Tough sentences follow terrorism convictions by Tanzanian court

13 January 2023 · Carmel Rickard

Six men, including three from the same family, have been convicted of terrorism by the high court in Tanzania and sentenced to a total of 50 years each. The prosecution said the six were members of a larger group that had met in the Tunduru district, as part of a conspiracy to start a religious war linked to Al-Shabaab. They planned to convince young people to join in the overthrow of the government and establish an Islamic state. The presiding judge, Yose Mlambina, heard argument that the offence was a transnational matter, with potential to harm Tanzania and its neighbours. Passing sentence, he said terrorism was ‘a complex national and international plague.’ For Tanzania, troubled by continuing terrorism linked to Al-Shabaab, this new decision is a significant moment in efforts to halt the training of young people for terrorist activity.

Read judgment

The six men were tried, convicted and sentenced in the corruption and economic crimes division of the Tanzanian high court, sitting at Songea. Judge Yose Mlambina, who presided in the trial, began his 100-page judgment with an extensive review of what constituted terrorism and the legal and other difficulties involved in defining terrorism.

This was a particular challenge since the question of characterising terrorism was ‘highly dynamic’. People ‘vilified as terrorists are suddenly celebrated as heroes in our very life time’, he wrote. ‘A good example is that of freedom fighters fighting for self-determination of their countries in liberation struggles.’ He quoted the African examples of Jomo Kenyatta of Kenya, Robert Mugabe of Zimbabwe and Nelson Mandela of South Africa, all of whom had been ‘prison graduates’, jailed for having engaged in ‘terrorist activities’.

Among the terrorist organisations active in Africa he named Boko Haram in northern Nigeria, and Al-Shabaab which operated from Somalia but was now ‘highly visible in the whole of Eastern Africa’. The latter had links with Al-Qaeda and was suspected of having a ‘working relationship’ with Boko Haram as well.

Very active

The judge said Al-Shabaab was ‘very active’ in northern Mozambique and that its activities were ‘spilling into Tanzania’. It was recruiting members for training in Somalia and as a result of all this activity, Mozambique and Tanzania had signed defence and security agreements aimed at fighting terrorism and crime along their shared border.

According to the case presented by the prosecution, the six accused, with others, had conspired together to start a religious war or ‘jihad’. The aim was to convince ‘other youth’ to join forces to overthrow the existing government and establish an Islamic state by using violence and force. The accused were charged on two counts: conspiracy to commit terrorist acts, and participating in terrorist meetings.

When the trial began, all six maintained a denial of any involvement in the commission of these offences. But this ran counter to earlier statements, made to the police, in which five of the six had made admissions of being involved in the activities with which they were charged. The sixth was implicated in the statements of the rest of the group.

Transboundary offences

The court heard from a police officer that when some leaders of the movement were arrested in Tanzania, the rest ‘opted to go to Mozambique’ where they were to join with the local Al-Shabaab. This police officer, who said he was responsible for collecting confidential information, analysing and arresting suspects of transboundary offences including terrorism in the southern regions of Tanzania, told the court that he had ordered the police to arrest those involved. Some were arrested while others escaped.

This police witness said that the ‘ingredients’ of terrorism involved here were that the accused intended to join an illegal group that participated in killing innocent people. They also used a ‘strong religious faith’ to motivate others to isolate certain people by not giving them help and for example motivating people not to send their children to schools that were seen as run by ‘kafir’ [unbelievers].

The police officer said that in their statement, recorded after their arrest, ‘the accused persons admitted to be involved with terrorist acts’. Though they were not found with any weapons, they were seen by some people, including a secret informer, in their local mosque, ‘motivating others to participate in terrorist acts’.

'Listed' organisations

Among the issues the court had to decide was whether Al-Shabaab was an organisation listed in the schedule to Tanzania’s anti-terrorism laws. The judge said that Al-Shabaab and Al Qaeda were the only terrorist organisations listed there, but that, even if an organisation were not listed, it was not the intention of the law-makers that members of unlisted terrorist organisations should go unpunished.

Technology had affected all crime syndicates including terrorist organisations, allowing them easily to change their names and other features.

The accused had either confessed to the crimes of which they were charged or had been directly implicated by those confessions. Judge Mlyambina said he found these confessions ‘high reliable’ and that the accused had all ‘professed Al-Shabaab membership’.

Informer's identity

Counsel for the accused argued that the identity of the informer should have been disclosed, while the prosecution said this could not be done since it would put the safety of the informer at risk. Defence counsel also said the other arresting officers should have testified, an argument dismissed by the court which said that one arresting officer had given evidence, in addition to the main police witness, and that bringing more to testify would have been a waste of the court’s time.

While the defence team said that the case was based on circumstantial evidence, the judge held that it was based on ‘direct and documentary evidence’ that emerged from the confessions and he convicted all six on both counts.

The prosecution asked the court to bear in mind that these were serious offences with potential to have seriously harmed aspects of Tanzania’s social, economic and political life. Because of its transnational character, it caused ‘security concerns’ for neighbouring countries with further economic and political fall-out for Tanzania.

Cooperating

In mitigation, the defence teams stressed that the six had no previous convictions, that they were remorseful and had good prospects for reform. One was over 70 years old and had been cooperating with the prosecution since his arrest and further, that the group had dependents who relied on them for survival.

Passing sentence, the judge said that the human rights of accused in terrorism cases had to be guaranteed. He had considered the mitigating pleas by counsel as well as the factors raised by the prosecution. Though they were said to be remorseful, the law prescribed the sentence for someone convicted of such offences, and he therefore sentenced them to 20 years for the first count and to a mandatory 30 years for the second, with the two sentences to run concurrently.

* A Matter of Justice, Legalbrief, 10 January, 2023

Carmel Rickard

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