]DIRECTOR OF PUBLIC PROSECUTIONS v DAUDI PETE 1993 TLR 22

Facts

The Respondent was charged with robbery with violence before the District Court. His application for bail pending trial was dismissed on grounds that s 148(5)(e) of the Criminal  Procedure Act 1985 I (herein- 1993 TLR p23 after `the Act') provided that the offence he was charged with was not bailable. He subsequently applied to the High Court for bail. The High Court held that the provisions of s 148(4) and (5) of the Act, which prohibited the granting of bail in certain circumstances, violated several provisions of the Constitution concerning basic rights and freedoms, and the doctrine of separation of powers, and were therefore null and void. The High Court therefore granted bail. The Director of Public Prosecutions appealed to the Court of Appeal. 

Held: (i) Issues of constitutionality of the provisions of s 148 of the Act were raised by both sides to the case before the trial court; the trial judge, therefore, was right to frame and deal with issues relating to the constitutionality of s 148 of the Act.

 (ii) The Constitution confers upon the High Court original jurisdiction to entertain proceedings in respect of actual or threatened violations of the basic rights and freedoms and, until Parliament enacts the procedure for the enforcement of those rights and freedoms, the same may be enforced using the procedure available in the High Court in the exercise of its original jurisdiction.

 (iii) As the parties before the trial court had raised issues relating only to the provisions of paragraph (e) of ss (5) of s 148 of the Act, the trial judge was wrong to frame issues covering the whole of ss (4) and (5) of s 148 of the Act.

 (iv) As the Constitution of the United Republic of Tanzania is established in the Kiswahili language, the controlling version in interpreting the Constitution is the Kiswahili 

and not the English version.

v) The Constitution of the United Republic of Tanzania recognizes and guarantees not only basic human rights but also basic human duties, consistent with the African Charter on Human and People's Rights; as the Bill of Rights and Duties was introduced into theConstitution shortly after Tanzania signed and ratified the Charter, account must be taken of that Charter in interpreting the Bill of Rights and Duties.

 (vi) On account of the co-existence of the individual and society and their respective 

rights and duties, the rights and duties of the individual are limited by the rights and duties of society, and vice versa.

 (vii) Under article 15(2)(a) of the Constitution a person may be denied or deprived of personal liberty under `certain circumstances' and subject to a `procedure prescribed by law', 

but s 148(5)(e) of the Act does not contain the requisite prescribed procedure for denying bail to an accused person; section 148(5)(e) of the Act therefore violates article 15(2) of the H 

Constitution.

 (viii) Section 148(5)(e) does not violate article 13(6)(b) of the Constitution, which prohibits treating an accused person like a convicted criminal, because denying bail to an accused person does not necessarily amount to treating such a person like a convicted criminal.

 (ix) Persons denied bail under the provisions of s 148(5)(e) of the Act are so denied on the I basis of their actions or conduct and therefore thoseprovisions do not violate article 13(4) and (5) of the Constitution which prohibit discrimination.

 (x) Statutory provisions prohibiting the grant of bail to persons charged with specified offences, like the provisions of s 148 of the Act, do not amount to a take over of judicial functions by the legislature; such provisions, therefore, do not violate the doctrine of separation of powers.

 (xi) The provisions of s 148(5)(e) of the Act violate article 15(2)(a) of the Constitution and would, therefore, be null and void, unless saved by article 30 of the Constitution because any piece of legislation falling wholly within the parameters of article 30 of the Constitution is valid, notwithstanding that it may be violative of basic rights of the individual.

 (xii) Section 148(5)(e) would accordingly be valid if its denial of bail aimed only at accused persons capable of being a danger or threat to the interests of defence, public safety or public order but now, as it is so broad as to cover even persons who are no danger at all to the interests of defence, public safety or public order, it does not fit into article 30 of theConstitution and is therefore null and void.

 (xiii) Courts have discretion to grant bail to persons accused of offences specified under s 148(5)(e) of the Act, which discretion should be exercised judicially taking into account the interests of both the individual and the community. 

Case Information 

Appeal dismissed.