THE High Court of Tanzania declared the entire section 148 (5) of the Criminal Procedure Act (CPA) unconstitutional for being in violation Article 13 (3), and 15 (1), (2) (a) of the Constitution.
The Attorney General was aggrieved by such decision and appealed to the Court of Appeal.
In this second part of the Court Appeals judgment, our Staff Writer FAUSTINE KAPAMA reports on what were the grounds of appeal and what arguments the Attorney General presented to support the appeal in question.
THE Attorney General, who becomes the appellant at the appellant level, advanced ten grounds of appeal to fault the judgment delivered by the High Court. He stated that the High Court erred in law in holding that section 148(5) of the CPA is violative of Article 13(3) of the Constitution and that such impugned provision is not consistent with Article 15(1) and (2)(a) of the Constitution.
He stated that the High Court erred in law in holding that, section 148(5) of the CPA ousts judicial process in considering possibility of admitting to bail a person accused of non bailable offences and erred in determining section 148(5)(a)(v) of the Criminal Procedure while the matter was res judicata.
The appellant stated that the High Court erred in law in holding that section 148(5) of the CPA is unconstitutional despite the fact that the respondent has failed to prove his case beyond reasonable doubt.
According to him, the High Court erred in law in determining the constitutionality of section 148(5) of the CPA basing on unpleaded facts and that the High Court erred in law in holding that section 148(5) of the CPA is not saved by Article 30(2) of the Constitution.
That the High Court erred in law and fact in misapplying the reasoning and holding advanced in various decisions of the Court of Appeal particularly in the case of DPP versus Daudi Pete  and that of AG versus Jeremia Mtobesya, in relation to Article 15(2) (a) of the Constitution and section 148(5) of CPA.
Furthermore, the appellant stated that the High Court erred in law 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.
In addition, the appellant stated that the High Court erred in law basing its decision on some defective paragraphs of the respondent's affidavit in support of the petition.
At the hearing, the appellant was represented by Dr. Clement Mashamba, then Solicitor General, ably assisted by Biswalo Mganga, Faraja Nchimbi, Tumaini Kweka and Alecia Mbuya, who all Principal State Attorneys, Abubakar Mrisha, Senior State Attorney and Narindwa Sekimanga, State Attorney.
In the first ground of appeal, the appellant faulted the High Court in holding that section 148 (5) of the CPA is violative of Article 13 (3) of the Constitution. It was submitted that, the fundamental rights, duties and interests of all citizens are guaranteed under our Constitution as reflected under Articles 12 to 29.
The appellant contended that in terms of Article 13 (3) of the Constitution, and that the bodies vested with powers to protect and adjudicate the fundamental rights, duties and interests of all citizens are the courts of law and other state agencies.
These include the Director of Public Prosecutions (DPP), who is mandated with authority to institute, prosecute and supervise all criminal prosecutions in terms of Article 59B of the Constitution.
It was further contended that, in the course of executing his power, the DPP is duty bound to consider factors stated under sub-Article (4) thereof on the need to dispense justice; not to abuse the procedures for dispensing justice and having due regard to matters of public interest.
The other state agency is the police, who under section 3 of the Tanzania Police Force and Auxiliary Services Act, are vested with the powers to protect the rights, duties and interests of the individual referred to in Article 13(3) of the Constitution.
On this, it was argued that, each organ executes the protection function independently and in accordance with the law. In such regard, it was the appellant's submission that, the High Court did not consider that the impugned provision was enacted to protect and determine rights and duties of every person in a criminal trial and on that account, it is fair, just and in tandem with Article 13 (3) of the Constitution.
In addressing the second ground of appeal, the appellant faulted the High Court in holding that section 148 (5) of the CPA is not consistent with Article 15 (1) and (2) (a) of the Constitution.
On this, it was submitted that although Article 15 (1) of the Constitution lays a general rule in respect of personal liberty and security thereof, sub Article (2) stipulates circumstances in which a person may be deprived of that personal liberty in accordance with the procedure laid under the law.
This was argued to bring into play section 148 (5) of the CPA which it was submitted, is not violative of the fundamental rights.
Instead, it was contended, to be an exception to situations which individual liberty may be curtailed which is crucial and necessary in a democratic society in the preservation of public safety, peace and security in line with Article 6 of the African Charter on Human and Peoples' Rights.
In the third ground of appeal, it was the appellant's complaint that the High Court wrongly held that section 148 (5) of the CPA ousts the judicial process in considering the possibility of admitting to bail a person accused of a non bailable offence.
The appellant submitted that a legislation which prohibits the grant of bail to a person charged with certain offences does not amount to take over of judicial functions.
On this, it was pointed out that, the High Court wrongly arrived at such a decision having opted to choose some portions in the case of Daudi Pete which suited their course leaving out the crucial determination on the ouster or otherwise of the jurisdiction of the courts.
The appellant as well invited the Court to consider that, all offences listed down in section 148(5)(a) (i), (iv), (v) and (vi) of the CPA are crimes against humanity because they have the effect of resulting in either loss of life or subjecting a person or group of persons to continuous suffering or loss or dignity.
Such offences include murder, defilement, terrorism, armed robbery, terrorism, human trafficking and trafficking in drugs. Thus it was argued that the curtailment of bail in such serious offences attracting capital punishment is crucial to ensure that the offender is brought to court for the purposes of adjudication and for ensuring public peace and security.
The appellant stated that preventing interference with ongoing investigation, threatening and even killing the witnesses and whistleblowers before trial or else far reaching consequences resulting to mob justice. It was further contended that, section 148 (5) (b), (c) and (d) of the CPA does not oust the judicial process because it gives courts the mandate to determine as to whether or not to grant bail.
Pertaining to the fourth ground of appeal, the appellant faulted the High Court to have declared section 148 (5) (a) (v) of the CPA unconstitutional without considering that it was previously determined in the cases of Gedion Wasonga and three others Vs the AG and that of Mariam Mashaka.
In such regard, the course taken by the High Court was argued to be against section 9 of the Civil Procedure Code (CPC), which embraces res judicata as a doctrine of estoppel in ensuring that there is no endless litigation over the same matter concerning same parties.
The appellant, thus, urged the Court to hold that, since section 148 (5) (a) (v) of the CPA on the offence of money laundering being non bailable was declared to be constitutional and decision has not been reversed, the High Court wrongly determined the same to be unconstitutional in the impugned decision.
In the fifth and tenth grounds of appeal, the appellant faults the High Court to have acted on a defective affidavit of the respondent to annul the provisions of section 148 (5) of the CPA.
He pointed out that, paragraphs 11 to 14 of the respondent's affidavit accompanying the petition contained extraneous matters such as, the congestion of inmates in prison facilities and police remand cells the information whose source was not disclosed.
It was argued that, the respondent could not have personal knowledge of this information which was the sole domain of the Prison and Police Authorities. Therefore, in the oral submissions, the Court was urged to conclude that, the affidavit contained lies and proceed to expunge the offensive paragraphs.
Additionally, the appellant urged the Court to make a finding that the respondent did not prove his case beyond reasonable doubt and as such, it was improper for the High Court in the absence of requisite proof to declare unconstitutional section 148 (5) of the CPA.
In the sixth ground of appeal the appellant challenged the High Court for considering facts which were not pleaded. The alleged unpleaded facts are that the impugned provision is so wide that it includes an accused person who is not dangerous in terms of Article 30(2) of the Constitution.
Another fact is that the impugned provision does not contain adequate safeguards and effective controls against arbitrary decisions and abuse by the prosecution when using the law to charge an accused person with a non bailable offence.
Third facts is that the impugned provision vests in the prosecution unfettered powers of framing any charge against any accused person and thereby affecting the liberty of that accused person.
The fourth one is that the impugned provision does not set a time frame for completion of investigation, prosecution and detention prior to investigation or trial and the fifth fact is that the impugned provision ousts due process and directs the court to just refuse bail notwithstanding the circumstances of a case.
Sixth fact the High Court is accused of holding that to make it worse; there are no controls or safeguards imposed against abuse or arbitrary decisions by which an accused person may be deprived of personal liberty. The seventh fact is the lack of procedure prescribed by law under which a person may be denied bail.
Eight, lack of time frame within which an accused person may remain in detention and ninth is on substitution of a charge. Tenth facts related to inordinate delays in completion of investigation and prosecution at the expense of personal liberty of an accused person.
The eleventh fact related to dropping of charge laid down against an accused person and subsequent and immediate arrest and recharging of the accused person and twelfth fact was on large number of persons accused of non bailable offences held indefinitely in remand custody.
On these facts, the appellant's complaint is to the effect that the High Court relied and acted on extraneous considerations to declare the impugned provision unconstitutional. Thus, he urged the Court to quash the un-pleaded facts from the record contained in the judgment of the High Court.
In relation to the seventh ground, the appellant challenged the High Court decision in concluding that section 148 (5) of the CPA is not saved by Article 30 (2) of the Constitution.
He submitted that apart from section 148 being compatible with Article 15 (2) (a), were deemed unconstitutional considering it would still be saved by Article 30 (2) which prescribes permissible limitations of basic rights, freedoms and duties of individuals guaranteed under Articles 12 to 29.
This was argued to be in line with the Constitution and International Human Rights Law on permissible measures restricting rights and freedoms provided that there is no arbitrariness and the limitations imposed are reasonable to achieve a legitimate objective.
The Court was referred to a statement of principle in the case of Kukutia Pumbun where it was held that "... a law which seeks to limit or derogate from the basic right of the individual on ground of public interest will be saved by Art 30(2) of the Constitution only if it satisfies two essential requirements "... First, such law must be lawful in the sense that it is not arbitrary.
It should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse by those in authority when using the law. "Secondly, the limitation imposed by such law must not be more than is reasonably necessary to achieve the legitimate object."
In view of such holding, the appellant submitted that, the wording of section 148 (5) of the CPA whereby certain offences are non bailable, does not give room for arbitrariness, ambiguity and there is no likelihood of bringing unintended people which eliminates likelihood of abuse.
The appellant advanced a similar argument in respect section 148 (5) (b) of the CPA which in addition, entails an adjudicative process to consider evidence if there exist circumstances warranting denial of bail or not and a remedy by way of appeal is available to an aggrieved party.
In relation to the eighth ground of appeal, it was the appellant's complaint that the High Court misapplied the reasoning and holdings advanced by the Court in the cases of Daudi Pete and Jeremia Mtobesya in relation to Article 15(2)(a) of the Constitution and section148(5) of the CPA.
On this, it was pointed out that, the High Court did not consider what was said by the Court in Daudi Pete case that the denial of bail to accused persons is on the basis of their conduct which is very dangerous to society's peace, security and preservation of law and order.
Such denial is pending determination of cases on merit and that section 148(5) of the CPA conforms to the proportionality test. In this regard, the appellant urged the Court to reverse the impugned decision on account of being erroneous.
Finally, and that is indeed the gist of the ninth ground of appeal, the appellant faulted the High Court in not considering that the striking out of the entire provisions of section 148 (5) of the CPA would subject the country into a state of havoc posing a threat to peace and security in the country.
It was thus argued that, the High Court ought to have carefully dealt with the impugned provision in order to strike a balance between the individual interest vis a vis societal interest and preservation of morality in the nation as a whole. At the end, the appellant requested the court to allow the appeal and quash the High Court judgment.