Decree Holder
JF-Expert Member
- Jul 19, 2015
- 2,556
- 3,741
Acting Chief Justice, Prof Ibrahim Juma has invited two prominent law professors to assist the Court of Appeal determine an appeal on powers of the Director of Public Prosecutions (DPP) to deny bail to accused persons in criminal proceedings.
They are Prof Gamaliel Mgongo Fimbo and Prof Chrispine Maina Peter. The two will act as amicus curie (friends of court) to provide their respective opinions to the court on correct position of the law as far as powers of the DPP are concerned, on the matter.
The Attorney General (AG) has filed an appeal in attempt to fault findings of the High Court, which had declared unconstitutional a provision of law under Criminal Procedure Act (CPA), allowing the DPP to file a certificate in court to object bail to accused persons facing criminal charges.
Five justices of the Court of Appeal, Bernard Luanda, Kipenka Mussa, Batuel Mmilla, Stella Mugasha and Jacobs Mwambegele, were yesterday scheduled to hear the appeal in question, but the session was postponed to another date to be fixed later by the Registrar.
The absence of Principal State Attorney Alicia Ndunguru, who was appointed by the AG to prosecute the appeal is the reason assigned for such postponement of the session.
Principal State Attorney Timony Vitalis, who attended the session, informed the court that Ms Ndunguru was relieved. In the appeal, the AG has advanced several grounds to fault the decision given by the High Court under a panel led by former Principal Judge Shaban Lila, now a justice in the Court of Appeal.
Other members of the panel were Judges Sekieti Kihiyo and Dr John Ruhangisa. In a judgment delivered in February, last year, the judges ruled in favour of lawyer Jeremia Mtobesya, who had petitioned the High Court to challenge section 148 (4) of the CPA, the DPP had been relying upon to file the certificate in objecting bail to accused persons.
Section 148 (4) reads, "Notwithstanding anything in this section contained, 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 the Director of Public Prosecutions (DPP), certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced; "... ..a certificate issued by DPP 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 concluded or the DPP withdraws it."
Such undertaking had attracted several complaints among the people, accusing the DPP of abusing such power because once the certificate is filed, the court could not do anything than ordering the accused person to go to remand, until the case is concluded or the DPP withdraws the certificate concerned.
The judges declared such provision as unconstitutional for violating Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, ordering a suspect under police custody or accused person be given chance to defend themselves, before their right to liberty is curtailed by the DPP's objection to bail.
Such Article reads, "When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned."
The three members of the bench said that Section 148 (4) of CPA makes the DPP a judge in his own cause, contrary to the principle of natural justice.
They said that it was irrational to justify in any way the limitations of basic rights in the sweeping and controversial expressions like those of section 148 (4).
They are Prof Gamaliel Mgongo Fimbo and Prof Chrispine Maina Peter. The two will act as amicus curie (friends of court) to provide their respective opinions to the court on correct position of the law as far as powers of the DPP are concerned, on the matter.
The Attorney General (AG) has filed an appeal in attempt to fault findings of the High Court, which had declared unconstitutional a provision of law under Criminal Procedure Act (CPA), allowing the DPP to file a certificate in court to object bail to accused persons facing criminal charges.
Five justices of the Court of Appeal, Bernard Luanda, Kipenka Mussa, Batuel Mmilla, Stella Mugasha and Jacobs Mwambegele, were yesterday scheduled to hear the appeal in question, but the session was postponed to another date to be fixed later by the Registrar.
The absence of Principal State Attorney Alicia Ndunguru, who was appointed by the AG to prosecute the appeal is the reason assigned for such postponement of the session.
Principal State Attorney Timony Vitalis, who attended the session, informed the court that Ms Ndunguru was relieved. In the appeal, the AG has advanced several grounds to fault the decision given by the High Court under a panel led by former Principal Judge Shaban Lila, now a justice in the Court of Appeal.
Other members of the panel were Judges Sekieti Kihiyo and Dr John Ruhangisa. In a judgment delivered in February, last year, the judges ruled in favour of lawyer Jeremia Mtobesya, who had petitioned the High Court to challenge section 148 (4) of the CPA, the DPP had been relying upon to file the certificate in objecting bail to accused persons.
Section 148 (4) reads, "Notwithstanding anything in this section contained, 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 the Director of Public Prosecutions (DPP), certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced; "... ..a certificate issued by DPP 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 concluded or the DPP withdraws it."
Such undertaking had attracted several complaints among the people, accusing the DPP of abusing such power because once the certificate is filed, the court could not do anything than ordering the accused person to go to remand, until the case is concluded or the DPP withdraws the certificate concerned.
The judges declared such provision as unconstitutional for violating Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, ordering a suspect under police custody or accused person be given chance to defend themselves, before their right to liberty is curtailed by the DPP's objection to bail.
Such Article reads, "When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned."
The three members of the bench said that Section 148 (4) of CPA makes the DPP a judge in his own cause, contrary to the principle of natural justice.
They said that it was irrational to justify in any way the limitations of basic rights in the sweeping and controversial expressions like those of section 148 (4).
