Tanzania: State Petitions High Court Ruling On Unbailable Offences

STATE lawyers, led by the Solicitor General, Dr Clement Mashamba, have requested the Court of Appeal to nullify the judgment of the High Court that declared unconstitutional the provision under Criminal Procedure Act (CPA), which denies bail persons facing capital offences.

On behalf of the Attorney General (AG), Prof Adelardus Kilangi, who is the appellant in the matter, Dr Mashamba submitted ten grounds of appeal to fault the highly contested judgment of the High Court delivered on May 18, 2020.

"We request this court to allow the appeal and quash the judgment of the High Court," Dr Mashamba asked the Court of Appeal Bench composed of five Justices Stella Mugasha, Gerald Ndika, Jacobs Mwambegele, Mwanaisha Kwariko and Ignas Kitusi.

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.

On May 18, this year, High Court Judges, Dr Benhajj Masoud, Seif Kulita and Dr Juliana Masabo delivered a ruling that section 148 (5) of CPA violates Article 13 (3) (6)(b) and 15 (1) (2) of Constitution of United Republic of Tanzania.

The section in question restricts bail on persons charged with murder, treason, terrorism, armed robbery, narcotic drugs and money laundering offences.

During the hearing of the appeal, however, state lawyers told the justices of the appeals court that the High Court committed serious errors in such judgment.

They submitted that the High Court erred in law in holding that section 148 (5) of the CPA, as amended 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.

They argued that 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 such matter had already been dealt with by the same court in two other cases involving Gidion Wasonga and Mariam Faustine, both against 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.

In addition, the state lawyers stated that the High Court erred in striking out the whole of section 148 (5) of the CPA without paying due regard to the likelihood of causing havoc in the entire system of administration of criminal justice in the country.

"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.

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