THE High Court has ordered fresh conviction of Ubungo Member of Parliament (MP) under Chadema ticket, Saed Kubenea, on charges of abusing the Dar es Salaam Regional Commissioner (RC), Paul Makonda when he was the Kinondoni District Commissioner.
Judge Juliana Masabo, when determining Kubenea’s appeal on the matter, remitted back to the Kisutu Resident Magistrate’s Court in the city the proceedings of the criminal trial of the opposition lawmaker after considering an issue raised by Advocate Peter Kibatala.
She found merit on the issue raised by Mr Kibatala upon perusal of the judgment given, in that the conviction part entered by the trial court does not state the specific law under which Kubenea, the appellant, was convicted.
“I order that the judgment be remitted to the trial court for the trial magistrate to enter a proper conviction. Upon a proper conviction being entered, the appellant will be at liberty, if he finds it appropriate, to process a fresh appeal,” the judge declared.
According to her, the position of the law as well as decided cases is with effect that section 312 of Criminal Procedure Act (CPA) imposes a mandatory requirement to the trial court to enter conviction before sentencing the accused person.
State Attorney Christine Joas, for the prosecution, had not objected to the anomaly raised by the counsel for the appellant, but argued that the mistake is minor and curable under section 388 of the Criminal procedure Act.
In her ruling, however, the judge pointed out that section 388 of the Act cannot be invoked to cure the defect in section 235, as its words are couched in mandatory terms.
“Section 312(2) provides the content of the conviction. That, pursuant to this provision, a conviction must specify the offence of which the accused stands charged as well as the section of the Penal Code or other law under which the accused person is convicted,” she said.
The omission of any of these elements, the judge said, obviously renders the conviction incomplete.
She pointed out that since the omission to state the law offends a mandatory requirement of the law, section 388 cannot be invoked to cure the defect.
On April 13, 2016, Principal Resident Magistrate Thomas Simba gave Kubenea three months conditional discharge after holding that the prosecution sufficiently proved the charge through its three witnesses beyond reasonable doubts that he committed the offence.
The magistrate directed the lawmaker to refrain from committing a similar offence within the period, warning that if anything goes to the contrary, he would be arrested and given any other custodian sentence as per the law.
Magistrate Simba took into consideration a number of factors, including mitigation factors advanced by the MP and the circumstances under which the offence was committed before resolving that the latter deserved to be given a lenient sentence.
Kubenea had requested for lenient sentence, stating that the prosecution admitted that he has no criminal records and that he went at the scene of crime with good faith of resolving a labour dispute involving workers of TOOKU Garments Co. Ltd factory.
On the other hand, the prosecution, led by Senior State Attorney Mutalemwa Kishenyi, had requested the court to consider the law and the status of the MP in the society when setting the appropriate sentence to impose to him, considering the nature of the offence committed.
Kubenea was alleged to have committed the offence of abusing the RC on December 14, 2015, at TOOKU Garments Co. Ltd factory at Mabibo External within Kinondoni District, Dar es Salaam.
The court was told that he abused Mr Makonda, at the time the District Commissioner of Kinondoni District, by using abusive language in a manner that was likely to cause a breach of the peace.
