In his ruling, Judge Sam Rumanyika annulled the decision by the Kisutu court to deny the accused bail.
Mbowe and Matiko filed an appeal challenging a decision by the Kisutu court to deny them bail on grounds that they violated bail conditions.
The two have stayed in custody for three months and seven days from November 23 when the court cancelled their bail.
Judge Rumanyika said that bail can be denied if the accused violates bail conditions and his/her sureties refuse to pay the cash bond that they promised to the court when they agreed to be surety.
He said: “Bail is an agreement between the accused (including their sureties) and the court that the accused will pay a certain sum of money fixed by the court if the accused fails to attend the trial. But there is nowhere the Kisutu Resident Magistrate’s Court had asked the sureties to surrender their bond to court.”
Judge Rumanyika cautioned other courts countrywide to make wise decisions and consider what the country laws state before denying bail to defendants. He was concerned that bail denial contributes to congestion in remand prisons.
“The Kisutu court had ordered the accused to report to Ilala Regional Police Commander but there is nowhere the RPC had submitted the accused’s attendance report to the court,” the judgment noted further.
He directed the Kisutu court to immediately start hearing of the criminal case—112/2018 where the accused are Mbowe, Matiko and other CHADEMA officials.
On November 2018, Principal Resident Magistrate Wilbard Mashauri remanded the two senior officials of he main opposition party pending trial after finding them contemptuous for violating bail conditions, including failure to attend court sessions as required.
Mbowe, who is also Hai MP and leader of the official opposition camp in the legislature, was deemed to have defaulted bail by not attending two consecutive court sessions of November 1and November 8 which he said was due to illness.
Matiko did not appear at the court session on November 8 as she was reportedly on a parliamentary mission abroad.
Mbowe told the court on November 12 that he left the country on October 28 for Washington DC to attend a meeting before falling ill.
He said had to consult his doctors who advised him not to travel long distances and he had to meet the doctor on November 8. As a result, he explained, he was forced to change his return air ticket from October 30 to another date.
For her part, Matiko told the court on November 12 that she was in Burundi for a parliamentary mission on sports issues which took place between November 4 and 9, 2018.
The magistrate however described the reasons advanced for non-appearances as false, contradictory and confusing, reminding the accused that the country was governed by the principles of the rule of law, which must be observed by everybody.
“This country is governed by the rule of law whose principles must be observed by everyone regardless of their position and status in the society,” the magistrate intoned, asserting that whenever one is criminally charged, they must report to court as required.
Mbowe and the other accused are facing several counts of conspiracy to commit offence, unlawful assembly, rioting, inciting commission of an offence and fomenting discontent.
The other accused in the case are CHADEMA Secretary General Vicent Mashinji, Deputy Secretary General (Mainland) John Mnyika and his Zanzibar counterpart, Salum Mwalimu, Kawe MP Halima Mdee, Tarime Rural MP John Heche and Bunda Urban MP Ester Bulaya.
The offences were allegedly committed in Dar es Salaam between February 1 and 16, 2018.