DAR ES SALAAM: THE High Court, Dar es Salaam Sub-Registry, has acquitted four people, Ally Othumani Rashid, Faraji Ali Ramadhani, Shaban Bakari Waziri and Mussa Daudi Mtweve, who were charged with three criminal offences relating to involvement in terrorist acts.
Judge Ilvin Mugeta said in his ruling delivered last week that the prosecution failed to produce evidence establishing a prima facie case requiring the accused persons to give defence testimony against the charges.
“Consequently, I hold, there is no evidence proving that the accused persons or any of them committed any of the charged offences warranting them or any one of them to enter a defence for any of the charged offences… “As a result, I enter a finding of not guilty in terms of section 293(3) of the CPA. They are accordingly, acquitted and discharged,” he declared.
The judge held that there was no evidence proving that the accused persons or any of them committed any of the charged offences warranting them or any one of them to enter a defence for any of the charged offences.
During the trial, the prosecution called nine witnesses in attempt to prove the charges against the accused persons.
The prosecution mainly relied on oral confession of Ramadhani, Waziri and Mtweve, which was obtained before law enforcement officers. In his ruling, however, the judge pointed out that unlike a confession made to a civilian, oral confession to law enforcing officers cannot be accepted in evidence unless it is in a form of writing.
“Consequently, as no caution statement of any accused person forms part of the evidence on record, the evidence of (prosecution witnesses) that there was a confession has no probative value in terms of section 100(1) of the Evidence Act,” he said.
The judge emphasized that Section 57(1) of the Criminal Procedure Act (CPA) requires the interview by a police officer in which the suspect confesses to be reduced into writing.
On that account, he said, no other evidence relating to the confession is admissible except the recorded confession.
It was the judge’s position that without the confession, no evidence is on record to establish that the accused persons did meet at any place leave alone Tegeta Kibaoni and agreed, physically or virtually, to join Al-Shabaab as charged in the first count. “Even if we assume the confession was made, the same was false because their passports would not have enabled them to go to Somalia… “The passports issued by (two immigration officers) were limited to East Africa. Somalia had not joined the Community in 2013. A false confession cannot ground conviction,” the judge said.
It was alleged by the prosecution that the accused persons between January 1, 2012 and October 14, 2013 at Tegeta Kibaoni, Dar es Salaam, conspired to commit terrorist offences involving forming intention to become members of a terrorist group called Al-Shabaab.
In the second count, it was alleged that Rashid recruited the other accused persons to be members of a terrorist group named Al-Shabaab between January 1, 2012 and October 24, 2013 at Tegeta Kibaoni area – Dar es salaam.
Furthermore, Ramadhani, Waziri and Mtweve were accused of agreeing to be recruited as members of AlShabaab knowing that it is a terrorist group. The recruitment took place at different places in Hororo border, Mkinga District and Kinondoni District Dar es Salaam.
On October 24, Ramadhani, Waziri and Mtweve were arrested by a police officer of the rank of Assistant Superintendent of Police (ASP) at Horohoro, Tanzania or Kenya border aboard Tahmeed bus heading to Mombasa from Dar es Salaam.
Such police officer testified that on the bus arrival, passengers disembarked for border clearance but the three accused persons remained in the bus.
He discovered them during his normal routine inspection. On enquiry, the three accused persons told him they were travelling to Somalia on photocopied emergency travel passports. He decided to confiscate those copies and prepared a seizure certificate. For want of proper passports, the police officer took the three suspects to the Immigration Office where they met another officer. On being told the young men were heading to Somalia without valid passports, he summoned the District Security Committee to interview the suspects.
They said their mission is for Somalia to fight Holy Jihad by joining Al-Shabaab. The interview was made in the presence of the police officer, who heard the confession.
From Horohoro, the three suspects were taken to Chumbageni Police Station by a policeman stationed at Mtandikeni Police Station, Mkinga District, Tanga Region. On arrival, one police officer admitted and locked the three accused up until October 27, 2013 when they were transferred to Dar es Salaam.
One police officer testified that in his conversation with the suspects while on their way to Chumbageni, they told him that they were heading to Somalia for a Holy Jihad after they trained at AlNoor Mosque under Imam Ally and Kibira.
The same story was narrated to another police officer, who brought the suspects from Tanga to Dar es Salaam. On October 31, 2013, Rashid was arrested by another police officer at his residence at Boko Chasimba, Kinondoni – Dar es Salaam.
Such police officer did so after recording the caution statement of Mtweve, who said their coach on terrorism was Rashid and, indeed, the three other accused persons led the police to his residence.
