CHAPTER
ONE
BACKGROUND
TO THE RIGHT TO BAIL IN TANZANIA
1.0 Introduction
Bail is a temporary and conditional release of an
accused person from custody pending final determination of court proceedings[1]. In
Tanzania, as in most constitutional democracies, there are three types of bail.
These types of bail, apart from promulgating basically the same function, they
are named in connection with the institution which grants them. Therefore, our
laws recognize police bail, bail pending trial and bail pending appeal[2].
In Tanzania bail is a constitutionally sanctioned
right, articles 15(1) and (2) and 13(6) (b) of the Constitution of the United
Republic of Tanzania[3]
when read together, they provide for the right of bail. Consequently, every
accused person is entitled to bail as a matter of constitutional right in
Tanzania.
This proposition has been part of our jurisprudence long
before the entrenchment of the bill of rights in the constitution in 1984[4].
In 1979, Mwesiumo, J as he was then, held interalia
that bail should be seriously treated as a right and not a privilege in the now
legendary case of Tito Douglas Lyimo v. R[5].
The Constitution is the basic or paramount law of
the land. Therefore, it cannot be overridden by any other law[6]. In
light of the constitutional rights of liberty and presumption of innocence,
every accused person in Tanzania is entitled to bail as a matter of right[7].
This approach to constitutional construction was
first adopted in Tanzania by Mwalusanya, J, as he was then, in the celebrated
case of Daudi s/o Pete v. R[8],
where, the learned judge interalia declared
provisions of section 148(5) (d) of CPA unconstitutional for being in conflict
with article 13(6) (b) which provides for presumption of innocence of an
accused person.
However, despite of lucid legal analysis done at the
High Court of Tanzania, the Court of appeal of Tanzania, apart from affirming
that bail is a right and not a privilege, largely overruled the High Court’s
decision on constitutionality of section 148 of CPA[9]. This
situation left Tanzania in a state of constitutional quagmire as far as the
right to bail is concerned. This is due to the fact that provisions of section
148 of CPA, autocratically take away the right to bail provided under the
constitution without allowing room for due process of law.
Currently, Tanzania is in the midst of
constitutional reforms. In, light of these developments, this research will
look into the right to bail and the constitutional quagmire brought about by provisions
of section 148 of CPA. This research was largely conducted in Dar es salaam due
to its unquestionable role as the administrative capital of the United Republic
of Tanzania.
1.1
Historical Background to the Problem
The advent of British colonialism in Tanzania marked
the introduction of British criminal laws including the right to bail[10]. Justice
Mwalusanya, as he was then, in Daudi s/o
Pete v. R[11]
correctly observed that the right to bail has been part of the legal
jurisprudence in Tanzania from the inception of British colonialism in 1920. A
passage from that judgment is reproduced herein below;
“Since Mainland Tanzania became a British
Colony in 1920, bail had been regarded as a right for the accused persons and
not a privilege”[12]
This observation is supported by numerous High Court
decisions which interalia regarded
bail to be a fundamental right of the accused person in criminal cases. Wilson, J, as he was then, held in the case of
Abdullah Nassor v. Rex[13]
that bail should not be lightly refused. A passage from this case is provided
herein below for purposes of clarity;
“The test should be whether the granting of
the application for bail will be detrimental to the interest of justice and
good order. But such detriment must be satisfactorily substantiated by solid
reasons and not based on vague fears or apprehensions or suspicions”[14]
This trend of observing due process of law in
granting bail continued well after independence. Indeed well into the single
party system and its authoritarian tendencies, the courts of justice in
Tanzania were still regarding bail as fundamental right of an accused person.
Mr Justice Biron, as he was then, in the case of Patel v. R[15] held interalia that a man while awaiting trial is entitled to bail as a
matter of right. The learned Justice premised his argument on the ground that
every accused person is presumed to be innocent until the contrary is proved[16].
However, this long line of positive jurisprudence on
right to bail in Tanzania came to a crushing defeat in 1985 with the coming into
force of section 148(4) and (5) of CPA[17].
Ironically, this most draconian of laws was hastily rushed into law at a time
when Tanzania was anticipating the coming into force of the Bill of Rights and
the end of authoritarian state[18].
1.2
Statement of the Problem
To date, entrenchment of the Bill Rights in the
constitution is still viewed by many quarters as the most fundamental reform of
the Tanzania legal system since independence[19]. Articles
13(6) (b) and 15(1) (2) of the
Constitution (supra) respectively enact the fundamental principles of liberty
and presumption of innocence in Tanzania. This entails that curtailment of
individual freedom can only be done by law.
However, to the surprise of the legal fraternity and
in defiance of common sense and the wave of “mageuzi” prevalent at the time, the government hastily passed CPA,
1985 into law. Section 148(4) (5) grants carte
blanche powers to the DPP to take away an accused person’s right to bail
without observing the due process of law. In essence provisions of section
148(4) (5) oust jurisdiction of courts in determining the grant of bail with
respect to qualifying offences[20].
This state of affairs has left Tanzania in a legal
and constitutional quagmire as far as the right to bail is concerned. Uncertainty
as to the constitutional nature of section 148(4) (5) presents perhaps one of
the most pressing issue in administration of justice in Tanzania. Nowadays
members of the judiciary find themselves unable to administer justice by
granting bail in light of our civil and political identity as a constitutional
democracy that respects human rights and
rule of law[21].
Prisoner overcrowding is a direct result of this
legal and constitutional quagmire. LHRC in its 2008 and 2009 Reports
consistently reported that, by and large overcrowding is caused by large number
of remand prisoners[22]. This
is a grave and potentially calamitous situation because it puts in jeopardy the
very ethic of human rights and rule of law entrenched in part II of our
constitution[23].
Therefore, it was high time that a research had to be conducted to substantiate
the burning issues with regard to the right to bail and its constitutional
implications in Tanzania.
1.3
Literature Review
H.,
Kijo-Bisimba & C.M., Peter[24]
The authors observe that in Tanzania, the right to bail is a fundamental right
guaranteed under the constitution[25].
Their argument is premised on articles 15(1) (2) and 13(6) (b) of the
constitution which provide for the rights of liberty and presumption of
innocence in Tanzania. They argue that the fundamental principle of presumption
of innocence enacted under article 13(6) (b) is inseparable with the right to
bail because the two rights are complementary. They note that recently the
trend in many criminal justice systems has been that of differentiating between
bailable and non bailable offences. However, the authors have strongly
cautioned against widespread adoption of this trend. The main thrust of their
argument lies on the fact that this differentiation for example in Tanzania
often takes away the power of courts in determining the grant of bail. This, in
the words of the authors, offends the principle of separation of powers between
different organs of the state and therefore bad in law.
Ankita
Rustogi[26]
provides a technical analysis of India’s criminal justice system with respect
to the fundamental right to bail. The author takes the view that bail is a
right and not a privilege; therefore, per
se every accused person is entitled to bail as a matter of right. The
author premised his argument on the ground that the rationale of bail is to
secure appearance of an accused person at a time of trial. The author notes one
particular difficulty with the right to bail. He argues that often in
discussing whether or not to grant bail the courts have to contend with two
conflicting interests. The requirement that society needs to be protected from
misadventures of an accused person on one hand and the fundamental cannon of
criminal law that an accused person should not be presumed guilty until the
contrary is proved on the other. The author observes that in India the power to
grant bail vests with the courts notwithstanding nature of the offence whether
bailable or not. For bailable offences it is mandatory that an accused person
shall be granted bail.
Shima
Baradaran[27]
provides an account of the right to bail in Malawi. The author observes that
Malawi’s constitution is very unique in the world because it protects the
fundamental right of presumption of innocence both before and during trial. The
right to bail is presumed in all criminal cases including murder. Therefore, if
the state wants to incarcerate an accused person before and during trial, the
burden lies on the state to prove that it is in the interest of justice to do
so[28]. Thus,
in Malawi, courts have unequivocally stated that bail should ordinarily not be
denied to an accused person as a form of punishment[29].
The only test for denial should be whether it is probable the accused will
appear to take his or her trial[30]. Furthermore,
the author notes that courts in Malawi are so protective of the principles of
liberty and presumption of innocence to extent that before considering whether
or not to grant bail, courts will normally inquire as to whether incarceration
is lawful. Therefore, if the charges have no basis, the courts will simply
dismiss those charges and set the accused free[31].
Lastly, the author observes that
the recent trend in most jurisdictions including U.S, U.K, Canada and Australia
has been that of limiting application of the doctrine to trial. He notes that
this restriction of presumption of innocence to an evidentiary burden at trial
has opened doors for many countries to focus on controlling crime through
preventive justice. However, despite of its constitutional protections, the
trend enumerated in paragraph above has not gone unnoticed in Malawi. The
Author notes that clause 5(b) of part I of schedule to the Bail Act and the
Bail (Guideline) Act both adopt the new trend by introducing tests which
previously were unheard of in Malawi like the likelihood of the accused
committing another crime while on bail.
However, despite of a superior
analysis of the right to bail in Malawi. The author has not addressed the
question of constitutionality of clause 5(b) of part I of schedule to the bail
Act and the Bail (Guideline) Act, which interalia
restrict application of presumption of innocence to an evidentiary burden
during trial. The author does not state whether the respective laws are in
conflict with the constitution of Malawi which he praised so much for being
extremely protective of the rights of liberty and presumption of innocence.
1.4 Significance of the
Research
This
research aims at examining the legal and constitutional difficulties
surrounding the right to bail brought about by provisions of section 148(4) (5)
of CPA, 1985. The research will by and large look into the utility of fundamental
rights of liberty and presumption of innocence provided under the constitution
in light of restrictions to those rights introduced in 1985.
1.5 Hypothesis
Restrictions
to the right to bail provided under section 148(4) (5) are unconstitutional
since they completely take away power of the courts to administer justice in
Tanzania.
1.6 Objectives of the Study
This
study will be conducted with the following significance in mind:
i.
To
help identify challenges that Tanzania currently experiences in utilization of
the constitutional right to bail.
ii.
To
inform society on the fundamental right to bail and its constitutional
significance in a modern democratic society;
iii.
To
accord stakeholders in criminal procedure system with informed analysis of the
constitutional difficulties caused by section 148(4) (5) of CPA.
iv.
Help
point a way forward for future reform of both constitution and criminal
procedure law in Tanzania.
1.7 Research Methodology
This is a step by step way
of solving a research problem[32].
In view of the expected research needs, the researcher will employ primary and
secondary methods of data collection as follows;
1.7.1
Primary Data Collection
In this part, all books, journals,
papers and publications relevant to the study will be reviewed from libraries
in and around the city of Dar es salaam. Moreover,
the researcher will also explore various books, articles, journals, and papers
with bearing on the research topic available freely over the worldwide
web.
1.7.2
Secondary
Data Collection
The researcher will employ
interview and questionnaire methods of data collection while in the field.
Selection of the most appropriate method will depend on surrounding
circumstances of each respondent.
1.8
Scope and Limitation
This research will be confined to finding how
restriction of the fundamental right to bail has undermined constitutionally
sanctioned rights of liberty and presumption of innocence. Largely this
research will be conducted in the city Dar es salaam due to its capacity as the
de facto judicial administrative
capital of the United Republic of Tanzania.
1.9 Chapterization
This study was carried out with four main chapters.
Chapter I, introduced the study and laid out methodology for undertaking it.
Chapter II, Provided a critical analysis of the main principles of law
governing the right to bail in Tanzania before and after restriction of the
right. Chapter III laid down the findings of this research, and lastly, Chapter
IV, laid down the general conclusion and recommendations emanating from this
study.
CHAPTER TWO
CRITICAL ANALYSIS OF LAWS GOVERNING
THE RIGHT TO BAIL IN TANZANIA
2.0 Introduction
The law governing the right to bail in Tanzania has
a long and storied development. This chapter makes a comprehensive analysis of
laws governing the right to bail in Tanzania. This chapter is divided into
three sub-parts. The first sub-part makes a comprehensive analysis of law
governing the right to bail after inception of British colonialism from 1920 to
1985. The second sub-part makes a comprehensive analysis of right to bail after
the inception of both the Bill of Right in the Constitution and the 1985
amendment to the Criminal Procedure Code. Lastly, the ultimate sub-part looks
at the current state of the law on the right to bail as practiced by courts of
justice in Tanzania today.
2.1
The right to Bail in Tanzania from 1920-1985
The notion that an accused person is entitled to
bail as a matter of right took root in Tanzania, by then Tanganyika, with the
advent of British Colonialism in 1920. When the British took full political and
social control of the Colony of German
East Africa apart from renaming it Tanganyika. They sought to change her
legal landscape as well by importing most of their common law albeit through
the colony of India[33].
Therefore, it is safe to hold, and rightly so, that
Tanzania, then Tanganyika, was
basically still governed by the same laws that Governor Horace Archer Byatt applied to Tanganyika from India on 22nd
July 1920[34].
This entails that very little has changed in terms of development of Tanzania’s
Criminal Procedure laws apart from cosmetic title changes in 1930, 1945 and
1961 when Tanganyika attained self rule from the British Empire[35].
However, with respect to the Right to Bail, this was
not necessarily a bad thing. As indicated earlier in the previous chapter. The
Law on Right to Bail developed positively from 1920 up until 1985, when the
Criminal Procedure Act, 1985 came into force. Therefore, from 1920 up until
1985, before the coming into force of CPA, 1985, bail was regarded as a
fundamental right of the accused person, therefore only the Courts of justice
had final say with regard to its grant or refusal[36].
In the case of Abdullah
Nassor v. Rex[37]
it was held by the High Court of Tanganyika that Bail should not be lightly
refused. The test should be whether the granting of bail would be detrimental
to the interests of justice and good order. Furthermore, the learned Court
qualified what amounts to the phrase “detriment
to the interests of justice and good order”. The High Court of Tanganyika
held interalia that the phrase
implies that such detriment must be
substantiated by solid reasons and not vague fears or apprehensions.
This implies two things, first, the fundamental test
in granting bail was the question whether an accused person will appear to take
his or her trial. Secondly, only the Courts of justice have the final say in
determining an accused person’s application for bail. This trend of granting
bail as a matter of right and not a privilege continued after Tanganyika
attained her Independence. Indeed, well after the Union of Tanganyika and
Zanzibar to form the United Republic of Tanzania from 1964 onwards up until1985,
right before the amendment to our Criminal Procedure Laws.
This state of affairs is best demonstrated by words
of the Learned Justice Biron, as he was then in the case of Patel v. R[38] where in the strongest possible
language, the learned Justice held interalia
that every accused person is entitled to bail as a matter of right. In the
interest of justice an extract from the judgment is reproduced herein below:
“A man whilst
awaiting trial is as of right entitled to bail, as there is presumption of
innocence until the contrary is proved”
A similar conclusion with regard to the right to
bail was arrived at by Mwesiumo, J, as he was then in the now legendary case of
Tito Douglas Lyimo v. R[39]
where the learned judge held interalia
that bail should be seriously treated as a right and not a privilege. In the
interest of clarity an extract from judgment is reproduced herein below in part:
“Bail is a
right and not a privilege to an accused person, unless the court is convinced
by concrete evidence emanating from the prosecution that to grant bail would
result in a failure of justice”
Therefore, from 1920 up until 1985, right before the
amendment of section 148 of CPA, 1985, granting of bail was considered as an
accused person’s right and not a privilege. This is even more surprising if the
socio-political context of Tanzania at the time is taken into consideration.
Therefore, despite of absence of the Bill of Rights in the Independence
Constitution, and all other subsequent constitutions up until the Fifth
Constitutional Amendment of 1984 came into full force in 1985[40]. The
courts of justice were upholding the right to bail in Tanzania as part of
common law as it was being practiced in England on 22nd July 1920.
2.2
The Right to Bail in Tanzania After 1985
1985 was a year of Positive social, economic,
political and legal changes in Tanzania. The year marked the start of “mageuzi” era in Tanzania. However, with
respect to the Right to Bail, the year marked the end of positive jurisprudence
on the right to bail as we know it. Section 148(4) and (5) of CPA, 1985
introduced restrictions on the power of courts in granting bail.
Provisions of section 148(4) are to the effect that
no person shall be admitted to bail if the DPP certifies in writing that
interests of the Republic would be prejudiced. Therefore, once the DPP has
certified in writing that granting bail to a particular individual would
jeopardize interests of the Republic then automatically courts of justice
become powerless to grant bail. This provision was inserted on account of
national security interests. However, unlike properly drafted provisions. They
are unnecessarily wide and open up room for abuse by unscrupulous government
officials under the guise of national interests.
Provisions of section 148(5) provide a list or
category of offences or circumstances under which an accused person falling
within, automatically will be denied bail. This entails that any person falling
within the definition of listed offences automatically will be denied bail and
he or she will have no recourse to Courts of justice for the same. This grave
state of our law was rightly captured by Mwalusanya, J, as he was then, in the
legendary case of Republic v. Musuba
Nyeisao and Another[41]. In the interest of clarity an extract
from that case is reproduced herein below in part:
“As Indicated in the Daudi Pete
v. The United Republic case (supra) I belong to the school of thought that
has been canvassed by Mr. Mapunda the State Attorney. As I said in that case,
it would appear the intention of the legislature was that a mere allegation in
the charge sheet would suffice to restrict bail”.
Therefore, as rightfully observed by the learned
judge, the intention of the legislature was that a mere allegation in the
charge sheet suffices to deny an accused person bail no matter how vexatious
the charge sheet appears to be.
This led to a number of often novel and conflicting
decisions as Learned Judges tried to reconcile their inner conscience with
reality brought about by provisions of section 148(5) of CPA, 1985. Chipeta, J, as he was then in the case of Sarah d/o Mohamed v. R[42]
granted bail to the accused person on a novel
ground that section 148(5) (e) denies bail only when there is serious assault.
Therefore, anything else not serious in the eyes of the learned Judge does not
fall within the ambit of section 148(5) (e). However, with all due respect to
the learned judge’s exercise in interpretation. That proposition in untenable
due to the simple fact that it is not supported by any principle of
interpretation currently in operation in common law jurisdictions.
Similarly, in the case of R v. Makerere Kituri[43],
Munyera J, as he was then, granted bail to a person charged jointly with others
for being in unlawful possession of firearm. The learned Judge granted bail on
ground that the Republic failed to prove beyond reasonable doubt that the
accused was in fact found in joint possession of firearms.
Therefore, despite of noble intention on the part of
the learned Judges, it is hard to
reconcile their respective judgments with intention of the legislature in
enacting section 148(5) of CPA, 1985. Mwalusanya, J, as he was then, in the now
legendary case of Daudi s/o Pete v. R[44] held
interalia that the intention of the
legislature was that a mere mention of “serious
harm” or “threat of violence” was
enough without proving anything to deny bail to an accused person. In the
interest of clarity views of the learned Judge are reproduced herein in part:
“They should
have called a spade a spade without going beyond the clear intention of the
legislature”
2.2.1
Right to Bail in Tanzania After the Inception of the Bill of Rights in the
Constitution
The inception of the Bill of Rights in the
Constitution is one of the most momentous occasion in the legal History of
Tanzania. The Fifth Amendment to the Constitution of the United Republic of
Tanzania, 1977 introduced the Bill of Rights in mainland Tanzania. However,
despite of the festive mood prevalent at the time. The Bill of Rights did not
become justiciable in courts of justice until 1988[45].
Article 15(1) (2) of the Constitution (supra) enacts
the fundamental principle of liberty in Tanzania. Every individual in Tanzania,
apart from being guaranteed the right of freedom, is protected against unlawful
arrest, detention or forcible deportation. Therefore, curtailment of individual
freedom can only be done by law. Here, the phrase “by law” refers to a curtailment of freedom which is sanctioned by a
court of law after hearing both sides in accordance with a just law, whether,
pending or after final determination of an accused person’s case[46].
Article 13(6) (b) of the Constitution (supra) enacts
the principle of presumption of innocence in Tanzania. The right provided is to
the effect that every person charged with a criminal offence shall be presumed
innocent before the contrary is established by a duly constituted court of law
or tribunal[47].
Therefore, as a matter of constitutional right every accused person is entitled
to bail, save in circumstances where the court of law after entertaining
arguments from both sides, decides to deny bail on the ground that to do
otherwise would result into failure of justice or prejudice order and peace in
the society.
Therefore, it is safe to hold that the right to bail
in Tanzania acquired a constitutional character in 1988, when the Bill of
Rights became justiciable in our courts. This is because articles 13(6) (b) and
15(1) (2) when read together they form the basis of the Right to Bail in
Tanzania and confirm power of the courts in determining grant of the same.
However, as indicated earlier in the previous
chapter, justiciability of the Bill of Rights was preceded by the coming into
force of CPA, 1985. Section 148(4) (5) by and large restrict the right to bail
protected so dearly under the Bill of Rights. Mwalusanya, J as he was then, in
the legendary and Politically controversial case of Daudi s/o Pete v. R[48]
held expressly after a long and educative judgment that the impugned provisions
were unconstitutional since they not only take away power of courts in
determining grant of bail, but also they offend the fundamental rights of
liberty and presumption of innocence. Furthermore, the learned judge contended
that the impugned provisions offend the principle of separation of powers
enacted under the constitution, and were also discriminatory. The learned Judge
also rejected the argument that section 148(4) (5) is saved by article 30 of
the constitution since it is in public interest. His argument was premised on
the fact that the impugned provisions fail the proportionality test.
After delivering this monumental judgment, the legal
fraternity had a sigh of relief as it appeared the status quo had been
restored. However sweet that moment was to the proponents of right to bail in
Tanzania, the victory was short lived. The Government immediately appealed that
decision to the Court of Appeal of Tanzania where the High Court’s decision was
almost completely overruled.
In the case of D.P.P
v. Daudi s/o Pete[49]
the Court of Appeal of Tanzania apart from making a theoretical declaration
that bail is a right and not a privilege. Largely, overruled the Ruling of the
High Court on constitutionality of provisions of section 148(4) (5) of CPA,
1985. Nyalali, C.J,as he was then, delivering opinion of the Court held
interalia that the only provision which ought to have been declared
unconstitutional was section 148(5) (e) because it was too wide[50].
This Court of Appeal decision in the case of D.P.P v. Daudi s/o Pete[51] raised a lot of questions within the legal
fraternity in Tanzania. In other words, members of the Judiciary and the legal
fraternity were confronted with the reality that the decision left them
completely powerless in defending the Constitution with regard to the right to
bail.
2.3
The Right to Bail as Practiced by Courts in Tanzania Today
The fate of current court practice with regard to
the right to bail was sealed in the case of D.P.P
v. Daudi s/o Pete[52]. Nyalali, C.J, while delivering opinion
of the court quashed the Ruling of the High Court on Constitutionality of
section 148(4)(5). The Court of Appeal of Tanzania held that the only provision
which ought to have been so declared is section 148(5) (e). In the interest of
clarity an extract from that judgment is reproduced herein below:
“In the final
analysis therefore, but for different reasons, we agree with Mwalusanya, J.
that section 148(5)(e) is unconstitutional and therefore struck out of the
statute book of the country. This means that the courts have discretion to
grant bail to person accused of the offences specified under section 148(5)(e)
in accordance with the law as it existed before the enactment of section
148(5)(e)”.
This entail that the rest of the provisions of
section 148(4)(5) remain intact, and therefore, only a mere mention of
specified offences in the charge sheet is enough to curtail an accused person’s
fundamental right of bail. Rationale for this argument was provided by Nyalali
C.J, in the aforementioned case where the learned justice of Appeal held:
“Bearing in
mind, as we must, this interpretation, we are satisfied that the selective
prohibition against bail contained under section 148(5)(c) cannot be said to be
discriminatory in terms of the Constitution. This is because the accused who
are denied bail are so denied on basis of their conduct or actions”
Therefore, in light of the current state of the law
in Tanzania today, accused persons who happen to have the misfortune of their
charge sheet falling within the purview of provisions section 148(4)(5) will be
denied bail automatically. In the controversial case of S.M.Z v. Machano Khamis Ali & 18 Others[53]
Ramadhani, J.A, while delivering opinion of the court treated the issue of
request for bail by accused person as a foregone conclusion. In the interest of
clarity an extract from that judgment is reproduced herein in part:
“The remaining
three issues were highly contentious. First, the accused persons argued that
the charge is time barred. They also claimed that the charge of treason against
the authority in Zanzibar is not maintainable as Zanzibar is not a sovereign
state. Lastly, they repeated “the old,
old story” of request for bail. All the three issues were decided against
the accused persons. Our concern here
is the constitutional issue of whether or not treason can be committed against
the Revolutionary Government of Zanzibar”
From the extract above, it is clear the Court of
Appeal of Tanzania considers the issue of request for bail as a foregone
conclusion. Interestingly, Ramadhani, J.A, was in the bench when Nyalali, C.J,
delivered opinion of the court in the case of D.P.P v. Daudi s/o Pete[54].
Therefore, the learned justice saw no need in
making a constitutional inquiry on provisions couched in similar terms
as section 148(4)(5) of CPA, 1985.
Therefore, in Tanzania today, accused persons with
the misfortune of being accused of committing crimes specified under section
148(4)(5) are met with fait accompli with
regard to the constitutional right to bail . Their fate was sealed almost 23
years ago in the case of D.P.P v. Daudi
s/o Pete[55].
2.4
Conclusion
This chapter by and large made a comprehensive
analysis of laws governing the grant of bail in Tanzania from the inception of
British colonialism until today. It is a foregone conclusion that in Tanzania
today any accused person whose charge sheet falls within the purview of section
148(4)(5) is met with a fait accompli
that his or her constitutional right to bail will be automatically curtailed
without recourse to courts of justice.
CHAPTER THREE
RESEARCH FINDINGS
3.0 Introduction
The term quagmire is defined as a situation from
which extrication is very difficult[56].
However, in context of this research the term “quagmire” is loosely defined to mean a difficult situation or an
entrapment. Therefore, findings of this research mostly identify the
constitutional difficulty that Tanzania currently finds itself in. On account
of the apparent conflict between the constitutionally sanctioned rights of
liberty and presumption of innocence and provisions of section 148(4)(5) of
CPA, 1985.
3.1
The Apparent Unconstitutionality of Section 148(4) of CPA, 1985
Section 148(4) of CPA, 1985 grants carte blanche powers to DPP to
arbitrarily take away an accused persons right to bail without observing due
process of law. In essence provisions of section 148(4) oust jurisdiction of
courts in determining the grant of bail with respect to any offence that the
DPP certifies in writing.
Therefore, section 148(4) of CPA, 1985, creates a
visible conflict with provisions of articles 13(6)(b) and 15(2) which respectively enact the principles
of presumption of innocence and liberty in Tanzania. This conflict becomes more
apparent when one takes into consideration the fundamental canon of
constitutional law that the constitution is the paramount law of the land. Hence,
all other laws must derive their validity from the constitution. In the
celebrated case of Rev Christopher
Mtikila v. Attorney General[57]
where Rugakingira, J, as he was then stated; “The Constitution is the basic or
paramount law of the land and cannot be overridden by any other law”. Hence, it
follows that, all other laws must derive their validity from the constitution.
A key question comes, where does section 148(4) derive its validity if it is in
apparent conflict with the constitution.
However, provisions of section 148(4) of CPA, 1985
completely fail the test of constitutionality as enumerated by Rugakingira, J,
in Rev Christopher Mtikila v. Attorney
General (supra). This failure is prompted by the fact that the impugned
provisions grant carte blanche powers
to DPP to arbitrarily take away a constitutionally sanctioned right without
providing accused persons neither with reasons justifying the same nor according them with recourse to courts of
justice.
In the celebrated case of James F Gwagilo v. Attorney General[58]
Mwalusanya, J, as he was then, while delivering opinion of the court held interalia that exercise of public powers
in the name of public interest should be accompanied by disclosure of reasons
in order to guard against casualness, arbitrariness, and abuse of powers.
Therefore, any exercise of powers in public interest should be accompanied by
reasons justifying the same.
Therefore, since provisions of section 148(4) of
CPA, 1985 provide neither guidance nor built in check and balances against
abuse of powers by DPP. henceforth, the impugned provisions grant the DPP
unlimited authority to deny bail to any person with respect to any crime,
whether bailable or non bailable.
The researcher interviewed 10 civilians with regard
to the right to bail in Tanzania in light of the apparent constitutional
quagmire brought about by provisions of section 148(4) of CPA, 1985. To the
surprise of the researcher about 70% of civilians interviewed were not aware of
the fact that bail is a right guaranteed under the constitution. However, after
the researcher explained the import of provisions of section 148(4), well over
90% condemned the government for coming up with such laws. In the interest of clarity some of the respondent’s responses
have been reproduced herein below in part:
“Wanatunga
sheria za kimabavu na za kikandamizaji ili kulinda maslahi yao wenyewe, sisi
wananchi wa hali ya chini hatuna chetu, wakiamua kutunyima dhamana hatuna pa
kukimbilia”[59]
“They
purposely enact draconian laws in order to guard their own interests, we the
down trodden have nowhere to go if they decide to deny us our right to bail”[60].
Furthermore, the researcher also distributed
questionnaires in Swahili language with regard to the constitutional right to
bail. Out of a total of 30 questionnaires distributed, only 12 returned. Out of
those returned more than 90 percent returned a negative comment on provisions
of section 148(4). On the key question
of constitutionality of section 148(4) some respondents went to the
extent of suggesting that the incoming new constitution should expressly
declare such provisions to be unconstitutional.
The above findings clearly demonstrate that you
don’t need to be a member of the legal fraternity in order to realize that
section 148(4) is unconstitutional. Simple logic and common sense is enough to
realize that once one branch of government has too much powers the likelihood
of abuse increases dramatically.
Lastly, although public interest is an amorphous
concept, which, in most jurisdictions is intentionally not defined due to its
tendency to significantly change over time[61].
Experience points out that in a modern day democracy such a tendency is a
dangerous path to take. Mwalusanya, J, in the case of James F Gwagilo v. Attorney General[62]
rightly observed that exercise of public powers should be accompanied by
disclosure of reasons justifying the same. Otherwise, if provisions of section
148(4) are left in their current state, actions of DPP have the potential to
render nugatory the fundamental rights of liberty and presumption of innocence
protected so dearly under the constitution.. Therefore, Tanzania as a
democratic state is currently mired in a state of constitutional and legal
entrapment which she finds very difficult to extricate herself from.
3.2
Apparent Unconstitutionality of Section 148(5) of CPA, 1985
Equally absurd are provisions of section 148(5)
which enumerate a list of non bailable offences from paragraph (i) to (v).
Thus, any accused person who falls within the purview of section 148(5), will
automatically not be granted bail and there will be no recourse to courts of
law for the same. Therefore, only a
mere allegation in the charge sheet is more than sufficient to deny the
fundamental right of bail to an accused person.
This grave situation was rightly observed by
Justice, Mwalusanya, as he was then, in the case of Republic v. Musuba Nyeisao and Another[63].
Observations of the learned Justice with regard to section 148(5) are
reproduced herein below in part;
“As Indicated in the Daudi Pete v. The United Republic case (supra) I belong to the
school of thought that has been canvassed by Mr. Mapunda the State Attorney. As
I said in that case, it would appear the intention of the legislature was that
a mere allegation in the charge sheet would suffice to restrict bail. That is
why I call this statute to be draconian and repressive. If Parliament had
wanted the ingredients of the offence to be proved during the application for
bail, it should have said so in clear terms”[64]
From the aforementioned paragraphs above. It is
apparently clear that it is not about how good the prosecution is in showing
that the accused has a case to answer. Nor, is it about the possibility that if
the accused is released on bail he will likely put in jeopardy the interest of
justice and good order. But, rather, a mere mention of one of the listed
offences in charge sheet.
In the case of Alhaji
Shaban Mintanga Kondo v. R[65]
in an application for bail, Shangwa, J, as he was then, accepted the argument
of the applicant that bail is a constitutional right, not a privilege. However,
the learned Judge at the same time rejected the argument that section 148(5) is
in conflict with articles 15 and 13(6)(b) which when read together they form
the basis for the right to bail in Tanzania. For purposes of clarity part of
the learned Judge’s Ruling is reproduced herein in part:
“In this case, I agree with learned counsel for the Applicant that bail is a right and not a privilege. However, as correctly argued by the learned State Attorney Ms. Rose Chilongozi, the right to bail is not absolute. This is because as much as there are offences which are bailable but others are not bailable in which case an accused person's right to bail may be curtailed by statute where the offence charged is not bailable”
Words of the learned Judge from the paragraph above,
amply demonstrate the apparent fact that Tanzania is currently in a state of
legal and constitutional quagmire with regard to the right to bail. From the
quoted paragraph above the learned Judge accepts the fact that bail is a right,
not a privilege. However, at the same time the learned Judge defeats his own
argument by saying that the right is not absolute since it can be curtailed by
statute. But, he forgets the most important question of all, which is whether
the curtailing statute pass the key test of constitutionality as enumerated by
Rugakingira, J, in Rev Christopher
Mtikila v. Attorney General (supra).
When the import of provisions of section 148(5) of
CPA, 1985, was disseminated to various civilian respondents, just as it was
done with regard to subsection (4), the questions were asked through
questionnaires[66].
Out of 30 questionnaires distributed, 12 returned. Out of those 80% returned a
negative comment on constitutionality of provisions of section 148(5) of CPA,
1985. Most respondents argued for the change of law to allow courts to be the
final say in whether to grant bail or not with respect to any offence.
Therefore, given the unwillingness of courts of law
to make a finding which expressly declare provisions of section 148(5) of CPA,
1985, understandably, for reasons both legal and political. First, the sacred
Doctrine of stare decisis enjoins
courts of law to follow precedents of courts higher up in the hierarchy as per
the ruling of Manento, J.K, as he was then, in the case of NBC Limited v. Kalunga & Co. Advocates[67].
Therefore, despite of apparent legal and factual evidence that the impugned
provisions are violative of articles 13(6)(b) and 15 of the constitution. The
Courts of law are content to follow the politically oriented Ruling of the
Court of Appeal of Tanzania in the case of D.P.P
v. Daudi s/o Pete (supra).
Secondly, Judges are afraid to be seen as enemies of the political elite.
Therefore, rather than administer true justice they trade their cards carefully
by following the easier path of relying on the doctrine of stare decisis as shown above, even though it is not in the interest
of justice to do so[68].
This self abdication was amply observed by Mwalusanya, J, as he was then, when
he called on fellow Judges of the High Court to have held the bull by the horns
by inquiring as to whether the draconian provisions of section 148(4)(5) are
really constitutional, as he bravely did.
Therefore, up to this point it is beyond any glimmer
of doubt that the impugned provisions of section 148(5) are unconstitutional.
Therefore, in light of the Court of Appeal of Tanzania’s decision in the case
of D.P.P v. Daudi s/o Pete (supra),
it is dully submitted as amply demonstrated above that currently Tanzania is in
a state of legal and constitutional entrapment or quagmire due to the fact that
courts of justice continue to apply a law which is in apparent conflict with
the constitution.
3.3
Violation of the Doctrine of Separation
of Powers
The provisions of section 148(4)(5) offends the
constitutional principle of separation of powers enacted under article 4(1) of
the constitution. Article 107A of the constitution declare the courts of
justice to be the final organ in administration of justice in Tanzania.
However, the impugned provisions of section 148(4)(5) apparently take away power of the courts in
determining the grant of bail to accused persons.
Mwalusanya, J, as he was then in the case of Daudi s/o Pete v. R (supra) strongly objected to this violation.
The learned Judge argued that the impugned provisions of section 148(4)(5) can
only stand the test of constitutionality if the constitution is amended, and
thereby article 4(1) is removed. In the interest of clarity, the learned
Judge’s Ruling is reproduced herein in part:
“Let the
Constitution be first amended such that the doctrine of separation of powers is
curtailed, then such statute as the one containing section 148 of C.P.A can
freely be enacted”
Therefore, without adding any further evidence, it is apparent that the
impugned provisions of section 148(4)(5) of CPA, 1985 are unconstitutional
because they offend the doctrine of separation of powers. This state of affairs
has left the courts of law in a dilemma since
on the one hand they are enjoined to protect the inviolability of the
constitution, while on the other the doctrine of stare decisis enjoins them to apply the politically motivated
Ruling of the Court of Appeal of Tanzania in D.P.P v. Daudi s/o Pete (supra).
3.4
The Problem of Prisoner Overcrowding
Currently, Tanzania is in a midst of overcrowding in
her prison system, this means that the number of prisoners far outweigh the
capacity of her prison system. The enactment of section 148(4)(5) of CPA, 1985
tipped the balance with regard to our prison system’s ability to handle the
prisoner population[69].
The Legal and Human Rights Centre consistently in
their 2008 and 2009 and 2011 reported that the enactment of section 148(4)(5)
of CPA, 1985 is largely responsible for overcrowding of Tanzania’s prison
system[70].
The Centre explained the reason for overcrowding as being caused by large
number of remand prisoners[71].
In its 2009 report the centre while addressing the same problem arrived at the
same conclusion[72].
Therefore, by simply observing the problems in our
prison system, one can easily observe the negative impact of section 148(4)(5)
of CPA, 1985. This entails that thousands of innocent civilians are unlawfully
incarcerated while awaiting their trials contrary to the fundamental
constitutional principles of Liberty and Presumption of Innocence.
3.5
Conclusion
Generally this chapter succeeded in enumerating the
main findings of this research. By and large the researcher found the
provisions of section 148(4)(5) unconstitutional since they violate the
fundamental principles of liberty, presumption of innocence and separation of
powers which together ensure Courts of Justices’ powers of administering the
grant of the right to bail.
CHAPTER FOUR
GENERAL CONCLUSION AND RECOMMENDATIONS
4.0
General Conclusion
This work analyzed the development of the Right to
Bail in Tanzania and the ensuing constitutional quagmire brought about by
provisions of section 148(4)(5) of CPA, 1985. The aim of this work was to
substantiate the apparent legal and constitutional conundrum brought about by
insertion of section 148(4)(5) to Tanzania’s criminal procedure laws in 1985.
This work largely succeeded in identifying and showing how the provisions of
section 148(4)(5) of CPA, 1985 as interpreted by the Court of Appeal of
Tanzania decision in D.P.P v. Daudi s/o
Pete (supra), have left Tanzania in a state of constitutional quagmire in
light of their apparent conflict with fundamental constitutional principles
liberty, presumption of innocence and separation of powers. Accordingly,
recommendations for measures to be taken in order to address this problem have
been provided.
4.1
Recommendations
The Right to Bail is one of the most important
rights secured by the Constitution of the United Republic of Tanzania, 1977.
The significance of this right is solidified by the fact that its existence is
secured by two other fundamental rights, that is, liberty, presumption of
innocence and to some extent the principle of separation of powers. Therefore,
in light of the above findings the researcher makes the following
recommendations:-
4.1.1
Immediate Amendment of CPA, 1985
The legislature should immediately amend the
provisions of CPA, 1985 and provisions of section 148(4)(5) should be struck
from the statute book. The Courts of Justice alone should be left to administer
the grant of bail irrespective of any offence
4.1.2
The Incoming Constitution should expressly include the Right to Bail
The incoming constitution apart from providing for
the rights of Liberty and Presumption of Innocence, should expressly declare
that bail is a right and not a privilege, and, that only the courts of justice
can determine the grant of bail. Therefore, if the D.P.P wish an accused should
not be granted bail, the D.P.P should come forward with tangible reasons before
a court of law.
4.1.3
Judges Should be Bold in Confronting Draconian Laws
Tanzanian judges should be bold in confronting
draconian laws that take away fundamental rights of citizens without according
the courts of justice an opportunity to hear the other side.
[1] H., Kijo-Bisimba & C. M., Peter
(2005) Justice and Rule of Law in Tanzania,
Selected Judgments and Writings of Justice James, L. Mwalusanya and
Commentaries, LHRC, Dar es salaam, Tanzania, p. 201.
[2]
Ibid, p. 202.
[3]
1977, R. E 2005.
[4]
Act, No. 15 of 1984.
[5]
1979 LRT No. 55.
[6]
Justice Rugakingira, as he
was then, in Rev Christopher Mtikila v.
Attorney General [1995] T.L.R 31 (H.C), P. 58.
[7]
Articles 15(1) and (2) and
13(6)(b) of the Constitution of the United Republic of Tanzania, 1977, R. E
2002.
[8]
High Court of Tanzania at
Mwanza, Miscellaneous Criminal Cause No. 80 of 1989 (Unreported), cited from H., Kijo-Bisimba & C. M.,
Peter (supra),pp. 204-239.
[9]
D.P.P
v. Daudi s/o Peter,
In the Court of Appeal of Tanzania at Dar es salaam, Criminal Appeal, No. 28 of
1990, (Unreported).
[10]
Section 13 of the
Tanganyika Order in Council, 1920, constituted the Governor of Tanganyika as
the supreme law making body in the colony.
[11]
In the Court of Appeal of
Tanzania at Dar es salaam, Criminal Appeal No, 28 of 1990 (Unreported), cited from, H., Kijo-Bisimba & C. M., Peter (supra),
p. 206.
[12]
Ibid.
[13]
[1921-1952] 1 T.L.R. (R)
289, cited from, H., Kijo-Bisimba & C. M., Peter (supra),
p.206
[14]
Ibid.
[15]
[1977] H.C.D. No. 391.
[16]
A similar conclusion was
reached by Mwesiumo, J, as he was then, in the case of Tito Douglas Lyimo v. R (Supra).
[17] H., Kijo-Bisimba & C. M., Peter
(supra), p. 207.
[18]
Michael, K.B. Wambali
(2012) The State and Constitutional Development in Tanzania: Towards a New
Constitutional Order, University of Dar es salaam School of Law, University of
Dar es salaam, Dar es salaam Tanzania, p. 20.
[19]
Act, No. 15 of 1984.
[20]
Republic
v. Musuba Nyeisao and Another,High
Court of Tanzania at Mwanza, Miscellaneous Criminal Cause No. 6 of 1990
(Unreported) cited from, H., Kijo-Bisimba & C. M., Peter (supra),
p. 243.
[21]
Article 107A (1) of the
Constitution of the United Republic of Tanzania, 1977, R.E 2005 provides that
the judiciary shall be the final authority in dispensation of justice in
Tanzania.
[22]
LHRC (2008), Tanzania Human
Rights Report, 2007, LHRC & ZLSC, Dar es salaam, Tanzania, p. 108.
[23]
Stack
et al v. Boyle, United States Marshall,
342 US 1-Supreme Court, 1951.
[24]
H., Kijo-Bisimba & C.
M., Peter (2005) Justice and Rule of
Law in Tanzania, Selected Judgments and Writings of Justice James, L.
Mwalusanya and Commentaries, LHRC, Dar es salaam, Tanzania.
[25]
Constitution of the United
Republic of Tanzania, 1977, R.E 2005.
[26]
Ankita Rustogi (2009),
Right to Bail under Indian Criminal Laws, Amity Law school, Delhi, India.
[27]
Shima Baradaran (2010),
Presumption of Innocence and Pre Trial Detention in Malawi, Malawi Law
Journal, Vol. 4, Issue 1.
[28]
Mvahe
v. Republic,
MSCA, Criminal Appeal No. 25 of 2005 (unreported).
[29]
Zgambo
v. Republic, MSCA,
Criminal Appeal No. 11 of 1998 (unreported).
[30]
Daniel
Tanganyika v. Republic,
MSCA, Criminal Appeal No. 15 of 1994 (unreported).
[31]
Chikopa, J, as he was then,
in Felix Chima v. Republic,
Miscellaneous Application, No. 18 of 2008 (unreported).
[32]C.R.
Kothari (2004), Research Methodology: Methods and Techniques, 2nd Revised
Edition, New Delhi, India, New Age International Publishers, p. 25.
1
[33]
Section
13 of the Tanganyika Order in Council, 1920 (Vol. 1 No. 33) empowered the
Governor of Tanganyika to make laws this included importation of Indian
Criminal Procedure Laws via the
Indian Acts (Application) Ordinance, No. 7 of 1920.
[34]
James. S. Reed (1976),
Government Publication Relating to Tanganyika 1919-1961 , Government
Publications Relating to Africa in Microform, Publication No. R96996, Microform
Academic Publishers, West Yorkshire, United Kingdom, pp. 7-8.
[35]
Ibid, pp. 8-10.
[36]
Justice Mwalusanya, as he
was then, in the case of Daudi s/o Pete
v. R, Court of Appeal of Tanzania at Dar es salaam, Criminal Appeal No, 28
of 1990 (Unreported), cited from, H., Kijo-Bisimba & C. M., Peter (supra),
p. 206.
[37]
Supra.
[38]
Op. cit.
[39]
Op. cit.
[40]
Section 5(2) of the
Constitution (Consequential, Transitional and Temporary Provisions) Act, No. 16
of 1984 delayed justiciability of the Bill of Rights up until 1988.
[41]
High Court of Tanzania at
Mwanza, Miscellaneous Criminal Cause No. 6 of 1990 (Unreported) cited from, H., Kijo-Bisimba & C. M., Peter (supra),
p. 243.
[42]
High Court of Tanzania at
Tabora, Miscellaneous Criminal Cause No. 49 of 1986 (Unreported).
[43]
High Court of Tanzania at
Mwanza, Miscellaneous Criminal Cause No. 253 of 1987 (Unreported).
[44]
High Court of Tanzania at
Mwanza, Miscellaneous Criminal Cause No. 80 of 1989 (Unreported).
[45]
Section 5(2) of the Constitution (Consequential,
Transitional and Temporary Provisions) Act, No. 16 of 1984.
[46]
Mr. Justice Sutherland,
while delivering opinion of the Court in the case of Powell v. Alabama, 287 US 45-Supreme Court, 1932, para, 68, defined
the phrase “by law of the land” to
mean “a law which hears before it
condemns”.
[47]
Nyalali, C.J, as he was
then, expressed opinion of the Court of Appeal with regard to construction of
Article 13(6)(b) in the case of D.P.P v.
Daudi s/o Pete, (supra), p. 28.
[48]
Op. cit.
[49]
Op. cit.
[50]
H., Kijo-Bisimba & C.
M., Peter (supra), p. 239.
[51]
Op. cit.
[52]
Op. cit.
[53]
In the Court of Appeal of
Tanzania At Zanzibar, Criminal Application No. 8 of 2000 (Unreported).
[54]
Op. cit.
[55]
Op. cit.
[56]
L. Urdang and S. Stuart
Berg Flexner (Ed), The Random House
Dictionary of the English Language, College Edition, Random House, New York, U.S.A,
1968, p. 1079.
[57]
[1995] T.L.R 31 (HC), p.
58.
[58]
[1994] T.L.R 73 (HC).
[59]Rodrick Mweyunge, Unemployed
Accountant, Interviewed at Sinza Palestina area, Dar es salaam on 20th May 2013.
[60]
English translation
[Emphasis mine].
[61]
M. Carter and A. Bouris
(2006), Freedom of Information: Balancing Public the Public Interest, 2nd
Edition, The Constitutional Unit, University College of London &
Information Consultancy Pty. Ltd, London, England, p. 4.
[62]
[1994] T.L.R 73 (HC).
[63]
High Court of Tanzania at
Mwanza, Miscellaneous Criminal Cause No. 6 of 1990 (Unreported) cited from, H., Kijo-Bisimba & C. M., Peter (supra),
p. 243.
[64]
Op. cit.
[65]
In the High Court of
Tanzania at Dar es salaam, Criminal Application No. 38 of 2008 (Unreported).
[66]
Both Questions regarding
subsection (4) and (5) of section 148 were asked at the same time on the same
questionnaires distributed between 1st and 5th of April
2013, in and around the city of Dar es salaam.
[67]
High Court of Tanzania at
Dar es salaam, Miscellaneous Civil Application No. 225 of 2005 (Unreported), p.
6.
[68]
In the case of Alhaji Shaban Mintanga Kondo v. Republic
(supra), Shangwe, J, opted for applying the doctrine of stare decisis instead of inquiring into the Constitutionality of
section 148(5) as enjoined to do so by the Applicant.
[69]
LHRC (2011), Tanzania Human
Rights Report, 2007, LHRC & ZLSC, Dar es salaam, Tanzania, p. 241.
[70]
Ibid.
[71]
LHRC (2008), Tanzania Human
Rights Report, 2007, LHRC & ZLSC, Dar es salaam, Tanzania, p. 108.
[72]
LHRC (2009), Tanzania Human
Rights Report, 2008, LHRC & ZLSC, Dar es salaam, Tanzania, p. 166.
