20120509 TZHC Dar es Salaam

· IN THE HIGH COURT OF THE UNITED STATE OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CRIMINL APPLICATIONNo.7/2012 In the matter of an application for directions in the nature of Habeas Corpus Between ALEXIS SINDUHIJE ...................................................... APPLICANT VERSUS THE INSPECTOR GENERAL OF POLICE (IGP}............... 1ST RESPONDENT HON. ATTORNEY GENERAL ............ '........................ 2ND RESPONDENT RULING L.N.K.KADURI, J. This is an application for Habeas Corpus made under section 390 (1) (b) of the Criminal Procedure Act Cap 20 R.E 2002 read with Rule 2 of the Criminal Procedure (habeas Corpus) Rules G.N. No.150 of 1930. The application has been filed by Herbert Herme Hezekia Nyange, advocate instructedto represent the applicant namely Alexis Shinduhije. The application is supported by affidavit -:::' which stated as follows:- 1 That, the applicant ,Burundi National, the leader of a political party in Burundi (Movement for Security and Democracy), former contestant for the Presidency was arrested by the Tanzania Police on Wednesday the 11 th day of January,2012 at the Mwalimu Julius Nyerere International Airport in Dar es Salaam allegedly on the ground that he had committed murders in Burundi. That, although murder is an·Extradition Offence (Extradition Act Cap.368 RE2002) no formal request for applicant's surrender/ arrest had been made and no warrant of arrest had been issued by a Resident magistrate. That, the applicant was detained for two days and questioned on the alleged murder in the absence of his family, friends or advocate and was made to give-a statement to the police. That, on Friday the 13 th day of January, 2012 the Applicant was taken before the Kisutu Resident Magistrate Court to face murder charges. I"-, That, his advocate was at the court premises and he souglit,the prosecuting . . ' ~' Attorney in Charge Ms. Kaganda to enquire about the charges and request for a charge sheet. It was there that he learned that the charge was a holding charge to await the Applicant's extradition. That, the court refused to accept the charge and the applicant was sent back to police custody awaiting compliance with extradition procedure. 2 That, the applicant has been in custody now for 12 days without being charged or taken to court for extension of time to hold him in police custody contrary to both Criminal Procedure Act and the Extradition Act. That, the applicant was not at the time of his arrest, a .fugitive criminal namely a person accused or convicted of an offence in Burundi in terms of the Extradition Act. His advocate also has in his possession a video interview of the spokesperson for the Burundi Government denying to have made a request to Tanzania Government for the applicant's arrest. That, for purposes of the Extradition Act, since it requires existence of charges or conviction, the evidence should have been with the Government of · Tanzania before the applicant's arrest or at least not long afterwards That, given the infringement of the requirements of the Extradition Act namely lack of official government request for arrest and a warrant of arrest, the political position of the applicant, the distance from Bujumbura and Dar es Salaam and available means of communication between the two countries, his advocate honestly believed that a period of 12 days is too long so as to allow fabrications and trumped up charges. 3 On reply to the affidavit, Mr. Hamad Hamis Hamad an employee of Police Force of Tanzania with a rank of superintendent of Police in the Department of criminal Investigation, International Police section affirm and stated as follows:- In his sworn affidavit that he knew the applicant since his arrest in Tanzania on 11 th JANUARY, 2012 at Julius Nyerere International Airport on his arrival from Uganda by Precision Air following a request from Burundi Interpol Unit. The request based on the fact that the applicant was needed in Burundi to face murder charges of two people, Dr. Kassy Manlan Leopold who was the World Health Organisation (WHO) country representative in Burundi in 2001 and Nzisabira his own houseboy in 2003. Following the arrest the applicant was interrogated and recorded caution statement on 12th January, 2012 denying to have been involved in alleged murder. On further interrogation the applicant disclosed that he came in Tanzania purposely with the mission of creating centers for allies of his political party and mobilize Burundians who are living here in Tanzania to join his party and fighting back the Burundi Government. That, while the effort to take him to court for Extradition proceedings so as to return him to Burundi were in progress, it was deliberated that his purpose of 4 · coming to Tanzania was contrary ~o Tanzania' sinternational policy and would create bad relationship between Tanzania and her neighbor Burundi. That, it is from that fact that departure order was issued to the applicant by Immigration Department and he was asked to escort him to the airport for departure. That, SP Hamad Ramis Hamad personally on 24th January, 2012 together with other Immigration Officers escorted the applicant at Julius Nyerere International Airport (JNIA) where he boarded Precision Air back to Uganda as he had a return ticket with him as per annexure AG 1. That, through the attached exhibits SP Hamad ~itnessed that the applicant was set at liberty and left the country on 24th January, 2012 so he is no longer in the hands or custody of police force. In respect to the counter affidavit, Mr. H.H.H. Nyange, replied and stated as follows:- On the issue of the said request, the affidavit does not specify whether the request was made orally or in writing and when, and if in writing, by whom in the Burundi Interpol Unit. The written request is not annexed to the affidavit. 5 On the issue of law, Mr. Nyange stated that, the law is specific as to the .definition of fugitive criminal who is liable to be arrested on an extradition crime -----and that person who is accused or ~o_rivicted of an extradition crime, and alsothat there was no documentary proof of an accusation. Furthermore, Mr. Nyange stated that, he does possess a video statement which is marked as annexed AS. l by M. PHILIPPE NZOBONARIKA, spokesperson for the Burundi Government denying making any request to the Government of Tanzania to arrest the applicant for any purpose . Concerning the interrogation, Mr. Nyange, advocate for the applicant stated that, SP.HAMAD RAMIS HAMAD on para 7ofthe counter affidavit does not say whether he is the one who interrogated the applicant or took down his statement or he was present during the interrogation or both. Regard to para 8 of the counter affidavit, Mr. Nyange stated that, it did not have to take 14 days for a Police Force full of intelligent persons to determine that the allegations of murder were trumped up. On the issue of departure under para 9, the applicant's advocate stated that the alleged departure order not being a document issued by the 1st respondent should have been annexed to the affidavit so as to clearly show why the applicant was expelled from Tanzania. 6 From paragraph 10 of the counter affidavit, the advocate for the applicant stated that, no proof has been offered that the applicant left for Uganda and since th Friday 13 day of January 2012 the 1st respondent was aware that Mr. Nyange is representing the applicant and it is the only trusted link between him and his beloved ones but rather he was denied an opportunity to speak with him freely all the period of his detention and being refused this right on.23 rd January 2012 after lodging this application. That the 1st respondent did not invite Mr. Nyange to witness the circumstances of the applicant's alleged departure. Again, Mr. Nyange stated that there is no proof that the applicant reached a final destination of his own choice, that the information about the applicant's departure an:d safety to him is totally hearsay. He further stated that of all the documents annexed to the affidavit of SP. HAMAD RAMIS HAMAD none of them is a departure order. Mr. Nyange in respect of para 11 stated that the applicant may no longer be in the hands or custody of the police, but he was never set at liberty. The affidavit in paragraphs 8 and 9say that the applicant was declared a prohibited immigrant and allegedly escorted out of the Country. However a person at liberty moves at his own leisure. 7 Finally Mr. Nyange stated that, in these circumstances of lack of transparency, disrespect by the 1st respondent of the law related to treatment of the suspects and total disregard of the statutory role and rights of Advocates in dealing with their clients in police custody, hard proof is required from the 1st respondent that the applicant was not handed over to the Government of Burundi or whoever wanted him clandestinely contrary to the law regarding extradition of fugitive criminals. The application was set down for hearing on 16th April, 2012and as the complaint was against the Inspector General of Police and the Attorney General as Principal legal advisor to the Government, the application together with the affidavit were served on the Attorney General through his Chamber in Dar es Salaam - Kivukoni Front. On the hearing date the Attorney General was represented by Miss Msafiri Principal State Attorney from Attorney General's Chambers Kivukoni Front. During the hearing of this application, Miss Msafiri had no objection on the application being heard and she was of the view that the matter be left it to this Court to decide on the basis of the affidavits. On the side of the Applicant's advocate, Mr. Nyange also stated the same that he is leaving the matter to this court to decide on the basis of the affidavits. 8 Having gone through the affidavits, I'm satisfied that, the said applicant on 24 th January, 2012 was escorted at Julius Nyerere International Airport where he boarded Precision Air back to Uganda as the applicant had a return ticket as per annexure AG 1. Since there is nothing to contradict the fact that Alexis Shinduhije , the applicant has since left the country, the application has been overtaken by events and is hereby dismissed. . ~ /l-i7. . . . . . . . . Dated this ........... ./.................. day of. ............... 2012 JUDGE Ruling delivered this 9th May, 2012 in the presence of Mr. Nyange for the appellant and Mr. Tubabyekomya, PSA. L. N. K. KADURI. JUDGE 9