Legal Update – 24 February 2018

Court of Appeal surprise decision: Rules DPPs certificate in economic crimes valid

• Bench of 3 rules that section 36(2) of the Economic and Organised Crime Control Act is still applicable
• Ruling comes despite full bench holding that section 148(4) of CPA, which is ‘akin’ to section 36(2), is unconstitutional
• Court holds that parties were given a right to be heard on bail in this case
• Court refuses to apply full bench constitutional decision to this Appeal on procedural grounds
• Holds that once DPP validly files certificate, trial Court barred from granting bail

Few weeks after the Court of Appeal full bench, assisted by two Amici Curiae, stripped the DPP of his power to deny bail by simply filing a certificate under section 148(4) of the Criminal Procedure Act (CPA), a bench of three Justices of Appeal of the Court of Appeal in the matter of Emmanuel Simforian Massawe v The Republic (Massawe case) has yesterday effectively ruled the opposite in that a similar certificate filed by the DPP under section 36(2) of the Economic and Organised Crime Control Act bars the trial Court to grant bail if the certificate is validly filed.

A full bench in the decision of Attorney General v Jeremy Mtobesya (Mtobesya case) few weeks ago held that section 148(4) was ‘unconstitutional’ as well as ‘null and void’ on account of its derogation from the provisions of Article 13(6)(a) of the Constitution of the United Republic of Tanzania. In the Mtobesya case, the Court made a remark that the Economic and Organised Crime Control Act ‘contains a provision akin to section 148(4) of the CPA through which the DPP is similarly empowered to issue a certificate denying bail to an accused person upon grounds that safety or interests of the United Republic are likely to be prejudiced by granting bail.’

Despite the decision in the Mtobesya case, the Court of Appeal in this latest decision, has effectively ruled the opposite in that since the bail application was heard on its merits and only then was bail denied, the Appellant cannot now argue that he was not given a chance to be heard and such allegations were baseless and unfounded.

In trying to distinguish Mtobesya procedurally, which cemented that section 148(4) is unconstitutional and where the full bench also stated that section 36(2) was akin to section 148(4), this new ruling holds that it is not dealing with a constitutional matter as the issue before the High Court was on the subject of bail.

The Court refused to apply the Mtobesya case to the present criminal appeal holding that it has no flicker of doubt that once the DPPs certificate meets the validity test, the Court shall not grant bail. The Court observed that it had failed to ‘buy and apply the statutes in pari material principle.’

Despite the Mtobesya case providing clear reasoning on why section 148(4) is unconstitutional and providing a historical chronology of why such a one-sided provision should not be allowed to stand, the bench of three stated that once the certificate filed by the DPP under section 36(2) is found to have been validly filed, the same bars the trial Court from granting bail to the accused. The Court observed that ‘we are of the considered view that it is not the requirement of the law for the DPP to give reasons for objecting bail where he considers that the safety or interests of the Republic are likely to be prejudiced’ contradicting its initial position that the bail hearing was argued on merit. In short, the ruling states that section 36(2) is still valid and constitutional, so long as it is validly filed.

In conclusion the Court held that to avoid misuse of the DPPs powers, the DPPs certificate could only be invalid where it is ‘proved that he acted on bad faith or abuse of the Court process, something which was not established and proved before the trial Court.’

Mtobesya case ruling

Addressing now Article 13(6)(a), we entirely share Mr. Mpoki’s sentiments to the effect that the impugned section 148(4) does not prescribe any procedure, let alone one which is reasonable, fair and appropriate to govern the issuance of the DPPs certificate. To that extent, we, again, agree with his submission that an accused person is not afforded any meaningful opportunity of being heard before he is denied bail by operation of the DPPs certificate. Despite the numerous statutory powers accorded to the DPP, it should be appreciated that, in a criminal proceeding, she is no more than a party, who, along with accused person, deserves equal treatment and protection before the law. In this regard, we should clearly express that it is utterly repugnant to the notion of fair hearing for the legislature to allot so much power to one of the parties to a proceeding so that he is able to deprive the other party of his liberty merely by her say- so and; much worse, to the extent that the victimized party as well as the Court or, as the case may be, a police officer, are rendered powerless. The right to a fair hearing, by its very nature, requires there be equality between the contestants in the proceeding. There can be no true equality if the legislature, as we have said, allows one party to deprive the other of his personal liberty merely by her say-so. All said, we just as well find that the impugned provisions infringe Article 13(6)(a) of the Constitution.

Massawe Case ruling

Their argument is that section 148(4) of the CPA is quite similar to section 36(2) of the Act, the subject matter in this appeal, hence it should be given similar interpretation and arrive at a conclusion that section 36(2) is unconstitutional. With respect, as we pointed out earlier and as rightly argued by Mr Kweka, learned Principal State Attorney, Mtobesya’s case (supra) was a constitutional petition challenging the constitutionality of section 148(4) of the CPA, whereas the present appeal is of criminal nature and its gist is to challenge the certificate of the DPP filed under section 36(2) of the Act, objecting the right to bail. We therefore fail to buy and apply the statutes in pari materia principle as propounded by the Appellants counsel in the circumstances of this case.

Just like the trial Court, that once the certificate filed by the DPP under section 36(2) of the Act, is found to have been validly filed, the same bars the trial court granting bail to the accused and we are of the considered view that it is not the requirement of the law for the DPP to give reasons for objecting bail where he considers that safety or interests of the Republic are likely to be prejudiced. The DPP’s certificate could only be invalid where it is proved that he acted on bad faith or abuse of the court process, something which was not established and proved before the trial court.