Q&A – 22 July 2019
Non bailable offences in Tanzania
Of recent there have been various calls saying that in order to decongest our prisons we need a reform of laws, like in neighbouring Kenya, to make all offences bailable. Apart from murder what other offences are unbailable in Tanzania? What makes an offence unbailable? On what grounds can a Judge or magistrate deny bail in a bailable offence? Why are Court’s delaying the trials of innocent people in remand prison who are charged but their trials have not started?
CB, Tabora
Bail is both a constitutional and statutory right. A suspect or the accused is entitled to release on bail pending investigation or trial of his case. A suspect is admitted to bail by the authority investigating the crime if investigation is still underway and the suspect is yet to be charged in Court. After the accused is charged in Court, he can be admitted to bail by a Court with competent jurisdiction to admit him to bail. The right to bail is based on the presumption of innocence and the right to personal freedom. But bail is not an absolute right. It can be denied by the clear provisions of the law, the DPP or the Court as we show below.
Unbailable offences are listed in the penal legislations. Currently, unbailable offences are listed in section 148(5)(a) of the Criminal Procedure Act and section 29(1) of the Drug Control and Enforcement Act, 2015. Section 36(4) of the Economic and Organised Crime Control Act can also make an economic offence unbailable though for now that provision does not list any economic offence. Unbailable offences under the Criminal Procedure Act are murder, treason, armed robbery, terrorism, money laundering, and human trafficking.
The biggest challenge to bail nowadays is money laundering. Once money laundering is charged along with bailable predicate offences, the entire case becomes unbailable. Hence, although the predicate offence is in itself bailable, because it is charged with money laundering, one is denied bail. The list of predicate offences is very long and includes offences like tax evasion, terrorism, corrupt practice, armed robbery, theft, smuggling, extortion, forgery, hijacking, insider dealing, poaching, illegal fishing, illegal mining, environmental crimes to mention a few. Hence it is possible to make many offences unbailable by charging the predicate offence along with money laundering meaning that bail can be denied even for offences that would normally be bailable.
Moreover, under the Drug Control and Enforcement Act, unbailable offences are trafficking in narcotic drugs, precursor chemicals or substances capable of being used or used to make narcotic drugs. Processed drugs like heroin and cocaine are unbailable if the drug with which the accused is charged is weighing 20 grams or more. Cannabis sativa and khat are unbailable if the drug weighs 20 kilograms or more. Precursor chemicals or other substances proved to have drug related effect or used to manufacture drugs are unbailable if they weigh 30 litres or more if in liquid form or 30 kilograms or more if in solid form. Other unbailable offences under the Drug Control and Enforcement Act are unlawful possession of equipments or tools used for preparation, production or manufacturing of narcotic drugs or psychotropic substances; unlawful administering of narcotic drug to a person without his knowledge and financing drug trafficking or harbouring a drug trafficker.
Parliament can make any offence unbailable where it thinks the grant of bail to the accused or suspects of such an offence may pose danger or threat to the interest of defence, public safety or public order.
The Director for Public Prosecutions (DPP) is also vested with powers under section 36(2) of the Economic and Organised Crime Control Act and section 19 of the National Security Act to file a certificate of bail denial where he is of the view that admission of the accused to bail would prejudice the interest of the Republic or public safety. The DPP’s certificate hence makes any such offence unbailable regardless of its seriousness.
On the other hand, the Court will not necessarily admit the accused to bail just because the offence is bailable. The accused may be denied bail by the Court for bailable offences for reasons such as (i) the accused has previously been sentenced to imprisonment for a term exceeding three years; (ii) the accused was in the past granted bail but violated the bail conditions that was given, or absconded bail; (iii) it is proved that it is necessary to keep the accused in remand custody for his own safety or protection, or (iv) there is a likelihood of the accused not turning up on the dates appointed by the Court for appearance.
Further, if the accused is charged with an economic offence, he can be denied bail if it is proved that he committed the offence he is charged with while he was out on bail for another economic offence.
On delays by Courts, in our opinion it is not the Court’s that are causing the delays in trials but rather the investigators and prosecutors who claim that the investigation is ‘ongoing.’ Indeed, this is very concerning as justice delayed is justice denied. However, having said that, in various other jurisdictions, as soon as a judge or magistrate, after a long delay, believes that the prosecution are further delaying a trial for lack of evidence or other mischief, the Court proceeds to dismiss the matter and release the accused. That puts pressure under prosecution to bring only serious cases to Court in addition to ensure that they do not delay proceeding for trial. Tanzanian Courts have not done so despite some remandees being in custody for more than 4 years being issued with one appearance date after another. In such instances we would tend to agree that it is the Court now adding to the delay.