While CCM and its police are busier politically prosecuting Tundu Lissu, he too is strategizing to reshape courtroom proceedings to advance his own agenda. Tundu Lissu’s agenda is very simple to discern: turning the courtroom into the referendum on CCM. He is going to achieve this by pinpointing CCM’s lack of legitimacy in governing Tanzania by bombarding the court with legal arguments and evidence of electoral injustices and a flawed criminal justice system. Some of his witness wishlists may include President Samia Suluhu Hassan, the Tamisemi minister Mohammed Mchengerwa, and an array of threatening officers who had disqualified Chadema candidates. Disqualified Chadema candidates may also join the fray.
His first checkmate move came yesterday when he refused the Kisutu magistrates court’s order to conduct the criminal proceedings remotely. The court ruled against him and has opened another round of appeals to superior courts. Now the issue in the subsequent appeals will be the rights of the accused to have criminal proceedings in an open court. This article previews how Tundu Lissu’s strategy will unfold in a courtroom, and ultimately, it will not be Tundu Lissu at the dock but our electoral and criminal justice system under the global spotlight. Here we go.
What are the legal ramifications of Tundu Lissu’s refusal to attend criminal remote proceedings?
The legal ramifications of Tundu Lissu refusing to appear in Kisutu Court via video conferencing, citing rights violations, involve a complex interplay of Tanzanian law, procedural norms, and human rights considerations. Here is my legal analysis:
- Legal Framework in Tanzania:
Criminal Procedure Act:
Tanzanian law typically requires defendants to be present during trial. However, amendments or emergency provisions (e.g., post-COVID-19) may allow video conferencing.
Criminal Procedure Act, Section 197:
Under Tanzanian criminal law, a trial court may proceed with proceedings even if the accused refuses to participate via video conferencing. However, this depends on specific legal conditions and procedural safeguards. Below is a detailed analysis:
The court may continue the trial in the absence of the accused if:
- The accused’s disorderly conduct makes their presence impractical or
- The accused cannot attend for health reasons but is represented by counsel and consents to remote proceedings.
- Suppose the court deems video conferencing a valid alternative, and the accused refuses without a lawful excuse (e.g., technical failure, lack of legal representation). In that case, the refusal may be interpreted as voluntary absence, allowing the trial to proceed under these provisions.
Remote Proceedings Rules (2021):
These rules empower courts to mandate video conferencing for hearings, provided procedural fairness is ensured. If the accused unjustifiably refuses, the court may treat this as non-compliance and proceed under existing in absentia provisions.
Right to Fair Trial:
Tanzania’s Constitution (Article 13(6)(a)) and international obligations (e.g., ICCPR Article 14) guarantee the right to a fair trial, including the right to confront witnesses. Lissu might argue that video conferencing undermines this right by limiting direct interaction.
- Potential Court Responses:
Contempt of Court:
If the court deems his refusal unjustified, it could hold him in contempt, leading to fines or imprisonment. The Kisutu magistrates courts has ruled to adopt remote proceedings despite Tundu Lissu objections.
Trial in Absentia:
Under Sections 230(1) and 376 of Tanzania’s Criminal Procedure Act, courts may proceed if the defendant voluntarily absents themselves. However, this risks appeals on fairness grounds.
- Human Rights Considerations:
Right to Presence:
International standards (ICCPR) require defendants to be present unless they waive the right. Video conferencing may suffice if it ensures effective participation, but technical flaws or restricted lawyer access could violate rights of the accused opening doors for future legal challenges upon procedural unfairness.
- Strategic and Political Context:
Public Perception:
As an opposition figure, Lissu’s refusal might highlight concerns about judicial bias or politicization, influencing public and international opinion. In his Facebook page, for example, Bishop Kalikawe Bagonza questioned the legitimacy of the remote criminal proceedings of such huge public interest. A contextualisation of his seminal views abundantly doubted Tundu Lissu would get a fair hearing, and the public lack of participation would deprive it of the opportunity to advance its knowledge of good governance and the rule of law.
Judicial Discretion:
Courts balance logistical needs with rights. If video conferencing is deemed adequate (e.g., for security or practicality), refusal may be considered non-compliance. Tundu Lissu’s insistence on public court proceedings can be grounded on the offences were allegedly done in public, and the evidence is in public forums, so there were no reasons to confine the proceedings to a few individuals. The prosecution has claimed security concerns make a public hearing impossible, but it is the police who have been fomenting violence, not the other way around. Therefore, the police insecurity claim hangs on the balance before superior courts.
The prosecution’s arguments that public criminal proceedings would provoke violence are merely speculative and unsubstantiated. In fact, the evidence, so far, it is the police who have been clubbing to pulp court attendees, and not vice versa.
- Outcomes:
Procedural Validation:
Since the court’s use of video conferencing is contentious, Lissu risks adverse rulings (conviction in absentia, contempt). This will further erode the public trust in our judiciary system, advancing Tundu Lissu’s long-held view the judiciary is not independent but an executive captive.
Rights Upheld:
If superior courts find video conferencing infringes on fair trial rights, physical presence might be ordered or charges dismissed. This is now a veritable point of law for consideration of superior courts since we know Tundu Lissu team of lawyers have been hinting of appealing this ruling.
- Practical Challenges.
Technical Limitations:
Infrastructure gaps (e.g., unreliable internet) may justify refusal. Courts must verify whether the accused’s objections are genuine. As Bishop Bagonza had amply pointed out in his Facebook page, there are formidable Internet connectivity barriers that would deprive the majority of potential Court attendees from diligently following up on court proceedings. Internet bundles cost, coverage and the quality of smartphones should be considered valid points of law to proceed with
Political Context:
In high-profile or politically sensitive cases, courts face scrutiny over perceived bias. For example, opposition figures like Tito Magoti have alleged procedural unfairness in past trials. Bishop Emmaus B Mwamakula, on his X page, has been documenting police brutality against Chadema leaders who turned up to attend Tundu Lissu proceedings. Now, everybody knows a public hearing has a huge demand. Only the police despise transparency and are willing to inflict innocent souls with violence. If courts decide to conduct remote proceedings against the wishes of the accused, Tundu Lissu risks being perceived under executive undue influence. Justice will neither be seen nor perceived to have been carried out by an ordinary person, especially the final
- Recent Developments.
Tanzania’s judiciary has invested in e-court systems and prison video conferencing facilities to streamline remote trials. However, primary courts remain exempt from mandatory remote proceedings in cases involving physical evidence. However, criminal proceedings against high-profile politicians, public servants and others of similar ilk, and unless there are television broadcasts to cover the criminal proceedings, it is not in the public interest to have remote proceedings, as well expounded by Bishop Bagonza in his Facebook page.
Courtroom intrigues may work in favour of Tundu Lissu.
What is least understood by the prosecution team is that the two cases against Tundu Lissu may turn out to be a charade because the evidence available doesn’t support the offences. This may require key witnesses to be the president of Tanzania the minister of TAMISEMI, the resented returning officers who had disqualified Chadema candidates and the hapless candidates.
The case may evolve on issues which are salient to the case but embarrassing to the president Samia’s administration. Some of the issues may be open a can of worms touching on nepotism in her administration, why Tamisemi was shifted to the president’s office, and much more. It is a case smart prosecutors don’t touch even with an electrical pole.
Conclusion.
A Tanzanian trial court can continue proceedings if the accused refuses video conferencing without valid grounds, relying on in absentia provisions under the Criminal Procedure Act. However, courts must ensure procedural fairness and address technical or rights-based objections. Refusal risks contempt charges or adverse judgments, but the accused retains avenues to appeal on human rights grounds. Tundu Lissu will have his expected appeals heard and determined. However, his biggest triumph will be to expose our electoral and criminal injustices to the whole world in a manner no other forum could have achieved.
This will add pressure on CCM to accept meaningful reforms or face the pangs of being condemned into a “pariah state”.
Read more analysis by Rutashubanyuma Nestory
