director of public prosecutions vs said abashari hassan omary and 8 others 2021 tzhc 7406 1 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF ARUSHA

AT ARUSHA MISC. CRIMINAL APPLICATION NO. 89 OF 2021 (Originating from Preliminary Inquiry Case No, 60 Of 2014 of the RM'S Court ofArusha at Arusha) DIRECTOR OF PUBLIC PROSECUTIONS ................... APPLICANT Versus SAID ABASHARI HASSAN OMARY................ ................................ 1st RESPONDENT ABDULRAHIMAN JUMANNE HASSAN ........................ ........ 2nd RESPONDENT RAMADHAN HAMAD WAZIRI ..................... 3rd RESPONDENT YUSUPH ALLY HUTA @ HUSSEIN .................. 4th RESPONDENT KASSIM IDRISA RAMADHAN @ KASSIM BODABODA .......... 5th RESPONDENT SAID MICHAEL TEMBA © M AB RE KA.......... ...... .. ...6th RESPONDENT JAFFAR4tUSSEIN-L^MA^;7r.v^^^^7;^7.7r.77.7™.7r.7^^.7^7.^7 TH"RBSPONDENT" ABDUL MOHAMED UMUDI @ WAGO BA ........ 8th RESPONDENT ABDUL HASSAN JUMA © ABDUL MASTER....... .................... 9™ RESPONDENT

RULING 10/11/2021 & 01/12/2021 KAMUZORA, J. This application was brought under the provision of section 34 (3) of the Prevention of Terrorism Act No. 21 of 2002 as amended by Written Laws Page 1 of 17 (Miscellaneous Amendment) Act No. 2 of 2018 read together with section 188 (1) (b), (c), (d), and (2) of the Criminal Procedure Act Cap. 20 Revised Edition 2019. The Director of Public Prosecution has ex-parte moved this court for the following orders: - 1) That this Honorable Court be pleased to order that witness testimony to be given through video conference in accordance with the provision of the Evidence Act Cap. 6 Revised Edition 2019; ?

2) That, this Honorable court be pleased to order non-disclosure of identity and whereabouts of the witnesses for security reasons during committal and trial proceedings; 3) That this Honorable Court be pleased to order non-disclosure of statement and documents likely to lead to the Identification of witnesses for their security reasons during committal and trial proceedings; 4) Thaf this Honourable Court be pleased to order any other protection measures as the court may consider appropriate for security of the witnesses. When the matter was called for hearing Mr. Felix Kwetukia, Senior State Attorney appeared representing the Applicant Director of Publid Prosecution (DPP). In his submission in support of the application he adopted two affidavits in support of application deponed by Abdallah Chavula, (Senior State Attorney) from National Prosecution Service (NPS) Page 2 of 17 office and ACP Joshua Mwafulango, Regional Crimes Officer (RCO), Arusha Region. Mr. Kwetukia submitted that the basis of this application is PI No. 60 of 2014 which is pending before the Resident Magistrate's Court at Arusha. That, in that case the accused persons/respondents are charged with 21 counts and among those counts; 3 counts are for murder offences and 18 counts are attempted murder. It was contended that the offences originate from the terrorism incident in which a hand grenade was used

in bombing St. Joseph Mfanyakazi Church at Olasiti area within Arusha Municipality and Arusha Region. That, the incident took place on 05/05/2013 resulting to the death of 3 people and causing injuries to 18 other people. That, the investigation was conducted resulting into the arrest of the respondents. It was further contended that the respondents were part of the Criminal gang/syndicate who were looking for money and buying ammunitions and using the same to execute terrorist attacks across the United Republic of Tanzania. That, their intention was to overthrow the Government of the United Republic of Tanzania and to replace it with the Islamic State. The counsel referred this court to the affidavit of ACP Joshua Mwaflango and Abdallah Chavula and insisted that, the same reflect that the lives of prosecution witnesses are in danger due to threat from Page 3 of 17 people who are also part of the Criminal syndicate who are not yet arrested. On that basis Mr. Kwetukia insisted on the prayer for an order to protect the prosecution witnesses. He was of the view that although witness protection issue is a new phenomenon in our jurisdiction, we can borrow the inspiration from other jurisdictions. He referred an Indian case of Mwahender Chawla & Others Vs. Union of India & Others, Writ Petition (Criminal) No. 156 of 2016) Page 3 where, the Supreme Justices of Indian Supreme Court

underscored that, witnesses are the eyes and ears of justice and insisted that they need to be protected. He also referred a Kenyan case of Republic Vs. Doyo Galgalo High Court of Kenya at Meru Criminal Case No. 16/2019, Pg. 6 Para 5 where the High Court of Kenya underscored the importance in witness protection. Mr. Kwetulia added that, the issue of borrowing leaf of the decision in other jurisdictions is not a new issue. He referred the Court of Appeal decision in Criminal Appeal No. 220 of 2011, The AG Vs. Mugesi Antony & Others to where the court made a conclusion that, where there is a lacuna, you can borrow leaf from other jurisdictions. Mr. Kwetukia submitted further that, apart from the decisions from other jurisdictions, the High Court of Tanzania also have encountered Page 4 of 17 similar scenarios in three different occasions. That, in Misc. Criminal Application No. 94/2019, DPP Vs. Said Adam Said & 10 others, page 9 & 10, Hon. Siyan, J. underscored the importance of witness protection and issued an order for protection of witnesses and ordered non-disclosure of statements likely to identify the witnesses during committal proceedings. In Misc. Criminal Application No. 19/2020, DPP Vs. Abdi Sharif Hassan @ Mosmal & Another Hon. Tiganga, J. at page 17 to 18 also underscored the importance of witness protection and issued protection order. Similarly, in the case of DPP

Vs. Farid Ahmed and 35 others, Misc, Criminal Application No. 145/2020, Hon; Mlacha, J, at page 22 to 23 also underscored the importance of witness protection and issued an order for non-disclosure of witnesses7 identity. In concluding his submission Mr. Kwetukia urged this court to consider the gravity of the offence against the respondents, and the threat upon the intended witnesses and be pleased to grant the application as presented. I have considered the submission by the Senior State Attorney and keenly gone through the chamber application and two affidavits in support of the application. The contents of the affidavit of the Regional Crimes Page 5 of 17 Officer one ACP Joshua Mwafuiango who is the overall Incharge of investigation in Arusha Region and that of Mr. Abdallah Chavula, Senior State Attorney who is performing the functions of Regional Prosecutions Officer at Arusha Region reveal similar facts. The affidavits reveal that, on 5th May 20.14, there was inauguration ceremony of the opening of St Joseph Mfanyakazi Church at Olasiti area here in Arusha in which the Pope's Ambassador from Vatican was to give inaugural speech as the guest of honor. That, unknown people detonated a hand grenade in the middle of the mass that were in attendance thereby causing death to three people namely Patricia Joachim, Regina Loning'o Kurisoi and James Gabriel and fifty other people

were fatally injured. The investigation revealed that, the incident was perpetrated by the respondents' syndicate who had a prior conspiracy of committing various terrorist acts within Arusha Region and various parts of the United Republic of Tanzania with the intention of seriously destroy the fundamental political, constitutional, economic and social structure of the United Republic of Tanzania by overthrowing the lawful authority of the Government of the United Republic of Tanzania and replace it with Islamic state. Page 6 of 17 The investigation also revealed that the respondents and their associates had established an organized individuals in order to advance their criminal course of seriously undertake their plan of overthrowing the lawful authority of the Government. That, in order to accomplish their objective, on divers' dates between 2013 and 2014 the respondents conspired with other people who are still at large to instill fear and intimidation within the communities of the United Republic of Tanzania by using explosives to attack public gathering in Arusha, Mwanza and other regions within the United Republic of Tanzania. That, in considering the seriousness of the charges facing the respondents and being the regional crimes officer, ACP Joshua Mwafulango have been engaged in continuous review of securitv welfare of the intended nrosecution witnesses and

their families. It was also contended that, the reliable intelligence source has revealed to them that the lives and welfare of the intended witnesses is at risk due to threats and attempts by the respondents' co-conspirators who are still at large to locate and procure the identities of intended prosecution witnesses. That, the respondents acting in collaboration with their associates who are still at large are struggling to get the identities of the Page 7 of 17 intended prosecution witnesses in order to stop them from testifying in court against the respondents. That, as the respondents7 associates are still at large any disclosure of the identity or whereabout of the prosecution witnesses during committal and trial will expose them to the risk of physical harm thus endangering their safety and that of their families. Having analyzed the facts deponed in the affidavits, it is important to address the merit of this application. The importance of witness protection is well recognized both under International, Regional and Domestic laws. The witness is universally considered to be one of the most important persons to ascertain the truth in any trial. Different international laws recognises the importance of witness protection. Under the Rome Statute, while Article 64 (7) of the Statute recognise the importance of openness of the court proceeding, it gives exception in special

circumstances under Article 68(5) for witness protection. Article 64 (7) read; " The trial shall be held in public. The Tria! Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. " Article 68(5) of the Rome Statute provides that, Page 8 of 17 " Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. ” In the application of the Rome Statute there is also Rules of Procedure and Evidence which governs the modality of how witness protection order may be sought and the said procedures are laid down from rule 87 to 88 which provides amongst other that, the application needs to be ex-oarte also hearino of the ex-narte aoolication he made in camerato determine whether to order measures to prevent the release to the public or press and information agencies, of the identity or the

location of a victim, a witness or other person at risk. Another International Instruments which recognise witness protection is The United Nation Convention against Corruption (UNCC) precisely on Article 32(1) which provides that, Page 9 of 17 "Each State Party shall take appropriate measures in accordance with its domestic legal system and within its means to provide effective protection from potential retaliation or intimidation for Witnesses and experts who give testimony concerning offences established in accordance with this Convention and, as appropriate, for their relatives and other persons dose to them. " Apart from the International Instruments there are also Regional Instruments on victim/witness protection. The Protocol to Combat Trafficking, Commercial Exploitation and Sexual Abuse of Women and Children in South Asia requires member states to ensure witness protection. Article 1.1 that of the Protocol provides: - " The State Parties to provide that: ■~(a)~Altgrcfceedin~gsTnvolw^^ the action taken thereon by the persons (Court Officials, Police Officers, Technical Support Providers or any person involved with the protection procedure) shall be under obligation to keep all the information and documents confidential. No information or documents given or submitted in support thereof shall be released except upon written order of the court, i ■(b) Violation of the

confidentiality of the said proceedings/actions to be an offence.- Page 10 of 17 There is also experience of other countries having put in place the. laws to protect the welfare of the witness. In South Africa, they have the Witness Protection Act 112 of 1998 [No. 112 of 1998]. Under the schedule to the said Act, it provides for the offences in respect of which protection may be granted to the witness such as in offence of treason, sedition, murder, rape, public violence robbery just to mention a few. In Kenya witness protection has a foundation in the constitution. Under Article 50 (8) of the Constitution of Kenya, it provides; "This Article does not prevent the exclusion of the press or other member of the public from any proceedings if the exclusion is necessary, in a free and democratic society to protect witnesses or vulnerable persons, molarity, public order or national security/z Kenya has also enacted a specific Act for witness protection; the Witness Protection Act, Cap.79 R.E 2012. In Tanzania context, witness protection is covered under the law,’ section 34 of the Prevention of Terrorism Act No. 21 of 2002. The Written Laws (Miscellaneous Amendments) (No.2) Act, 2018 amended section 34 of the Principal Act by deleting subsection (3) and substituting for it the following: Page 11 of 17 "(3) A Court may, on an ex-parte application by the Director of

Public Prosecutions, order that the case proceeds in a manner stated in section 188 of the Criminal Procedure Act." For purpose of this application the relevant proviso is section 188 (l)(a), (b), (c) and (d) and (2) of the Criminal Procedure Act which read; "188.- (1) Notwithstanding any other written law, before filing a charge or information, or at any stage of the proceedings under this Act, the court may, upon an ex-parte application by the Director of Public Prosecutions, order- fa) a witness testimony to be given through video conferencing in accordance with the provision of the Evidence Act; '(b) non-disclosure or limitation as to the identity and whereabouts of a witness, taking into account the security of a witness; (c) non-disclosure of statements or documents likely to lead to the identification of a witness; or (d) any other protection measure as the court may consider appropriate. (2) Where the court orders for protection measures under paragraph 7 (b) and (c) of subsection (1), relevant witness statements or documents shall not be disclosed to the accused during committal trial. " Page 12 of 17 Thus, witness protection in Tanzania may be a new phenomenon to our jurisdiction but having the law recognizing witness protection gives us the authority to ensure compliance to the law but not to the extent of jeopardizing justice for the parties. With the view of cited

authorities, many jurisdictions had similar view when it comes to witness protection issues. As advocated by the Supreme Court of India in Mwahender Chawla & Others(supra) and the High Court of Kenya in Doyo Galgalo (supra) witness protection is important to ensure that the investigation, prosecution and trial of criminal offences are not prejudiced by the intimidation or threat to witnesses. The law is clear under section 188 of the CPA that the court may; upon an ex-parte application by the Director of Public Prosecutions, give an order to protect the intended prosecution witness. The manner and modality under which the application is made may sometimes develop fear that witness protection is likely to prejudice fair trial of the respondents. This is because the application is made and determined ex-parte in exclusion of the respondents. It is a common understanding under our laws that, disclosure of witnesses and substance of evidence is one of the criteria towards fair trial. Section 245 to 247 of the Criminal Procedure Act Page 13 of 17 Cap 20 RE 2019 requires the prosecution side to disclose the substance of the evidence intended to be relied upon by the prosecution side to prove the case against the accused person. I agree with my brothers Siyan J, as he then tvasand Tiganga J, that while observing the right to fair trial, it is also important to ensure that witnesses

and their families are protected to enable them testify freely in court. At page 16 of the ruling in Abdi Sharif Hassan @ Mosmal & Another (supra) Hon. Tiganga, J., observed that,: "... openness in judicial proceedings depicts the right to fair trial which enables the accused persons to prepare and present their defense, and test the prosecution case by cross- examination. However, in some cases, it has disadvantages as it may discourage other witnesses to come forward fearing to risk their lives and those of their family members. Isubscribetosuchreasoningwith’theviewThafwitness “protection; is paramount in ensuring justice to both parties. It must be noted that/: evidence supporting the case is expected to come from witnesses whom, if not well protected, they may fail to testify due to fear or intimidation. The purpose of the law is to ensure that all witnesses testify without fear so that justice can be done to both parties. The High Court of Kenya while dealing with the issue of fair trial in Doyo Galgalo's case at page 3 had this to say; Page 14 of 17 "One of the major considerations in granting protection order is where the life or safety of the person may be endangered as a result of his being a witness. Therefore, the protection of witnesses entails inter alia safety of the witness. From the prescriptions and the words used in the constitution and the law, the

concealment of the identity of a witness is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, it is a justified measure, and therefore, not a violation to a fair trial." This decision although not binding, it is persuasive and we are not barred from borrowing the inspiration from the same as it was so held by the Court of Appeal of Tanzania in the case of Mugesi Antony and r1- others (supra). This court in the above three cases cited by the applicant Said Adam Said & 10 others (supra), Abdi Sharif Hassan @ Mosmai & Another (supra) and Farid Ahmed and 35 others (supra) was inspired to borrow leaf from other jurisdictions thus, in same footage I am as well inspired to borrow leaf from the above Kenyan decision as well as the decision by the Indian Supreme Court in Mwahender Chawla & I Others(supra). I have the same view that the concealment of the Page 15 of.17 identity of a witness is necessary to protect witnesses to insure end of justice. Considering the submission by the Senior State Attorney and the affidavits in support of application it is clear that the nature of the offence which is terrorism and the modality used to execute the terrorist act of bombing the church fall within the organized crimes hence a serious offence which require protection of witnesses. It is clear that, with the nature of the offence to which the respondents

are charged, the lives of intended prosecution witnesses are in danger and there is a need to be protected. Being inspired by the decision from other jurisdictions; India and Kenya, the decisions of this court by my brothers Siyani J as he then was, Mlacha J and Tiganga J, the affidavits in support of the chamber application, both local and international laws and the submission by Mr' Kwetukia, I find the present application fit for issuing protection order of the witnesses. I therefore allow the application and order as follows: - 1) Witnesses' testimony to be given through video conference in accordance with the provision of the Evidence Act Cap. 6 Revised Edition 2019; Page 16 of 17 2) Non-disclosure of identity and whereabouts of the witnesses for security reasons during committal proceedings and trial proceedings; 3) Non-disclosure of statements and documents likely to lead to the identification of witnesses for their security reasons during committal and trial proceedings; 4) Charge sheet and facts constituting the offence with exclusion of those facts which are likely to disclose the identity of witness should be read and supplied to the respondents during committal proceedings.

5) The witnesses deserve protection before and after trial to ensure their safety and that of their families. It is so ordered. DATED at ARUSHA this 01st Day of December, 2021 Page 17 of 17