Ponda seeks dismissal of DPP application

SHEIKH Ponda Issa Ponda asked the High Court to overrule the objection presented by the Director of Public Prosecutions (DPP), seeking dismissal of his application challenging charges filed against him at Morogoro Resident Magistrate's Court.

His advocate, Juma Nassoro told Judge Augustine Mwarija that the DPP's objection lacked legal basis as the order complained of involves jurisdiction of the court and substantively goes to the root of the case against Ponda, the Secretary General of Council of Islamic Organization.

In the application, the Muslim sheikh is seeking revision of the lower court's findings, notably the decision of upholding the legality of the count relating to disobedience of the judgment issued by 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 has jurisdiction to entertain the case against Ponda considering the fact that such count is claimed to have been committed in the region.

In his objection, the DPP alleges that such ruling was "interlocutory" and could not be challenged by either appeal or revision by either the prosecution or 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, 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 by Magistrate Kabate was not conclusive as could not determine the rights of the parties to the case or the criminal charge. Instead, the trial attorney argues, the court ordered the hearing of the matter to proceed for hearing on merits.

But in his counter submissions, advocate Nassoro, for Sheikh Ponda, while at the Morogoro court said the central issue was jurisdiction and they were not questioning procedural matters on how to conduct the trial. "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 tries to a court which has no jurisdiction," he submitted. After hearing the submission from both parties, Judge Mwarija reserved his ruling and said he would deliver the same on March 18.

Ponda is asking the court to either dismiss the charge relating to disobedience of judgment of Kisutu Court or be recharged with the count at the Court.

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

But, on August 19, last year, the Muslim sheikh appeared before the Morogoro Court facing three counts of disobeying a lawful order, incitements to commit offences.

The prosecution alleged that Sheikh Ponda committed the offences on August 10, last year at Ndege Primary School ground in Morogoro Municipality. Ponda allegedly gave seditious statements, inciting the society in contravention of court directives.

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 were to show up should beat them.

Such statement was allegedly against the directive of the Kisutu Resident Magistrate's Court, which convicted him on, The prosecution further told the court that at the same grounds, Sheikh Ponda issued statements with seditious intention, saying the government deployed an army to Mtwara Region to contain chaos to citizens who were objecting to the construction of a gas pipe.

Ponda was also quoted as saying that citizens who are 90 per cent Muslims were raped, killed and intimidated, but the government had not done so during a conflict between residents of Loliondo, who are 90 per cent Christians, that had opposed an Arab being given a portion of hunting block.

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