Yesterday, October 26, 2021, a case against CHADEMA Chairperson Freeman Mbowe and his co-accused Halfan Bwire Hassan, Adam Hassan Kasekwa, Mohamed Abdilahi Lingwenya resumed following the appointment of a new Judge, Joachim Charles Tiganga. The case was halted for a while after the withdraw of a second Judge, Principal Judge Mustapher Siyani who cited new commitments as the reason for withdrawing.
Yesterday, prosecution witness Assistant Commissioner of Police (ACP) Ramadhani Kingai was in the witness box and was being questioned by the defense counsel. The key line of questioning was around statements received from the accused as well as the arrest. The case has resumed today,below are the proceedings:
In The High Court, Corruption and Economic Crime Division Economic Crime Case No.63 of 2020, Republic V Halfan Bwire Hassan, Adam Hassan Kasekwa, Mohamed Abdilahi Lingwenya and Freeman Elkael Mbowe.
Prosecution: Panel led by Advocate Robert Kidando; Abdallah Chavula, Jenitreza Akitali, Ester Martin, Ignas Mwinuka, Tulimanywa Majige.
Defense: Advocate Peter Kibatala, Jeremiah Mtobesya, John Malya, Alex Massaba, Michael Mwangasa, Jonathan Mndeme, Sisty Aloyce, Dickson Matata, Seleman Matauka, Hadija Aron, Maria Mushi, Evaresta Kisanga and Idd Msawanga.
State Counsel: Honorable Judge we are proceeding with yesterday’s testimony, the witness is ready
Judge: let’s proceed
State Counsel: What information did you have on Freeman Mbowe and his colleagues?
Witness: ACP Kingai: I was informed that Mbowe is looking for retired [army] commandos to harm government leaders
Witness: ACP Kingai: He was aiming at persuading citizens to hold endless demonstrations with the aim of making the country ungovernable so as to look as it has failed to enter the general election
State Counsel: you were asked yesterday if you warned the accused and give him his rights when he was giving you that info?
Witness: Honorable Judge, I request to have the charge sheet first
Judge: Give him
Witness: Please can you repeat the question
State Counsel: you were asked about the dates of conspiracy to commit terrorist acts that were between May 1, 2020 and August 5, 2020, but you said the acts were between July 25, 2020 and August 1, 2020 what did you mean?
Witness: There is no difference as the charge sheet reads on diverse dates between May 1, 2020 and August 25, 2020
State Counsel: you were asked about the statement written at the Chang’ombe [Police] station Dar es Salaam and not in Moshi where you arrested the accused
Witness: first Chang’ombe is in Dar es Salaam and we had received information about the residence of the accused, that his residence is in Dar es Salaam. At first, he had lied to us that he doesn’t have residency in Dar es Salaam
Defense Counsel: Advocate Jeremiah Mtobesya stand and object to the usage of word ‘lie’ and the Judge agree that the word should not be used
State Counsel: Witness why did you direct that he should be taken to Chang’ombe Police?
Witness: First it was near, and second his residence is there [the accused referred here is Halfan Bwire]
State Counsel: You were asked about charges on the charge sheet that are different from conspiracy to commit terrorist acts
Witness: when I wrote the charges of the accused there were all charges on conspiracy to commit terrorist act and the charge sheet has all the charges about a conspiracy to commit terrorist acts
State Counsel: you were asked a question about the District Commissioner Sabaya lowering the flag and you said you don’t believe it, why?
Witness: I believed the statement but I didn’t believe that District Commissioner Sabaya can lower CHADEMA’s flags, that one I did not believe.
State Counsel: Witness take the charge sheet and find the word; after reaching Dar es Salaam and getting Honorable Mikocheni
Witness: [reads and continue with the words] I and Mohamed we were given Tshs 200,000 [he is reading the statement of the accused]
State Counsel: What did you mean when you mentioned ‘honourable’
Witness: I meant Honorable Mbowe
Defense Counsel: Jeremia Mtobesya: stood and object that document is not supposed to be clarified
Judge: Advocate, that is the work of the Judiciary and that will be decided later
Witness: [reads statement] and insists that the charge sheet meant Freeman Mbowe and the statement mentioned that Mbowe is residing at Mikocheni
State Counsel: When you mentioned Mohamed what did you mean?
Witness: I meant Mohamed Lingwenya as the name of the accused is
Witness: [statement reading continue] in following up Sabaya we went to one Club called Kokoriko but we couldn’t find him] so the second accused was at Club Kokoriko
State Counsel: you were asked yesterday if there is any location where the accused fingerprints were taken, why there is no mention of fingerprint anywhere, you said fingerprints were not taken anywhere? why?
Witness: I thought it was not important because the accused was arrested with a notebook that contains petrol station map, market. What we did is we took handwriting sample so that we can get expert who can compare handwrites, so fingerprint was not necessary.
State Counsel: You were asked why there was no fingerprint or DNA forensics to the accused, why?
Witness: We did not see that was necessary as we had the accused, we take fingerprint when the accused has broken somewhere and we don’t have him
State Counsel: you were asked if you had informed Sabaya about crimes against him and you said you didn’t inform him, why?
Witness: We had certain information so we did not see the need of informing Sabaya as it would have cause chaos and we also did that to protect the secrecy of that particular investigation
State Counsel: you were asked a question by Advocate Jonathan Mdeme regarding the right of assembly and demonstration and you said yes, what did you mean
Witness: I meant the right to demonstrate and hold meeting need permit from the Police, so it’s a must to obtain a Police permit
State Counsel: you were asked about section 24 of the Terrorism Act and they said you didn’t put sub-section 1 and 2 in your warning statement and you said its curable, what did you mean?
Witness: I meant not putting a specific section on statement of warning doesn’t have any effect
State Counsel: You were asked about Kakobe at what time did you learn Kakobe is Mosses Lijenje
Witness: When we arrested the accused in Moshi they said Mosses Lijenje is also known by another name Kakobe
State Counsel: We would like to stop there, we don’t have any further questions Honorable Judge
State Counsel: Honorable Judge we would like to ask for an adjournment so that we can prepare the next witness so that we can resume at 1:30pm. if there would not be any objection from the defense
Defense: we don’t have any objection on that
Judge: We will resume at 11:30am and not 1:30pm
Judge: Second witness (PW2)
Name: Justin Elia Kaaya, tribe: Mmeru, religion: Christian; occupation: farmer. He has sworn that the testimony given will be the truth
State Counsel: He will be questioned by the State Counsel Abdallah Chavula
Judge: Welcome
State Counsel: I will be asking you questions and you will be answering facing the Honorable Judge
State Counsel: What is your accupation?
Witness: Farming and business, cereal and vegetable, beans and round potatoes
State Counsel: What do you mean by cereal?
Witness: Maize and Beans
State Counsel: And where do you carry these activities
Witness: Arusha Town and Meru District my customers are there
State Counsel: Witness tell the court where were you living in 2017?
Witness: Longido, I was also working as a photographer for government leaders including Lengai Ole Sabaya
State Counsel: Where did you met him?
Witness: During bi-election in Longido, he was Councilor for Sambasha ward, he wanted me to assist him in taking photographs in his duties
State Counsel: Where did he want you to help him with photographing?
Witness: In his ward and I agree with him as it was an opportunity for me
State Counsel: What was your agreement in working
Witness: I moved from Longido to Arusha [to stay] at Ole Sabaya’s home in Sakina
State Counsel: who were you living with?
Witness: With Ole Sabaya and his wife Jesca
State Counsel: when he was appointed District Commissioner of Hai where did you go?
Witness: I went to live with him in Hai, Kilimanjaro at the District Commissioner residency
State Counsel: What were your duties?
Witness: Routines job like taking his clothes to dry cleaner and taking to him breakfast and food daily
State Counsel: who were you living with at the District Commissioner residency?
Witness: just him and his wife since he was appointed
State Counsel: What happened after October 2018
Witness: I decided to return back to Longido as I had left my fiancée and I continued with my work
State Counsel: tell us on November 2018, who did you communicate to?
Witness: One day when I was at home, I was called on my number 0693006700, 0784779944 by somebody who introduced himself as Freeman Mbowe, at first, I was shocked
State Counsel: Speak slowly witness, did you have any communication before?
Witness: I have never communicated with him before, he asked me if I was fine, I told him I was fine and he said he wanted to see me. I asked him where are you and he told me he is in Arusha, I told him I’am in Longido I can’t travel because of transport challenges.
State Counsel: What happened?
Witness: He told me to take Noah [transport used in Longido-Arusha transit] and ‘when you reach Arusha, I will pay for it’, because of fear I was scared to go
State Counsel: What fear?
Witness: First he is a big leader and I don’t have any close relation with him
State Counsel: What happened
Witness: He told me to wait he will call, when he called [again] he said he is on the way coming to Longido
State Counsel: tell the court what happened after that?
Witness: After 40 minutes he called me telling me that I should come to the soccer field in Longido small town
State Counsel: What did you do?
Witness: I called motorcycle rider and told him he should come to pick me up
State Counsel: Before proceeding what time was it?
Witness: It was at 9:00pm
State Counsel: What happened?
Witness: I called me through the same number and he told me I should come near the car, I went closer to the car and knock on the car window, and he roll down his window and he told me I should not be worried and that I should get in. I allowed the motorcycle rider to leave and I entered through the back door.
State Counsel: How many people were there?
Witness: It was just him and his driver who was a woman
State Counsel: What was his intention?
Witness: He told me Lengai, Hai DC was troubling him and that I’am his close friend and he wanted me to give him his [Lengai’s] information and information about people who are working closely with him. I told him that can’t be done as I’m not with Sabaya for now.
State Counsel: What did he tell you?
Witness: He told me that he is the leader of the main opposition party in the country and that he will do everything possible so that I can return to Sabaya. I told him that will not be possible as am engage in my own work
State Counsel: What happened after that?
Witness: He apologized for the disturbance caused and gave me Tshs. 300,000, I asked him what for, he said for the disturbance caused, that we shall communicate
State Counsel: What did you do after that?
Witness: We said goodbye and leave
State Counsel: Where did you go?
Witness: I called Ole Sabaya, Hai DC, to give him that information but he did not pick up the call, I continued to stood there and I called Longido’s Member of Parliament and I told him what had transpired
State Counsel: Where did you go after that?
Witness: I called motorcycle rider and leave
State Counsel: When did you communicate with Freeman Mbowe again?
Witness: He called me again using the same number on WhatsApp, he greeted me and told me ‘you have been very scarce Chief’. He told me he wants us to meet in Moshi while I was in Arusha, I told him I will come after finishing irrigating the farm
State Counsel: What happened?
Witness: I took Costa [buses used between Kilimanjaro and Arusha] after finishing work and I informed him that I’m heading to Moshi Kilimanjaro
State Counsel: Where did you reach?
Witness: He told me I should get off at Machame road, Moshi District in Kilimanjaro region
State Counsel: What happened?
Witness: I got off and called him on the same number (44), he told me I should wait he is coming. After a while he told me I should stay on the right side of the road. A black Toyota Land Cruiser, V8 came, it had erected parliament flag and had plate number signage KUB. The window was rolled and I saw Chairman Freeman Mbowe and he told me I should get in, I got in.
State Counsel: What happened after that?
Witness: After moving for like 8 minutes I reached to the Hotel, I identified it as Aishi Hotel
State Counsel: Who were in the car?
Witness: Freeman Mbowe, his guard who moved [to make space for me] in a car and the driver, I did not know them before, Freeman Mbowe introduced him to me that is his guard in the Northern zone
State Counsel: Remind me, how did you recognize the place is Aishi Hotel?
Witness: There was a signage written Aishi Hotel. We got off from the car, myself, Freeman Mbowe and his guard. We sat on the restaurant side for a brief conversation, he told me I should order a drink or food.
State Counsel: When did you reach the Hotel?
Witness: In the afternoon at 1
State Counsel: What time was it when you were called for a meeting?
Witness: It was 8:30 in the morning and I started the journey at 10:45am. My journey started at a place called Kilala in Arumeru District.
State Counsel: What did Chairman Freeman Mbowe asked you?
Witness: He asked me what plans do they have on the meeting he was conducting in the constituency? I told him I don’t know anything, he asked me the name of people who walk with Sabaya, I mention names: Japhet Lwendera, Vedastus Sibula, Mtoto wa Mkulima [Son of a Peasant], Sylvester Nyegu, Binti wa Kichaga [Chaga’s daughter], Teacher Dorine , Watson Malimumbu
State Counsel: What else did he told you?
Witness: He also wanted their phone number, I told him the numbers from my phone, he told me he will deal with them and me and him will communicate later
State Counsel: What happened after that
Witness: He said goodbye and that he is going to the meetings, he promised to send me anything to cover fare and other costs. He never fulfilled that promise and he did not check me after that.
State Counsel: After that where did you go?
Witness: I returned to Arusha and in July 2020, I communicated with Freeman Mbowe, he called me through WhatsApp through no 0784779944, he told me he is coming from Dar es Salaam and asked me to come to Moshi, ‘there is something important I want to talk to you’
I was at my Farm in Maji ya Chai when he called, around 2 [afternoon], at 5 in the evening I started my journey to Moshi
I got on Kilomocharo Bus which transit from Singida to Moshi because he told me we should meet at around 7pm. When I reached Moshi Stand, I got off, at 7:30pm and called Freeman to inform him that I have arrived using the same number.
Defense Side Continue with Cross-examination
Defense Counsel: Jeremiah Mtobesya, on behalf of the first accused
Defense Counsel: Will I be right if I say beside your oral testimony, you did not provide any document to attest that you were an employee of Ole Sabaya Hai DC
Witness: Not right
Defense Counsel: Did you provide any document here at the court
Witness: I did not provide any document
Defense Counsel: I heard that you were communicating with Freeman Mbowe on phone and through WhatsApp, did you provide any evidence here at the court?
Witness: That is not my responsibility, it the task of the responsible persons
Defense Counsel: In your journey to Moshi what transport did you use?
Witness: Public transport
Defense Counsel: Were you given tickets?
Witness: No because, I got amidst the journey. Only those who started from the beginning are the one who are provided with tickets
Defense Counsel: Since you met Freeman Mbowe, three times and until you were taken by [Inspector] Swila how much time did it pass?
Witness: the question is not correct and I don’t know
Defense Counsel: Since you met with that person, you’re calling Mbowe how much time has it passed
Witness: More than three months
Defense Counsel: Can you remember what [Inspector] Swila said when was taking your statement?
Witness: s/he said it’s a normal exercise of being released and receiving my items
Defense Counsel: So when your statement was taken you were not told that the statement will be used in court as evidence?
Witness: I was not told
Defense Counsel: Did you read what was written?
Witness: Yes I read and confirmed that it was correct
Defense Counsel: Assist the Court, what you told [Inspector] Swila is exactly what you said here at the Court and that you did not add or reduce anything?
Witness: I have not add anything, perhaps I have reduced some
Defense Counsel: May I ask the Prosecution to provide me with the witness statement, Section 154 of the Criminal Procedure Act Chapter 20, 2019 (Cap 20 RE 2019)
Received the statement
Defense Counsel give witness the statement to confirm them and told him to read
Witness: This is the statement that was written
Defense Counsel: In that statement show us where Freeman Mbowe says that is his guard and companion?
State Counsel: State counsel stood and object that saying its against the law
Defense Counsel: Jeremia Mtobesya did not see the need for the objection citing that ‘the law require us to question the witness based on the written statement and what he says at the witness box’
State Counsel: Defend his argument; Lilian J. Otesi Versus R, Criminal Appeal No.151 of 2018, Court of appeal decision, page 25, the court said; apart from other things it says that witness can be questioned on his/her earlier statement to contradict the witness
Judge request copy of the case
Defense Counsel: Jeremiah Ntobesya: Honorable Judge the essence of section 154 Tanzania Evidence Act, Cap 6 RE 2019 is to contradict testimony given by the witness that is its purpose, I believe this is what I did Honorable Judge
Judge: I will give you time to discuss, the defense counsel and the prosecution.
State Counsel has requested 15 minutes and the Judge has granted them so as to reflect
They return
State Counsel: we are ready to receive the court directives
Judge: Reads and clarified that the witness must be given the document of his/her statement and read through the guidance of the counsel doing cross-examination. The Court direct that arrangement should be followed.
Advocate Jeremia Mtobesya hand over the copy of the statement and ask the witness to read them
Witness: Reads the statement as directed by the counsel
Defense Counsel: Did you mention the guard called Bwire anywhere?
Witness: The statement doesn’t show
Defense Counsel: In the statement that you have read, did you mention anywhere the names
Witness: Names were not written here I don’t know where the writer has left them
Defense Counsel: When you met for a third time, you said you provided names, are the names in your statement?
Witness: They are not there
Defense Counsel: You were heard giving out the names of the Hotel and Club, are the information in your statement?
Witness: They are not there
Defense Counsel: You were heard saying Bwire will make Sabaya play, is this information in the copy of your statement
Witness: It is not there
Defense Counsel: Read what was written while he was Sambasha Councillor
Witness: reads
Defense Counsel: Did you mention anywhere that you were a CCM activist?
Witness: No
Defense Counsel: Would you like your statement to be used as evidence
Witness: Yes, because I wrote them under oath
Judge admit the statement as evidence. State counsel confirm they have no objection
Defense Counsel: Exhibit 1, will I be right to say you were involved in political activities?
Witness: Not right, as I was the writer and a photographer and not a member of any political party but I was a friend of government and political leaders.
Defense Counsel: Can you mention them?
Witness: Mrisho Gambo, Ole Sabaya and others
Defense Counsel: When you were in prison is there no CCM leader who had visited you?
Witness: none
Defense Counsel: Haven’t you asked for assistance from CCM leaders to help you get out of prison?
Witness: No
Defense Counsel: When did you meet Mbowe
Witness: July 26.2021 when he was brought in prison
Defense Counsel: When you were brought to Kisutu Court what were you told?
Witness: That we did not have any charges that we are free
Defense Counsel: Do you remember what charges were you in for?
Witness: Charges were participation in meetings for conspiracies to commit terroristic act,money laundering
Advocate John Malya continue with cross examination for the defense
Defense Counsel: How much does the Councillor get as salary or allowance?
Witness: I don’t know
Defense Counsel: Where did Sabaya get the money to pay you allowances?
Witness: I don’t know
Defense Counsel: How much were you paid?
Witness: Tshs. 300,000
Defense Counsel: Read for me from your statement; after finishing my studies…
Witness: After finishing my studies I started political activities with CCM
Defense Counsel: Is it correct that Sabaya was CCM Councilor and that President Magufuli appointed him to become Hai District Commissioner?
Witness: Its correct
Advocate: Sabaya was sentenced to jail recently and he asked the court to reduce his sentence as he has a fiancée who is planning to marry, who is the wife you were mentioning?
Witness: I know Sabaya has a wife
Defense Counsel: When did you stop working for Sabaya
Witness: October 2018
Defense Counsel: your statement says by the end of 2017, which one should the court take?
Witness: we should take 2018 and not 2017 the writer made a mistake
Defense Counsel: At the end of the statement, it says this is my statement and its correct, what should the court take, should it take lies or?
Witness: what I wrote was correct, the writer made a mistake
Defense Counsel: The confirmation text that you have read what do they mean?
Witness: They mean confirmation
Defense Counsel: How much is the District Commissioner paid?
Witness: I don’t know
Defense Counsel: How much was your salary
Witness: Tsh. 300,000
Defense Counsel: How did you know the friends of Sabaya while you left work long time ago?
Witness: We were communicating even after leaving work
Defense Counsel: Statement taken by [Inspector] Swila are in the Court, where is the statement taken by Mahita? Did you give them here at Court?
Witness: I don’t know
Defense Counsel: You said on July 26, 2021, Honorable Freeman Mbowe said he came to get you out, is it true that you got out?
Witness: It’s true, July 27, 2021, I was freed by the Court.
Defense Counsel: Where did you go after you were released
Witness: I went to Central Police; I was taken to Swila and I gave my statement to [Inspector] Swila
Defense Counsel: I have no further questions Honorable Judge
Judge: We will continue tomorrow counsel should come with the other witness so that when we finish with this one, we can continue with the next witness
