Kaunda wa Kaunda
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- Jul 17, 2012
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THE TEMPEST IN A CREAM BOWL SURROUNDING AN ATTEMPTED ASSASSINATION OF DR ULIMBOKA; WHO IS ON THE CROSS
By Kaunda Paul
The eve and dawn of 27[SUP]th[/SUP] June 2012 was tainted with fear, grief, weeps and eyebrows raising statements/questions across the country upon hearing that, the chairman of Tanzania Doctors society, Dr Steve Ulimboka has been kidnapped, assailed, beaten brutally and left anguishing in agony in the vicinity of Mabwe Pande forest.
For easy of reference,Dr Ulimboka has been the protagonist and at pole position to address the famous 12 demands of doctors among others, salary increment and better working tools and even to incite and steer the ongoing doctors strike albeit passive.
The kidnapping and brutal torture of Dr ulimboka whom I describe as intrepid,faithfull and noble protagonist of the doctors demands and currently hospitalized in South Africa has bridled the most puzzling quagmire in the history of this country for the past decade.
It is said that the assailants repeatedly quizzed Dr Ulimboka kwanini unatusumbua sana (why are you nagging us) albeit it is not known who was being disturbed.
Dr Ulimboka is seen as a menace to the unknown entity akin to the famous the late JK NYERERES description of Zanzibar Island soon before Independence where he said that, If I could tow that Island (Zanzibar) out in the middle of the Indian Ocean, Id do it . It is very vulnerable to the outside influence. I fear it will be a big headache for me. (See William Edgett Smith, We must run while they walk, 1971 at page 121).
There is a cross section of the public who religiously believe that it was a contract killing engineered by Magogoni akin the assassination of the famous Russian Journalist, Anna Politkovskaya on October, 7, 2006 who was sharp critic of the Kremlin.
This kidnapping and apparent brutal torture (3[SUP]rd[/SUP] degree torture) inflicted to Dr Ulimboka can be loosely compared to the crucifixion of Jesus Christ at Golgotha about 2000 years ago save that Dr Ulimboka was not put on the cross and Iam not sure if he emulated the famous Jesus Christs cry for pain (medicines,medicines,lama sabachthani (my fellow doctors, my fellow doctors, why have forsaken me)
On the flip side of the coin, there are those comrades who outrightly believe that, Dr Ulimboka has been dealt by his inner circle let alone his court jesters for reasons best known to them.
At the tail end of the last month, the President JK Kikwete in his usual monthly speech to the nation asserted among others that the Government has clean hands in this incident and he prayed us to be patient waiting for the finding of the five-member fact finding mission tasked by the IGP,Said Mwema.
Nevertheless, on the 7[SUP]th[/SUP] of July, 2012 around 1400-1600hrs a little light of the finding was shed by what was dubbed as exclusive interview of Dr Ulimboka done before he was flown to South Africa for further treatment.
The host of the famous Clouds FM radio program, NJIA PANDA.Dr Isaac Maro who is a jonournalist cum medical doctor aired the exclusive interview of Dr Ulimboka at the time and date cited above.
Pending the investigation of the fact finding mission, it is my concern to discuss what transpired in this exclusive interview within the meaning of Article 18 of the Constitution of the United Republic, 1977 which champion vibrantly the freedom of expression which never fell shy to concur with John Milton in his famous AREOPAGIOTICA (1644), 1847,188 where he said that, Give me the liberty to know, to utter and to argue freely according to conscience, above all liberties
By standing on the shoulders of John Milton, George Orwell in his well known novel, Animal Farm (1946), went further to say that, If liberty means anything at all, it means the right to tell people what they do not want to hear
At this juncture, one may be tempted to ask, what really transpired in the exclusive interview of Dr Ulimboka let alone the pretext self surrendering of the Kenyan national one JOSHUA GITHU MHINDI as one of the assailants of Dr Ulimboka? Were the perpetrators of the crime named? Can any circumstantial evidence be drawn to implicate, incriminate or exonerate the Government from liability?
Here we go, from the bedroom of MNHS ICU to the boardroom of the Media houses, Dr Ulimboka narrates that, he and his fellow Doctor Deo Michael met with one person named ABEID for unofficial meeting at Container Grocery alongside Tunisia Road to discuss priority doctors demands among the 12 demands. According to Dr Ulimboka, he is familiar with ABEID as he is working at IKULU and he has been involved in discussion with him during the previous doctors strike in February.
Now before much ado, one can ask, who is this person named ABEID? Is he really working at IKULU/TISS?
Did Dr Ulimboka and Dr Deo Michael warn themselves by acting on the instruction of ABEID without corroboration? If NO, was there any corroboration to that effect since the previous meeting with him in February? If yes, is there any material proof to that effect?
These are very pertinent and ice-breaking questions which can unravel the whole mystery. What I can see here is the jeopardy posited on Dr Ulimboka and Dr Deo Michael if they acted upon instructions of ABEID without corroboration i.e. mere saying that he is working at IKULU/TISS.
If that has been the case then legally speaking, they have been acting under their own peril.
The fact finding mission may come up with one of the finding that, there has never been a person working at IKULU with such a name,ABEID save that Intelligence services normally use code names like POTLAKO KITCHENER LEBALLO,an important prosecution witness in the first treason trial in this country, REPUBLIC VS GRAY LIKUNGU MATTAKA AND 2OTHERS ,Criminal sessions case no 103 of 1970 (original criminal case no 685 of 1970),High Court of Tanzania at Dar es salaam, where Georges C.J at page 12 of his judgment described LEBALLO as Police agent, an enthusiastic agent who revelled his role and his evidence has to be examined with care.
Can ABEID be another LEBALLO? Lets wait and see.
Dr Ulimboka continues further to narrate that; ABEID came by, purportedly his car, Stralet. What he (Dr Ulimboka) didnt say is whether ABEIDS car had a plate at both ends with registration number and none. If ABEIDS car had registration number, then THE TANZANIA REVENUE AUTHORITY (TRA) can help to find out the owner of that cat save that both Dr Ulimboka and Dr Deo Michael can correctly remember its registration number.
Dr Ulimboka narrates further that, during their conversation with ABEID, He (ABEID) was very busy communicating .. Soon there after came a group of four or five men who arrested Dr ulimboka and freed others, packed him in the car and drove him to the destination best known to them.
Here comes another quagmire, with whom ABEID was he communicating?
Was he communicating with the group of four or five men who kidnapped Dr Ulimboka?
If yes, what was the subject and content of communication let alone satellite phone communication?
To answer these questions, we must take refuge to the Director General of Tanzania Communication Regulatory Authority (TCRA), Prof John Nkoma who is the custodian of all mobile operators in this country, namely, TIGO,AIRTELL.VODACOM,ZANTEL,TTCL, just to name a few.
Section 121(2) of the Electronic and Postal Telecommunication Act no 3 of 2010 read together with sections 98(1),(2),99(a),(b)(i)(ii) of the same Act and the Tanzania Communication Regulatory Authority (TCRA) ACT no 12 of 2003 makes it lawful for an officer, employee or agent of any network facilities, provider network service provider, application service provider or content service provider whose facilities or services are used in communication, TO INTRCEPT,DISCLOSE or use those communication in the normal course of his employment which engaged in any activity which is a necessary incident to the performance of his facilities or services or the protection of rights or property of the provider of the facilities or services but the provider shall not utilize the facilities or services for observing or random monitoring unless it is for mechanical or service quality control or checks.
Pursuant to this sections, if the TCRA is left free to discharge its duty without influence, it is crystal clear that the patent disclosure of the content of the communication will be available and if that disclosure will correspond with what ABEID was communicating with the group of four or five men, then it would be the end of the story.
Here comes another boggling question Dr Ulimboka narrated that, he was his fellow Dr Deo Michael at the scene of the arrest and after that arrest and kidnapping of Dr Ulimboka, Dr Deo Michael has not made clear that, what happened to him (Dr Deo Michael) and ABEID after Dr Ulimboka was arrested,kidnapped,arraigned in the car and then driven to the destination known to them (assailants) coupled with persistent beatings.
If he (Dr Deo Michael) could read the demeanour of ABEID at that very moment and soon there after, then how was it (demeanour)? Perplexed, amazed or staring as if nothing has happened?
Soon after the event, how did they (Dr Deo Michael and ABEID) left the scene of the event?
Did they had a little chit-chat about the incident? If yes, what transpired? After the event did they both shout for help to nearby neighbours signalling that Dr Ulimboka has been kidnapped?
Iam learning that, Dr DEO MICHAEL soon after the event he reported the incident to a nearby Police Station. But my question is, considering the nature of their conversation and body language of ABEID, why didnt he (DR Deo Michael) follow up the anonymous car which carried Dr Ulimboka soon after the arrest? Or why didnt he make an emergency call (995) to Police informing them that Dr Ulimboka has been arrested by group of four or five men who used an anonymous car?
One does not need to be a Medical Doctor like Dr Deo Michael to know that never on Earth, Police Officers arrest criminals by using non-registered car, So Dr Deo Michael had a reasonable duty to doubt the group of four or five men with their anonymous car and he had to report the incident very soon to Police Station so that they (POLICE) could place police barriers at all major roads in Dar es Salaam, and who knows the matter would have ended even before the kidnappers, assailants reached at MWENGE.
In a nutshell, what transpired in the exclusive interview of Dr Ulimboka is largely circumstantial evidence which El-Kindy J (as he then was) in GERALD VS R (1972) HCD 87 cautioned that where evidence is exclusively circumstantial, the court must before acting upon the conviction find that the INCULPATORY facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the guilt of the person charged.
So for the exclusive interview of Dr Ulimboka to cross the legal hurdles of admissibility, it must square within the following ambit:
i) The circumstances from which guilt is established must be fully proved
ii) All facts must be consistent with those hypothesis of the guilt of the accused let alone JOSHUA GITHU MHINDI
iii) All circumstances narrated in the interview must be of a conclusive nature and not superficial
iv) These circumstances should actually exclude every hypothesis except the one proposed to be proved
On this note, I feel shy, why I should not concur again with Georges C.J (as he then was) on circumstantial evidence in REPUBLIC VS GRAY LIKUNGU MATTAKA AND 6 OTHERS (supra), he held inter alia that where evidence led to establish any particular fact is circumstantial, the republic must prove beyond reasonable doubt each of the primary facts necessary to support the inference which one is asked to draw and it must also prove that, that inference is the only reasonable inference which can be drawn from the facts proved than the inference alleged by the republic will not have been established
Get well soon Dr!
KAUNDA PAUL
JURISTA SANS FRONTIERES
EMAIL; paulkaunda92@yahoo.com
Phone; 0713-995209
By Kaunda Paul
The eve and dawn of 27[SUP]th[/SUP] June 2012 was tainted with fear, grief, weeps and eyebrows raising statements/questions across the country upon hearing that, the chairman of Tanzania Doctors society, Dr Steve Ulimboka has been kidnapped, assailed, beaten brutally and left anguishing in agony in the vicinity of Mabwe Pande forest.
For easy of reference,Dr Ulimboka has been the protagonist and at pole position to address the famous 12 demands of doctors among others, salary increment and better working tools and even to incite and steer the ongoing doctors strike albeit passive.
The kidnapping and brutal torture of Dr ulimboka whom I describe as intrepid,faithfull and noble protagonist of the doctors demands and currently hospitalized in South Africa has bridled the most puzzling quagmire in the history of this country for the past decade.
It is said that the assailants repeatedly quizzed Dr Ulimboka kwanini unatusumbua sana (why are you nagging us) albeit it is not known who was being disturbed.
Dr Ulimboka is seen as a menace to the unknown entity akin to the famous the late JK NYERERES description of Zanzibar Island soon before Independence where he said that, If I could tow that Island (Zanzibar) out in the middle of the Indian Ocean, Id do it . It is very vulnerable to the outside influence. I fear it will be a big headache for me. (See William Edgett Smith, We must run while they walk, 1971 at page 121).
There is a cross section of the public who religiously believe that it was a contract killing engineered by Magogoni akin the assassination of the famous Russian Journalist, Anna Politkovskaya on October, 7, 2006 who was sharp critic of the Kremlin.
This kidnapping and apparent brutal torture (3[SUP]rd[/SUP] degree torture) inflicted to Dr Ulimboka can be loosely compared to the crucifixion of Jesus Christ at Golgotha about 2000 years ago save that Dr Ulimboka was not put on the cross and Iam not sure if he emulated the famous Jesus Christs cry for pain (medicines,medicines,lama sabachthani (my fellow doctors, my fellow doctors, why have forsaken me)
On the flip side of the coin, there are those comrades who outrightly believe that, Dr Ulimboka has been dealt by his inner circle let alone his court jesters for reasons best known to them.
At the tail end of the last month, the President JK Kikwete in his usual monthly speech to the nation asserted among others that the Government has clean hands in this incident and he prayed us to be patient waiting for the finding of the five-member fact finding mission tasked by the IGP,Said Mwema.
Nevertheless, on the 7[SUP]th[/SUP] of July, 2012 around 1400-1600hrs a little light of the finding was shed by what was dubbed as exclusive interview of Dr Ulimboka done before he was flown to South Africa for further treatment.
The host of the famous Clouds FM radio program, NJIA PANDA.Dr Isaac Maro who is a jonournalist cum medical doctor aired the exclusive interview of Dr Ulimboka at the time and date cited above.
Pending the investigation of the fact finding mission, it is my concern to discuss what transpired in this exclusive interview within the meaning of Article 18 of the Constitution of the United Republic, 1977 which champion vibrantly the freedom of expression which never fell shy to concur with John Milton in his famous AREOPAGIOTICA (1644), 1847,188 where he said that, Give me the liberty to know, to utter and to argue freely according to conscience, above all liberties
By standing on the shoulders of John Milton, George Orwell in his well known novel, Animal Farm (1946), went further to say that, If liberty means anything at all, it means the right to tell people what they do not want to hear
At this juncture, one may be tempted to ask, what really transpired in the exclusive interview of Dr Ulimboka let alone the pretext self surrendering of the Kenyan national one JOSHUA GITHU MHINDI as one of the assailants of Dr Ulimboka? Were the perpetrators of the crime named? Can any circumstantial evidence be drawn to implicate, incriminate or exonerate the Government from liability?
Here we go, from the bedroom of MNHS ICU to the boardroom of the Media houses, Dr Ulimboka narrates that, he and his fellow Doctor Deo Michael met with one person named ABEID for unofficial meeting at Container Grocery alongside Tunisia Road to discuss priority doctors demands among the 12 demands. According to Dr Ulimboka, he is familiar with ABEID as he is working at IKULU and he has been involved in discussion with him during the previous doctors strike in February.
Now before much ado, one can ask, who is this person named ABEID? Is he really working at IKULU/TISS?
Did Dr Ulimboka and Dr Deo Michael warn themselves by acting on the instruction of ABEID without corroboration? If NO, was there any corroboration to that effect since the previous meeting with him in February? If yes, is there any material proof to that effect?
These are very pertinent and ice-breaking questions which can unravel the whole mystery. What I can see here is the jeopardy posited on Dr Ulimboka and Dr Deo Michael if they acted upon instructions of ABEID without corroboration i.e. mere saying that he is working at IKULU/TISS.
If that has been the case then legally speaking, they have been acting under their own peril.
The fact finding mission may come up with one of the finding that, there has never been a person working at IKULU with such a name,ABEID save that Intelligence services normally use code names like POTLAKO KITCHENER LEBALLO,an important prosecution witness in the first treason trial in this country, REPUBLIC VS GRAY LIKUNGU MATTAKA AND 2OTHERS ,Criminal sessions case no 103 of 1970 (original criminal case no 685 of 1970),High Court of Tanzania at Dar es salaam, where Georges C.J at page 12 of his judgment described LEBALLO as Police agent, an enthusiastic agent who revelled his role and his evidence has to be examined with care.
Can ABEID be another LEBALLO? Lets wait and see.
Dr Ulimboka continues further to narrate that; ABEID came by, purportedly his car, Stralet. What he (Dr Ulimboka) didnt say is whether ABEIDS car had a plate at both ends with registration number and none. If ABEIDS car had registration number, then THE TANZANIA REVENUE AUTHORITY (TRA) can help to find out the owner of that cat save that both Dr Ulimboka and Dr Deo Michael can correctly remember its registration number.
Dr Ulimboka narrates further that, during their conversation with ABEID, He (ABEID) was very busy communicating .. Soon there after came a group of four or five men who arrested Dr ulimboka and freed others, packed him in the car and drove him to the destination best known to them.
Here comes another quagmire, with whom ABEID was he communicating?
Was he communicating with the group of four or five men who kidnapped Dr Ulimboka?
If yes, what was the subject and content of communication let alone satellite phone communication?
To answer these questions, we must take refuge to the Director General of Tanzania Communication Regulatory Authority (TCRA), Prof John Nkoma who is the custodian of all mobile operators in this country, namely, TIGO,AIRTELL.VODACOM,ZANTEL,TTCL, just to name a few.
Section 121(2) of the Electronic and Postal Telecommunication Act no 3 of 2010 read together with sections 98(1),(2),99(a),(b)(i)(ii) of the same Act and the Tanzania Communication Regulatory Authority (TCRA) ACT no 12 of 2003 makes it lawful for an officer, employee or agent of any network facilities, provider network service provider, application service provider or content service provider whose facilities or services are used in communication, TO INTRCEPT,DISCLOSE or use those communication in the normal course of his employment which engaged in any activity which is a necessary incident to the performance of his facilities or services or the protection of rights or property of the provider of the facilities or services but the provider shall not utilize the facilities or services for observing or random monitoring unless it is for mechanical or service quality control or checks.
Pursuant to this sections, if the TCRA is left free to discharge its duty without influence, it is crystal clear that the patent disclosure of the content of the communication will be available and if that disclosure will correspond with what ABEID was communicating with the group of four or five men, then it would be the end of the story.
Here comes another boggling question Dr Ulimboka narrated that, he was his fellow Dr Deo Michael at the scene of the arrest and after that arrest and kidnapping of Dr Ulimboka, Dr Deo Michael has not made clear that, what happened to him (Dr Deo Michael) and ABEID after Dr Ulimboka was arrested,kidnapped,arraigned in the car and then driven to the destination known to them (assailants) coupled with persistent beatings.
If he (Dr Deo Michael) could read the demeanour of ABEID at that very moment and soon there after, then how was it (demeanour)? Perplexed, amazed or staring as if nothing has happened?
Soon after the event, how did they (Dr Deo Michael and ABEID) left the scene of the event?
Did they had a little chit-chat about the incident? If yes, what transpired? After the event did they both shout for help to nearby neighbours signalling that Dr Ulimboka has been kidnapped?
Iam learning that, Dr DEO MICHAEL soon after the event he reported the incident to a nearby Police Station. But my question is, considering the nature of their conversation and body language of ABEID, why didnt he (DR Deo Michael) follow up the anonymous car which carried Dr Ulimboka soon after the arrest? Or why didnt he make an emergency call (995) to Police informing them that Dr Ulimboka has been arrested by group of four or five men who used an anonymous car?
One does not need to be a Medical Doctor like Dr Deo Michael to know that never on Earth, Police Officers arrest criminals by using non-registered car, So Dr Deo Michael had a reasonable duty to doubt the group of four or five men with their anonymous car and he had to report the incident very soon to Police Station so that they (POLICE) could place police barriers at all major roads in Dar es Salaam, and who knows the matter would have ended even before the kidnappers, assailants reached at MWENGE.
In a nutshell, what transpired in the exclusive interview of Dr Ulimboka is largely circumstantial evidence which El-Kindy J (as he then was) in GERALD VS R (1972) HCD 87 cautioned that where evidence is exclusively circumstantial, the court must before acting upon the conviction find that the INCULPATORY facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the guilt of the person charged.
So for the exclusive interview of Dr Ulimboka to cross the legal hurdles of admissibility, it must square within the following ambit:
i) The circumstances from which guilt is established must be fully proved
ii) All facts must be consistent with those hypothesis of the guilt of the accused let alone JOSHUA GITHU MHINDI
iii) All circumstances narrated in the interview must be of a conclusive nature and not superficial
iv) These circumstances should actually exclude every hypothesis except the one proposed to be proved
On this note, I feel shy, why I should not concur again with Georges C.J (as he then was) on circumstantial evidence in REPUBLIC VS GRAY LIKUNGU MATTAKA AND 6 OTHERS (supra), he held inter alia that where evidence led to establish any particular fact is circumstantial, the republic must prove beyond reasonable doubt each of the primary facts necessary to support the inference which one is asked to draw and it must also prove that, that inference is the only reasonable inference which can be drawn from the facts proved than the inference alleged by the republic will not have been established
Get well soon Dr!
KAUNDA PAUL
JURISTA SANS FRONTIERES
EMAIL; paulkaunda92@yahoo.com
Phone; 0713-995209
