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Lawyers in battle over bail for capital offences

THREE defence counsels stretched muscles with eight state lawyers and asked the Court of Appeal to dismiss the appeal lodged by the Attorney General, who is challenging the High Court judgment declaring as unconstitutional, the law that denies  bail  to persons facing capital offences.

Advocate Jonathan Mbuga, who was assisted by Counsels Mpale Mpoki and Jebra Kambole, told the Court of Appeal Bench composed of Justices Stella Mugasha, Gerald Ndika, Jacobs Mwambegele, Mwanaisha Kwariko and Ignas Kitusi that the judgment of the High Court delivered on May 18, 2020 was right.

“For all intents and purposes of the case before you, with major aim of upholding the provision of our constitution, rule of law and good governance, we humbly pray to this honourable court to dismiss the appellant’s appeal with no order as to costs,” the advocate submitted, adding:

“We hereby appeal to this honourable court to maintain the status quo in respect of the trial court’s decision save for an issue of ordinary courts of law to be left to deal with all the offences listed in the impugned section as addressed in the notice of ground to confirm the decision.”

The point of reference is Section 148 (5) of the Criminal Procedure Act (CPA). Such provision restricts bail for persons charged with murder, treason, terrorism, armed robbery, narcotic drugs and money laundering offences.

During the hearing session on Monday, the Solicitor General, Dr Clement Mashamba, led a team of State lawyers to submit the appeal on behalf of the Attorney General (AG), as the appellant in the matter, and advanced ten grounds of appeal to fault the highly contented judgment of the High Court.

On May 18, 2020, High Court Judges, Dr Benhajj Masoud, Seif Kulita and Dr Juliana Masabo, delivered a landmark judgment and one of most significant constitutional and human rights decisions, ruling that Section 148 (5) of CPA violates Article 13 (3) (6)(b) and 15 (1) (2) of Constitution of United Republic of Tanzania.

In their submissions to support the appeal, State lawyers stated, among others, that the High Court erred in law in holding that  Section 148 (5) of the CPA, is violation 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.

They forcefully 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.

In their corresponding responses, however, the defence counsel hit back, stating that the issue of bail is fundamental instrument of the court of law, therefore courts will be required to resume its constitutional duties in administering bail as it was used before enacted of the said impugned provision.

In principle, they noted, the AG is a legal adviser to this nation on behalf of Tanzanians, required to promote, protect and uphold  the rule of law and defend public interest and advised the government on what to do when a decision has being delivered by the court.

“Therefore, for appealing wholesomely to this court against Section 148(5) a (i) of CPA, which includes an array of unbailable offences, is in itself, self-defeating, and a clear abuse of the court process, for it is not only illegal, but also unprocedurally wrong,” Advocate Mbuga submitted.

The counsel submitted that the impugned provision, that is, Section 148 (5) of the CPA, which provides two categories of non bailable and bailable offences, ousts both judicial process and judicial power in administering bail in the criminal justice.

According to the advocates, it was not in dispute under the category of non bailable offences both judicial process and judicial power are strictly not allowed, thus, that is not proper and the same is not in compliances with article 13(3) of the constitution.

As regards how the impugned section ousts the judicial process, the defece lawyers told the appeals court that the judicial process is totally excluded in the entire process until the accused is arraigned in courts of law and fixed in the proposed offences.

They submitted that it is prosecutorial or prosecution bodies or State agencies, such as Director of Public prosecutions, Police or Prevention and Combating of Corruption Bureau that propose an offence pending the acquittal or conviction.

During this time, the lawyers submitted, the accused is suffering under the “proposed offence” proposed by the State agencies until the court has ruled that the accused is rightly charged with the proposed offence or otherwise and the same is not done within any known legislation.

“This can take many years, before the court confirms the legality or otherwise of such offence with which the accused is charged and particularly one may find some of the accused are innocent but unfortunately may be caught in that net.

“Our submission is that the judicial process of granting the accused bail is not only excluded under the impugned provision, but also curtailed,” one of the lawyers submitted.

After hearing both parties, the justices said they will deliver their judgment on the appeal at a date to be given later.

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