Dar es Salaam: DPP restarts process to challenge Zombe acquittal

Written by FAUSTINE KAPAMA.

THE Director of Public Prosecutions (DPP) has gone back to the High Court to start the process of challenging the acquittal of eight former police officers, including Abdallah Zombe, on murder charges involving the killing of three mineral dealers and a taxi driver.

“We have filed an application before the High Court seeking for extension of time to lodge a fresh Notice of Appeal,” the DPP, Dr Eliezer Feleshi, told the ‘Daily News’ in Dar es Salaam over the phone.

The decision by the DPP comes a few days after the Court of Appeal rejected an appeal he had lodged to oppose a judgment of the High Court which declared the innocence of former Assistant Commissioner of Police (ACP) Zombe and his eight co-accused on murder charges.

Zombe and his fellow ex-police officers were charged with four counts of killing three mineral businessmen - Sabinus Chigumbi and his relatives Ephrahim Chigumbi and Mathias Lunkombe from Mahenge, in Morogoro region, and Juma Ndugu, a taxi driver in Manzese area 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 what he described as the prosecution’s 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 for having stated that the decision sought to be overturned was given by Court of Appeal Judge Salum Massati.

In their ruling, Justices Edward Rutakangwa, Mbarouk Mbarouk and Bathuel Mmila said that they were quite 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 showed.

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 the 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, it is incurably defective and cannot by any stretch of imagination be amended,” the justices ruled.

They held, therefore, that there was no appeal before the court against the decision of Justice Massati, who heard the case at the High Court when he was Principal Judge, and thereafter was appointed a 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 it was accordingly a grave error in law for the DPP to lodge in the court a notice of appeal against the judgment of Massati, a 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 Judge 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 along with 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.

Source: http://www.dailynews.co.tz/index.php/local-news/17796-dpp-restarts-process-to-challenge-zombe-acquittal