Legal Update – 18 May 2020

High Court Declares Money Laundering Bailable

• One of the most significant decisions
• High Court rules section 148(5) of the CPA unconstitutional 
• However, Government given 18 months to rectify defect, otherwise automatic expungement 
• Bail battle far from over

In what will go as a landmark decision and one of the most significant constitutional and human rights law decisions, the High Court of Tanzania has declared, today 18 May 2020, that section 148(5) of the Criminal Procedure Act Cap 20 (CPA), the key provision that denies bail to accused persons, as unconstitutional.

Led by Judges Masoud, Kulita and Masabo, the 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 Judges 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.

With the above decision, accused persons, other than those charged with armed robbery, will still have to wait minimum 18 months before being admitted to bail to see what steps the Government takes.

Background of the case

The Petitioner, one Dickson Paulo Sanga, moved the High Court in a constitutional Petition challenging the provisions of section 148(5) of the Criminal Procedure Act that denies bail to accused persons in various offences the most popular being Money Laundering. The Petition was filed at the High Court of Tanzania and assigned Miscellaneous Civil Cause no 8 of 2019 with the Attorney General as the Respondent.

The Petitioner was seeking orders that section 148(5) of the CPA infringes constitutional rights of presumption of innocence and the right to personal liberty as enshrined under Articles 13(6)(b) and 15(2)(a) of the Constitution of the United Republic of Tanzania (Constitution).

Argument by the parties

Petitioners arguments

The Petitioner stated that the ‘deprivation of liberty is a serious intervention in any person’s life and, therefore, the possibility of releasing the suspect or accused from custody pending investigation or trial is a fundamental right exercisable in criminal justice systems across all democratic countries in the world.’ The Petitioner cited Articles 15(1)(2)(a) and 13(6)(b) of the Constitution as guaranteeing such right. The Petitioner thus prayed that section 148(5) of the CPA be declared null and void for infringing the Constitution where people are held in custody for non bailable offences pending trial without there being a procedure in place to deny bail.

In its submissions the Petitioner emphasised the presumption of innocence as an important principle in criminal justice systems which is also contained in the UN’s Declaration of Human Rights, and that section 148(5) ‘hijacks the jurisdiction of the Courts when it comes to administering bail’ to an individual who must, first, be presumed innocent and not the other way around. The Petitioner cited the offence of money laundering as being arbitrarily abused where almost all offences are now unbailable, and is being used to ‘fix somebody’, after which an accused is held for years in pre trial detention.

Respondent’s arguments

The Respondent came back strongly in its submissions that the curtailment of the right to liberty in context of denial to bail is allowed in Tanzania as long as it conforms with the provision of Article 15(2)(a) of the Constitution. The Respondent stated that the law is not arbitrary and that the limitation imposed is not more than reasonably necessary to achieve the legitimate aim, and stressed that section 148(5) conforms with the requirements and elements of a fair hearing as envisioned in Article 13 of the Constitution.

The Respondent stated that section 148(5) conforms with the Constitution because it is confined to only persons who are considered threats to ‘either administration of justice or national economy and security’, and that the relevant section was enacted to ensure ‘public safety, public peace and public morality’, and hence the said section 148(5) is in line with the Constitution and valid.

Court’s Decision

Whilst a final typed version of the decision is awaited for a full analysis, the Court sided with the Petitioner agreeing that:

1. the provisions of section 148(5) are unconstitutional contravening Articles 13 and 15 of the Constitution
2. 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
3. the 18-month period above shall not be applicable to the offence of armed robbery (see Mjomba case supra) as the Government had been granted an 18-month period before and has failed to rectify the provision, meaning that it is now expunged

The above decision is a big victory for accused persons and human rights activists, but remandees and accused persons who are charged with unbailable offences under section 148(5) will have to wait atleast 18 months 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. It is interesting to note that the High Court, under Article 30(5) of the Constitution, has the powers to either declare a section of the law unconstitutional straight away or give time to the Government to rectify such a section.

Interestingly, in this Petition, the Respondent as an alternate argument did not seek for time to rectify the section, yet the High Court granted such 18 months time. It is likelier than not that both parties will appeal this decision and the bail battle is far from over, with the immediate concern of the Respondent being the bailability of armed robbery.

The Petitioner’s counsel was Jonathan Mbuga, who is in private practice, and who was trained under the late Gaudiosus Ishengoma, co-founder of FB Attorneys.