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TANZANIA: The judge presiding over the case against main opposition party chair, Freeman Mbowe, withdraws

Elinaza Luvanda, the judge who was presiding over the case against Tanzania’s main opposition party (CHADEMA) chair, Freeman Mbowe, and three others, on Monday the 6th of September 2021, withdrew from hearing the case.

Mbowe on Monday morning, also representing the three other defendants, requested the withdrawal of Judge Luvanda from the case citing lack of trust, and the fear of not getting a fair trial. He went ahead to state that there were alleged reports in circulation, stating that the judge may have been compromised to ensure he was imprisoned, meaning he would likely not grant them a fair trial.

Elinaza Luvanda, later on Monday, withdrew from hearing the case

Why the presiding Judge Elinaza Luvanda withdrew from the case

Preliminary objections were filed objecting to the charge sheet written in the case against Mbowe and three others. Objections were raised by Mbowe’s defense team against errors within the charge sheet, but Judge Luvanda responded by acknowledging the errors, however he asked these errors to be rectified by the State.

The defense argued that legally, upon it being established that the charge sheet was faulty, the case then should have been dismissed. The directive from the Judge for the charge sheet to be rectified was the premise upon which Mbowe in Monday’s proceedings, requested for the withdrawal of Judge Luvanda from the case citing lack of confidence and trust.

Mbowe also raised concern over what the reports circulating on social media of the alleged intention of unknown forces using Judge Luvanda to deny him and his co-accused a fair trial, and possibly leading to their imprisonment.

About Judge Luvanda

Elinaza Luvanda, is a judge well-known in Tanzania, as he has featured in the hearing of numerous controversial cases in the country. In one of the cases in 2018 he served as one of the judges in a petition filed by Mr. Ado Shaibu, against the late president John Pombe Joseph Magufuli (The former President of the United Republic of Tanzania), and Adelardus Lubango Kilangi the current Attorney General.

The petitioner sought an order of the Court to declare that the President had violated the Constitution by appointing Prof. Adelardus Kilangi, to be the country’s Attorney General. The petitioner, Shaibu, was represented by the former president of the Tanganyika Law Society and advocate, Fatma Karume, who was the respondent in the application.

In the petition, the Court ordered the points of preliminary objection to be disposed of by way of written submission, in her submission, Karume wrote, among other things:

‘This Attorney General is far too junior to garner that kind of respect from the Bar…Given his lack of experience and junior position, Adelardus Lubango Kilangi has been a woefully disappointing as legal advisor to the Government, at a cost to our constitutional order. In this Adeiardus KHangi has failed. A matter that is not surprising given his experience.’… ‘So mark my words, in the event this case fails on a Preliminary Point\ it is not over. If the President’s unconstitutional conduct is protected by the Court on the ground that he is the President, we shall test it again once he leaves office, be it in 2020 or 2025 and in the latter case, the bench will also be a different one. That is the beauty of time.’

Upon making the statements, the respondents in the petition, complained that advocate Karume had acted unprofessionally and disrespectfully by personally attacking the Attorney General, contrary to the advocates’ professional conduct and etiquette.

The presiding judge deemed the remarks as contrary to the advocates’ professional conduct and consequently, Fatma was suspended from practice pending reference of the professional misconduct to the Committee.

In response, the respondent, Ms. Fatma Amani Karume, filed a counter affidavit resisting the application and raised three points of preliminary objection. The committee determined and finally overruled the objection allowing the application to be heard on merit.

The application was finally fixed for hearing; the applicant appeared in person while enjoying the legal services of the learned State Attorneys, on the other hand, the respondent appeared in person under the legal representation of lawyer, Mr. Peter Kibatala. In proving the allegations against the respondent, the applicant summoned four witnesses whereas the respondent in this case, Karume, willfully declined to defend her innocence and did not bring any witness.

In another case in which the presiding judge was Elinaza Luvanda, the Director of Public Prosecutions (DPP) won an application for forfeiture of over 16.7bn/- owned by two foreigners, who were believed to be conducting a pyramid scheme. This followed the decision by the Corruption and Economic Crimes Division of the High Court to grant an application for forfeiture orders. Judge Luvanda ruled in favour of the DPP after considering the evidence stated in two affidavits by State Attorney Estazia Wilson and Senior Superintendent of Police Fadhili.

The two foreigners involved in the matter are Manon Elisabeth Hubenthal from Germany, and Frank Robert Ricketts, who resides in the United Kingdom. Both were said to be Directors and Shareholders of IMS Marketing Tanzania Limited at the time.It is perceived that in majority of cases where Judge Luvanda has heard, the accused have lost the cases.

In another case Tanzanian fashion blogger and Youtuber Shamim Mwasha, 43, together with her husband Abdul Nsembo, 47, were on March 31, 2021 sentenced to life in prison for drug trafficking.

The judgment on the couple was passed by the High court’s Corruption and Economic Crime Division in Dar es salaam, after it found them guilty of trafficking 400 grams of heroin. Judge Luvanda convicted the two after considering submissions from the defense and the state, finding the defendants guilty on two counts of drug trafficking after eight witnesses also took to the stand.

It is perhaps the outcome of these cases among others that also has Chadema’s chair, Freeman Mbowe, jittery about Judge Luvanda presiding over the case they are facing, a case his supporters have constantly said is politically motivated.

What next?

The court proceedings in the case against Mbowe and his co-accused now stand adjourned until another judge is assigned to the case; Mbowe and the three will meanwhile remain in remand prison.

Mbowe and the three are facing unbailable terrorism-related counts, including that of financing terrorism and conspiracy. While Mbowe and the three remain behind bars facing terrorism-related charges, that his party has termed as an alleged bid by President Samia Suluhu’s government to silence the opposition, opposition and rights activists in Tanzania strongly condemned weekend arrests of several members of the party, CHADEMA; the arrested were among those who on Saturday were to hold a forum to discuss constitutional reforms.