REPUBLIC v ATHUMANI ALLY MAUMBA 1988 TLR 114 (HC)

 REPUBLIC v ATHUMANI ALLY MAUMBA 1988 TLR 114 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mzavas JK

13 July, 1988 G

Flynote

Criminal Practice and Procedure - Bail - Refused on ground of appellant's safety -

Section 148(5)(f) Criminal Procedure Act examined. H

-Headnote

The appellant was refused bail by the District Court because it believed appellant's

safety would be better protected if he remained in custody. The appellant had

violated some children and police argued that the appellant could be assaulted by

parents of the I victim children.

1988 TLR p115

MZAVAS JK

Held: Before the provisions of section 148 (5) (f) of the Criminal Procedure Act are A

invoked to the detriment of an accused person the prosecution must clearly show that

accused's safety is in danger and such information must be verified as to its

authenticity.

Case Information

Appeal upheld. B

Case referred to.

1. Panju v R. [1973] E.A. 282.

Lakha, for the appellant C

Shahidi, for the Respondent

[zJDz]Judgment

Mnzavas, J.K.: This is an appeal against the decision of the lower court on 28/5/88 in

which the appellant, Athuman Ali Maumba, was refused bail. D

Mr. Lakha, learned Counsel for the appellant argued that the lower court erred in law

in refusing bail on the ground that it believed appellant's safety would be better

protected if he remains in custody. It was argued that the learned principal resident

magistrate invoked the provisions of section 148(5) (f) of the Criminal Procedure Act

because the E police argued that there was a danger of the appellant being assaulted

by parents of the children he is alleged to have violated.

It was argued that the test to be used before the provisions of section 148(5)(f) are F

applied should be the gravity of the danger an accused is liable to face if released on

bail. It was Mr. Lakha's submission that mere apprehension or fear that an accused

would be assaulted if released on bail will not do.

Secondly it was submitted that the Learned Magistrate failed to appreciate that the

provisions of section 148(5)(f) require a very serious proof before bail is refused. The

G learned magistrate was said to have been swayed by emotions in refusing bail.

Mr. Shahidi, learned Senior State Attoney, in rebuttal supported the lower court's

ruling and argued that the court was, under the circumstances of the case right in

refusing bail. H It was the learned counsel's submission that section 148(5) (f) of the

C.P.A. says that if it appears (and not if it is necessary) to the court ... that the accused

person be kept in custody for his own protection or safety.

It was further submitted that it cannot be disputed that the charges against the

accused I are serious and outrageous and that the

1988 TLR p116

MZAVAS JK

lower court was therefore right in ordering that the appellant be kept in custody. A

The court was told that the Police are most qualified to know the security of an

accused person and that in this case they should be believed when they say that

appellant's safety would be in danger if released out on bail. B

It was further submitted that there was a possibility that the accused could contact

the alleged victims with a view to destroy evidence and that the heavy penalty the

accused stands to suffer if convicted could prompt him to jump bail. C

On 27/5/88 when the learned Counsel for the appellant applied for bail the

prosecution opposed the application arguing that the Republic was "very much

concerned with accused's security".

The prosecutor told the lower court and I quote: "There is information reaching the

Regional Crimes Officer that the parents are trying to find whatever means to get at

the D accused .... It is our prayer that the Court uses its discretion u/s 148 (5)(f) to

protect the accused". The prosecutor also said inter alia:

This prayer I make specially so as investigations have yet to be completed. E

From the above submission by the prosecutor in the lower court it was asked to refuse

bail under section 148(5)(f) of the Criminal Pr. Act on the ground that accused's life F

could be in danger as parents of the alleged victims were said to be looking for the

accused possibly with intention to harm him. Another reason was that the accused

should not be released on bail as investigations had yet to be completed.

In refusing bail the learned Principal Resident Magistrate said inter alia when dealing

G with the prosecution argument that relatives of the girls alleged to have been

sexually assaulted were looking for the accused:

It can be stated with confidence that these relatives were not seeking the

accused to pat him H on the back or congratulate him. Considering the

outrageousness of the offence against the accused, I am inclined to believe that the

accused, if he were to be granted bail, it would render his safety in jeopardy, so Panju

v R. [1973] E.A. 282 is satisfied. ...I find that given the I nature of the offence with

which the accused is charged, he will be better protected if he were to remain in

custody.

1988 TLR p117

MZAVAS JK

The appellant was refused bail under section 148(5)(f) of the Criminal Pr. Act. This A

section provides among other things that if it appears to the court that it is necessary

that an accused person be kept in custody for his own protection or safety the court

may order that such accused be so kept in custody.

The question this Court has to ask itself is how does the court come to the conclusion

B that it would appear necessary that an accused must be kept in custody for his own

protection or safety under section 148(5)(f) of the Criminal Pr. Act. If, as it was in this

case, it is the prosecution which applies to the court that an accused be kept in

custody under section 148(5)(f) the prosecution must show definite reasons supported

by proved C and admitted facts showing reasonable cause for the belief that

accused's safety would be in jeopardy if released on bail. Vague fears or suspicion by

the police that accused's safety will be in danger will not suffice to refuse bail under

section 148(5)(f) of the Criminal Procedure Act. D

In the present case all that the prosecutor told the trial magistrate was that reports

reaching the D.C.I were that relatives of the girls alleged to have been violated by the

accused were looking for the accused and that accused's safety was in danger. There

was no evidence in the lower court to support such reports other than the mere word

of the prosecutor. E

The test required under section 148(5)(f) is not whether it would be better for the

accused to be kept in custody for his own safety but rather whether it is necessary

that the accused should be kept in custody for his own good. Before the provisions of

F section 148(5) (f) of the Act are invoked to the detriment of an accused person the

prosecution must clearly show that accused's safety is in danger and such information

must be verified as to its authenticity. And what is more the police must prove that

circumstances were such that they are unable to protect an accused from alleged

threats G to his safety.

It is always the duty of the police to ensure that persons who have already been

charged in court and are on bail pending hearing of their cases are not harassed in any

way by relatives of victims of the alleged crimes. The police should not shirk this

honourable H responsibility by invoking the provisions of section 148(5) (f) of the

Act.

It was a total misdirection by the learned Principal Resident Magistrate to say - "I find

that given the nature of the offence with which the accused is charged he will be

better I protected if he were to remain in custody". The learned trial magistrate by so

saying

1988 TLR p118

MZAVAS JK

gives the impression that he refused the accused bail because of the nature of the

offence A he is said to have committed not because his safety would be in danger if

he was released on bail.

Before the provision of section 148(5) (f) are invoked by the court it must be clearly

B shown that an accused's safety would be glaringly in danger and that circumstances

are such that the police would not be in position to prevent such danger.

Many accused persons would be refused their statutory rights if the provisions of

section 148(5)(f) are not strictly construed by the courts. In the present case there was

no C suggestion in the lower court that the appellant would leave the jurisdiction of

the court if granted bail nor was there any suggestion that the appellant was going to

tamper with prosecution investigations if released on bail. Bearing in mind that the

accused was arrested and brought to court on 27/5/88 the prosecution cannot, at this

stage, be heard to say that investigations have not yet been completed. D

It is in the discretion of the court to decide whether or not to refuse bail under

section 148(5)(f) of the Criminal Procedure Act. This discretion must always be

vigilantly and justly exercised. This is all the more so where, as it is in this case, the

accused himself E rebuts the prosecution argument that his safety would be in

jeopardy if released on bail.

I agree with the learned counsel for the appellant that had the learned trial

magistrated directed herself on these lines she would not have refused bail. In the

event the appeal is upheld. F

The accused is released on bail on furnishing a bond of shs. 50,000/= with two sureties

each in like sum.

G Appeal allowed.

1988 TLR p119

A