CD Featuring Zitto Tendered in Court

POLICE officer yesterday displayed a video CD at the Kisutu Resident Magistrate's Court in Dar es Salaam in the trial of ACT Wazalendo leader Zitto Kabwe, piercing holes in the prosecution's case.

In the CD produced as exhibit by Sergeant James, the opposition leader was seen addressing a press conference on a number of issues, including issues of national security, in particular the alleged killings of people in Uvinza District in Kigoma Region.

Before Principal Resident Magistrate Huruma Shaidi, the prosecution is charging Zitto with sedition for giving statements likely to promote ill will among members of the society, including implicating the police with killing 100 civilians in an operation to evict people from a reserved area.

In the video CD displayed by the 14th prosecution witness, Zitto was heard telling journalists about four civilians who were injured during confrontation with the police and taken to Nguruka Health Center for treatment, but that the law enforcers followed them there and were killed.

The opposition leader was also heard quoting Inspector General of Police (IGP), Simon Sirro reporting on four police officers who were killed during the incidence, but his party appealed to him to give a detailed report on the other side of the coin as several civilians were also allegedly killed.

However, the video CD did not display the section, quoting Zitto to have implicated the police force's involvement in the killing of 100 civilians during the fracas as indicated in the charge sheet It is alleged by the prosecution in the charge sheet that on October 28, 2018, while at a press conference at ACT Wazalendo Head Office in Dar es Salaam City, Zitto gave seditious statements likely to promote ill will among members of the society.

The prosecution charges Zitto of sedition for saying that people who were injured during confrontation with the police went to hospital for medical treatment at Nguruka Health Center in Kigoma, but the police received reports that four people had gone to the hospital... they followed them there and killed them.

He also said: "We have been following up what is happening in Uvinza...we are sorry to say that the information we get is fearful.... we are told more than 100 members of Wanyantuzu tribe have lost lives by being shot by police, others are said to have been killed while receiving treatment in hospital... "

Before the session, the court dismissed the defence objection on the admissibility of the CD, ruling that the witness in question was competent to tender as an exhibit. The magistrate pointed out that Sergeant James was the one who received the CD for analysis.

During hearing of the objection, Advocate Jebra Kambole, for Zitto, had told the court that the CD was electronic evidence, as per Section 18 of the Electronic Transaction Act. He submitted that the Act provides some admissibility conditions which had not been met.

The advocates further argued that the witness was incompetent to tender the CD in evidence as he was not the one who recorded it and not indicated whether it was recorded in the course of his business.

Furthermore, the defence lawyer told the court that the witness had failed to provide explanations on the authenticity of the electronic recording system and that there was no evidence showing that the recording machine was working properly.

However, the prosecution, led by Principal State Attorney, Tumaini Kweka as well as Senior State Attorney Nassoro Katuga hit back, forcefully submitting that the CD in question was admissible, as per Section 64A of the Law of Evidence Act, as amended.

The state lawyers argued that before admitting such evidence, the court was required to look into competence, materially and relevance.

They submitted that any person could tender the document when it passed into one's hands and that the defence should not misconstrue the provision of Section 18 of the Electronic Transaction Act , which speaks about weight of evidence, as what was being considered was authenticity of electronic evidence.

According to them, what was used to record the CD was a matter that concerned weight of such evidence and that the question of authenticity, which was to be considered in electronic evidence, was very crucial in the admissibility of such kind of evidence.