CONSTITUTIONAL CASES

Director of Public Prosecutions v. Daudi Pete

Court of Appeal (Nyalali C.J., Makame and Ramadhani JJ.A.): Criminal Appeal No. 28 of 1990

May 16, 1991

Constitutional Law-fundamental rights-enforcement-whether Articles 30(3) and (4) of Constitution sufficiently confer original jurisdiction upon High Court to entertain proceedings in respect of actual or threatened violations of Basic Rights, Freedoms and Duties in absence of basic legislation for enforcement

Constitutional Law-fundamental rights-enforcement- where specific provision under Constitution in article 30(3) and (4) concerning enforcement of Basic Rights and Duties, any proceedings for that purpose to be instituted under that specific article of Constitution.

Constitutional Law-fundamental rights- bail- denial-one of two situations under which person may be denied or deprived of personal liberty-Article 15(a)- denial to be under certain circumstances and a procedure law must prescribe.

Constitutional Law-fundamental rights-bail-denial-s. 148 of Criminal Procedure Act-whether any prescription in s. 148 or elsewhere for the requisite procedure for denial of bail in terms of Article 15(2)(a) of the Constitution existed

Constitutional Law-discrimination-interpretation-whether selective prohibition against bail contained under s. 148(5)(e) of the Criminal Procedure Act not discriminatory in terms of Constitution Articles 13(4) and (5)

Constitutional Law- separation of powers-infringement-whether legislation prohibiting the grant of bail to persons charged with specified offences does not amount to a take over of judicial functions by the Legislature. 

Constitutional Law-legislation- violation-whether saved if could be construed as being wholly for “ensuring the interests of defence, public safety, public order’”, - s.148 (5)(e) of Criminal Procedure Act-whether saved if the denial of bail was aimed at the interest of defence, public safety or public order.

This appeal by the Director of public Prosecutions concerned the right of bail.  The respondent was charged with the offence of robbery with violence c/s 285 and 286 of the Penal Code.  The District court of Musoma denied him bail, as the offence was not bailable under s.148 (5)(e) of the Criminal Procedure Act 1985.  The respondent appealed to the High Court.  The High Court (Mwalusanya J.) held that s.148 (4) and (5) of the Act was unconstitutional for violating several articles of the Constitution concerning Basic Rights, and the doctrine of separation of powers between the Judicature and Legislature, and therefore granted bail.  The DPP was aggrieved by the decision, hence this appeal. 

Held:

1.    Articles 30(3) and (4) of the Constitution sufficiently confer original jurisdiction upon the High Court to entertain proceedings in respect of actual or threatened violations of the Basic Rights, Freedoms and Duties.  Until Parliament legislates under Article 30(4), enforcement of Basic Rights, Freedoms and Duties may be effected under the procedure and practice that is available to the High Court in exercise of its original jurisdiction, depending on the nature of the remedy sought.

2.    The High Court has unlimited inherent jurisdiction to adjudicate upon any legal matter unless there is express statutory provision to the contrary.  However, as there is a specific provision under the Constitution in Article 30(3) and (4) concerning the enforcement of the Basic Rights and Duties, any proceedings for that purpose must be instituted under that specific article of the Constitution.

3.    One of the two situations under which Court may deny or deprive a person of personal liberty under the Constitution is Article 15(a).  This may be done only under certain circumstances under a procedure law must prescribe.  There was no prescription in s. 148 or elsewhere for the requisite procedure for denial of bail in terms of Article 15(2)(a)

    of the Constitution.

4.    The selective prohibition against bail contained under s. 148(5)(e) of the Criminal Procedure Act is not discriminatory in terms of the Constitution Articles 13(4) and (5) as the accused are denied bail on the basis of their actions or conduct.

5.    The doctrine of separation of powers is fringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of laws and adjudication of rights and duties in disputes either between individual persons or between the state and individual persons.  Legislation prohibiting the grant of bail to persons charged with specified offences does not amount to a take over of judicial functions by the Legislature. 

6.    Any legislation that falls within the parameters of article 30 is constitutionally valid, notwithstanding that it may violate basic rights of the individual. But the legislation must fit squarely within the provisions of that Article in that it could be construed as being wholly for “ensuring the interests of defence, public safety, public order’”, etc.  Thus the provisions of s.148 (5)(e) would be saved if the denial of bail was aimed at the interest of defence, public safety or public order.

7.   The provisions of Section 148(5)(e) was so broad that it encompassed even accused persons who could not reasonably be construed to be dangerous in terms of Article 30(2)(b) of the Constitution.

To the extent that s. 148(5)(e) violates the Constitution, it is declared null and void in terms of article 64(5) of the Constitution.  It is struck off the statute book.  Appeal dismissed.

Legislation considered:

1.    African Charter on Human and People’s Rights

2.    Criminal Procedure Act s.148

3.    Constitution Articles 15, 30(3) and (4), 31, 64(5), 108(1) and (2)

4.    Constitution (Consequential, Transitional and Temporary Provisions) Act No. 16 of 1984

Cases referred to:

1.   Attorney General of the Gambia v. Momeduu Jobo [1984] AC 689

2.   Bull v. Minister of Home Affairs [1986] (1) ZLR 202

3.   Clark v. Karika [1985] LRC (Const.) 732

4.   Lindsley v. Natural Carbonic Gas Co. [1911] 220 US 61

5.   Maneka Gandhi v. Union of India [1978] 2 SCR 621

6.   Megowan v. Maryland [1961] 366 US 420

7.    Republic v. Peregrin Mrope Criminal Cause No. 43 of 1989 (unreported)

  

Professor Mgongo Fimbo Amicus curiae

K.S. Massaba Principal State Attorney

Mr. Matupa State Attorney

Hamisi Masisi and Others v. Republic

High Court (Mfalila J.):

Miscellaneous Criminal Cause No. 54 of 1978

Constitution Law- duty- discharge by courts- whether courts to succumb irrelevant pressures whether courts to defend people and Constitution

Criminal Procedure - bail- review- bail may be reviewed on reasonable grounds- Criminal Procedure Code s. 127

Criminal Procedure- powers of arrest- Regional Commissioners- whether have powers of arrest under Regional and Area Commissioners Acts (Amendment) Act

The applicants applied for variation of terms of bail imposed by the District Court of Musoma that had already been varied.  Their application was dismissed in that regard.  The High Court however proceeded to revise the order of the learned Resident Magistrate at his request.  His request was to review the appropriateness and legality of the order regarding cancellation of bail, and to discuss 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 he same accused is charged with in court, and in disregard of the Court’s order that the same accused is entitled to bail.

When the applicants appeared before the lower court on December 12, 1978, the learned Resident Magistrate released them on bail on various terms.  Then two days later, the Senior State Attorney moved the Court to cancel the orders of bail it had made 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, the Senior State Attorney had very little to add to what the prosecutor had told the Court two days earlier.  At this stage, Counsel for the applicants informed the Court about the high handed behavior of the Regional Commissioner for Mara Region in ordering the arrest and detention of all the applicants on the same grounds and charges, as soon as they were out of court and had fulfilled their conditions for bail. 

The learned Resident Magistrate realized that there was a “conflict of powers” and cancelled the bail because the Regional Commissioner would simply re-arrest the applicants rendering his order for bail impotent.

Held:

1.    By its very nature, an order for bail should be a subject of variation or cancellation by the Court that made it under s. 127, of the Criminal Procedure Code, where grounds for cancellation are made out.  In this instance, no case was made out for the Court to vary or rescind its earlier order.

2.    Court should not make decisions on expediency but only in accordance with the law and in defence of the people, the Constitution and the practices of the Republic as by law established despite any irrelevant pressures.    

3.    A Regional Commissioner has no powers of arrest under s. 7(2) of the Regional and Area Commissioners Acts (Amendment) Act.  For these reasons, the Resident Magistrate had no reasons in law and in fact to vary and cancel his order for bail he made on December 14, 1978.

Order of December 16, 1978 set aside.  All applicants admitted to bail upon their execution of bonds in sum of shs. 100,000/= each with two sureties in like sum.

Legislation considered:

1.    Constitution of the United Republic of Tanzania

2.    Criminal Procedure Code s. 127

3.   Regional and Area Commissioners Acts (Amendment) Act 1963 Cap 461

Kukutia Ole Pumbun and Another v.  Attorney General and Another Court of Appeal ( Kisanga, Mnzavas and Mfalila JJ.A): July 23 , 1993

Civil Appeal No. 32 of 1992

Constitutional Law-fundamental rights-access to court- restriction-s.6 of Government Proceedings Act 1967-whether basis for restriction of right-whether restriction arbitrary, proportional and in public interest-whether violated articles 13(1) and (2) of the Constitution

Constitutional Law- equality- Government vis a vis individuals-whether equality before law that article 13(1) envisaged embraced not only ordinary persons but also Government and its officials- whether subject to same legal rules.

The appellants sought to sue the Government in the High Court to recover damages for trespass, assault, and conversion.  The necessary fiat or consent to sue the Government was withheld.  The High Court was called upon to rule on the constitutionality of s.6 of the Government Proceedings Act, 1967 as amended by Act 40 of 1974.

The respondent filed a preliminary objection that the suit was incompetent for want of the Attorney General’s consent to sue the Government.  The High Court (Munuo J.) dismissed the suit as being incompetent holding that s.6 of the Government Proceedings Act was not unconstitutional.  The appellant appealed.

Counsel for the appellant submitted that s.6 of the Government Proceedings Act was null and void and should be struck down as it violated the guaranteed right of unimpeded access to Courts contrary to articles 13(3), and (6), and 30(3) of the Constitution.  He further submitted that the combined effect of that was that the section offended against the separation of powers by enabling the Government to exercise a judicial function of deciding upon its civil liability or the extent of that liability and hence decide whether it should be sued or not.  This enabled the Government to be a judge in its own cause.  It also offended against the principle that requires the Government to be responsible and accountable to its people.  It went against the principle of openness or transparency.  He also submitted that s. 6 could not be saved by article 30(2) (b) of the Constitution, which permits derogation from human rights in certain circumstances, as it was to general in its application.  He further contended that the law in Zanzibar did not impose such limitation and therefore s. 6 was discriminatory and unconstitutional.

Counsel for the Government argued that s.6 was justified in public interest as it enabled the Government to regulate and control the suits which were brought against it.  She further argued that to remove it would open the floodgates for frivolous and vexatious litigation, and as such was saved by article 30(2) of the Constitution.  She also argued that the Government and the individual could not be equal as the Government had the responsibility of looking after the wider interests of the society at large.  She also argued the violation where the consent was withheld, the victim of the violation had a remedy as he/she could apply for orders of mandamus or certiorari.

Held:

1.    There is not justification for a complainant of a violation of a basic human right to be restricted to other forms of remedy under article 30(3) of the Constitution.  A complainant should be free to choose the best method legally open to him to prosecute his cause.  Section 6 violated the basic human right of unimpeded access to the Court to have one’s grievances heard and determined guaranteed under articles 13(3) and 30(3) of the Constitution. 

2.    In considering any act, which restricts fundamental rights of the individual, Court has to take into account and strike a balance between the interests of the individual and those of the society.  Such a law must be lawful in that it must not be arbitrary.  It should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse.  Secondly, the limitation imposed should be proportional in that it should not be more than is reasonably necessary to achieve the legitimate object.  That means that it must not be so widely drafted as to net everyone, including untargeted members of society. 

3.    Section 6 was arbitrary in that it did not provide for any procedure for the exercise of the Minister’s power to refuse to give consent to sue the Government.  It did not provide any safeguards for against abuse.   It applied to all and sundry.  It was not justified in the public interest.

4.    Section 6 violated articles 13(1) and (2) of the Constitution, which guaranteed equality before the law, as the remedy depended on which court one went to in the same Republic.

5.    The equality before the law that article 13(1) envisaged embraced not only ordinary persons but also the Government and its officials who should be subject to the same legal rules.

6.    The requirement of consent to sue was not really necessary for the purpose of affording the Government time to assess the claim and consider settlement out of Court.  The restriction militated against the principles of good governance, which called for accountability and openness or transparency on the part of Governments. 

Section 6 of the Government proceedings Act 1967 as amended by Act 40 of 1974 unconstitutional and void and struck down.

Legislation considered:

1.    Constitution of the United Republic of Tanzania articles 4(1), 13(1),(2),(3) and (6)(a), 30(2) and (3), 64(5), and 108

2.    Government Proceedings Act , 1967 s.6

3.    Government Proceedings (Amendment) Act No. 10 of 1974

Cases referred to:

1.    Director of Public Prosecutions v. Daudi Pete [1993] TLR 22

2.    Himidi Mbayo v. The Brigade Commander [1984] TLR 294

3.    Khalfan Aboid  Hamad v. The Director of Civil Aviation Civil Case No. 20 of 1986

4.    Shabani Khamis v. Samson Goa and Another Civil Case No. 18 0f 1983

Sumari, State Attorney for the respondent

Mughwai for the appellant

Rev. Christopher Mtikila v. The Attorney General

High Court (Lukakingira J.): September 22, 1994

Civil Case No. 5 of 1993

Constitutional Law-separation of powers- courts jurisdiction-whether courts may interfere in executive and legislative action or inaction to protect and promote rights of individual citizen-whether may formulate government policy nor compel legislation-

The petitioner, Rev. Mtikila filed a petition challenging the validity and protection of the 1977 Constitution. The respondent raised preliminary objections to the petition, and hence this ruling. The objections were based on three broad grounds, firstly, that the petitioner had no locus standi in his claims.  The second ground was that the claims did not disclose a cause of action, and lastly, that the court had no jurisdiction in the matter. 

Specifically, the petitioner claimed in paragraphs 4 and 19© that the 1977 Constitution and its subsequent amendments were passed by an incompetent body and prayed for a declaration that the said Constitution is void. 

He also claimed in paragraph 5 that contrary to Article 21(2) of the Constitution, he had been denied the right to participate in making decisions on matters affecting the nation, to wit, in making a new Constitution through a national conference or a broad-based constitutional commission and a referendum.  He therefore prayed in paragraph 19(a) for an order directing the Government to set that process in motion. 

The petitioner further complained in paragraph 6 that the government continued to behave as if Tanzania was still a one party democracy and prayed in paragraph 19(d) for a declaration that there was need for the formation of a transitional government and in paragraph 19(e) for the disestablishment of the present government.

In paragraph 7 and 19(b) the petitioner also demanded a referendum to decide on the desirability and the form of onion between Tanganyika and Zanzibar.

Without asking for a specific prayer, the petitioner in paragraph 8 also claimed that the Government had been adding unconstitutionally to the list of Union matters contained in the Acts of Union. 

He further claimed in paragraphs 17 and 18 that the Constitution made provision for a separate government for Zanzibar but did not make similar provision for Tanganyika.  He also lamented that Zanzibar’s elected Members of Parliament participated in debating and passing measures that touched on and concerned Tanganyika only and that this was unconstitutional and an unreasonable burden on the people of Tanganyika, contrary to the democratic principles of election and representation. The attendant prayers were laid out in paragraphs 19(k) and (e).

Held:

1.  Courts could only interfere in executive or legislative action or inaction to protect and promote the rights of the individual citizen. Beyond that the courts will not go.  They could not formulate government policy nor would they compel legislation.  They could only make law either through the doctrine of judicial precedent or in the exercise of the power to make rules of court.

Paragraphs 4,5,6,7,8,17, and 19 and attendant reliefs in paragraphs 19(c), (a), (d) and (e), and 19(b), (c), (o) and 19(1) respectively struck out as misconceived.

Mbezi for the applicant

Kipenka Msemembo Mussa for the respondent

Legislation considered:

Acts of Union (cap 557)

Constitution 1977 Article 21(2)

Cases cited:

1.       D.P.P. v. Daudi Pete Criminal Appeal No. 28 of 1990 (unreported