Hamisi Masisi and 6 Others v Republic 1985 TLR 24 (HC)

HAMISI MASISI AND 6 OTHERS v REPUBLIC 1985 TLR 24 (HC)

Court High Court of Tanzania - Mwanza

Judge Mfalila J

December 21, 1978

MISCELLANEOUS CRIMINAL CAUSE 54 OF 1978

Flynote

Criminal Practice and Procedure - Bail - Conditions for allowing bail - Requirement  to report regularly at the Police D Station in addition to cash bonds - Whether proper.

Criminal Practice and Procedure - Bail - Variation of orders for bail - Court powers to vary orders for bail - Criminal Procedure Code, s.127. 

Criminal Practice and Procedure - Bail - Variation of orders for bail - Grounds for variation.

Constitutional Law - Independence of the Judiciary - Executive interference with the judiciary -Magistrate in the exercise of judicial function succumbing to executive powers - Whether proper.

Administrative Law - Regional Commissioners - Regional Commissioner ordering detention of persons on the same F grounds for which they are charged in court and allowed bail - Whether lawful - Regional and Area Commissioners (Amendment) Act, 1963, s.7

-Headnote

The applicants had applied for bail in the Resident Magistrate's Court at Musoma. They were granted bail upon execution of cash bonds of various amounts and upon additional requirements to report at the Police Station at stated times. Two days later a Senior State Attorney, saying he was acting on the instructions of the Director of Public Prosecutions, moved the court to cancel the order for bail. The magistrate complied with the move mainly because it became known that immediately after the court had released the applicants on bail two days earlier, the Regional Commissioner for Mara Region had ordered their arrest and detention, apparently on the I same grounds for which they were charged in court and admitted to bail. The magistrate therefore cancelled his previous orders for bail in order to avoid a conflict between the executive and the judiciary. Subsequently, the Resident Magistrate forwarded the record to the High Court for review.

Held: (i) In the terms of bail as awarded by the trial court, the additional requirements to report at the Police Station at stated times were undesirable, meaningless and practically a nuisance;

(ii) under s.127 of the Criminal Procedure Code, orders for bail may be varied or cancelled by the same court which made them provided there are sufficient grounds for such variation or cancellation; in this case, no such grounds were given before the court to make the Resident Magistrate cancel or vary his own previous orders for bail; C

(iii) according to the concept of Independence of the Judiciary, once it is decided to take any person to court, then the entire judicial machinery should be left free to apply the rules applicable without harassment; the act of the Regional Commissioner to detain the applicants merely because they had been admitted to bail contrary to his personal views was wholly unjustified and illegal; D

(iv) constituting a judicial office a magistrate is required to disregard any extraneous pressures that might be applied on him, and to act only in accordance with the law, standing firm in defence of the people brought to E his court and in defence of the constitution and the law; in this case the Resident Magistrate was wrong in succumbing to executive pressure and cancelling his earlier orders for bail for fear that the Regional Commissioner would simply rearrest the applicants and render impotent the court order;

(v) once an accused person is taken to court, he is subject only to the jurisdiction of the court; the F reserve powers of Regional Commissioners to arrest and detain persons under the Regional and Area Commissioners (Amendment) Act, 1963 (Cap.461), are meant to deal with emergency situations and not with cases already taken to court under the ordinary penal laws of the land; therefore the Regional Commissioner had G no power under the law to rearrest and detain themapplicants and his action was in breach of the constitution which the courts have to defend.

Case Information

Order accordingly.

No cases referred to.

Kinabo, for the Republic

Judgment

Mfalila, J.: This is an application for variation of terms of bail imposed by the district Court at Musoma. Applicants 1 and 2 namely Hamis Masisi and Shadrack Edward were granted bail upon their executing bonds for Sh.50,000/= and two sureties each in the like sum.

There was also an additional A order requiring them to report at the Police Station twice a day at the stated times. The rest of the applicants except applicant No.5 were granted bail upon their executing or rather depositing cash bonds of Shs. 30,000/= with two sureties to execute bonds in the same amount. The 5th applicant was admitted to bail after depositing B cash bond in the sum of Shs. 50,000/= with two sureties in the like sum. There were also additional requirements to report at the Police Station at stated times. Before I leave this aspect of the case I must state that apart from the highly undesirable nature of the additional requirements, I have never really understood the meaning behind them. They are practically of no use except for their nuisance value. If an accused wished to abscond, he can do so during the intervals and in any case if the Court is unsure as to whether the accused will appear for trial, then it should remand him instead of making these highly inconvenient orders of reporting at the Police Station. I would have thought that the Court would have been a better place. Anyway the Resident Magistrate cancelled these orders in a subsequent application by the Republic so that at the moment they are not in force hence as Mr. Kinabo correctly stated on behalf of the Republic, they cannot be subject of a variation E order by this Court. On this basis the application on behalf of all the applicants is dismissed.

I will however proceed to consider a request by the Resident Magistrate Musoma to review his order dated 16/12/78 by which he cancelled his order made on 14/12/78.

After making the order dated 16/12/78 the F Resident Magistrate forwarded the record to this Court for two purposes -

(1) To review the approprieteness and legality of the order regarding cancellation of bail.

(2) To discuss and determine the constitutional problem as to whether it is appropriate for the executive (particularly a Regional Commissioner) to order detention of an accused person for an offence the same accused is charged with in court, and in disregard of the Court's order that the same accused is entitled to bail.

Mr. Kinabo addressed me on both these points and generally I agree with his view. Regarding the first question, by its very nature, an order for bail should be a subject of variation or cancellation by the Court which made it. I Indeed Section 127 of the Criminal Procedure Code gives this power. Additional grounds may be where it is disclosed on oath that the accused is on the point of leaving the jurisdiction of the Court without the intention to return and face trial, or that the accused is a convict in another case or that while A out on bail the accused has committed another crime or that while out on bail the accused has committed another offence. These would be sufficient grounds for the Court to review, vary, or cancel its own order. Denial of such powers would inevitably lead to miscarriages of justice. I will next consider whether in this case the B Magistrate's order was proper.

As indicated when all these applicants appeared before him on 14/12/78 the Resident Magistrate released them on bail on various terms. Then two days later on 16/12/78 the Senior State Attorney moved the Court to cancel C the orders of bail it had made on 14/12/78 in respect of all the applicants. The Senior State Attorney informed the Court that he was acting on the instructions of the Director of Public Prosecutions.

Apart from this information, the Senior State Attorney had very little to add to what the prosecutor had told the Court two days earlier and with respect I do not think he made out a case for the Court to vary or rescind its earlier order. It D was at this stage that Counsel for the applicants informed the Court of the high handed behaviour by the Regional Commissioner for Mara Region, Mr. Wassira wherein he ordered the arrest and detention of all the applicants as soon as they were out of Court and had fulfilled their conditions for bail. The Regional Commissioner ordered E their detention on the same grounds or for the same offence they were charged with in Court. Thereupon the Resident Magistrate saw what he called "a conflict of powers" between the executive and the judiciary branches of Government. Therefore while recognising the fact that the Republic had made no case to make him do so to F avoid a conflict between the executive and the judiciary for as he saw it the Regional Commissioner would simply rearrest the applicants rendering his order for bail impotent.

The Resident Magistrate was wrong in both respects. He is not supposed to make judicial decisions on G expediency. His is a judicial office in which he is supposed to act only in accordance with the law despite any irrelevant pressures that might be applied on him. I note with regret the helplessness which the Resident Magistrate exhibited in the face of these pressures from the executive. So long as the executive is manned by H ordinary human beings who are bound to exhibit excesses in their enthusiasm to serve the Republic, he should expect such conflicts and pressures, and his duty is not to succumb as he did, but to stand firm in defence not only of the people brought to his Court, but also the constitution and practices of the United Republic as by law I established. Secondly the Regional Commissioner could not have re-arrested the accused persons again for the simple reason that he would have no power to do so, section 7(2) of the Regional and Area Commissioners Acts (Amendment) Act 1963 is relevant. The Regional Commissioner could only do so if he wished to add to his list A of illegal and high handed actions. In that event appropriate action would be taken against him.

For these reasons the Resident Magistrate had no reason in law and in fact to vary and cancel his order for bail he made on 14/12/78. Accordingly his order dated 16/12/78 is set aside.

Next I will consider the question posed by the Resident Magistrate namely whether it is appropriate for the executive branch of Government in this case a Regional Commissioner to order detention of an accused person C for an offence the same accused is charged with in Court in disregard of the Court's order that the same accused be admitted to bail. Quite clearly the answer is no and Mr. Kinabo who appeared for the Republic conceded this point and added that when the Director of Public Prosecutions instructed him to move the Court to cancel its D earlier orders for bail, he the Director had no knowledge that the Regional Commissioner had ordered the detention of these applicants in disregard of the Court's earlier order, although I might add a report sent here by the Resident Magistrate indicated the contrary. But on the basis of the District Court record and a report sent to E this Court by the Resident Magistrate Musoma in his letter dated 18th December 78, it is clear that the Regional Commissioner for Mara Region in a move which was not only wholly unjustified but illegal decided to detain the applicants merely because they had been admitted to bail contrary to his personal views on the matter. I say his move was wholly unjustified because it having been decided to take the applicants to a Court of Law, F then only the rules applicable in the administration of justice became applicable and in their application the Court concerned should not be under any influence or pressure from any quarter, in other words the entire judicial machinery, the prosecution, the defence, the Court and the subject of the proceedings i.e., the accused persons G should be free from harassment however well intentioned. This is the meaning behind the concept of the independence of the judiciary. This concept is part of the laws of the United Republic.

I also said the move was illegal because the Regional Commissioner cannot cite any legal provision to back his H high handed action against these applicants. If he chooses to cite section 7 of the Regional and Area Commissioners Acts (Amendment) Act 1963 (Cap. 461) the short answer to this is that this Act gave him no such powers, in fact these applicants can sustain an action against him for unlawful detention. The wording of this section is self explanatory. I will quote it in full for the benefit of all concerned: 

Section 7 - (1) When the Regional Commissioner has reason to believe that any person is likely to commit a breach of A the peace or disturb the public tranquillity, or to do any act that may probably occasion a breach of the peace or disturb the public tranquillity, and that such breach cannot be prevented otherwise than by detaining such person in custody, the Commissioner may arrest or order a police officer verbally or in writing to arrest such person. B

(2) A person arrested under the powers conferred by this Section shall be taken as soon as practicable before a C Magistrate empowered under Section 41 of the Criminal Procedure Code to deal with the case, and if such person is not brought before such a Magistrate within forty eight hours after he was taken into custody, he shall be released and shall not be again arrested for the same cause in pursuance of the powers conferred by this Section.

(3) Where a Regional Commissioner arrests or orders the arrest of any person under the powers conferred by this Section, he shall at the time of making or ordering the arrest or forthwith thereafter record his reasons therefor in E writing.

The Commissioner shall deliver a copy of his recorded reasons, or cause a copy whereof to be delivered, to the Magistrate at the time the person arrested is brought before Magistrate or, if such person has been released before he is brought before the Magistrate, as soon as practicable after such release. 

Provided that the production of a copy of recorded reasons under this Section shall not authorise the Magistrate to dispense with the provisions of requiring information to be given on oath

(4) A Magistrate before whom a person is brought under this Section may in his discretion, detain such person in custody until the completion of the inquiry prescribed by Section 51 of the Criminal Procedure Code.

Thus these provisions are so clear to any mind that their misapplication as was done in this case can either be deliberate or a conscious urge to harass others simply because one thinks he has the power to do so, and this is what made me particularly sad on reading these records that a top Government representative in the region can choose to act in this fashion. In this case the applicants had already been arrested and taken to Court under the provisions of the Penal laws of the land, there was therefore no room for the Commissioner to use the A reserve powers under Cap.461. Again as is clear from the provisions as set out above, these powers are meant to deal with an emergency situation, but having dealt with the arrested person as aforesaid, the Commissioner must either release him or hand him over to the Court, but in any case he must make a report of his actions to the Court. Since in this case the Commissioner plucked the applicants from the Court, he can hardly be expected to have complied with the provision of Sub-section (3) of this Section: This is how, if the high C handedness of people like the Regional Commissioner for Mara Region is not ripped in the bud, the rights of individual citizens as guaranteed by the laws of a free country can be trampled under foot. More than that such actions give the Government a bad name.

This is why they should not be allowed to happen and if they do dealt with severely. Illegalities in Government business cannot be allowed. 

The actions of the Regional Commissioner against these applicants has had another unfortunate result which is meant to be avoided by the concept of the independence of the judiciary and this is that the Magistrates at E Musoma District Court are in total confusion and disarray. They have reported that they fear handling any such cases of which more are said to be in the pipeline. It pains me to think that at this stage of our national life an individual leader can act in a way which is prejudicial to the proper functioning of the judicial process.

At this stage I have little to do except to tell the Magistrates at Musoma to continue performing their judicial functions in this case and other cases in accordance with the text of their oaths that is without fear or favour. At the same time I would warn the executive at Musoma to stop interfering in the judicial process and that once an accused is taken to Court he is subject only to the jurisdiction of the Court. Any other actions on the part of the G executive at Musoma will be in breach of the Constitution of this country in which event this Court will have to move in its defence against anyone who will act in breach of its provisions. One of the duties of this Court is to protect the Constitution of the land.

There is one other matter. Counsel for the defence have informed this Court that the properties of all the H applicants have been seized by the Police at Musoma and their premises placed under police armed guard. If this be correct, I can only warn the Police at Musoma that their actions are unlawful and that they are bound to land the Government and themselves in a lot of trouble. The Regional Police Commander for Mara Region is I advised accordingly. The Resident Magistrate Mara Region is directed to bring to the attention of the relevant authorities at Musoma the text of this Ruling

Lastly since as I said the Resident Magistrate had no reason to cancel his earlier orders for bail in favour of the A applicants I make the following order:

All the applicants to be admitted to bail upon their executing bonds in the sum of Shs. 100,000/= each with two sureties in the like sum. The sureties must personally be approved by the Resident Magistrate Musoma both as B to their domicile and means to raise the required sum should need arise.

Order accordingly.

1985 TLR p31

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