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By Dotto Mwaibale

THE Kisutu Resident Magistrate’s Court in Dar es Salaam has given the prosecution 14 days to comply with its orders, requiring businessmen Harbinder Sethi facing 350bn/- economic sabotage charges to be taken to Muhimbili National Hospital (MNH) for treatment.

“If you fail to comply the orders within these days (by October 13), the Prisons Officer in Charge where the accused is remanded (Segerea Remand Prison) should come before this court to show cause, why there is such disobedience,” Principal Resident Magistrate Huruma Shaidi yesterday warned.

Reacting to the complaint submissions by advocate Joseph Makandege, for the accused person, the magistrate said that the court was now tired of issuing orders which the other side in the trial, the prosecution, was not ready to comply.

However, the court had to calm down after one officer from the prosecution side, Leonard Swai, from the Prevention and Combating of Corruption Bureau (PCCB) took an undertaking to comply with the orders given, but he only requested for extension of time to make such arrangements.

In his submissions, Mr Makandege argued that in the last court sessions, there was a series of orders issued by the court, requiring Sethi to be taken to MNH for treatment and the court had warned appropriate measures would be taken for non-compliance.

“Until today we have communicated with our client Harbinder Sethi and discovered that he has not been taken to the national hospital for treatment as directed by this court. This failure amounts to court contempt and we request appropriate punishment be given,” he submitted.

Expounding father on the matter, the advocate submitted that such disobedience by the prosecution was trampling on the authority vested on the Director of Public Prosecutions (DPP) of ensuring justices as per section 8 of the National Prosecutions Service Act.

In exercise of powers and performance of his functions, according to him, the DPP shall observed several principles, notably the need to do justice and prevent abuse of legal process. “When we talk about legal process, it includes orders given by the court,” the advocate submitted.

He explained further that the disobedience shown by the prosecution was an indication even the charges before the court were brought with hypocrisy aimed at punishing the accused before judgment and that the prosecution was turning itself as court.

“We expected when the prosecution brought these charges to court they will respect the orders. It is an abuse of the legal process on refusal by the prosecution to comply with court orders. It constitutes abuse of expectation by the DPP to uphold justice,” the advocate pointed out.

As submitted in previous sessions, he said, the centre of criminal trial is the accused persons. He questioned, therefore, that what the prosecution was seeking to achieve if they refuse to preserve the accused person, as without which he could not stand the trial.

“In order to meet the ends of justice given the impunity within which the orders have been disobeyed, we pray the court to invoke its inherent powers to strike out the charges to enable the accused get appropriate specialized medical services in appropriate hospital,” he submitted.

Responding to the defence submissions, Senior State Attorney Mutalemwa Kishenyi, told the court that it was not true that the prosecutions were violating the orders given, but the issue was too technical and needed a different and careful approach.

He submitted that the question of medication and medical field was technical and needed specialization as once the orders are given; a due process to comply the same must be followed. He gave an example that when one goes to MNH could find inmates, who had gone there in absence of any court orders.

“There could be a court order. Then it will take a specialized institution to take a call. I am afraid if the court adopts the submissions by the defence, the danger could be rendering calling over an institution of medical field to act without following internal orders,” the trial attorney cautioned.

In the trial, Sethi and his co-businessman James Rugemalira is facing 12 counts of conspiracy, leading organized crime, forgery, uttering a false document, obtaining money by false pretences, occasioning loss to a specified authority and money laundering.

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