if ever so, and no firearms or bombs were apprehended having been purchased through the money alleged to be collected. It is a cardinal principle in criminal cases that the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. See section 3(2) of the Evidence Act, Cap 6 R.E 2022. Also the case of Nchangwa Marwa Wambura V. Republic, Criminal appeal No. 44 of 2017 (unreported) In the 5th count, though the 2nd accused confessed in Exh.Pl that he donated a total of TZS. 1,000,000/= to purchase the weapons including the travelling costs, I hesitate to find this offence proved too because no other evidence, including the confessions of other accused persons who corroborated this evidence including PW5-P4 and PW6-P. In 23 law, the confession that has been retracted or repudiated needs to be corroborated with other independent evidence. In the case of Joseph Mkumbwa and Samson Mwakagenda vs Republic, Criminal Appeal No. 97 of 2007 (Unreported), the Court held that; "... the evidence of visual identification could not be corroborated by the cautioned statement (Exh P27) because as the first appellate court correctly observed, having been repudiated, it, requires, corroboration and it is now settled law that evidence which, requires corroboration cannot corroborate another, (see ALLYMSUTU vR. (1980) TLR1). "[Emphasis in mine]. In this case, Exh.Pl was challenged by the 2nd accused. He repudiated or retracted it. Under the circumstances, I find it innocuous to subscribe to the guiding principle above that the alleged piece of evidence against him in the said exhibit is not corroborated. The 6th count of Participating in terrorist meetings was supported by the confessions in Exhibits Pl, P2, P3, P4, P5, P6, P7 and P8, also the evidence of PW5-P4, PW6-P, and PW8-P1 corroborated the evidence in the stated exhibits that all the accused persons participated in the meetings. In deliberating on this issue, I have in my mind the legal principle in Hussein Malulu @ Elias Malulu and 2 Others Vs. Republic, Criminal Appeal No. 263 (Unreported), in which the Court held that; 24 "That what we gather from the quoted provision is that the testimony of a co-accused, arising out of his confession to committing an offence must be given force through corroboration. This means that conviction of a co-accused without there being corroborating evidence fails the test of a properly grounded conviction." In this case, all the accused persons confessed to having participated in the room of the 1st accused and at Nyihogo Bwawani area and agreed on the dirty scheme on how to get money to buy guns and bombs with the major aim of fighting to establish the Islamic State. Well, their evidence was corroborated by PW5-P4, PW6-4, and PW8-P1 as noted above. This was a platform which enabled the communications and conspiracy to commit terrorist acts. Another question worth determining is the common complaint among the accused persons that they were arrested in different places and dates apart from the dates stated by the prosecution witnesses and exhibits. This issue should pot waste our time because being an alibf defence no accused person notified the prosecution side of their intention to rely on the defence of alibi. Under section 42 (1) (2) of the EOCCA, the law requires that the accused person ought to have notified the Court of his intention to rely on an alibi as his defence during the preliminary hearing 25 or to furnish the prosecution with the particulars of their alibi before the closure of prosecution case. Also, the provision of section 194 (4) of the Criminal Procedure Act CAP 20 R.E 2022 which reads. "Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and prosecution notice of his intention to rely on such defence before the hearing of the case". I agree with the submission of the Learned State Attorney that this kind of defence is fairly an afterthought. Now comes the complaint that the 7th accused was a minor in contradiction with what the prosecution alleged to be 19 years old. The 7th accused person maintained in his evidence that he was only 17 years old when he was arrested. The prosecution side is submitting that the 7th accused failed to prove his age by producing in court the birth certificate or bringing his parent to adduce evidence in court. That, even in Exh.P3 he was recorded to be 19 years old. I agree with the learned state Attorney that the age of the accused person could be conveniently proved by producing a birth certificate or by proof through the evidence of a parent. The accused promised to call his parent as a witness but he did not. I have dutifully and carefully considered this issue. I revisited Exh.P3 and found that he dropped school in 2016 when he was in standard 6 (six). The arresting officers PW8-P1, PW4-P9 and PW2-P6 all stated that 26 the 7th accused introduced himself during arrest as a student. I think the accused deserves the benefit of the doubt because, a primary school student, who could be in standard 7 in 2017 is more likely to be 17 years old than 19 years old. His appearance too does not betray him and this finding, he looks teenager even today. The defence side has defended that the accused persons' alleged terrorist group in Kahama was insignificant and very minute incapable of removing the government from power, hence there was no terrorist act. This complaint, I think is baseless because big things can come from seemingly insignificant beginnings. What is important is the motive behind anything. I agree with the cited case from the Supreme Court of Pakistan, Ghulam Hussain 4 others versus The state. Criminal Appeals No* 95 and 96 of 2019, Civil No. 10 of 2017 and Criminal Appeal no 63 of 2013, Supreme Court of Pakistan pg. 56 Thus, "it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not". Truly, what matters is the intent and motive of the accused person and not the size or location of the group. 27 Finally, the important question is whether the defence side has raised any reasonable doubts in the prosecution case. As stated above, the defence case was purely general denials. The defence of general denial is essentially weak and self-serving. See the case of Nelson Onyango Vs. Republic, Criminal Appeal No. 49 of 2017, CAT at Mwanza (Unreported). It is again unfortunate that the accused persons failed to cross-examine the prosecution witnesses on important matters such as the place of arrest, the offence which was informed to them at the first time they got arrested, and, to the 3rd accused, his new surname name of Elieza, he introduced during the defence stage. This kind of defence is built on the quicksand. In the case of Nyerere Nyague V. Republic, (supra), the court stated as follows; "As a matter ofprinciple, a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said" See also the case of Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017, Court of Appeal at Mtwara, and Damian Ruhele v. Republic, Criminal Appeal No. 501 of 2007 (both unreported). I think the defence versions are afterthoughts and poorly woven stories which cannot taint reasonable doubt on the prosecution's case. In the case of Martin 28 Masara vs. The Republic, Criminal Appeal No. 428 of 2016, CAT at Mbeya (unreported), it was held that, " It is trite law in thisjurisdiction founded upon prudence that failure to cross-examine on a vital point ordinarily implies the acceptance of the truth of the witness evidence, and any alarm to the contrary is taken as an afterthought if raised thereafter, "(emphasis is mine) From the above findings, this Court is satisfied that, the prosecution side has managed to prove the case against the first, second, third, fourth, fifth, sixth, seventh, and eighth accused persons to a hilt concerning the offences in the first and sixth counts. I therefore, find Salimu Haruna Kumsimbi, Hussein Farahan Juma @Tembo@Captain, Hussein Farahan Juma @Tembo@Captain, Fadhili Suleiman Runyolo, Rashid Yahaya Musa @Chinga, Hamis Abas Daud @Kahawa, Amasha Abdallah @Mwangala, Nurdin Bashir Ibrahim^ Abdul Omary @Amry, being the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th accused persons respectively guilty, and I hereby convict them all for the offence charged of conspiracy to commit a terrorist acts contrary to section 4(l),(3)(i)(i) and 27(c) of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] 29 as amended and the offence of Participating in Meetings Relating to Terrorism contrary to section 4(l)(3)(i)(i), 5(a) both of the Prevention of Terrorism Act no 21 of 2002 read together with paragraph 24 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap 200 RE 2002] as amended. However, the prosecution has failed to prove the case against the 1st 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accused persons in their respective offences in the 2nd Count, 3rd count, 4th count, and 5th count. Therefore, I acquit Salimu Haruna Kumsimbi, Hussein Farahan Juma @Tembo@Captain, Hussein Farahan Juma @Tembo@Captain, Fadhil Suleiman Runyolo, Rashid Yahaya Musa @Chinga, Hamis Abas Daud @Kahawa, Amasha Abdallah @Mwangala, Nurdin Bashir Ibrahim, Abdul Omary @Amry, being the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th accused persons in the 2nd Count, 3rd count, 4th count, and 5th count in their respective and corresponding offences. Judge 20/09/2024 30 SENTENCE Whereas all the accused persons have been convicted of the offences of conspiracy to commit terrorist acts contrary to sections 4(1), (3) (i)(i) and 27 ( c) of the Prevention of Terrorism Act No. 21 of 2002 read together with paragraph 24 of the first schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R.E 2002] as amended, and participating in meetings relating to Terrorism contrary to section 4(1) (3) (i)(i), 5(a) both of the Prevention of Terrorism Act No. 21 of 2002 read together with paragraph 24 of the first schedule to and sections 57 (1) and 60(2) of the Economic and organized crime Control Act [Cap. 2002] as amended. In sentencing the convicts, I have considered all the submissions from both sides. Real, the offences committed can bring adverse effects on all people in the country because the acts of terror and unrest affect our economy and the social order of society. These acts can spoil the good relationships we have with other countries. I have considered the mitigation factors advanced by the defence learned advocates. I agree, they have stayed in prison for a considerable long time of seven years. Indeed, the 7th accused was a minor too when arrested. All considered, I hereby sentence the convicts as follows: 31 i. In the first count: the 1st, 2nd, 3rd,4th,5th,6th, and 8th accused persons are sentenced to 20 years imprisonment, however since they have spent 7 years in prison, let them serve 13 years imprisonment for each. ii. In the 6th count: the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th accused persons sentenced to 20 years imprisonment. However since they have spent seven (7) years in prison, let them serve 13 years imprisonment for each. iii. The 7th accused person, being a person under the age of 18 years when he was arrested and arraigned in court, I find it proper and in the interest of justice to order that he be under probation for three years. He shall be under the supervision of the police during the period. The offender shall report to the supervising police station as directed by the responsible police officer. Any change of residence shall be reported to the supervising police station. iv. The sentences in (i) and (ii) run concurrently. It is so ordered. G. N. Isaya Judge 20/09/2024 32 Court: Right of appeal fully explained. 33