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Legal weaknesses Wednesday blocked the appeal hearing of CHADEMA's national president, Freeman Mbowe, and MP Tarime Urban, Esther Matiko, against the cancellation of their bail in the criminal trial at which they are confronted in the Kisutu District Court.
Judge Sam Rumanyika was scheduled to hear the appeal in the High Court of Dar es Salaam, but the session was surrounded by some shortcomings, including incomplete registrations, which led to the postponement of the session to today.
It all began when the Attorney General, Faraja Nchimbi, stood up to go to court, informing the judge that the prosecution had responded to the summons that had been served on him, but that he had not been informed of the case. they were not able to proceed to the hearing because they had not received any documents.
Lawyer Peter Kibatala, on behalf of Mbowe and Matiko, acknowledged the breach but quickly pointed out that since the lower court has made the order for the cancellation of the bail on November 23, 2018, the procedure of the appeal proceedings was not communicated to the defense.
Insisting on clarifying the situation, the lawyer explained that it was necessary to provide the defense with typed copies of the proceedings from 1 November 2018 to 23 November 2018, as well as the contested decision.
The judge, in possession of the original file, did not find the procedure to read. He had to temporarily suspend the hearing by calling representatives of the Kisutu court to find out where the proceedings were and ordering him to provide him with immediate information.
But before adjourning the sitting, the judge instructed the parties, at the resumption of proceedings today, to address him on two key issues relating to the affidavit of the Regional Police Commander. Ilala and the question of the condition of bail requiring the accused to report to the police.
The judge stated that he would like to know if the accused had the opportunity to respond to the affidavit of the CPR and, if not, what the effects might be. He would also like to know what might be the effect if the accused had failed to report to the police in accordance with the condition of his release on bail.
In the affidavit, the CPP stated that the court had ordered the defendants to report to the central police station every Thursday, but that he was in default of payment. The affidavit was filed in court when the prosecution requested the cancellation of the bail of the appellants.
On November 23, 2018, Mbowe and Matiko were ordered by the court to be remanded after their release on bail in the sedition trial they are facing. Senior resident magistrate Wilbard Mashauri said that they were dismissive for breaching the conditions of bail, including by failing to attend court hearings.
Mbowe, who is also a member of Parliament for Hai and leader of the opposition camp, did not appear in court for two consecutive sessions on November 1, 2018 and November 8, 2018 for reasons of illness, while Matiko was unable to attend on November 8th. 2018 because she was on a parliamentary mission abroad.
In his decision, however, the magistrate described the reasons given for the non-appearance of two accused as false, contradictory and confusing. Immediately after the decision was rendered, the appellants rushed to the High Court and appealed.
Both parties relied on four grounds of fault for the lower court's decision, alleging that it was so irrational, unfair and unlawful that it could not resist them. They claim that the appeal is based on the rights to liberty that were removed by the court without any respect for the law.
It is proposed in the appeal to ask the High Court to order that, in the circumstances of the case, appellants be allowed to appeal under section 362 (1) of the Procedure Act. Criminal Court (CPA) without proceeding or ruling.
They assert that the procedure and the decision were not provided to them despite several means and that the court of first instance does not seem willing to avail itself of the documents. The appellants further request the court to annul and annul the decision and order, respectively, of the trial court in the criminal trial.
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