Dar es Salaam — The High Court on Wednesday rejected a prosecution application to further cross-examine CHADEMA vice-chairperson (Mainland) John Heche over remarks allegedly made outside the courtroom while he remained under oath, ruling that evidence must be given in court.
The decision came after Heche completed the re-examination stage of his testimony in Tundu Lissu’s treason trial. It clears the way for the defence to pursue evidence from the Inspector General of Police, the Chief of Defence Forces and the Director of Criminal Investigations — three state-security officials whom the court ordered to be summoned last week.
Court registrar feedback, relayed to Lissu during the afternoon session, was that summonses had been delivered in Dodoma but could not be served on the three men because all were outside Tanzania.
Commissioner of Police Ramadhani Kingai, the Director of Criminal Investigations, was expected to return to the country on Wednesday and was expected in court on Friday, Lissu said.
The whereabouts and return dates of Inspector General of Police Camillius Wambura and Chief of Defence Forces General Jacob Mkunda were not known, according to the registrar’s update as relayed in court.
The panel adjourned the case to Friday, September 18, at 2 p.m.
‘Evidence’ outside court
Wednesday’s hearing began with a short re-examination of Heche, the fifth defence witness. Lissu asked him to clarify parts of the preceding days’ cross-examination about the SADC report, CHADEMA’s electoral-reform campaign, the 2015 Tarime election, the Chande commission and the party’s view of electoral law reforms.
READ MORE: Letters, Radio Clip Challenge Heche’s Account as Lissu Treason Trial Cross-examination Continues
Heche said the SADC report’s sixth page referred to abductions. Katuga objected that Heche had not identified that page during his earlier testimony. Lissu then asked that the page number be omitted rather than spend time on the objection; Heche maintained that the report addresses abductions.
Heche also said that when he spoke of Lissu using different phrases in meetings with stakeholders, he meant the message on electoral reform was the same even where the exact wording differed.
On his answer that he had been unable to reject being declared MP after the 2015 Tarime election, Heche said he meant that the returning officer, rather than a candidate, has the power to declare the winner.
Lissu further asked about letters which Katuga had shown Heche on Tuesday. Heche said he personally never received any invitation letter from the Chande commission. He said a letter shown to him was addressed to the CHADEMA secretary general, not to the party itself, and added that the party had been banned at the time.
After Lissu ended re-examination, State Attorney Job Mrema invoked Section 156(4) of the Evidence Act to seek permission to recall Heche for further cross-examination.
READ MORE: Prosecution Tests Heche’s Evidence as CHADEMA Vice-chair Concedes Many Claims Were Second-hand
Mrema said Heche had left court after testifying on Tuesday and then conferred with Lissu before Wednesday’s session, allegedly producing new evidence while still under oath.
“He went outside court while under oath, spoke, and produced new evidence,” Job Mrema told the court. “We ask to question him about the evidence he gave.”
The judges first asked the prosecution to explain whether a witness remains under oath after leaving the courtroom. Justice Dunstan Ndunguru’s question prompted laughter from people in court.
“When a person takes an oath in court, does that mean they remain under oath even when they go home? Help us understand,” Justice Ndunguru inquired.
Mrema argued that the oath remained in force because the court had reminded Heche that he was still under oath when he returned to the witness box.
READ MORE: Heche Tells Court Lissu’s Disputed April Speech Repeated CHADEMA’s Election-Reform Campaign
The court rejected that reasoning. Justice Ndunguru said cross-examination follows evidence-in-chief and must relate to matters raised in court, not an alleged conversation held away from the proceedings.
“Cross-examination arises from examination-in-chief,” Justice Ndunguru reasoned. “If something was discussed there, is it before this court? The assertion that an oath goes home with the witness is not correct. Evidence is in court, and you question matters said in court.”
The judge said the prosecution’s request therefore had no basis.
Preparing summoned witnesses
Lissu then asked the panel about implementation of the summonses for the three security chiefs. He said he could not place a witness in the box before preparing him, adding that the courtroom was the only practical place where he could meet defence witnesses because he could neither go to their offices nor meet them at prison.
“I cannot put a witness in the box before I prepare him,” he argued. “I have to meet them and tell them what to do; if they turn against me in the witness box, I must deal with them properly.”
READ MORE: Court Rejects Lissu Bid to Call President, But Summons IGP, CDF and DCI in Treason Trial
Justice Ndunguru said the court had expected Lissu to say whether he had a witness ready, noting that the officials were his witnesses and summonses had already been issued. The panel took an adjournment to obtain a report from the registrar.
When court resumed, Lissu said the registrar had told him that summonses for the IGP, CDF and DCI had been taken to Dodoma, but none could be personally served because all three officials were out of the country.
He said Kingai was expected back in Tanzania that day and that the registrar had assured him Kingai would appear in court on Friday. Lissu asked the judges to postpone the matter until Friday afternoon so he could use the morning to consult the DCI chief and take his statement.
“The registrar has assured me that Commissioner Kingai will be in court on Friday to comply with the summons,” he said. “I ask that we adjourn until Friday afternoon so that I can consult him in the morning, including taking his statement.”
Lissu said the trial schedule was tight and that he wanted the defence to proceed to final submissions so the judges could consider and decide the case. He said the question of Wambura and Mkunda’s attendance would remain for the court if they did not comply with the summonses.
READ MORE: Lissu Calls CHADEMA Vice-chair as Defence Links ‘No Reforms’ Campaign to Election Grievances
Katuga said the prosecution did not object to an adjournment, but asked the court to impress upon Lissu that his witnesses should attend. Justice Ndunguru responded that they were Lissu’s witnesses and he knew how to follow up with them.
The judges then adjourned the case to Friday at 2 p.m.
