Wana JF,
Mnakumbuka kuwa makamanda Dr Mkumbo na Mwikabe Waitara wanakabiliwa na kesi katika Mahakama ya Wilaya Singida kwa kile kinachoelezwa ni kutumia lugha ya matusi dhidi ya Mh(sic!) Mwigulu Nchemba. Kesi hii imefikia katika hatua ambayo upande wa mashtaka umefunga ushahidi na pande zote zikatakiwa kupeleka hoja za maandishi kama kuna kesi ya kujibu au la. Nimefanikiwa kuziona hoja za upande wa utetezi zilizopelekwa mahakamani (ambazo ni public document si tatizo kuzileta public) na nikaona ni share na wale ambao wangependa kuzisoma.
1. MWITA MWIKABE WAITARA
2. DR. KITILA MKUMBO
The Defences Written Submissions on no Case to Answer Pursuant to the Order of the Court Issued on 24[SUP]th[/SUP] April, 2013 May it Please Your Honour, The accused persons, MWITA MWIKWABE WAITARA (hereinafter referred to as A1) and DR. KITILA MKUMBO (hereinafter referred to as A2) who are members of Chama cha Demokrasia na Maendeleo (Chadema) are jointly and together charged with the offence of using abusive language to one HON. LAMECK MWIGULU NCHEMBA on 14the day of July, 2012 at about 15.45 and 16.15 hours respectively at Ndago Village within District of Iramba in Singida Region at a political rally contrary to section 89(1)(a) of the Penal Code (Cap 16 of R.E. 2002). It was alleged that in the due course of their rally the accused persons uttered some words which were considered abusive. It was further alleged that after the utterance of those words, members of other political parties especially Chama Cha Mapinduzi (CCM) were provoked to wit, riot started whereby the police intervened successfully. In its effort to prove its case, the Republic called several witnesses and tendered exhibits in this honourable court before closing its case. On 24[SUP]th[/SUP] April, 2013 the honourable court ordered both parties to file written submissions of no case to answer (prima facie case). Your Honour, The main issue to be determined by the Honourable court at this stage is whether a case has been made out against the accuseds sufficiently to require them to make a defence in relation to the offence with which they are charged or simply, whether there is a prima facie case against the accused persons to satisfy the provisions of section 230 and 231 of the Criminal Procedure Act 1985(Cap 20 R.E. 2002) Your Honour, We beg to begin our submissions by defining prima facie case. The case of Ramanlal Bhatt v. R (1957) E.A 332 is the leading authority on the question of prima facie case. In this case, prima facie case is defined as follows at pp. 334-335:
it may not be easy to define what is meant by a prima facie case but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. (Emphasis supplied). Their Lordships, Newnham, Worley P., Sir Ronald Sinclair, V.P., and Bacon JA (as they then were) explained further the concept of prime facie case at p. 334 as follows:- Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggestion that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor any amount of worthless discredited evidence. It should be noted that the case originated from Tanganyika. Although the decision is based on section 205 of the Criminal Procedure Code (T), we are of the firm view that, it is still a good law because the section is identical to section 230 of the Criminal Procedure Act, 1985 (Cap 20. R.E. 2002). Your Honour, According to this case, the court should consider the evidence on record and the law applicable and then decide whether on that evidence and the applicable law it can convict if no explanation is offered by the defence. Your Honour, The effect of failure on the part of prosecution to establish a prima facie case is provided for in Jonas Nkize v. R [1992] T.L.R 213 (HC). In this case, his Lordship, Katiti J. (as he then was) had the following to say at p. 218:-
if it appears to the court that the case is not made out against the accused person sufficiently to require him to make a defence, either in relation to the offence with which he is charged, or in relations to any other offence of which under provisions of ss. 312-321 he is liable to be convicted, he shall dismiss the charge, and acquit the accused person (Emphasis supplied). Your Honour, As we have stated hereinabove, the accuseds are jointly and together charged with the offence of using abusive language contrary to section 89(1)(a) of the Penal Code (Cap 16 of R.E. 2002). Your Honour, We have to ask ourselves; what are the essential ingredients that constitute the offence the accuseds are charged with? The answer is found in section 89(1)(a) of Cap 16 R.E. 2002. The provision provides that any person who uses obscene, abuse or insulting language to any other person in such a manner as is likely to cause a breach of the peace is guilty of an offence... Your Honour, In our humble submissions, for the prosecution to prove an offence under section 89(1) (a) of Cap 16, they are required to satisfy two distinct tests beyond reasonable doubt. . (i) The first test is whether the language used was obscene, abusive or insulting. (ii) The second test is whether the words were said in such a manner as is likely to cause a breach of the peace. Your Honour, Regarding the first test, the Blacks Law Dictionary, 8[SUP]th[/SUP] Edition, defines the word abusive as something characterized by wrongful or improper use. That is to say language is said to be abusive if it is wrongful or improperly used. We submit that there is no reliable evidence on record that the words alleged to have been spoken by the accused persons were really spoken and that those words were abusive. Your Honour, PW1 testified that the first accused person (A1) told the rally, Kiongozi mliyemchagua (Mwigulu) hafai ni malaya, alishikwa ugoni Igunga, ni fisadi na mwigizaji. He further testified that the second accused person (A2) told the rally Mwigulu Mchemba hafai kama alivyokwisha eleza Waitara. PW1 further testified that some CCM members were throwing stones at the crowd although later on the rally continued to the end. PW2 who said he was a CCM leader testified that A1 asked the rally: mnamjua ze comedy and the rally replied yes, Mwigulu Mchemba is Ze comedy. He further testified that A1 told the rally Mwigulu ni mzinzi, mwasherati, mpumbavu na ze comedy. PW3 said A2 only supported words of A1 Mkumbo aliunga mkono maneno ya Waitara. Your Honour, Since PW1 and PW3 clearly said that A2 did not utter the alleged words but only said what was said was true and since the prosecution is bound by the testimonies of PW1 and PW3, the Honourable Court should hold that, A2 did not use any abusive language. We also submit that there are some obvious contradictions between testimonies of witnesses and their previously recorded statements and between one witness and another regarding the exact words alleged to have been spoken by the accused persons which contradictions cast a lot of doubt on the credibility of the prosecution witnesses. For instance while PW1 testified that A1 said Mwigulu ni Malaya, alishikwa ugoni Igunga, ni fisadi na mwigizaji, PW2 said it was the rally which said Mwigulu was Ze comedy. PW 2 also testified A1 said Mwigulu ni mzinzi, mwasherati, mpumbavu na ze comedy. P4 testified that A1 said Mbunge wenu ni muhuni. P2 also said it was A1 who said Mwigulu ni mzinzi and not A2. Your Honour, We humbly submit that since prosecution witnesses contradicted one another hopelessly in vital evidence the words uttered by the accused persons and since the witnesses were physically present at the scene, their testimonies should not be relied upon. Your Honour, This unhealthy state of evidence is aggravated by the fact of hostility which does exist between CCM and Chadema and which the court should take judicial notice. Save for police officers who testified, some witnesses admitted that they were CCM members and/or leaders. PW4 was mentioned by PW3 as one of CCM members who perpetrated violence. We submit that there is a possibility of biased testimony among the prosecution witnesses prompted by apparent hostility between CCM and Chadema. It is further submitted that the high degree of inconsistencies displayed among prosecution witnesses fortifies our argument. In Jeremiah Shemweta v.R. [1985] T.L.R 228, the High Court of Tanzania held that discrepancies in the various accounts of the story by the prosecution witnesses give rise to some reasonable doubts about the guilty of an accused person. Your Honour, Almost all prosecution witnesses testified that violence was caused by CCM members who started throwing stones at the crowd. It is evident that PW4 was one of CCM members who perpetrated violence thus cannot be expected to testify without bias. Your Honour, Even if the words alleged were uttered by the accused persons, which is denied, there is no evidence that they were abusive. It is common knowledge that the words mzinzi, mwasherati, mpumbavu na ze comedy alleged to have been uttered by the accuseds are not uncommon is political rallies. When a politician commits adultery or fails to act in an orderly manner, members of the public have a right to know. It would be recalled that the US former President Bill Clinton had acted improperly in what came to be known as Monica Lewisky scandal and the whole World were talking about the scandal. It is not expected a mere Member of Parliament of Mwigulu Nchembas calibre who is on record always abusing some opposition parties to be immuned. There is no evidence on record which tend to deny the fact that Mwigulu Nchemba had committed adultery and was acting like ze comedy in public especially during parliamentary proceedings. If the prosecution wanted to prove that the alleged utterances were false, they should have called Mwigulu Nchemba to testify to that effect. Since the person to whom the remarks were directed did not testify to show that the words were false and therefore abusive, to say that the language was abusive is mere speculation. Your Honour, It is further submitted that the word mpumbavu or stupid in English has never been an insult in political platforms in Tanzania. Mwalimu Nyerere who is considered by many as a master or father of Tanzanian politics had used the word stupid several times in his speeches and no one has ever considered it as an abusive language. In one of his most popular speeches Mwalimu had the following to say: It is stupid to rely on money as the major instrument of development when we know only too well that our country is poor. It is equally stupid, indeed it is even more stupid, for us to imagine that we shall rid ourselves of our poverty through foreign financial assistance rather than our own financial resources. It is stupid for two reasons. (see Ayanda Madyibi, the Arusha Declaration and TANUs Policy on Socialism and Self-Reliance, available in: (http://www.marxists.org/subject/africa/nyerere/1967/arusha- declaration.htm In his another speech in 1992, Mwalimu said: Belief that the more parties the more democratic you are, is stupidity, Julius K. Nyerere, 1992. democracy yes, lakini upumbavu wa kuchukua systems hivi hivi tu kwa kuwa wakubwa wanazitaka kwamba tusipozikubali hatutapata fedha zao
Source: http://www.wavuti.com/4/post/2013/04/nyerere-believing-more-parties-is-democracy-is-stupidity-wafadhili-can-go-to-hell-tunajenga-nchi-hapa.html#ixzz2RGztwBaF
More recently Member of Parliament for Nzega, Dr Hamis Kigwangala was quoted during parliamentary proceedings saying Viongozi wa Chadema ni wapuuzi (see Habari Leo, 14/4/2013 also available on http://www.habarileo.co.tz/index.php/habari-za-kitaifa/10866-mbunge-awaka-chadema-kuchezea-katiba-mpya). Your Honour, Even religious leaders have been referring some politicians as wapumbavu. For instance it was reported as follows: BAADHI ya waanasiasa nchini wameelezwa kuwa wana tabia za kipumbavu ambazo hazina tofauti na zile za wanasiasa nchini Ruanda ambao kwa upumbavu wao waliweza kusababisha maafa ya mauaji ya halaiki mwaka 1994.
Askofu mkuu Kanisa Katoliki jimbo kuu la Dar-es-Salaam Mwadhama Policarp Kadinali Pengo alilazimika kutumia kauli hiyo mwishoni mwa wiki mjini Dodoma kutokana na kile alichokisema kuna baadhi ya wanasiasa ambao kwa makusudi wamekuwa wakiwazuia viongozi wa dini kuhubiri habari njema. (available on http://charaz.blogspot.com/2010/08/wanasiasa-wengine-wapumbavu.html. Your Honour, Since the words mpumbavu, mpuuzi have been used in Tanzania in different platforms without been considered abusive, the Honourable court should hold so as such. Your Honour, It is humbly submitted that it is the duty of the courts to safeguard the constitutional right of freedom of speech and at the same time enforce a genuine breach of section 89(1) (a) of Cap 16. The court should not be used to enforce standards of conduct or morals, like this one, which fall short of criminal conduct. We invite the Honourable Court to hold that the prosecution has not produced evidence to establish that the words alleged to have been uttered by the accused persons were really uttered. In case the court holds that those words were uttered by the accused persons, we invite the court to hold that it was not type of abusive language envisaged under section 89(1)(a) of Cap 16. Your Honour, The second test requires that the words must have been said in such a manner as is likely to cause a breach of the peace. It is submitted that to satisfy this test, the prosecution must prove that one intended to provoke a breach of the peace. In Salum S/o Seif v.R. (1969) H.C.D 177, the High Court held that the crucial element in the offence mentioned in section 89(1)(a) is essentially one of provocation. In other words, abusive language per se is not sufficient to prove the offence. It must be proved that the words were said in such a manner as is likely to cause a breach of the peace. Your Honour, In John s/o Agustino v.R. (1967) H.C.D 61, the accused used abusive language against the President of Tanzania in which one witness was very annoyed and another claimed not to have been pleased by accused remarks. The court held that a mere annoyance or displeasure among listeners is not sufficient. In Adeha v.R (1970) HCD 310, it was held that a mere annoyance or displeasure among the recipients of the insults is not enough to ground a prosecution for this offence. Your Honour, We further submit that the principle relating to how a reasonable person would be expected to react in the circumstances apply equally to abusive language. The test to be applied is whether the abusive language used could be considered by a reasonable person as so abusive so as to deeply offend or outrage him in the circumstances of the case to thereby constitute criminal conduct within the meaning of section 89 (1)(a) of Cap 16. Your Honour, In this case, it is hardly likely or even conceivable that in a political rally, a reasonable listener would have resorted to physical violence and created a breach of the peace for words said against a politician which were not new and which were common in political rallies. Your Honour, We submit that the prosecution should have produced a witness who should have testified that he was reasonably annoyed by the words said to the extent that he was forced to resort to violence. All prosecution witnesses testified that CCM members who were present at the rally felt provoked and resorted to violence. Nobody whatsoever testified that he himself resorted to violence after being provoked. It is submitted that to be provoked is a feeling. Section 62 (c) of the Law of Evidence Act (Cap 6 R.E. 2002) provides that oral evidence must in all cases be direct, that is to say, if it refers to a fact which should be perceived by any other sense or in any other manner, it must be the evidence of a witness who said he perceived it by that sense or in that manner. Therefore, testimonies of witnesses who testified that some CCM members felt provoked and resorted to violence should be considered hearsay. Your Honour, We invite this court to hold that, the prosecution has failed to satisfy the second element because there is no evidence to prove that the words were uttered in such a manner as is likely to cause a breach of the peace. This argument is grounded on the fact that:- (a)There is no evidence that the accused intended to provoke a breach of the peace. (b) There is no evidence that the words alleged to have been uttered by the accused could prompt a reasonable listener to resort to violence. (c) There is no directs evidence to prove that CCM members who committed acts of violence at the said political rally were prompted by the alleged words or by other reasons. The evidence on record is that of persons who testified that some other persons (CCM members) who did not appear in court to testify were provoked and resorted to violence
Your Honour,In our humble submissions, if the honourable court considers the evidence on record and the law applicable, as we have rightly submitted, it should hold that the accused cannot be convicted even if no explanation is offered by them on the allegations contained in the count with which they are charged. In other words, ceteris paribus, the court would not be prepared to convict the accused herein if no defence is made. Your Honour,As we have submitted hereinabove, the effect of failure on the part of the prosecution to establish a prima facie case is provided for in Jonas Nkiza v.R ([992] T.L.R 213, that is,. the court shall dismissed the charge and acquit the accused person. Your Honour,Having submitted that the prosecution has not established a prima facie case, we humbly pray that the charge be dismissed and the accused persons be acquitted forthwith. We so humbly submit and pray. Dated at Dar es Salaam this .day of April 2013
Mnakumbuka kuwa makamanda Dr Mkumbo na Mwikabe Waitara wanakabiliwa na kesi katika Mahakama ya Wilaya Singida kwa kile kinachoelezwa ni kutumia lugha ya matusi dhidi ya Mh(sic!) Mwigulu Nchemba. Kesi hii imefikia katika hatua ambayo upande wa mashtaka umefunga ushahidi na pande zote zikatakiwa kupeleka hoja za maandishi kama kuna kesi ya kujibu au la. Nimefanikiwa kuziona hoja za upande wa utetezi zilizopelekwa mahakamani (ambazo ni public document si tatizo kuzileta public) na nikaona ni share na wale ambao wangependa kuzisoma.
IN THE DISTRICT COURT OF SINGIDA AT SINGIDA CRIMINAL CASE NO
..OF 2012 REPUBLIC VERSUS
2. DR. KITILA MKUMBO
Source: http://www.wavuti.com/4/post/2013/04/nyerere-believing-more-parties-is-democracy-is-stupidity-wafadhili-can-go-to-hell-tunajenga-nchi-hapa.html#ixzz2RGztwBaF
More recently Member of Parliament for Nzega, Dr Hamis Kigwangala was quoted during parliamentary proceedings saying Viongozi wa Chadema ni wapuuzi (see Habari Leo, 14/4/2013 also available on http://www.habarileo.co.tz/index.php/habari-za-kitaifa/10866-mbunge-awaka-chadema-kuchezea-katiba-mpya). Your Honour, Even religious leaders have been referring some politicians as wapumbavu. For instance it was reported as follows: BAADHI ya waanasiasa nchini wameelezwa kuwa wana tabia za kipumbavu ambazo hazina tofauti na zile za wanasiasa nchini Ruanda ambao kwa upumbavu wao waliweza kusababisha maafa ya mauaji ya halaiki mwaka 1994.
Askofu mkuu Kanisa Katoliki jimbo kuu la Dar-es-Salaam Mwadhama Policarp Kadinali Pengo alilazimika kutumia kauli hiyo mwishoni mwa wiki mjini Dodoma kutokana na kile alichokisema kuna baadhi ya wanasiasa ambao kwa makusudi wamekuwa wakiwazuia viongozi wa dini kuhubiri habari njema. (available on http://charaz.blogspot.com/2010/08/wanasiasa-wengine-wapumbavu.html. Your Honour, Since the words mpumbavu, mpuuzi have been used in Tanzania in different platforms without been considered abusive, the Honourable court should hold so as such. Your Honour, It is humbly submitted that it is the duty of the courts to safeguard the constitutional right of freedom of speech and at the same time enforce a genuine breach of section 89(1) (a) of Cap 16. The court should not be used to enforce standards of conduct or morals, like this one, which fall short of criminal conduct. We invite the Honourable Court to hold that the prosecution has not produced evidence to establish that the words alleged to have been uttered by the accused persons were really uttered. In case the court holds that those words were uttered by the accused persons, we invite the court to hold that it was not type of abusive language envisaged under section 89(1)(a) of Cap 16. Your Honour, The second test requires that the words must have been said in such a manner as is likely to cause a breach of the peace. It is submitted that to satisfy this test, the prosecution must prove that one intended to provoke a breach of the peace. In Salum S/o Seif v.R. (1969) H.C.D 177, the High Court held that the crucial element in the offence mentioned in section 89(1)(a) is essentially one of provocation. In other words, abusive language per se is not sufficient to prove the offence. It must be proved that the words were said in such a manner as is likely to cause a breach of the peace. Your Honour, In John s/o Agustino v.R. (1967) H.C.D 61, the accused used abusive language against the President of Tanzania in which one witness was very annoyed and another claimed not to have been pleased by accused remarks. The court held that a mere annoyance or displeasure among listeners is not sufficient. In Adeha v.R (1970) HCD 310, it was held that a mere annoyance or displeasure among the recipients of the insults is not enough to ground a prosecution for this offence. Your Honour, We further submit that the principle relating to how a reasonable person would be expected to react in the circumstances apply equally to abusive language. The test to be applied is whether the abusive language used could be considered by a reasonable person as so abusive so as to deeply offend or outrage him in the circumstances of the case to thereby constitute criminal conduct within the meaning of section 89 (1)(a) of Cap 16. Your Honour, In this case, it is hardly likely or even conceivable that in a political rally, a reasonable listener would have resorted to physical violence and created a breach of the peace for words said against a politician which were not new and which were common in political rallies. Your Honour, We submit that the prosecution should have produced a witness who should have testified that he was reasonably annoyed by the words said to the extent that he was forced to resort to violence. All prosecution witnesses testified that CCM members who were present at the rally felt provoked and resorted to violence. Nobody whatsoever testified that he himself resorted to violence after being provoked. It is submitted that to be provoked is a feeling. Section 62 (c) of the Law of Evidence Act (Cap 6 R.E. 2002) provides that oral evidence must in all cases be direct, that is to say, if it refers to a fact which should be perceived by any other sense or in any other manner, it must be the evidence of a witness who said he perceived it by that sense or in that manner. Therefore, testimonies of witnesses who testified that some CCM members felt provoked and resorted to violence should be considered hearsay. Your Honour, We invite this court to hold that, the prosecution has failed to satisfy the second element because there is no evidence to prove that the words were uttered in such a manner as is likely to cause a breach of the peace. This argument is grounded on the fact that:- (a)There is no evidence that the accused intended to provoke a breach of the peace. (b) There is no evidence that the words alleged to have been uttered by the accused could prompt a reasonable listener to resort to violence. (c) There is no directs evidence to prove that CCM members who committed acts of violence at the said political rally were prompted by the alleged words or by other reasons. The evidence on record is that of persons who testified that some other persons (CCM members) who did not appear in court to testify were provoked and resorted to violence
Your Honour,In our humble submissions, if the honourable court considers the evidence on record and the law applicable, as we have rightly submitted, it should hold that the accused cannot be convicted even if no explanation is offered by them on the allegations contained in the count with which they are charged. In other words, ceteris paribus, the court would not be prepared to convict the accused herein if no defence is made. Your Honour,As we have submitted hereinabove, the effect of failure on the part of the prosecution to establish a prima facie case is provided for in Jonas Nkiza v.R ([992] T.L.R 213, that is,. the court shall dismissed the charge and acquit the accused person. Your Honour,Having submitted that the prosecution has not established a prima facie case, we humbly pray that the charge be dismissed and the accused persons be acquitted forthwith. We so humbly submit and pray. Dated at Dar es Salaam this .day of April 2013
