CHADEMA National Chairman, Freeman Mbowe and Tarime Urban Member of Parliament, Ester Matiko yesterday got much needed relief when the High Court restored their bail which was canceled by Kisutu Resident Magistrate’s Court in Dar es Salaam three months ago for violating bond conditions.
Judge Sam Rumanyika ordered for the immediate release from remand prison of the two after allowing the appeal of the two senior officials from the country’s main opposition party they had lodged to fault the decision given by Principal Resident Magistrate Wilbard Mashauri, as he then was, on November 23, 2018.
“This appeal is allowed. The appellants (Mbowe and Matiko) are to be released from remand prison forthwith unless held legally therein. I direct the records of proceedings to be remitted to the trial court with immediate effect for continuation of hearing of the trial,” he declared.
The judge ruled that the decision by the lower court to cancel bail to Mbowe and Matiko, as appellants, was premature. He pointed out that bail was a contract between the court, the accused and sureties, who sign bond before the accused is bailed out.
On November 23, 2018, the Kisutu court ordered Mbowe and Matiko to be remanded after cancelling their bail in the criminal trial they are facing after being found contemptuous for violating bail conditions, including failure to attend court sessions as required.
However, yesterday Judge Rumanyika said it was the duty of the surety to bring the accused in court whenever required or provide reasons to the court over their absence.
The judge said that the surety is put to the task to show cause why the bond he executed should not be forfeited upon failure to execute his duties effectively.
The judge ruled, therefore, that it was a requirement of the law and logic that cancellation of bail comes after the order for forfeiture of bond upon the surety showing cause on failure by the accused person to attend the trial as directed.
“Since in this case the sureties did not give account for forfeiture of bond executed for the accused, the cancellation of bail was not only illegal but also premature. If it was the birth of a baby, then that baby was a premature baby. In other words, such order ought to have not been given at all,” he said.
The judge pointed out further that when considering the question of bail to the accused, the court, magistrate or judge be warned or satisfied that the case in hand is bailable and consider the constitutional requirement that everybody is presumed innocent unless proved otherwise.
Judge Rumanyika explained also that when the court decides to grant bail to the accused, the conditions given must not be stringent, as if the court had denied him bail and the court must consider that if the accused is jailed, it should not be interpreted that he was punished twice.
Additionally, the judge pointed out that when the court cancels bail it must consider that by doing so it was either contributing to the congestion or decongestion of prisons and the increase or otherwise of costs to the prisons and that liberty of any individual has alternative.