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Ruling on bail persons facing capital offences

THERE has been a tag of war between state lawyers and members of the bar on the constitutionality of a provision under Criminal Procedure Act (CPA), which denies bail persons facing capital offences. Such legal wrangle has finally been resolved by the Court of Appeal in the judgment delivered recently in the appeal involving Attorney General and Advocate Dickson Sanga. Our Staff Writer FAUSTINE KAPAMA has revisited the judgment of the court and divided the same into five parts. In this first part, he has covered the background of the matter and what compelled Advocate Sanga to seek court redress.

WHAT is contested in this matter was the constitutionality of section 148 (5) of the Criminal Procedure Act (CPA), which mainly restricts bail on persons charged with murder, treason, terrorism, armed robbery, narcotic drugs and money laundering, among other offences.

Such provision reads, “(5) A police officer in charge of a police station or a court before whom an accused person is brought or appears, shall not admit that person to bail if (a) that person is charged with (i) murder, treason, armed robbery, or defilement;

(ii) illicit trafficking in drugs against the Drugs and Prevention of Illicit Traffic in Drugs Act, but does not include a person charged for an offence of being in possession of drugs which taking into account all circumstances in which the offence was committed, was not meant for conveyance or commercial purpose;

(iii) an offence involving heroin, cocaine, prepared opium, opium poppy (papaver setigerum), poppy straw, coca plant, coca leaves, cannabis sativa or cannabis resin (Indian hemp), methaqualone (mandrax), catha edulis (khat) or any other narcotic drug or psychotropic substance specified in the Schedule to this Act which has an established value certified by the Commissioner for National Coordination of Drugs Control Commission, as exceeding ten million shillings;

(iv) terrorism against the Prevention of Terrorism Act, 2002; (v) money laundering contrary to Anti-money Laundering Act, 2006; (b) it appears that the accused person has previously been sentenced to imprisonment for a term exceeding three years;

(c) it appears that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded; (d) it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety;

(e) the offence with which the person is charged involves actual money or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of a bond:

Provided that where the property to be deposited is immovable, it shall be sufficient to deposit the title deed, or if the title deed is not available such other evidence as is satisfactory to the court in proof of existence of the property; save that this provision shall not apply in the case of police bail.

(6) Where a court decides to admit an accused person to bail, it shall impose the following conditions on the bail, namely (a) surrender by the accused person to the police of his passport or any other travel document; and (b) restriction of the movement of the accused to the area of the town, village or other area of his residence.

(7) A court may, in addition to the mandatory conditions prescribed in subsection (6), impose any one or more of the following conditions which appear to the court to be likely to result in the appearance of the accused for the trial or resumption of the trial at the time and place required or as may be necessary in the interests of justice or for the prevention of crime;

(a) requiring the accused to report at specified intervals to a police station or other authority within the area of his residence; (b) requiring the accused to abstain from visiting a particular locality or premises, or associating with certain specified persons; (c) any other condition which the court may deem proper and just to impose in addition to the preceding conditions.

It all started on May 2, 2019 when Mr Sanga, a practicing advocate who had represented various persons in courts of law in criminal cases, lodged a petition in the High Court of Tanzania, Tanga Registry, challenging the constitutionality of the provisions of section 148 (5) of the CPA.

The petition which was by way of originating summons under Article 26 (2) of the Constitution was based on several grounds, including that section 148 (5) of the CPA violates the right to personal liberty and presumption of innocence guaranteed by Articles 13 (6) (b) and 15 (1) and (2) of the Constitution.

Mr Sanga, who was the petitioner in High Court proceedings, stated in the petition that the aforesaid impugned provisions oust the constitutional mandate of the courts of law, to protect and adjudicate guaranteed rights.

He stated further that in the wake of the impugned provision, the time frame for investigating and prosecuting the accused person in respect of the aforesaid offences is unknown and left to the discretion of the investigating body.

In most cases, the petitioner stated, such investigation is subject to abuse whereby the liberty of the accused is left in the hands of the State.

He stated that the impugned provision is contrary to the very fundamental instrument for the courts to administer criminal justice during court proceedings which is in line with the universal jurisprudence acceptable in common law jurisdictions to which our country being one of them.

According to him, the impugned provision contravenes various international legal instruments to which Tanzania is a party including Article 11 (1) of the Universal Declaration of Human Rights (UDHR)and Article 14 (2) of the International Covenant on Civil and Political Rights (ICCPR).

Mr Sanga further mentioned another violated legal instrument as Article 7 (1) B, D of the African Charter on Human and People's Rights (ACHPR). On account of the aforesaid, before the High Court, the petitioner sought certain declaratory orders.

Such orders sought were that the provisions of section 148(5) of the CPA be declared unconstitutional for being violative of Articles 13(3) and 6(b) and 15(1) and (2) of the Constitution.

The trial courts vested with jurisdiction to deal with any offences be left to deal with the question of bail upon being properly moved by parties to the criminal disputes and the High Court to issue directives as it may deem fit to meet the ends of justice and the protection of the constitutional rights of the people.

Such petition was accompanied by an affidavit sworn by Mr Sanga,  deposed that despite the existence of a fundamental right on presumption of innocence, the courts are strictly prohibited from dealing with questions of bail, therefore treating the accused persons as if they were guilty before the trial.

Moreover, it was deposed that, the problem is aggravated by the absence of the time frame for investigation of criminal offences resulting into prolonged incarceration of a number of persons being remanded in police custody and prison facilities.

On the other hand, the petition was resisted by the Attorney General, who was the respondent in the High Court level, through a counter affidavit sworn on May 24, 2019 by State Attorney Jenipher Kaaya and made a general denial of the contents of the petition.

In addition, the respondent unsuccessfully raised a preliminary point of objection challenging the competency of the petition on the ground that it contravened sections 6 and 8 (2) of the Basic Rights and Duties Enforcement Act and urged the High Court to dismiss the Petition.

The High Court dismissed the preliminary point of objection because it had no merit and paved way for the petition to be considered on its merits. There were four controlling issues before the High Court and subject for determination.

These included whether the impugned provision contains circumstances and a requisite prescribed procedure for denying bail to a person accused of non bailable offence as envisaged under Article 15 (2) of the Constitution.

The court had also to determine whether by denying bail to an accused person suspected of a non bailable offence amounts to treating such person as a criminal person contrary to Article 13 (6) (b) of the Constitution and whether the impugned provision saved under Article 30 (2) of the Constitution.

Furthermore, the court determined whether the impugned provision ousts the constitutional mandate of the courts in protecting and determining the right to bail of a person accused of a non bailable offence as enshrined under Article 13 (3) of the Constitution.

After hearing the parties in such manner as stated, the High Court composed of Dr Benhajj Masoud, Seif Kulita and Dr Juliana Masabo delivered its judgment on May 18,2020 and declared the whole of section 148(5) of the CPA unconstitutional.

The Court reasoned that "a person may be deprived of personal liberty under certain circumstances and subject to a procedure prescribed by law in accordance with Article 15(2) (a) of the Constitution. The envisaged procedure is one of safeguards by which an accused may be deprived of personal liberty.

The procedure envisaged under Article 15(2) (a) o f the Constitution, which must be a procedure of safeguards by which a person accused of non bailable offence may be deprived of his liberty, is non-existent under section 148(5) o f the Criminal Procedure Act.

Alleged conditions of safeguards were not stated or shown as to how they conform to the procedure prescribed under the law pursuant to Article 15 (2 ) (b ) of the Constitution and how this court can consider them constituting a meaningful procedure capable of affecting the outcome.

Whereas the circumstances under which a person may be deprived of personal liberty are stated in section 148(5) (a) (ii) and (iii), (b), (c), (d) and (e) o f the CPA they are missing in section 148(5) (a) (i), (iv), (v), and (vi) which just list down non bailable offences.

There is nothing in the nature of the envisaged circumstances, such omission cannot be said to be consistent with the provision o f Article 15(2) (a) o f the constitution. And that the provision of section 148(5) o f the Criminal Procedure Act ousts the judicial process.

The provision of section 148(5) of the Criminal Procedure Act is too broad thereby depriving personal liberty to persons who cannot be considered to be dangerous and unintended ones. And that the absence of procedures prescribed by law makes the administration of the impugned provision susceptible to not only abuses but also arbitrary decisions."

Finally, the High Court allowed the petition and held that section 148(5) of the CPA as amended from time to time violate Article 13 (3), and 15 (1), (2) (a) of the Constitution.

The judged maintained that since section 148(5) (a) (i) of the CPA in relation to the denial of bail for armed robbery had already been previously adjudged and found to be violative of Article 15(2) (a) of the Constitution and declared null and void and hence struck out from the statute book

Judges invoked Article 30(5) of the Constitution and held that the remaining part of section 148(5) of the CPA which includes everything but not armed robbery shall remain to be valid for a period of 18 months from the date of judgment and directed the government within such period to make vital rectification.


In the event the remaining part of the provision of section 148(5) of the CPA is not rectified within such period from the date of the judgment, it shall forthwith be invalid, null and void and automatically rendered struck out from the statute book as from the expiry of such period.

Following such decision, the Attorney General was aggrieved and decided to take the matter to the Court of Appeal, the highest temple of justice in the country, for final determination. In this appeals move, the Attorney General became the appellant, while Advocate Sanga stood as respondent.

As she tried to change her position in ...


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