The High Court of Tanzania has declared the whole section 148(5) of CPA un- institutional.

THE HIGH COURT OF TANZANIA HAS DECLARED THE WHOLE SECTION 148(5) OF THE CPA UNCONSTITUTIONAL.

The High Court of Tanzania, Dar es Salaam Main Registry has declared that the whole section 148(5) of the Criminal Procedure Act, [Cap 20 R:E 2002] is unconstitutional. 

The today's High Court landmark Judgment has been issued in the case of advocate Dickson Paulo Sanga Versus the Attorney General [Miscellaneous Civil Cause No 29 of 2019]. Mr. Sanga filed his case on 9th May 2019 at the High Court of Tanzania, Tanga District Registry challenging bail denial for persons charged under Section 148(5) of the Criminal Procedure Act, [Cap 20 R:E 2002]. The case was later on shifted to the High Court of Tanzania, Dar es Salaam Main Registry on 18th November 2019. 

*THE HIGH COURT HAS ORDERED THE FOLLOWINGS;*

1. That, the entire Sect 148(5) of CPA violates articles 13(6)b and 15 (2) a of Constitution of United Republic of Tanzania, 1977.

2. That, in accordance to Article 30(5 ) of the Constitution, the High Court has granted 18 months to the government to rectify  the defect, failure to do so in the specified time shall render the entire section to automatically be  expunged.  

3 That, the above time of 18 months will not be applicable under section 148(5)(i) in respect of the offence of armed robbery as the government had been granted time in the case of Mjomba Mjomba but nothing has been done to date, hence the said offence is automatic expunged from the list of the unbailable offences in the CPA as of todate. 

*WHAT OFFENCES WERE UNBAILABLE UNDER SECTION 148(5) OF THE CPA?*

Section 148(5) of the Criminal Procedure Act, [Cap 20 R:E 2002] provides a list of unbailable offences, if a person become charged with, cannot be given bail by the police or the court of law. It reads that; 

148(5) A police officer in charge of a police station or a court before whom an accused person is brought or appears, shall not admit that person to bail if–

(a) that person is charged with–

(i) murder, treason, armed robbery, or defilement;

(ii) illicit trafficking in drugs against the Drugs and Prevention of Illicit Traffic in Drugs Act, but does not include a person charged for an offence of being in possession of drugs which taking into account all circumstances in which the offence was committed, was not meant for conveyance or commercial purpose;

(iii) an offence involving heroin, cocaine, prepared opium, opium poppy (papaver setigerum), poppy straw, coca plant, coca leaves, cannabis sativa or cannabis resin (Indian hemp), methaqualone (mandrax), catha edulis (khat) or any other narcotic drug or psychotropic substance specified in the Schedule to this Act which has an established value certified by the Commissioner for National Co- ordination of Drugs Control Commission, as exceeding ten million shillings;

(iv) terrorism against the Prevention of Terrorism Act, 2002;

(v) money laundering contrary to Anti-money Laundering Act, 2006;

(b) it appears that the accused person has previously been sentenced to imprisonment for a term exceeding three years; 

(c) it appears that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded;

(d) it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety; 

(e) the offence with which the person is charged involves actual money or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of a bond. 

Provided that where the property to be deposited is immovable, it shall be sufficient to deposit the title deed, or if the title deed is not available such other evidence as is satisfactory to the court in proof of existence of the property; save that this provision shall not apply in the case of police bail. 

Mr. Dickson Sanga sought the following three declarations from the High Court of Tanzania;

1. Declaration orders that Section 148(5) of the Criminal Procedure Act [Cap 20 R:E 2002] is unconstitutional and violates Articles 13(3), (6)(b) and 15(1) & (2) of the Constitution of the United Republic of Tanzania, 1977. 

1. Declaratory orders that the trial courts with jurisdiction to deal with any offences should be left to deal with the question of bail upon being properly moved by the parties to the criminal disputes. 

3. And lastly, that the honourable court be moved to issue such directives as it may deem fit to meet the ends of justice and the protection of the Constitutional rights of the people. 

*THE GROUNDS FOR FILING THE CASE WERE BASICALLY 5;*

1. That, the personal liberty and presumption of innocence are Constitutional rights guaranteed vide Articles 13(6)(b) and 15(1) & (2) of the Constitution of the United Republic of Tanzania, 1977. 

2. That, Section 148(5) of the Criminal Procedure Act, [Cap 20 R:E 2002] takes away the mandatory constitutional mandate of the courts of law as provided under Article 13(3) of the Constitution, which is the principal body charged with determining the guilt or innocence and the rights of the people in Tanzania. 

3. That, in compliance with the provision of the Criminal Procedure Act, the time frame for investigating and prosecuting the accused person in respect of the non bailable offences is unknown and left to the devices and desecration of the investigating body, and is subject to abuse in most cases, hence denying the liberty of the accused at the hands of the state. 

4. That, the existence of Section 148(5) of the Criminal Procedure Act, is contrary to the verily basic jurisprudence in the sense that bail is the fundamental instrument for the court to administering criminal justice during court proceedings. 

5. That, Section 148(5) of the Criminal Procedure Act, contravenes various international legal instruments to which Tanzania is a party and these includes Article 11(1) of the Universal Declaration of Human Rights of 1948, Article 14(2) of the International Covenant on Civil and Political Rights of 1966 and Article 7(1) B, D of the African Charter on Human and Peoples' Rights, 1981. 

THRDC supports and encourages citizens, Human Rights Defenders (HRDs) and lawyers to use Public Interest Litigation (PIL) or other human rights and constitutional litigation to reform legal and criminal justice system in Tanzania.  A court case digest of this decision will be provided in both languages in the course of few days  after receiving the writen judgement.

*Issued by*

*Tanzania Human Rights Defenders Coalition (THRDC)*

*18th May, 2020*

*Dar es Salaam, Tanzania*