Lwakatare, co accused set free, rearrested, recharged

BY KARAMA KENYUNKO

21st March 2013

Wilfred Lwakatare

The Chadema Defence and Security Director, Wilfred Lwakatare, who on Monday was arraigned where he was charged with terrorism was yesterday set free in a dramatic move, but was later re-arrested and charged again with similar counts.

He was not released along, but was with co-accused Joseph Rwezahura when the case came for ruling on whether they could be granted bail or not early in the morning.

While Senior Resident Magistrate Emmilius Mchauru was preparing to read the ruling the prosecution side led by Prudence Rweyongeza requested the court to allow the Director of Public Prosecutions (DPP) to enter nolle prosecui  as per Section  91 (1), and charge the accused  afresh at Kisutu Resident Magistrate’s Court.

After the both accused were set free, but later re-arrested and recharged with similar counts.

Entering nolle prosecui the DPP, he had no intention to continue prosecuting the accused on the offence, and therefore he asked the court to discharge the accused under Section 91 of the Criminal Procures Act.

Drama came during the rearrest, as Lwakatare refused to bulge to police order in the absence of his advocates. It was until when one of his advocates, Peter Kibatala, showed up that he decided to give in to the police who took him to the court cell.

The two were first charged on Monday with four counts including conspiring to kidnap and poison managing editor of Mwananchi Communication Dennis Msacky in Case Number PI 37. Then they appeared before Senior Resident Magistrate Emmilius Mchauru.

However, in the new charge sheet in file number PI 6/2013 opened yesterday, the accused appeared before Resident Magistrate Aloyce Katemena.

Reading the charge sheet, the prosecution led by Senior State Attorney Prudence Rweyongeza and assisted by Ponciano Lukosi, told the court – presided over by Resident Magistrate Katemana – that the accused committed the offence on December 28, 2012 at Kimara Stop Over- in King’ong’o area, Dar es Salaam Region.

Rweyongeza alleged that on the said date the duo conspired to maliciously administer poison with intent to harm Denis Msacky, contrary to Section 227 of the Penal Code.

In the second count, the accused are alleged to have conspired to kidnap Msacky contrary to Section 4 (2) of the Prevention of Terrorism Act Number 21 of 2002.

In the third count it is claimed that on the same date and at the same place, the accused planned and participated in the 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.

It is further alleged in the fourth count that 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.

After reading the charge sheet the accused were not allowed to enter any plea because the Kisutu Resident Magistrate’s Court does not have the mandate to hear cases of that nature, normally heard in the High Court.

Defence advocate Peter Kibatala said that the section of the law allows the DPPs to withdraw the accused’s charges and be re-arrested.

Before the court adjourned the case, defence advocate Peter Kibatala requested it to make his submission on bail granting for the accused but Magistrate Katemana ordered the accused to remain in custody until April 3, this year.

“All the accused should remain in custody and both parties will present their submissions on that date,” he ordered.

Rweyongeza informed the court that investigation into the case is incomplete.

On Monday when the two were arraigned they pleaded not guilty after the prosecution had read the charge and were remanded in custody until yesterday when the case came for ruling on bail granting.

Counsel Kibatala explaining argued that in the committal case the two accused face, they are not allowed to enter any plea save 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 them is under the same court,” he submitted.

He 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.

SOURCE: THE GUARDIAN