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Bailable offences verdict quashed

THE Court of Appeal has nullified the judgment of the High Court by declaring as unconstitutional, the provision under Criminal Procedure Act (CPA), which denies bail persons facing capital offences.

Justices Stella Mugasha, Gerald Ndika, Jacobs Mwambegele, Mwanaisha Kwariko and Ignas Kitusi reached the decision after allowing an appeal lodged by the Attorney General, who was the appellant in the matter.

They quashed the High Court judgment delivered on May 18,2020 by a panel comprising Dr Benhajj Masoud, Seif Kulita and Dr Juliana Masabo, ruling that Section 148 (5) of the Criminal Procedure Act is served with Article 30 (2) of the Constitution of the United Republic of Tanzania, hence it is constitutional.

Section 148(5) restricts bail on persons charged with murder, treason, terrorism, armed robbery, narcotic drugs and money laundering offences.

During the hearing of the appeal, State lawyers led by the then Solicitor General Dr Clement Mashamba, had told the justices of the appeals court that the High Court committed serious errors in its judgment.

Other State lawyers who appeared alongside the Solicitor General in arguing the appeal are Principal State Attorneys Biswalo Mganga, George Mandepo, Alesia Mbuya, Faraja Nchimbi, Tumaini Kweka as well as State Attorneys Abubakar Mrisha and Narindwa Sekimanga.

High Court Judges delivered a landmark judgment and one of most significant constitutional and human rights decisions, ruling that Section 148 (5) of CPA violates Article 13 (3) (6)(b) and 15 (1) (2) of Constitution of United Republic of Tanzania.

They submitted that the High Court erred in law in holding that  Section 148 (5) of the CPA, as emended from time to time is violative of Article 13 (3) of the Constitution and not consistent with Article 15 (1) and (2) of the Constitution of the United Republic of Tanzania.

The State lawyers submitted that power to protect and determine the rights, duties and interests of the individual are vested in the judiciary and other State agencies and that each organ executes its protection function independently and in accordance with the law.

According to them, the High Court erred in law in holding that Section 148 (5) of the CPA ousts the judicial process in considering the possibility of admitting to bail a person accused of non-bailable offence and that the court had determined the provision while the matter was res judicata.

Expounding further, Dr Mashamba told the Court of Appeal bench that the High Court determined the constitutionality of Section 148 (5) of the CPA, while the matter had already been dealt with by the same court in two other cases involving Gidion Wasonga and Mariam Faustine, both against the  AG.

They submitted that the High Court erred in holding that the provision was unconstitutional  despite the fact that the respondent, Advocate Dickson Sanga, who was the petitioner, failed to prove his case beyond reasonable doubt and that the court determined Section 148 (5) basing on unpleaded facts.

The lawyers further told the court that the High Court erred in law in holding that the highly contested provision under CPA is not saved by Article 30 (2) of the Constitution and that the court had erred in misapplying the reasoning and holding advancing in various previous Court of Appeal decisions.

"The High Court was not right in declaring unconstitutional the entire Section 148 (5) of the CPA, while Sub-section (b) to (e) vest powers to the court to exercise its jurisdictions in determining the rights of the accused persons charged," the DPP further submitted.

Furthermore, according to State lawyers, the High Court erred in law in basing its decision on some defective paragraphs of the respondent's affidavit in support of petition. They stated that in the paragraph 11 to 14, the respondent had not disclosed the source of information he swore.

The lawyers, thus, requested the court to expunge such offending paragraphs. They forcefully submitted that the remaining paragraphs of the affidavit did not prove the claims under which the respondent had advanced in challenging the constitutionality of Section 148 (5) of the CPA.

After having declared Section 148 (5) of CPA going against the mother law of the land, the judges of the High Court acted under Article 30(5) of the Constitution and granted 18 months to the AG to rectify the defect, failure of which shall render the entire section to automatically be  expunged.

The 18 months, they said, will not be applicable under Section 148(5) (i) in respect of armed robbery offence, as the government had been granted time in the case of Mjomba Mjomba to rectify a similar defect.

However, according to the judges, nothing has been done to date. They ruled, therefore, that the said offence of armed robbery is automatically expunged from the list of the unbailable offences in the CPA as of May 18, 2020, when the judges delivered the highly awaited judgment.


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