Tanzania: Zombe Acquittal Appeal Case for August 26

THE High Court will on August 26 start hearing the application lodged by Director of Public Prosecutions (DPP) to challenge acquittal of ex-police officers, including Abdallah Zombe, on murder charges involving three mineral dealers and a taxi driver.
Information obtained at the court's registry on Tuesday suggests that Judge Aloysius Mujulizi will hear the application in which the DPP is seeking for extension of time to lodge a fresh Notice of Appeal.
The decision by the DPP to go back to the High Court comes after the Court of Appeal rejected the appeal he had lodged to oppose the judgment, which declared Assistant Commissioner of Police (ACP) Zombe and his coaccused innocent of murder charges.
Zombe and his co-accused were charged with four counts of killing three mineralbusinessmen -- Sabinus Chigumbi and his relatives Ephrahim Chigumbi and Mathias Lunkombe from Mahenge in Morogoro Region; and Juma Ndugu, a taxi driver from Manzese in the city.
The four people were cruelly killed one by one by the police using a gun on January 14, 2006, at Pande Forest, in Kinondoni District in the city. Justice Massati set free all the accused persons on September 17, 2009, for prosecutions failure to prove the charges against them.
On May 8, this year, a Court of Appeal panel ruled that the notice of appeal filed to initiate the appeal in question was incurably defective, having stated that the decision sought to be challenged was given by Court of Appeal Judge Salum Massati.
In their ruling, Justices Edward Rutakangwa, Mbarouk Mbarouk and Bathuel Mmila had said that they were all sure that the trial judge did not subsequently try and decide the case in his capacity as a Justice of Appeal, as the notice of appeal erroneously shows.
During hearing of the appeal on April 22, this year, the trial attorneys had requested the judges of the appeal court to allow them to make some amendments, a request which was vehemently opposed by advocates for the police officers.
"We have found ourselves constrained to hold that as long as the notice of appeal on record is purporting to institute an appeal against a non-existing judgment is incurably defective and cannot by stretch of imagination, be amended," the justices ruled.
They held, therefore, that there was no appeal before the Court against decision of Justice Massati, who heard the case at the High Court when he was Principal Judge and thereafter being appointed Court of Appeal Justice.
"It goes without saying, therefore, that a Justice of Appeal who finds himself sitting in the High Court to complete his unfinished judicial business, sits there not as a Justice of Appeal, but as a judge of the High Court pure and simple," the justices said.
Therefore, they observed, the trial judge acquitted Zombe and his colleagues in his capacity as Judge of the High Court and was accordingly a grave error in law for the DPP to lodge in the Court a notice of appeal against the judgment of Massati, the Justice of Appeal.
"Such a judgment we firmly believe does not exist and accordingly a notice of appeal in respect of it is incurably defective. The DPP ought to have lodged a notice of appeal indicating clearly that he was instituting an appeal against a judgment of Massati," they explained.
The justices concluded: "So far, there is no such notice of appeal before us. That is why the notice of appeal and the memorandum are at variance. Had this error occurred on the memorandum of appeal we would have not hesitated to allow an amendment of the same."
Other police officers charged alongside Zombe were Senior Superintendent of Police Christopher Bageni, Assistant Superintendent of Police Ahmed Makelle and Constable Jane Andrew.
The rest are Constable Noel Leonard, Constable Emmanuel Mabula, Corporal Felix Sedrick, Corporal Nyangerela Moris, Constable Michael Shonza, Corporal Abeneth Salo, Corporal Rajabu Bakari and Corporal Festus Gwabisabi.