Freeman Mbowe and others v. Republic.

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 76 OF 2020

(Original Criminal Case No. 112 o f 2018 o f the Resident Magistrates Court o f Dar es

Salaam at Kisutu before Hon. T.K. Simba - PRM)

FREEMAN AIKAEL MBOWE.....................................................1st APPELLANT

PETER SIMON MSIGWA......................................................... 2nd APPELLANT

SALUM MWALIMU..................................................................3rd APPELLANT

JOHN JOHN MNYIKA............................................................. 4™ APPELLANT

ESTHER NICHOLAS MATIKO.................................................. 5™ APPELLANT

HALIMA JAMES MDEE............................................................6™ APPELLANT

JOHN WEGESA HECHE........................................................... 7™ APPELLANT

ESTER AMOS BULAYA............................................................ 8™ APPELLANT

VERSUS

THE REPUBLIC............................................................................RESPONDENT

JUDGMENT

19,n May, 2020 & 25th June, 2021

I.e. MUGETA, J.

On 17/2/2018, a by-election of a member of Parliament for Kinondoni Constituent was held. For the purposes of this judgment the reasons for a midterm election are irrelevant. Prior to this day, the usual campaigns were held by all participating parties which according to Victoria Charles Wihenge (PW7), the Assistant Returning Officer, were AFP, CCK, DEMODRASIA Makini, TLP, UMD, DP, CHADEMA, CUF and CCM. Events on the last campaign date, the 16th day of February, 2018, are the concern of this case. Besides the big number of contesting parties, the evidence by the prosecution covers events at CHADEMA campaign rally. Pursuant to the election campaign timetable, CHADEMA held their campaign at Buibui grounds, Mwananyamala area.

As a matter of duty, the Tanzania Police Force had to ensure peace and security at all the campaign rallies. To meet this legal mandate, according to SSP Gerald Ngiichi (PW1), CHADEMA meeting was supervised by SP Dotto. SSP Ngiichi (PW1) himself was the operations Manager charged with the general security during the campaign period.

No doubt it was a lawful campaign period and security was guaranteed. What the heck turned a lawful activity into the alleged criminal acts? It is the prosecution's case that after the rally the appellants who are top CHADEMA leaders and their supporters walked towards the Kinondoni Municipal Council Office without a lawful cause resulting into breach of the peace. On the way, the police team under SSP Ngiichi blocked and finally dispersed them by force. Subsequently, on different places and dates, the

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