Dar es Salaam — The High Court will rule on Friday, August 21, on whether CHADEMA national chairperson Tundu Lissu must enter a defence in his treason trial, after the prosecution closed its case and the opposing sides made sharply different submissions on the sufficiency of its evidence.
The prosecution closed after calling 17 of the 30 witnesses it had listed, telling the three-judge panel that the evidence was sufficient. Lissu, representing himself, responded that the case did not meet the legal threshold for a prima facie case, meaning evidence which, if left unanswered, could support a conviction.
The case concerns one count under Section 39(2)(d) of the Penal Code, arising from remarks that prosecutors say Lissu made at an April 3, 2025 meeting about stopping the General Election, mobilising rebellion and disrupting the election.
Justice Dunstan Ndunguru, leading Justices James Karayemaha and Ferdinand Kiwonde, said the judges needed time to consider the parties’ oral arguments and adjourned the matter to 9:00 a.m. on Friday.
Prosecution closes
Principal State Attorney Nassoro Katuga informed the court that, after reviewing the testimony already adduced, the agreed facts, and the remaining witnesses, the Republic considered its evidence sufficient and would close its case.
Lissu did not object to the closure. In a light moment, he told the bench that he had said the previous week that the prosecution had “already run out of breath,” prompting laughter in the courtroom.
READ MORE: Treason Trial: Lissu Cross-Examines Confidential Witness Involved in Livestreaming of His Meeting
The parties then briefly differed over procedure. Katuga said there was no specific statutory provision governing submissions on a case to answer, and asked the court to decide whether written or oral submissions should be used.
Lissu replied that Section 312(1) of the Criminal Procedure Act imposed a duty, rather than a discretion, on the court to determine whether there was no case to answer. Justice Ndunguru ended the exchange by noting that both sides agreed that submissions were required, and directed that they be made orally.
“The prosecution case is closed, and you should submit orally,” Judge Ndunguru said.
Lissu submits
Lissu began by inviting the judges to find that the prosecution had failed to establish a prima facie case. He cited the East African decision in Ramanlal Trambaklal Bhatt v Republic and other authorities for the proposition that the prosecution must produce evidence with sufficient weight and credibility, not merely a volume of testimony.
He argued that the evidence had to demonstrate the legal elements of treason before the court could call him to defend himself. Referring to earlier treason decisions, including Grey Likungu Matata and Others v Republic, he said the prosecution needed to show allegiance to the Republic, an intent to commit treason, and an expression of that intent through words or conduct meeting the legal threshold.
His central argument was that the alleged words did not threaten the government, Parliament or the courts, the institutions he said were specified in the relevant provision. He told the bench that the charge sheet did not name any of them.
“The law says there must be an intention to intimidate the government, Parliament or the courts,” Lissu argued. “In the words before you, Parliament, the courts and the government are not mentioned even once.”
Lissu further argued that the Constitution places the administration of elections with the Electoral Commission, not the government. He said the phrases relied on by the prosecution, including “we will stop the election” and “tutakinukisha,” were not identified as criminal offences under the election law.
He also submitted that he was the only accused person and that words spoken by one person, without proof of a qualifying act, could not, on the evidence presented, establish treason.
The court should therefore acquit him at this stage, he argued, rather than call him to a defence that would be unnecessary if the prosecution’s evidence could not found a conviction.
Who published the video?
Lissu devoted a substantial part of his submission to the allegation that he published the disputed remarks through Jambo TV’s online platforms. He told the court that the prosecution had listed documentary and video material but had not tendered the video clip or the other material he said was necessary to prove publication.
He cited the testimony of the confidential witness identified as PW17, a Jambo TV journalist, whom he described as the prosecution’s only eyewitness to the meeting. According to Lissu’s submission, the witness said the Jambo TV team recorded and live-streamed the meeting and that the footage remained with the outlet.
That account aligns with PW17’s evidence reported last week, in which the witness agreed that Jambo TV broadcast the meeting and said that Lissu neither handled the camera nor instructed journalists to live-stream or post the footage.
Lissu also said the invitation to cover the meeting came from CHADEMA’s communications director, Brenda Rupia, not from him. He argued that the prosecution had therefore failed to show that he organised the broadcast or performed the act of publication alleged in the charge.
“If there is no proof of committing a treasonous act, there is no intention,” Lissu told the court. “That means there is no prima facie case.”
Lissu asked the judges to make an immediate finding of no case to answer and permit him to address the question of compensation on a later date. He also asked to place before the court a United Nations Working Group document which, he said, called for his release and compensation.
Republic’s arguments
Katuga opposed Lissu’s application, arguing that the prosecution had established each necessary element through its 17 witnesses. He agreed that Lissu’s citizenship was not in dispute and said the remaining questions, intention and manifestation of that intention, had been sufficiently demonstrated for the case to proceed.
The state attorney relied on the words set out in the charge, including the alleged statement that the accused would mobilise rebellion and disrupt the election. Katuga argued that those words could support an inference that Lissu intended to intimidate the government, even if it was not named expressly.
READ MORE: Court of Appeal Deals Blow to Prosecution, Dismisses Revision Bid in Lissu Treason Trial
“The government is mentioned constructively,” Katuga told the court. “What was mentioned is the government. Parliament and the courts were not threatened, and therefore we say a prima facie case has been established through the question of intimidation.”
Katuga referred to testimony from witnesses identified as PW1, PW3 and PW16, which the prosecution said showed the alleged words were aimed at intimidating the government and that some listeners planned acts of violence. He also cited authorities on the prima facie test and on the meaning of publication.
Addressing the absence of the video exhibit, Katuga said the court could still rely on credible oral evidence. He argued that the failure to admit the footage on technical grounds did not cause all the other evidence to collapse, and that witness testimony could establish that Lissu’s remarks were live-streamed to reach the public.
“In the absence of video evidence, that does not mean all evidence collapses,” he added.
The judges will now decide whether the prosecution’s evidence, taken at its highest, warrants a defence or whether Lissu should be acquitted without being called to testify or present other evidence.
The trial resumed on August 10 after the Court of Appeal dismissed the DPP’s revision application, leaving intact the High Court’s earlier decision to block the prosecution from adding further evidence through a witness who had already testified.
