LHRC’s Legal Opinion on the ruling against CHADEMA’s top officials and the Aftermath of the Judgment
Legal and Human Rights Centre closely monitored the proceedings of the Criminal Case No. 112 of 2018 against the leaders of the main opposition party in the country, Chama cha Demokrasia na Maendeleo (CHADEMA), from arraignment, conviction and sentence.
The government of the United Republic of Tanzania prosecuted nine (9) CHADEMA leaders including the party chairperson, Hon. Freeman Mbowe accused of conspiring to commit an offence and hold unlawful assembly between February 1 to 16, 2018 following the party’s decision to protest irregularities during the by-election in Kinondoni constituency in Dar es Salaam. During the protest, the Police Force used weapons to disperse protesters and led to the death of a student of the Tanzania Nation Institute of (NIT), Akwilina Akwilini.
In our move to safeguard and promote the rule of law, good governance and democracy in Tanzania, we (LHRC) have closely followed up the judgement which was delivered on March 10, 2020. Following an in-depth analysis of the proceedings, the sentencing and the post-judgment issues, LHRC have raised the following issues;
1. Sedition offences are against the East African Treaty
One of the offences the accused have been found guilty and convicted accordingly is the sedition. On 21st March 2019 East African Court of Justice (EACJ) delivered the judgement and ruled among others that provision of sections 52 and 53 of the Media Services Act which provide for seditious as a criminal offence are in violation of the Articles 6(d), 7(2) and 8(1) of the Treaty for the Establishment of the East African Community. The decision of the EACJ is binding to the partner states. Technically those provisions are bad law and they don’t have legal effect. The government issued the notice of an intention to appeal against the EACJ First Instance Division decision to the Appellate Division on 11th April 2019 but to date, there is no appeal. The rules of court require one who intends to appeal against the decision of the court to appeal within 30 days from the date of notice otherwise it will be presumed they have abandoned the appeal and to date, there is no appeal. Apart from the binding of the decision of the court under Article 8(5) of the Treaty Establishing the African Community provides that:
In pursuance of the provisions of paragraph 4 of this Article, the Partner States undertake to make the necessary legal instruments to confer precedence of Community organs, institutions and laws over similar national ones. (Emphasis supplied)
This means that the decision of the community organs takes precedent over the same institution over similar national organs. The court of Tanzania is bound by the decision of the EACJ.
2. The Practices by the Judiciary
LHRC has continued to monitor the judiciary in dispensing justice especially in the conduct of cases with implications to democracy. Sometimes in November 2018 the CHADEMA’s chairperson, Hon. Freeman Mbowe and MP Esther Matiko were remanded for more than three months after their bail was cancelled by the Kisutu Resident Magistrate's Court until the High Court overturned the decision. The Kisutu Resident Magistrate’s Court reached that decision irrespective of the bail is the fundamental right of the accused as guaranteed under Article 13 (6) of the Constitution of the United Republic of Tanzania.
3. Continuation of the suppression of the citizens’ right to participate in public affairs
Article 21 of the Constitution of the United Republic of Tanzania guarantee for the right of citizens to participate in public affairs without interruption. On the judgement day of the CHADEMA leaders' case members of the public and supporters of the party flocked at the Court to hear the judgement. Reports and video footages showed the police taking unnecessary measure to arrest some of the supporters outside the court. In a similar move, CHADEMA leaders who went to Segerea Prison to receive their party chair after he was released from prison were attacked and injured. The Prison Department in its public statement has admitted using force to control the CHADEMA supporters and their leaders. Some of the badly hurt leaders include MPs who are also senior leaders of the party, Hon. Halima Madee and Hon. Esther Bulaya.
4. Double Standards and Impunity
In the course of the execution of the judgment, the LHRC has noted some incidences that are not a good indicator regarding the functioning of the state apparatus. Leaders of the ruling party were welcomed and treated with the exemption as was evident when senior members of the CCM arrived in prison in Segerea to receive some prisoners. The Prison Officers did not harass them or impose sanctions on them as the opposition parties had claimed. CHADEMA leaders have complained that they have sought the same services received by CCM leaders and resulted in differences with the prison warders until the prison officer declared an emergency and start beating those opposition leaders.
LHRC calls on state agencies to recognize that all citizens of the United Republic of Tanzania are equal and Tanzania is a democratic country and should treat all citizens equally regardless of their political ideology. Every citizen has political rights and must be protected and respected. We call on Tanzanians to continue to fulfil their obligations as per the law of the land and demand their rights when they are violated.
Issued on March 16, 2020 by;