JUGDEMENT OF CHRISTOPHER MTIKILA CASE

IN THE RESIDENT MAGISTRATES’ COURT OF DAR ES SALAAM AT KISUTU CRIMINAL CASE NO. 132 OF 2010 REPUBLIC VERSUS CHRISTOPHER MTIKILA JUDGMENT As it will be clear shortly the facts of this case are simple and straight forward. The accused person, Christopher Mtikila is charged with two counts. The first one is unlawful distribution of seditious publication contrary to section 32 (1) (c) of the News papers Act, Cap.229 R.E. 2002. The second count is unlawful possession of seditious publication contrary to section 32 (2) of the same Act. The particulars of the offence in the first count are that between 1st November, 2009 and 17th April, 2010 in the city and region of Dar es Salaam with seditious intention the accused person did distribute to the general public a seditious publication titled “Kikwete Kuangamiza Kabisa Ukristo! (Wakristo wasipoungana upesi kuweka Mkristo Ikulu)” knowing it to be seditious. In the second count the particulars of the offence are that on 16th April 2010 at Mikocheni area within the District of Kinondoni in the city and region of Dar es Salaam, without any lawful excuse the accused person was found in possession of a seditious publication. The accused person neither disputes to have possessed nor distributed the alleged seditious document which was admitted in evidence as exhibit P3. He also does not dispute to author it. As already indicated above exhibit P3 is entitled “Kikwete kuangamiza kabisa ukristo (Wakristo wasipoungana upesi kuweka Mkristo Ikulu)”. The offending exhibit P3 is a twenty four (24) pages document the contents of which, I must say, is glaringly outrageous. Even so, in his defence the accused person was emphatic that he prepared, printed, and distributed the impugnable document. The only thing he strongly disputes is the allegation that it is seditious. To him the document is an epistle based and prepared in practice of his faith. He further contended in his evidence that in preparing and distributing exhibit P3 he was proclaiming his religious faith. This is a serious allegation which needs to be taken seriously. I say so because matters of religion and faith are so complex and when they are subject of litigation and adjudication they cover a “handle with care” region. This notwithstanding I must decide this case on the facts presented by the parties. It is a noble duty I cannot abdicate. It is due to the fact that the accused person does not dispute to have possessed and distributed exhibit P3 I see no need to reproduce the evidence tendered by the parties. It suffices to say that the prosecution, in a bid to prove their case, brought in court a total of four witnesses. These are Bernette John Kipasika, Daniel David Kikunile, Isack Pingini and Ebeneza Mrema who testified as PW1, PW2, PW3 and PW4 respectively. The evidence of PW2 is to the effect that the accused person distributed exhibit P3 to them while that of PW1 and PW3 is to the effect that the house of the accused person was searched and copies of exhibit P3 were retrieved therefrom as evidenced by exhibit P1. This is a certificate of seizure. The evidence of PW4 is to the effect that he recorded the caution statement of the accused wherein he admitted to have prepared and distributed the offending document. The caution statement was admitted as exhibit P4. In a nutshell this is the gist of the prosecution evidence. As I have said the accused person does not dispute all these facts. In this judgement therefore I will concentrate on discussing the content of this document in relation to the offences charged with view to determine if it is seditious. For clarity let me say this at this juncture. That since I do not know if the accused person still stands by his words which he made in 2010 I will use the past tense when explaining and analyzing the contents of exhibit P3 in order to contectualise it. Briefly the document curses President Jakaya M. Kikwete and Islamism. The author says Honourable Kikwete and Muslims were determined to extinguish Christianity in the United Republic of Tanzania. So he was calling upon all Christian to stand up to defend their faith (Christianity) and elect a Christian God fearing president who will lead the nation to prosperity! The accused person believes he was justified to write exhibit P3 because the church and politics cannot be separated. His position on this issue is clear from his evidence. This is how the accused person ended his evidence in chief: “If the church is not indifferent in the face of the major objectives of mankind, it is required to show proof of it in practice and achievement. The church must be present at all crisis points in the human panorama. There where good and evil is being forged. During times of happiness and misery of mankind there where the future of the world is being built. So your Honour, it is needless to say that all these take place not at the pulpit but above all it takes place in the field of politics. Disengagement of the church from the administration of the country is a myth. That is why many scriptures from the holy bible and this epistle are commanding good governance of the Nation in accordance with the perfect will of God”. I have deliberately quoted this message in extenso because it expresses the reason behind the accused writing and circulating exhibit P3. In the accused person’s views he was publicizing his religion. This is what he believes, rightly or wrongly. In his evidence he even wondered why he should be charged for practicing his faith. He said: “My soul suffers much on seeing that Christ is now being challenged in court” Be as it may here in court we are doing law not theology. Conversely, I must acknowledge, the accused person’s theological virtue is mystifying. Needless to say under article 3 of the Constitution, Tanzania is a democratic secular state. It does not need a Christian leader to achieve prosperity as the accused person alleges and would want us believe. For one reason that the accused person admits possession and publication of the offending document the only issue for my determination is whether the document is seditious. Should this issue get an affirmative answer he will be automatically convicted. Then what is sedition? The Newspapers Act [Cap 229 R.E. 2002] does not define this term. However, section 31 of the Act provides for what constitutes seditious intention. It says seditious intention is an intention:- a) To bring into hatred or contempt or to excite disaffection against the lawful authority of the United Republic of Tanzania or the Government thereof; b) To excite any of the inhabitants of the United Republic to attempt to procure the alteration, otherwise than by lawful means of any other matter in the United Republic as by law established; c) To bring into hatred or to excite disaffection against the administration of Justice in the United Republic; d) To raise discontent or disaffection amongst any of the inhabitants of the United Republic; e) To promote feelings of ill-will and hostility between different categories of the population of the United Republic; It follows therefore that any publication is said to be seditious if it fits in any one of the above described seditious intentions. Besides providing for seditious intentions the Act also offers a yardstick for determination of whether act done, words spoken or document published is seditious. This is provided under section 31 (3) of the Newspaper Act which provides:- “In determining whether the intention with which any act was done any words spoken or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and in the circumstances in which he so conducted himself” In my view for an act, word spoken or document published to be held to be seditious such act, spoken words or publication need to be followed by certain consequences. It is my further humble view that mere publication without consequences of causing hatred, contempt, excitation of disaffection, attempt to procure alteration of any matter by unlawful means, to raise discontent and promoting feelings of ill-will cannot amount to sedition. I have reached this conclusion after reading the above provision with utmost care because a casual reading may impute an interpretation that intention without consequences makes the offence complete which view, for some reasons, I would not subscribe to. The first reason is that if the law is to be interpreted that way, the net would be cast so wide to make the law uncertain and arbitrary. Our Constitution provides and guarantees freedom of expression under article 18. In the case of Kukutia Ole Pumbun and another vs the Attorney General and another [1993] TLR 159 the Court of Appeal held that a law which seeks to limit or derogate from the basic rights of an individual must not be arbitrary and the limitation it imposes must be not more than is reasonably necessary to achieve a legitimate objective. In that regard provisions relating to the offence of sedition must be restrictively interpreted to conform to constitutional guarantee. This object cannot be achieved if a wider interpretation is given to the law relating to sedition. The uncertainty of the offence of sedition is exacerbated with lack of definition for the offence. It is my humble view that lack of definition of the offence and the vagueness with which the sections creating the offence are crafted makes one uncertain of the boundary where to stop while exercising one’s right of expression under the Constitution. Secondly in the case of Imunde vs Republic [1991] KLR, 230 it was held that the law on sedition does not punish the intention per se. It punishes when and only if it is exhibited or manifest in a manner tending to bring about disorder. I understand this case has a persuasive value only but I am convinced that is how the law should be interpreted. In that connection this idea is buttress by statements in the Commentaries on English Law where key elements of the offence of sedition are said to be:- i. Violence ii. Incitement for violence iii. Incitement for public disorder iv. Incitement for insubordination of lawful authority. It is my view that these elements are only manifest in obvious consequences which are not imaginary intention. Therefore, the outcome of the alleged seditious act must be real and vivid not mere likelihood. There is a Ugandan case which supports my above view too. This is the case of Andrew Mujuni & Another vs Attorney General, Consolidated Constitution Petitions No. 12/2005 and No. 3/2006. In this case the Constitutional Court of Uganda held that proof of the offence of sedition needs evidence as to what was the reaction of community. I fully associate myself with this view and hold that for the offence of sedition to augur well with the constitutional guarantee of freedom of speech the offence must be manifest by certain consequences like violence or preparations geared to causing disorder. So I hold that for accused person to be convicted of sedition there must be evidence about resultant disorder of the publication of the seditious material. This said did publication of exhibit P3 result into any of the above consequences which constitute seditious intentions per section 31 of the Newspaper Act? The evidence will tell us. Unfortunately the charges in all counts do not state which seditious intention was the publication intended to achieve. I think the charges had to contain such clear information for the accused person to appreciate what he pleaded to and to enable him prepares his defence with certainty. The prosecution has taken for granted that mere allegation that the material is seditious without describing a specific seditious intention is enough. This notwithstanding I will try to find out if exhibit P3 is seditious per the intentions above described. I start with the issue of causing alteration with unlawful means. I have read exhibit P3 and I am satisfied that the accused person being a Christian believes for Tanzania to prosper it must be governed by a Christian president. Therefore, under the guise of Christianity he tried to persuade his fellow Christian to remove President Kikwete in office because he is a Muslim. Exhibit P3 therefore is a call for change of state leadership from Islamic to Christianization! I have seriously pondered over this issue and I am now satisfied that such an act is an offence under section 31 (1) (b) of the Newspapers Act if two conditions are met. These are where the publication would have suggested his removal by unlawful means and attempt towards that end made. Both the conditions must exist conjunctively. Interestingly exhibit P3 does not suggest the means to be used by the Christians to remove the President from office. Further there is no evidence that there is any Christian religious sect which has ever attempted to remove the president from office. According to exhibit D1 which is newspaper with a story about the accused person’s teachings about removal of President Kikwete from office, the suggested means was the ballot box. Exhibit D1 was tendered by Mpoki Bukuku who works for the Mwananchi newspaper. Exhibit D1 was published on 6th August, 2009 and its contents tallies with the testimony of the accused person (DW1) that the offending document was issued for the first time in Mwanza during a congregation of about five hundred (500) bishops who met in Mwanza to deliberate on the state of the Christian faith in Tanzania in relation to the then forthcoming general election in the 2010. In short the accused persons urged his fellow Christians not to vote for President Kikwete and CCM in the 2010 general elections. Section 21 (2) (c) of the Newspapers Act provides:- “(2) an act, speech or publication is not seditious by reason only that it intends: a) ... b) ... c) To persuade any inhabitants of the United Republic of Tanzania to procure by lawful means the alteration of any matter in the United Republic of Tanzania as by law established. d) … It is my view that the office of the President is legally established and the President is lawfully voted in office. Therefore, in the context of the Newspaper Act Presidency and the President are “lawfully established matter”. To procure alteration (removal) of either of them is the unlawful act envisaged under section 31 (1) (b) Has the accused suggested removal of the president by unlawful means? In my view he has not. Exhibit P3 does not suggest any unlawful means to remove the President. His document is full of lamentations about his dissatisfaction on how the country is governed. Further, if exhibit D1 is something to go by the accused person suggest removal of the president through the ballot box. This cannot be an offence. Let me be explicit on this point because it is likely raise eye brows. I said from the very beginning that the language in exhibit P3 is uncouth. It tests sour in the ears. Therefore, the accused person may be guilty of trying to divide the nation on religious grounds. But the point I am trying to put across is the act by itself is not seditious Let me now test the content of exhibit P3 in line with the provisions of section 31(1)(e) of the Newspaper Act. Did it promote feeling of ill-will and hostility between Christians and Muslim? My simple answer is that no evidence to that effect can be traced on record. This said the test goes to find whether exhibit P3 meets the seditious intentions described in sections 31(1)(a), (c) and (d) of the Newspapers Act. In that regard the resultant questions are: Firstly, did exhibit P3 bring into hatred or contempt or to excite disaffection against the lawful authority? Secondly, did it bring into hatred or to excite disaffection against the administration of Justice? And finally did it raise discontent or disaffection amongst any of the inhabitants? Again there is no evidence to that effect. From the foregoing the above main issue in this case must be answered in the negative. This disposes of this case. I hold that the charges against the accused person have not been proved and I accordingly acquit him of the charges in both counts. I.C. MUGETA – SRM 25/09/2012 Chanzo:www.katabazihappy.blogspot.com; Septemba 25 mwaka 2012