Public interest as bail basis outlawed

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THE Court of Appeal has driven the last nail onto the coffin, on the powers of the Director of Public Prosecutions (DPP) to deny bail to accused persons in criminal proceedings by filing a certificate purportedly in the public interest.

This follows the decision by a full court comprising Justices Bernard Luanda, Kipenka Mussa, Batuel Mmilla, Stella Mugasha and Jacobs Mwambegele, to dismiss the appeal the Attorney General had lodged to fault the findings of the High Court that Section 148 (4) of the Criminal Procedure Act (CPA) was unconstitutional.

In some criminal proceedings pending before either the High Court or lower courts, the DPP had been relying the provisions of Section 148 (4) of the CPA to file a certificate for opposing bail to accused persons, stating, or citing, among other factors, public interest.

“We are minded to dismiss the appeal with costs and uphold the decision of the High Court to the effect that impugned Section 148 (4) of the CPA is, indeed, unconstitutional as well as null and void on account of its derogation from the provision of Article 13 (6) (a) of the Constitution,” the justices ruled.

Section 148 (4) reads: “ Notwithstanding anything in this section, no police officer or court shall, after a person is arrested and while he is awaiting trial or appeal, admit that person bail if the Director of Public Prosecutions, certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced; “…..a certificate issued by the Director of Public Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge of a police station and shall remain in effect until the proceedings concerned are concluded or the Director of Public Prosecutions withdraws it.

” They agreed with thesubmissions by Advocate Mpale Mpoki that the impugned Section 148 (4) of the CPA does not prescribe any procedure, let alone one which is reasonable, fair and appropriate to govern the issuance of the DPP’s certificate. “To that extent, we again agree with his submissions that an accused is not afforded any meaningful opportunity of being heard before he is denied bail by the DPP’s certificate operation,” they said, ruling in favour of lawyer Jeremia Mtobesya, who had petitioned the High Court against the impugned section.

According to them, despite the numerous statutory powers accorded to the DPP, it should be appreciated that in a criminal proceeding, he is no more than a party who, along with the accused person, deserves equal treatment and protection before the law. In such regard, they said, it was utterly repugnant to the notion of fair hearing for the legislature to allot so much power to one of the parties to proceedings to deprive the other party of his liberty merely by her say-so and much worse to the extent the victimised party as well as the court are rendered powerless.

“The right to a fair hearing, by its very nature, requires there be equality between the contestants in the proceedings. There can be no true equality if the legislature, as we have said, allows one party to deprive the other of his personal liberty merely by her say-so,” the justices said. Before the High Court, a panel comprising former Principal Judge Shaban Lila, now a justice in the Court of Appeal, and Judges Sekieti Kihiyo and Dr John Ruhangisa, as he then was, declared such provision as unconstitutional for violating Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. The Article reads:

“When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned.”

The three members of the bench said that Section 148 (4) of CPA makes the DPP a judge in his own cause, contrary to the principle of natural justice. They said that it was irrational to justify in any way the limitations of basic rights in the sweeping and controversial expressions like those of section 148 (4).

According to the judges, the impugned section was a potential fertile ground for breeding arbitrary detentions as it denies the accused person the right to be heard on matters of bail and prematurely treats the accused person as a convict. “This kind of restriction to bail puts the liberty of the citizen at stake and infringes his right to liberty. It is in conflict with the presumption of innocence which is guaranteed under Article 13 (6) (b) of the Constitution of the United Republic of Tanzania.

Article 13 (6) (b) reads: “To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence.”

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