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What lawyers say about the recent burial crisis

Discussion in 'Habari na Hoja mchanganyiko' started by Code X, Apr 15, 2008.

  1. C

    Code X Member

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    Apr 15, 2008
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    Our Staff Writer FAUSTINE KAPAMA
    Daily News; Monday,April 14, 2008 @18:06



    Recently, a group Muslim believers went to the Evangelical Lutheran Church of Tanzania at Sinza to demand the body of decease Paul William Goliama, claiming he was a Muslim and should be buried according to Islamic Rites.

    Such action has attracted a mixture of feelings with many advocates recommending criminal charges against them. Our Staff Writer FAUSTINE KAPAMA, reports…… Paul William Goliama died on March 25, this year, at his parent’s home at Sinza.

    His mother, Mrs Anna Twisa Goliama, and other family members made burial preparations, including preparing a mass for final prayers and last respect at their church at Sinza area. On March 28, the body was taken to the church for the purpose before going for burial at Sinza Cemetery the same day.

    While in the church for prayers and last respect, a group of people believed to be Muslims went to the church and camped outside the gate. The group went at the church to block the burial process and demanded the deceased body. Members of the group said the deceased was a Muslim and, therefore, he could not be buried under Christian rites.

    Thereafter, on what was described as intervention to maintain peace at the scene, the police officers came and took the body of the deceased for preservation at Mwananyala Hospital and urged the parties to resort to court actions to end the dispute.

    Seasoned advocate Majura Magafu describes the decision by the Muslim believers as good as creating disturbance to other people and the police ought to have arrested them for legal punitive actions. “I have no doubt that the circumstances suggest that members of the group committed a criminal act, which the police should not have entertained,” the advocate says.

    According to him, he believes that there is no chapter under the Koran authorizing Muslims to “stormed” into the church’s compounds to demand right they think were entitled to under any circumstances. Mr Magafu says there are procedures that the aggrieved party could pursue without creating any skirmish, like instituting legal proceedings before any court of law for adjudication.

    “Another revenue is police intervention, who know the proper cause of action to take to redress the situation. What they did had no any guidance as neither the law nor Koran gave them authority,” he says. An expert in criminal law, advocate Gaudiosus Ishengoma, fully supports the sentiments by his co-advocate. He, however, blames the police for not using their wise wisdom to deal with the matter.

    He suspects that the police acted in fear to take proper actions without being guided by available law and procedure. He says what was done by the “invaders” was disorderly and completely illegal. “This is purely interference of religious belief. By itself is a cause of action for whatever course, which cannot be accepted,” the advocate says.

    He is of the opinion that the police were the ones who caused the dispute to reach at the stage it had reached as should have handed the deceased body to his parents straight away.
    “This is a matter of common sense. The parents are ones who could have decided where and how their son should be buried and not any outsider,” Mr Ishengoma says.

    Another seasoned advocate, who preferred anonymity queries the rationale behind the decision by the police to recommend any aggrieved party in the dispute to go to court for redress. “I do not think if there is any law in the country’s statutory books that gives direction to a Muslim or Christian believer to bury his co-believer,” he says.

    According to him, even the case that was filed later in court to solve the dispute was not proper as, he thinks, the court was not moved properly to deal with the matter. In the case, relatives of the deceased went to court under Section 95 of the Penal Code which gives the court to hear the case and sought declaration, allowing them to conduct the deceased’s burial.

    On the other hand, Muslim believers contended that the case was proper, but ought to have been filed under Section 22 of the Civil Procedure Code to move the court to determine the controversy. The provision states that every suit shall be instituted by way of plaint or other manner that may be prescribed. However, the anonymous advocate says both cited provision were not applicable.

    He says circumstances surrounding the dispute could not accommodate such provisions in the case, as none of them suggests that a Muslim has exclusive right of burying a co-Muslim, likewise for Christians. The advocate appreciate the police’s intervention, but he suggests they should have moved further by arresting “church trespassers”, who claimed having exercised rights of burying their co-believer.

    “These people should have been charged with disturbing religious assembly under Section 126 of the Penal Code,” he says. Such provision states that “Any person who voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious warship or religious ceremony is guilty of an offence.”

    Alternatively, the advocate says, the invaders should have been charged with trespassing on burial places as per Section 127 of the Penal Code. The section reads, “every person who with the intention “of wounding the feelings of another person or of insulting religion of any person with the knowledge that the feelings of any person are likely to be wounded or that the religion of any person is likely

    “to be insulted thereby commits any trespass by any place of warship or in any place of sepulture or in any place set apart from the performance of funeral rights or as a depository of remains “of the body or offers any indignity to any human corpse or causes disturbance to any person assembled for the purpose of funeral ceremonies is guilty of an offence.”

    According to Criminal Procedure Act Cap 20, Revised Edition 2002, the police are allowed to arrest the suspected offender of the said offences without arrest warrant. One is liable for imprisonment of one year once convicted of the offences as per the Act’s schedule involving offences injurious to the public in general, particularly offences relating to religious.

    The Director of Public Prosecutions (DPP), Mr Eliezer Mbuki Fereshi, says indeed a criminal offence was committed when Muslims went to the church to demand the deceased body.
    However, he gives precaution that before doing anything, the arresting machinery has to look into the issues surrounding the matter before taking legal stapes to avoid more encounters.

    Prof. Abdallah Safari, also a seasoned advocate says, on other hand, that though he was not at the scene, he do not think Muslim believers committed any mistake warranting criminal prosecution. “Going to a church to demand your right without creating disturbance is not offensive. That is why the police looked into the matter and recommended civil proceedings to be taken,” he says.

    The Kinondoni Regional Police Commander (RPC), Assistant Commissioner of Police Jamal Rwambow, says whoever blames the police that they misdirected in handling the dispute is completely wrong. “I think people should appreciate the recommendable job done by the police in this matter. We did a good job to pre-empty bloodshed that had to happen if we were to act contrary to what we did,” he says.

    The regional police chief says they recommended civil proceedings to be taken because every group in the dispute demanded exclusive rights of conducting the burial of the deceased. “Under such circumstances, to whom would you arrest. We would have taken to task the offending party after the court decided who has such right. It was not possible before that,” RPC Rwambow says.
     
  2. Allah's Slave

    Allah's Slave JF-Expert Member

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    Hii paragraph imekaa vizuri.
     
  3. j

    jwendrankasuran Member

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  4. kamonga

    kamonga Senior Member

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    He is of the opinion that the police were the ones who caused the dispute to reach at the stage it had reached as should have handed the deceased body to his parents straight away.
    "This is a matter of common sense. The parents are ones who could have decided where and how their son should be buried and not any outsider," Mr Ishengoma says.

    Another seasoned advocate, who preferred anonymity queries the rationale behind the decision by the police to recommend any aggrieved party in the dispute to go to court for redress. "I do not think if there is any law in the country's statutory books that gives direction to a Muslim or Christian believer to bury his co-believer," he says.

    nimeelewa hizi mbili tu.
     
  5. Planett

    Planett JF-Expert Member

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    thread kongwe hii ni balaa!
     
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