Court throws out Ponda’s revision application

THE High Court rejected an application for revision lodged by outspoken Muslim cleric Sheikh Ponda Issa Ponda challenging charges filed against him at the Morogoro Resident Magistrate’s Court by the Director of Public Prosecutions (DPP).

Judge Augustine Mwarija ruled against Ponda, who is also secretary general of the Council of Islamic Organization, after upholding a ground of objection presented by the DPP to challenge hearing of the application in question.

“The application has been brought in contravention of Section 372 (2) of the Criminal Procedure Act, as amended by Act No. 25 of 2002,” the judge declared, and proceeded to order, “I uphold the preliminary objection.

The application is incompetent and is hereby stricken out.” In the application, the Muslim sheikh was seeking a revision of the lower court’s findings, notably the decision to uphold the legality of the charge relating to disobedience of an order issued by the Kisutu Resident Magistrate’s Court in Dar es Salaam.

The ruling sought to be revised was issued by Resident Magistrate Richard Kabate on October 1, last year, holding that the Morogoro court had jurisdiction to entertain the case against Ponda considering the fact that such charge was claimed to have been committed in the region.

In his objection, the DPP had alleged that such ruling was “interlocutory” and could not be challenged either by appeal or revision by either the prosecution or the defence according to the provision of Section 372 (2) of the Criminal Procedure Act, as amended by Act No. 25 of 2002.

Principal State Attorney Bernard Kongola, for the DPP, had submitted that “no application for revision could be made in respect of any preliminary or interlocutory decision or order of a subordinate court unless such decision has the effect of finally determining the criminal charge.”

He told the court that the ruling given by Magistrate Kabate was not conclusive as it could not determine the rights of the parties to the case or the criminal charge. Instead, the trial attorney argued, the court ordered hearing of the matter to proceed for hearing on merit.

But advocate Juma Nassoro, for Sheikh Ponda, had strongly countered the prosecution’s arguments, alleging that the objection raised lacked a legal basis as the order complained of involve jurisdiction of the court and substantively went to the root of his client’s case.

“We had challenged the jurisdiction of the court to try the count. The order for jurisdiction cannot be interlocutory. That order affects substantive rights of the applicant (Ponda) to be tried by a court which has no jurisdiction,” he had submitted.

Following the court’s decision, Ponda will be returned to Morogoro for continuation of the trial on three charges, including the one relating to disobedience of an order contained in a judgment of the Kisutu Court.

In its judgment dated May 9, 2013, the Kisutu court convicted Ponda of forcible entry into a plot and gave him a 12-month suspended sentence with a warning that he should refrain from inciting the society to commit crimes.

But on August 19, last year, the Muslim cleric was arraigned in the Morogoro court facing three counts of disobeying a lawful order and incitement to commit offences.

The prosecution alleged that Sheikh Ponda committed the offences on August 10, last year, at Ndege Primary School grounds in Morogoro municipality. Ponda allegedly uttered seditious statements, inciting the society in contravention of the Kisutu court directive.

According to the prosecution, Sheikh Ponda incited Muslim believers not to recognize mosques securities formed by the Muslim Council of Tanzania (Bakwata), whom he claimed were puppets of CCM and the government and if they were to show up they should be beaten.

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