Appeal against Zombe postponed indefinitely over misnamed judge

Abdallah Zombe

Appeal case seeking to nullify a 2009 requital order in the murder case against former Dar es Salaam Regional Crimes Officer Abdallah Zombe and eight other police officers has taken an unexpected turn.

After four years of postponed hearings, finally, yesterday, the 2009 appeal was to be heard but only to be found with an error that has caused its adjournment yet again to an unknown date.

The error was in naming a judge as of being of the Court of Appeal (which he is) but when he presided over the cases four years ago, he was not. The case begun originally in 2006, a ruling passed in 2009, an appeal filed same year and finally it was yesterday brought for hearing.
But with the error, defence counsel is out to get a repeal of the prosecution’s appeal against the suspects release. Advocate Majura Magafu who represented the defence team filed for the retraction yesterday argued that the court of appeal has no jurisdiction to hear the trial and that the judge referred to in the appeal was not a Court of Appeal justice but of the High Court.
On October 6, 2009 the Director of Public Prosecutions (DPP) filed the appeal with the High Court seeking revision of an earlier judgment by the High Court that acquitted Zombe and his co-accused of the murder charges they were facing.

The accused were charged with the murder of three mineral businessmen from Mahenge, in Morogoro Region, and one taxi driver, a resident of Dar es Salaam.

The deceased are Sabinus Chigumbi, Elias Jongo, his relatives Ephrahim Chigumbi and Mathias Lunkombi, and Juma Ndugu and the taxi driver (unidentified).

Yesterday, the case was brought up for hearing before a panel of three judges comprised of Judge Bethuel Mmila, Salum Mbaruku and Edward Rutakangwa.

However, before the hearing started, the court realised the notice of appeal had some shortcomings in that it stated that the case was heard by a judge of the court of Appeal instead of a High Court Judge.

According to Rules of the Court of Appeal, no judge of the Court of Appeal has authority to hear the case either in the magistrate’s court or in any other court.

It was explained that, when the High court judge, Salum Masati was appointed to be a Court of Appeal judge, he should have continued with the case first until determination before assuming his new appointment.

So, when the prosecution filed the appeal and named Masati as an appeal judge (his current post) they were mistaken because when he presided over the case he was not.

Prosecution led by senior state attorney Timony Vitalis conceded to the filing error and asked the court to allow them to amend the Notice of Appeal.

But in another twist, the request was strongly objected by the defence counsel who submitted that, the prosecution cannot make the amendment because apparently the filed document was not even a Notice of Appeal.

Further, Magafu argued that the court has no jurisdiction to hear the case since a member of its panel is of the same court.

“Because the appeal is not proper before the court, we ask the court to strike it out,” Magafu insisted and made clear that if the prosecution wants to continue with the appeal, then they should follow proper procedure.

In turn, the court wrap up with order to give their ruling on notice after review of submitted arguments. The ruling will be heard on a date yet to be announced.

In the original murder case, it is alleged that the accused did in January 2006, in the Pande forest on the outskirts of Dar es Salaam, committed the said offence.

Apart from Zombe, the other accused are ASP Christopher Bageni, ASP Ahmed Makelle, Constable Noel Leonard, Constable Jane Andrew, Corporal Nyangerela Moris, Constable Emanuel Mabula and Corporal Felix Sedrick.

Others are, Constable Michael Shonza, Corporal Abeneth Salo, Corporal Rashid Lema (who died before the trial commenced), Corporal Rajabu Bakari and Corporal Festus Gwabisabi are also implicated.

On August 17, 2009 the High Court acquitted all the accused, saying that after the submitted testimonies and submissions of both sides, the court was satisfied that the accused were not guilty of the offence they were charged with.

Judge Salum Masati, who presided over the case, said the accused were not the ones who committed the murders, adding that the killers were still at large. Masati further ordered the prosecution to find and bring to court the real killers.

But the prosecution has since then sought to appeal that ruling, to no avail and the suspects remain at large.

The Guardian