Is the Bail battle far from Over?
The Respondent has without delay of a single day, filed an appeal to the Court Of Appeal Tanzania and the bail battle is seemingly far from over!
In the High Court of Tanzania, 18th May 2020
The High Court of Tanzania at Dar es Salaam, in the matter between DICKSON PAULO SANGA v. ATTORNEY GENERAL — Miscellaneous Civil Cause №8 of 2019 has declared that section 148(5) of the Criminal Procedure Act(CPA) CAP 20, the key provision that denies bail to accused persons to some offences, unconstitutional.
Background of the Case
The Petitioner, Dickson Paulo Sanga, challenged the provisions of section 148(5) of the Criminal Procedure Act that denies bail to accused persons charged with —
- murder, treason, armed robbery, or defilement;
- illicit trafficking in drugs against the Drugs and Prevention of Illicit Traffic in Drugs Act, 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 ;
- terrorism against the Prevention of Terrorism Act, and
- Money laundering contrary to the Anti-money Laundering Act.
The Petitioner sought for orders that section 148(5) of the CPA infringes constitutional rights of presumption of innocence and the right to personal freedom as provided under Articles 13(6)(b) and 15(2)(a) of the Constitution of the United Republic of Tanzania (Constitution).
The Respondent strongly submitted before the Court that the right to liberty in the context of denial to bail is allowed in Tanzania as long as it conforms with the provisions of Article 15(2)(a) of the Constitution — which provides that;
- No person shall be arrested, imprisoned, confined, detained, deported or otherwise be deprived of his freedom save only under the circumstances and in accordance with procedures prescribed by law.
And that, the section is confined to only persons who are considered threats to ‘either the administration of justice or national economy and security’ so as to ensure ‘public safety, public peace and public morality.’
The High Court ordered the Government to rectify this defect within 18 months, failure of which this section will be automatically expunged and the accused will be allowed to apply for bail.
The Court also ruled that considering that armed robbery was already ruled as being unconstitutional in the case of ‘Mjomba Mjomba’, and that the Government had not taken necessary steps within 18 months from the date of that decision, armed robbery would be immediately expunged from section 148(5) making it now bailable.
In the Court’s Decision, the High Court sided with the Petitioner agreeing that:
- the provisions of section 148(5) are unconstitutional contravening Articles 13 and 15 of the Constitution
- that in accordance with Article 30(5) of the Constitution, the Government is required within 18 months to rectify section 148(5) failure of which the section shall be automatically expunged, and
- the 18-month period above shall not be applicable to the offence of armed robbery as the Government had been granted an 18-month period before and has failed to rectify the provision, meaning that it is now expunged.
Now, just right after the High Court’s decision, the Respondent has without delay of a single day, filed an appeal to the Court Of Appeal Tanzania and the bail battle is seemingly far from over!
- The Respondent has immediately filed an appeal, which automatically takes the order to a hold
- What if the government doesn’t execute the Court’s order within the time provided simply because the appeal case goes beyond the time limit?
- If the High Court was totally satisfied that the section was unconstitutional, why wouldn’t the High Court simply declare it void straight away — since, it has he power, under Article 30(5) of the Constitution and the Respondent did not seek for time to rectify the section?
It is perhaps right to assert that, the bail battle is indeed far from over because, the application of the decision will have to be backed by the Court of Appeal of Tanzania’s decision once it is also satisfied that the provisions of section 148(5) of the CPA are unconstitutional and therefore making the offences listed to be bailable and the High Court order, effective.
The other question that a lot of people have had in mind, making the bail battle to be seemingly far from over is that, what if the government doesn’t execute the Court’s order within the time provided simply because the appeal case goes beyond the time limit?
Indeed, accused persons who are charged with unbailable offences under section 148(5) will have to wait at least 18 months or more (just in case the filed appeal case takes longer than that) before they can apply for bail, unless if the Court of Appeal reverses this decision or the Government rectifies this section likely by putting into place procedures to deny bail.
Although the High Court, under Article 30(5) of the Constitution, has the powers to declare a section of the law unconstitutional and void straight away it has rather afforded time to the Government to rectify such a section.
But, if the High Court was totally satisfied that the section was unconstitutional, why wouldn’t the High Court simply declare it void straight away? Because, the Respondent as an alternate argument did not seek for time to rectify the section, and yet the High Court granted such 18 months time. Why?? Why??
Answers to such irritating questions as to the reasons behind the outcome of the High Court’s decision can only be carefully tackled once the final detailed version of the High Court’s decision is out.
