BY KARAMA KENYUNKO
19th March 2013
Wilfred Lwakatare, Defence and Security Director of the opposition Chama Cha Demokrasia na Maendeleo (Chadema), yesterday appeared before the Kisutu Resident Magistrate’s Court in Dar es Salaam charged with four counts related to terrorism.
The accused, who is charged alongside Ludovick Joseph, arrived at the court’s premises at around 8:00am and appeared before an open court some five hours later for a three-hour sessions mostly spent by defence and prosecution counsel debating whether the duo could be granted bail.
The prosecution, led by Senior State Attorney Prudence Rweyongeza assisted by Ponciano Lukosi, told the court – presided over by Senior Resident Magistrate Emilius Mchauru – that the accused committed the offence on December 28, 2012 at Kimara Stop Over/King’ong’o in Kinondoni District, Dar es Salaam Region.
Rweyongeza alleged that on the said date the duo conspired to maliciously administering poison with intent to harm Denis Msacky contrary to Section 227 of the Penal Code.
According to the second count, the accused conspired to kidnap Msacky contrary to Section 4 (2) of the Prevention of Terrorism Act Number 21 of 2002.
The third count read that on the same date and at the same place, the accused planned and participated in a meeting knowing that it was concerned with an act of terrorism, namely, plotting to kidnap Msacky contrary to the same section of the 2002 Act.
Meanwhile, according to the fourth count on the same date Lwakatare allowed a meeting to be held in his house while aware that the occasion would be used for the execution of the plan to carry out the kidnap – itself a crime under the 2002 Act on terrorism.
Lwakatare, a one-time member of parliament, pleaded not guilty and was remanded in custody until tomorrow, when the court is expected to decide whether to grant him bail.
Requesting the court to grant the accused bail, defence counsel Peter Kibatala argued that in the committal case the two accused face they are not allowed to enter any plea except if the court asks them if they have anything to say.
“The committal court has the mandate to grant bail to the accused for relevant offences and the jurisdiction to grant bail to the accused is under the same court,” he submitted.
The counsel added that the accused were entitled to bail and requested the court “to go further and see whether it can grant the bail”.
He added that the charge sheet fell short of saying who Denis Msacky was and did not describe his occupation.
A second defence counsel, Prof Abdallah Safari, told the court that fabricating cases had become rampant in Tanzania. He cited a 2002 murder case facing Sheikh Issa Ponda and another person, which he said was a concoction and was later cancelled after the Director of Criminal Prosecution was furnished with definitive evidence that it was fabricated.
He said there was a possibility of engaging gross abuse of the legal process to ensure that Lwakatare remains in custody for lack of bail, which would adversely affect his party.
Responding to the request by the defence counsel, Rweyongeza advised the court not to entertain issues or interests associated with political parties “because there is no anywhere the party has been mentioned, so politics should not be entertained”.
He also questioned the relevance of referring to the possibility of fabricating a case against the accused, saying the case was still being investigated and “if there is any evidence, it should be sent to DDP or the police”.
Rweyongeza further argued that the issue of bail is a legal one, Section 148 (5) of Criminal Procedure Act and Section 49 of Prevention of Terrorism Act prevent the granting of bail to any person charged with terrorism, adding that it was “too early to know exactly who Denis Msacky is because that will be part of evidence to be given at a later stage”.
The 2002 Prevention of Terrorism Act stipulates, among other things, that a person commits a terrorist act if, with terrorist intention, that person does an act or omission intended or which can reasonably be regarded as having been intended to seriously intimidate a population, or which involves or causes attacks upon a person’s life which may cause death, attacks upon the physical integrity of a person, or the kidnapping of a person.
It adds, inter alia, that an act shall also constitute terrorism if it is an act or threat of action involving serious bodily harm to a person, involving serious damage to property, endangering a person’s life, creating a serious risk to the health or safety of the public or a section of the public, or involving the use of firearms or explosives.
SOURCE: THE GUARDIAN
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