SHABAN CLAUD SOSPETER BABU SHAFII GOMBE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MISCELLANEOUS CRIMINAL APPLICATION NO. 30081 OF 2024 THE DIRECTOR OF PUBLIC PROSECUTIONS............................. APPLICANT

VERSUS SHABAN CLAUD SOSPETER@BABUU................................. 1st RESPONDENT SHAFII S/O GOMBE........................................................... 2nd RESPONDENT

RULING 29th October & 30(h October, 2024 A. MATUMA, J. The prosecutions are seeking orders for protection of witnesses on allegations that their witnesses and their families are in danger fallowing threats from a criminal syndicate in which the Respondents belong. They are seeking an order of this Court for; - None disclosure of identity of witnesses and their whereabouts. ii. Some witnesses to give their evidence through video conferencing. iii. Any other protection measure as the court may consider appropriate for the security of witness. This application was brought ex-parte but after considering the facts of the matter and the contents of the affidavit of the applicant's officer who is the state Attorney one Jaines Kihwelo, I thought it in the best interest of justice the Respondents be summoned to hear and participate in this application. I therefore issued the summons to them and they have dully appeared. The Respondents stand charged for murder whereas they are alleged to have on the 5th day of May, 2016 murdered one Phares S/O Gabriel @ Mbochi at a gun point in the course of an armed robbery incident at Kishiri area within Nyamagana District in Mwanza Region. At the hearing of this application Mr. Japhet Ngussa and M/S Jaines Kihwelo learned State Attorneys represented the Applicant/DPP. The learned state Attorneys submitted that they have failed to procure and bring

witnesses to the trial of the Respondents because the witnesses are fearing to show up because they are receiving threats from the Respondents' criminal group. The Respondents on their part argued that their case has been adjourned seven times at different Criminal sessions and at all times the ground was that witnesses are nowhere to be found. That no threats were ever 2 reported to this court until this time when this case has been once again scheduled for trial. They argued that this application be rejected as the prosecutions might be calculating to fabricate witnesses because at all times, they reported to this court that their witnesses are nowhere to be found which became a ground for such several adjournments. They also argued that no any report has been given to police about such threats nor any person has been charged for such threats. They finally stated that they have already the names of witnesses as supplied during committal proceedings and thus there is nothing to hide and therefore the trial be conducted in a normal process. Having heard the arguments of both parties, I am inclined to agree with the Respondents that the prosecutions have not brought sufficient evidence and or facts to warrant the grant of this application. This case stood adjourned on seven different criminal sessions and no such allegations was ever raised until the current scheduled

session. The worries of the accused persons to the effect that the prosecutions might be on dubious calculations to the detriment of justice by bringing fake witnesses under the purported protection cannot be ignored. In fact, 3 the accused persons have in their possession the names of witnesses, their full addresses, their full particulars and family information in accordance to the committal records dated 04/09/2019. They are in possession of the witness statements which contains all such information. The identity of such witnesses was as well disclosed during preliminary hearing on the 13th March, 2020 before Hon. Justice Madeha. There is thus nothing to hide. If at all the Respondents were in need to identify the prosecution witnesses, threat or harm them, they had enough time to do so from when they were served with the committal records which disclosed the identity of witnesses or from when the preliminary hearing was done in this court in which once again the witnesses were disclosed. Having perused the court records I noted that on 20/09/2021 the respondents were arraigned for trial before Hon. Justice Mnyukwa but M/S Rehema Mbuya learned State Attorney informed the court that they didn't procure witnesses for technical problem. She prayed the matter to come in the next day; "W/e pray... the matter to be adjourned until tomorrow because today we have experienced

technical problem of getting witnesses who are supposed to come and testify before the court" The respondents through their advocates lamented that justice delayed is justice denied because one of the accused by that time was already in remand custody for five years which is running by today nine good years. This court granted the adjournment on the ground stated by the learned State Attorney in which no threats to witnesses was reported and or complained. On the next day 21st September, 2021 when the matter came again for trial, M/S Sabina Choghoghwe learned State Attorney informed the court that their key witnesses are attending training and could not be available within such session. She thus prayed the matter to be adjourned to the next session; "The matter is coming for hearing but the Republic failed to get witnesses. Our key witnesses are attending training at CCP Moshi. Therefore, they cannot be available in this session. We pray the case to be adjourned until next session" Once again, no threats to witnesses were reported against the accused persons. On 19th May, 2022 the matter came again for hearing before Hon. Justice Robert. On that day Maryasinta Lazaro learned Senior State Attorney informed the court that they had two^witnesses but prayed for adjournment on a different ground relating to assessors and 2nd accused's legal representation whereas his advocate was

reported sick. Once again, no threats to witnesses were complained. On 17th October, 2022 the matter came again for trial before Hon. Justice Dyansobera. This time committal issues were raised and the court moved to order the recommittal of the accused persons. The matter stood adjourned pending the recommittal of the accused persons. They were recommitted and once again the preliminary hearing was carried on the 26th January, 2023 before Hon. Justice Kilekamajenga. This time once again the names and addresses of the witnesses for the prosecutions were disclosed without any claim that such witnesses are threatened or are in danger of being harmed by any criminal syndicate. On the 27th April, 2023 the matter came for trial before Hon. Justice Itemba but the prosecution through the learned State Attorney informed the court that they had one witness that day but they preferred him to give his evidence after some other witnesses have given their evidence. Mr. Mutalemwa learned advocate complained the long stay of the accused in remand custody without trial but this court accommodated the prayers of the prosecution and adjourned this case till next session. All in all, it was not on the ground of threats to witnesses^ 6 I have as well taken note that on 13th October, 2022 the street chairman of Kishili one Bulugu P. Kitambo endorsed the summons of one of the witnesses for the

prosecution in that; "Ndugu........... alishahama hapa mtaani na hajulikani alipo" We are not told if this witness is now located and is one of those who fears to appear in court or he is still not located and nowhere to be found. Out of the nine listed prosecution witnesses there are four police officers including those who recorded the cautioned statements of the respondents, those who arrested the respondents and those who conducted search and seizure. We are not told if those police officers have as well been threatened and thus fears to appear and testify against the accused persons. We are therefore moved to grant a blanket protection order to witnesses without sufficient facts to warrant the same. Most important is that the affidavit in support of this application do not state as from who the threats were reported and to whom the report was received even by using fake names or acronyms. The learned state Attorney Jaines Kihwelo who deposed the affidavit stated under paragraph 9 that; "In this case, intended witness and their families are in danger following threats from the organized criminal syndicate in which the Respondents belong " The source of such alleged fact is not disclosed as the verification close purports to establish that such fact is known to the learned state attorney's personal knowledge as if the learned state attorney witnessed the threats. There is no

accompanying affidavit even that of the Officer Commanding Investigation (RCO) to that effect or endorsement of local leaders to the effect that their inhabitants reported to them their fear following threats from accused persons. Criminal justice should not be lightly executed. It is all about human welfare and wellbeing. The Prosecutions should not take lightly their criminal duties in total disregard of the rights of inmates who are incarcerated for offences which are not yet proved against them. This case is pending trial for almost nine years since the first arrest and detention of the first respondent. At all this period the respondents did not threat the prosecution witnesses. Where do these threats comes from as by now. To whom such threats were reported. What measures were taken after such threats. Had the prosecutions arraigned their witnesses in the first session, the second one and all subsequent sessions prior to 8 the current scheduled one, would all these unsubstantiated accusations arise? Should the prosecution benefit from their own wrong of not arraigning witnesses in time? Justice demands both parties to be treated equally without discrimination in accordance to article 13(6)(a) of the Constitution of the United Republic of Tanzania. I am not prepared to accommodate the prosecutions prayers which I consider to arise from conjectures, speculations and

afterthoughts after their failure to bring their witnesses for many years in total disregard of the fate of the respondents who are suffering in custody without trial which is against the basic principles for administration of justice as enshrined in the Constitution of the United Republic of Tanzania including "kutenda haki kwa wote bila ya kuja/i haU ya mtu kijamii au kiuchumi" and "kutochelewesha haki bila sababu ya kimsingi" under article 107A (2)(a) and (b). The law does not allow courts of law to sail through speculations, allegations, suspicious, conjectures and hearsays as it was held in a number of cases including that of MohamedMusero versus Republic (1993) TLR 290 and Shishir Shyamsingh versus Republic, (DC) Criminal Appeal no. 54 of 2020 in the High Court of Tanzania at Kigoma in which it was held that it is wrong for the Magistrate or Judge 9 to act on conjectures and speculations in making decisions as such conjectures and speculations have no room in Criminal trials. The affidavit of the learned state attorney contains nothing but speculations, conjectures, suspicions, allegations and hearsays. In fact, our criminal jurisprudence requires transparence and fair trial of suspects not only to cases triable by the High Court but in all levels of the Courts. For instance, the provisions of section 245, 246 and 247 of the Criminal Procedure Act, Cap. 20 R.E 2019 were

enacted to ensure that the accused person is fairly and justly tried. That is in conformity of the Constitution herein above referred. Failure to adhere to such principles of fair trial renders the whole exercise futile. See the case of Masamba Musiba @ Musiba Masai Masamba Vs. R, Criminal Appeal No. 138 of 2019. In that respect the principles of witness protection must be dully adhered as they are not made to enable the prosecution to persecute suspects but rather to protect the welfare of victims and witnesses from potential dangers but without compromising the fair trial of the suspects. Video conferencing is now part of our normal procedures not only in criminal trials but also in Civil trials. The trial courtjzvould be moved to receive evidence of a witness whose physical presence is not reasonably o practicable at a reasonable time or for any such other factor. In that regard the prosecutions are at liberty to move the trial judge to conduct remote hearing for such witnesses which is currently a normal procedure. I therefore reject this application but the trial judge will be at liberty for not recording the current address of witnesses which is the only relief that can be accommodated in this matter. I direct that the prosecutions should bring their witnesses to attend the trial of the respondents as scheduled regard being that this is a long-standing case into the court registry. In case of any dissatisfaction by either party, the Court of Appeal is their for 11