FREITA WALTER AND 3 OTHERS v REPUBLIC 1991 TLR 62 (HC)

 

FREITA WALTER AND 3 OTHERS v REPUBLIC 1991 TLR 62 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

3 May, 1991

Flynote

E Criminal Practice and Procedure - Bail - Constitutionality of s. 148(4) Criminal

Procedure Act - Validity of D.P.P.'s certificate barring bail.

Constitutional Law - S. 148 Criminal Procedure Act - Validity of D.P.P.'s certificate

barring bail - Constitutionality thereof.

-Headnote

F In a trial for indecent assault the trial Resident Magistrate refused the applicants

bail on the ground that their safety would be jeopardized.

On an application for bail to the High Court the D.P.P. filed a certificate pursuant to

section 148(4) of the Criminal Procedure Act to bar the admission of the applicants to

bail.

G The judge found that the contest was over the constitutionality of the provisions

of s.148(4) and the validity of the D.P.P.'s certificate, matters which then were also

pending before the Court of Appeal.

H Held: (i)As the issue on the validity of section 148(4) and the D.P.P.'s certificate is

one of the issues for determination by the Court of Appeal in the pending case, it is

prudent and a matter of good sense to await the I determination of the issue by the

Court of Appeal.

1991 TLR p63

(ii) In the meantime, the D.P.P.'s certificate, issued under the provisions of

S.148(4) holds sway and A operates to bar the release of the applicants on bail.

Case Information

Order accordingly. B

Bwahama, for the applicants.

Teemba, for the respondent.

[zJDz]Judgment

Kyando, J.: This is an application for bail-pending trial. The applicants, Freitag

Walter, huber Waldermar, C Maurice Boutinon and Fritz Koch, who are indicated

in the charge sheet to be all Europeans, face a Criminal charge in the District Court

of Ilala, at Kisutu. The charge contains two counts of indecent assault. The first count

alleges that the applicants, on or about the 1st of April, 1991, at 4.00 hours, at

Mikocheni 'B', in Dar es Salam, D did unlawfully and indecently assault one Mariam

Benson "by stripping her naked and facilitating their male dog to have sexual

intercourse to the said Mariam Benson". The second count alleges assault by the

applicants by photographing the scene alleged in the first count.

When they were brought before the Court below all the applicants pleaded by

denying the truth of the allegations E contained in the charge. Then they applied to

be released on bail pending trial. The application was refused. In his ruling refusing

bail dated 11.4.91 the learned Magistrate who heard the application stated:

As I said two days ago, this offence is quite unusual. The DSM public has not

forgotten it. That is why there are increased F security measures; that is why the

accused had to be brought through my private entrance this afternoon. For their own

safety, I remand them in custody. G

Following the above ruling they have now filed this application in this Court.

they are all represented by Mr. Bwahama, learned advocate. Mr. Teemba, Principal

State Attorney, appeared on behalf of the Director for public prosecutions at the

hearing of the application in this Court. H

Soon after the application was filed here and soon after papers relating to it

were served on the Director of Public Prosecutions (DPP), he (the DPP) filed a

certificate -under s.148(4) of the Criminal procedure Act, 1985 (CPA), as amended.

The Certificate States: I

1991 TLR p64

KYANDO J

A IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

MISC. CRIMINAL APPLICATION NO. 15 OF 1991

FREITAG WALTER

B HUBER WALDERMAR

MAURICE BOUTINON APPELLANTS (STC)

FRITZ KOCH

VERSUS

THE DIRECTOR OF PUBLIC

C PROSECUTIONS ............ RESPONDENT

(Original KISUTU RM's COURT CRIMINAL CASE NO. 630/91)

CERTIFICATE OF NON ADMISSION

D TO BAIL

(Made under section 148(4) of the Criminal Procedure Act., No. 9 of 1985, as

amended by Act No. 10 of 1989) FREITA E WALTER & OTHERS v. REPUBLIC

(Kyando, J.)

I ERNEST LAZARO KEMBELA MWIPOPO, The Director of Public

Prosecutions in the United Republic in terms of section F 148(4) of the CPA as

amended by Act. No. 10 of 1989 do hereby CERTIFY that 1. FREITAG WALTER, 2.

HUBER WALDERMAR, 3. MAURICE BOUTINON AND 4. FRITZ KOCH charged

with the offence of indecent assault c/s 135 (1) of G the Penal Code be Not admitted

to bail pending trial as it is likely that the safety of the Republic would thereby be

prejudiced. Dated at Dar es Salam this 25th day of April, 1991

(E.L.K. MWIPOPO)

H DIRECTOR OF PUBLIC PROSECUTIONS

Section 148(4) CPA, by virtue of which DPP issued his certificate provides:

I 148-(4) Notwithstanding anything in this section contained,

1991 TLR p65

KYANDO J

no police officer or court shall, after a person is arrested and while he is

awaiting trial or appeal, admit that person to bail if A the Director of Public

Prosecutions certifies in writing that it is likely that the safety or interests of the

Republic would thereby be prejudiced.

There is also section 148(4A) which provides: B

148 - (4A) A certificate issued by the Director of Public Prosecution 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 C concluded or the Director of Public Prosecutions withdraws it.

At the hearing of the applicant's application before me Mr. Teemba objected to bail,

relying on the DPP's D certificate and the provisions of the law reproduced above.

Mr. Bwahama countered by challenging the validity of the provisions in s. 148(4)

CPA. He contended that these provisions are invalid vis à vis the constitution of the

United Republic of Tanzania. He said they have been so held and struck down in the

now celebrated case of E Daudi s/o Pete v R., (HC) Misc. Criminal Cause No. 80 of

1989 (Mwanza Registry) (unreported). He prayed that I follow that case in this

application and declare s. 148(4) CPA null and void for being in conflict with the

constitution and disregard the Certificate filed by the DPP. F

Mr. Teemba replied by stating that whether a piece of legislation is in conflict with

the constitution or not is a matter for parliament; he said it is Parliament which has

the power to declare a statute null and void and not the Courts. He submitted

therefore that I had no power to pronounce on the validity or otherwise of the

provisions of S. 148(4) CPA. As to the case of Daudi s/o Pete v R. (Supra) he pointed

out that the Republic has appealed G against the decision in that case and the matter

is now in the Court of Appeal, the highest and final court in Tanzania, awaiting

judgment.

I think with utmost respect, Mr. Teemba is mistaken in the view he holds, i.e. that

this Court has no power to H declare a statute null and void and that it is only

Parliament which has such power. For in all countries with written constitutions, as

is the case with Tanzania, the constitution is supreme. It is the supreme or

fundamental law of the land. If therefore any other legislation is inconsistent with

the constitution, that other legislation is, to the I

1991 TLR p66

KYANDO J

A extent of the inconsistency, void. The responsibility for declaring such legislation

void lies with the Courts of law. This is elementary and I hardly need to refer to any

authorities. It suffices to point out that the principle was incorporated, e.g. in the

Uganda constitution of 1966 (See Articles 1 and 87) and the Lesotho constitution of

1966 B (See Article 2). See also Article 30(3)-(4) of the Constitution of the United

Republic of Tanzania, 1977.

It is elementary, too, that a decision of one judge of this Court (the High Court) does

not bind another or other judges of this same Court. It is only decisions of the Court

of Appeal which bind this Court. So, though it is good C policy that decisions of the

same court should be consistent and unconflicting, I am, as a matter of principle, not

bound to follow the decision in the case of Daudi s/o Pete v. R. which was relied on

by Mr. Bwahama in attacking D the validity of the DPP's certificate and s.148 (4)

CPA on which it (the certificate) is based. That decision was rendered by a judge of

this Court. And to my knowledge, since that decision was rendered it has stood

alone; no other judge in this Court has followed or supported it. In the case of

Charles Mwakalinga v R., which Mr. E Bwahama also referred to, Bahati, J. did not

seek to follow the decision in the Daudi s/o Pete Case. All that Bahati, J. , said in that

case was that the District Court was bound by the decision in Pete's Case and acted

correctly in feeling it was bound by decision in Pete's Case and acted correctly in

feeling it was bound. This was, F of course, based on the cardinal principle that

decisions of this court bind courts subordinate to it. Bahati, J., did not, as stated

already, say that he was agreeing with the decision in Pete's Case and therefore that

the lower court applied it correctly it terms of the merits of the decision in that Case

(Pete's case).

G Mr Bwahama made several other points in his submissions both oral and written -

in support of this application. In my view, however, and as Mr Teemba rightly

pointed out, the crucial point at this stage in the matter is the validity or otherwise of

the provisions of s.148 (4) CPA and the DPP's Certificate filed on the basis of them,

i.e. H the provisions. Fortunately, and as Mr. Teemba again rightly pointed out, the

case of Daudi s/o Pete v R. on which Mr Bwahama relied in challenging the validity

of the provisions and the certificate, is presently before the Court of Appeal for

appeal purposes. To my knowledge the appeal has been heard already and it is only

the I judgment which is pending delivery. The very issue of the validity or

otherwise of s. 148(4) CPA is one of the issues for determination in that appeal. It

would then, to my mind be prudent

1991 TLR p67

and a matter of good sense to await the determination on the issue by Court of

Appeal. I hold so. A

In the meantime, the DPP's Certificate, issued under the provisions of s.148(4) CPA

holds sway and operates to bar the release of the applicants on bail. Bail is

accordingly refused. B

Bail refused accordingly.

1991 TLR p67

C