JAIL NOT BAIL: REFLECTING ON RECENT CONSTITUTIONAL DECISIONS IN

TANZANIA

Issa G. Shivji

I. Escalation in Money Laundering Cases

II. Constitutionality of the Absolute Statutory Bar to Bail
III. Judicial Process
A. Access to Justice
B. Presumption of Innocence
IV. Article 15: Personal Liberty
V. The Derogation Clause
VI. Conclusion

I. Escalation in Money Laundering Cases

Of recent, specifically since 2015, there has been a spate of High Court and Court of Appeal
decisions involving constitutional petitions challenging the validity of Section 148(5) of
Criminal Procedure Act [Cap 20 R.E. 2002] (the CPA) which places an absolute bar on the
granting of bail in the case of a number of offences including money laundering.1 The offence
of money laundering under the Anti-Money Laundering Act [Cap. 423 R.E.2018] (the AMLA)
is widely defined and has brought within its purview a number of offences which otherwise
were bailable, that is predicate or primary offences (Sections 3 and 12). There are some 24
predicate offences listed which include illicit drug trafficking, terrorism, arms trafficking,
corrupt practice, armed robbery, theft, kidnapping, smuggling, extortion, forgery, piracy,


Professor Emeritus of Public Law, School of Law, University of Dar es Salaam, Tanzania.
1
It would be an interesting socio-legal study to investigate the reasons for a sudden rise in court cases involving
money laundering. Is it because there is a sudden rise in money laundering offences or that the previous DPPs
did not sufficiently appreciate that offences like illegal fishing or tax evasion are so serious that they need to be
prosecuted under AMLA? Tenga in an astute analysis of Police Reports and Price and Water House Cooper
Survey (2018) concludes that the incidence rate of money laundering cannot exceed 5% in Tanzania and that its
prevalence is overly exaggerated. (TENGA, R.W., “Money Laundering Prosecutions in Tanzania: A Tentative
Assessment,” Volume 44 No. 2 Eastern African Law Review, 2017, pp. 50-94 at pp. 68-73.) As for the picture
of grievous harm that money laundering can cause to the economy painted by some court judgments, as Tenga
rightly points out, judges cite international expert reports rather than any empirical study of the incidence of
money laundering in Tanzania and alleged effect on the country’s economy. (ibid. passim)

1
poaching, tax evasion, illegal fishing, illegal mining, environmental crimes. This long list can
be further expanded by the Minister of Finance at will.

Let me pause at this juncture to make two observations. First, the Director of Public
Prosecutions (the DPP) has unfettered discretion to decide whether to charge a person who is
alleged to have committed any of the predicate offences, say, illegal fishing or tax evasion,
which are bailable, under AMLA rather than under the statute which created the offence in the
first place. As was observed by the High Court in the case of Dickson Sanga,2 “the provision
places the determination of right to bail of an accused person under disposition and absolute
discretion of the prosecution which decides on a charge to be preferred against a person.”3 Now
why should the DPP decide to charge a person of, say, tax evasion, under AMLA instead of
the usual Income Tax law under which the accused could be admitted to bail. The only
inference that a reasonable person would draw is that the DPP, in his wisdom, has decided that
that particular person ought not get bail. What would be the basis of DPP’s decision? There is
no way of knowing since the DPP is not obliged to disclose his reason. Under the
circumstances, the suspicion that the DPP may have had an undisclosed motive to proceed
under AMLA rather than under the Income Tax law cannot be avoided.

Second, there is no judicial process available to question the DPP’s decision to lay a particular
charge against the accused of money laundering rather than, say, tax evasion, however arbitrary
or irrational it might look on the surface. Judicial review will not lie.4 Firstly, the prosecution’s
decision is in the nature of an administrative rather than a judicial decision. Secondly, it would
be ludicrous to argue that an accused person has a right to be heard on what offence he/she be
charged with. Third, even if these preliminary obstacles were overcome, the prosecution has
only to plead that it is in possession of evidence which makes the accused a dangerous person
if released on bail. Since a judicial review court is not a trial court it has no jurisdiction to
examine such evidence in support of the prosecutor’s assertion.

II. Constitutionality of the Absolute Statutory Bar to Bail

2
Dickson Paulo Sanga v. The Attorney General, High Court of Tanzania (HC), Miscellaneous Civil Cause No.
29 of 2019. (Unreported)
3
Ibid. p. 15.
4
A failed attempt was made in Shamte & Others v. DPP (2018) where the application for leave to apply for
judicial review was denied on the purported ground that there was no decision to be impugned. Plainly, the
impugned decision was in the charge sheet.

2
The two Court of Appeal authorities which have been frequently cited by the Bar and the Bench
in constitutional petitions challenging the constitutionality of the absolute statutory bar to bail
or the power of the DPP to issue certificate barring bail are respectively Daudi Pete5 and
Jeremia Mtobesya.6 Both these cases (to be discussed in some detail later in this article) were
successful in declaring the then Section 148(5)(e) (robbery with violence) of the CPA placing
a statutory bar on granting of bail and Section 148(4) of the current CPA empowering the DPP
to issue a certificate prohibiting bail unconstitutional. It is important to keep in mind that
although it was DPP’s certificate which was directly involved in Mtobesya, the Court did
pronounce on the whole of Section 148(5) which includes the offence of money laundering.
But since then and in between, cases filed in the High Court challenging the constitutionality
of the statutory bar on bail in the offence of money laundering have not succeeded (see, for
instance, Mariam Mashaka,7 Gedion Wasonga8). One recent case which did succeed in the
High Court is Dickson Sanga but it was reversed on appeal by the Court of Appeal. Dickson
Sanga9 is the latest, perhaps authoritative, decision of the highest court on the constitutional
validity of Section 148(5). We will discuss it in some detail in the course of this article.

As an academic lawyer, my interest lies in analysing the arguments that the practitioners have
deployed in favour of their clients and the reasoning of the court in arriving at their decisions.
More significantly, the way the bench has gone around the two leading authorities of Daudi
Pete and Jeremia Mtobesya to uphold the constitutionality of the statutory bar on bail. In a
litigation, advocates make all kind of arguments in the hope that some of them could persuade
the court. I will not rehearse these in this article. Rather I intend to focus on three propositions
which, in my view, go to the root of our constitutional and legal system: these are the meaning

5
Director of Public Prosecutions (DPP) v. Daudi Pete 1993 TLR 22 (CA).
6
Attorney General v Jeremia Mtobesya, Civil Appeal No. 65 of 2016 (CA), forthcoming in 2018 TLS Law Report.
7
Mariam Mashaka Faustine v. Attorney General, Consolidated Misc. Civil Causes No. 88 and 95 of 2020 (HC)
(forthcoming in 2018 TLS Law Report)
8
Gedion Wasonga v. Attorney General, Miscellaneous Civil Cause No. 14 of 2016 (HC), forthcoming in 2018
TLS Law Report
9
Attorney General v Dickson Paulo Sanga, Miscellaneous Civil Cause No. 29 of 2019 (CA) (Unreported).
Interestingly both Jeremia Mtobsya and Dickson Sanga were filed by advocates. They were in the nature of
Public Interest Litigation (PIL). The Executive through the Legislature has since abolished PIL in the country
(See Issa G. Shivji, 2019, “The Amendment of Basic Rights and Duties (Enforcement) Act (Cap. 3 of the
Revised Laws of Tanzania),” Volume 46 No. 1 Eastern Africa Law Review, 2019, pp. 170-178. Presumably PIL
continues to exist in Zanzibar since Tanzania Mainland and Zanzibar are separate jurisdictions and Section
25A(1) of the Zanzibar Constitution 1984 allows any person to bring a constitutional petition. In the case of
Hassan Kornely Kijogoo v. AG of the Revolutionary Government of Zanzibar and Minister, Ministry of State,
President’s Office, Constitutional, Legal Affairs, Civil Services and Good Governance, Constitutional Petition
No. 01 of 2019, High Court of Zanzibar (Unreported), the Court upheld the right of any person to file a
constitutional petition even though he or she may not have a direct interest. (I am grateful to Chris Maina Peter
for making this decision available to me.)

3
and purport of judicial process (Article 13), the implication of Article 15(2) of the Constitution
and the reach of the general derogation clause under Article 30(2).

The analysis of the aforesaid provisions and the way the courts have dealt with them is crucial
because statutory denial of bail (and judicial decisions upholding its validity) involves the most
important fundamental right, right to freedom or personal liberty, under our Constitution.
Refusal to admit a person to bail amounts to an a priori deprivation of individual freedom.
Next to right to life, right to freedom goes to the root of dignified and free human existence. In
both cases what is lost – life in one case, freedom in the other and dignity in both - cannot be
compensated.

Personal liberty is priceless. There is nothing more precious than freedom. The Bench, the Bar
and the society as a whole ought to guard zealously social, political and individual freedom.
Human struggle against all kinds of domination, oppression and exploitation is ultimately the
struggle for freedom. Mwalimu Julius Nyerere until his last breath continued to reaffirm his
belief in the struggle for human freedom and solidarity. In a letter to his friend Professor
Augustine Papic who had shown despondency with the rightist turn in the world and in his
country Yugoslavia then, Nyerere said:

You are among the many people who have spent your life engaged in trying
to expand the boundaries of human freedom in its widest sense. The territory
is by definition unmapped: none of us miss all the obstacles in it! And often
we find that some of those who had accepted our leadership get tired of the
struggle forward and succumb to the temptations of those who promise
benefits for not struggling – or short cuts as religious fundamentalism,
nationalism, or fascism.10

I now turn to discuss the arguments and the courts’ decisions around three areas mentioned
above.

III. Judicial Process

In a criminal case, judicial process may be broadly defined as the process that a court of law
follows from the time that a person is charged before it to judgment and sentencing. Bail falls

10
Nyerere to Papic, 6th August, 1993, South Centre files, Mwalimu Nyerere Foundation, quoted in SHIVJI, Issa
G., Saida-Yahya Othman and Ng’wanza Kamata, Development as Rebellion: A Biography of Julius Nyerere
(Book 1), Dar es Salaam: Mkuki na Nyota, 2020, p. xix-xx.

4
within this, so it is eminently subject to judicial process. I would go further and suggest that
once a person is charged the accused becomes a ward, so to speak, of the court. Anything from
then on falls under the jurisdiction of the court.

Judicial process is characterised by a number of basic principles or propositions that guide the
courts in adjudicating disputes and related matters before it. Lawyers often distinguish a
judicial decision from an administrative or executive one precisely because the latter need not
abide by these principles. In effect, therefore, administrative/executive decision-making does
not involve a judicial process.

Thankfully, the Constitution of Tanzania has succinctly summarised the judicial process in
Articles 13(6) which is in Part Three of the Constitution which provides the Bill of Rights and
Duties. Article 13(1-3) read together with Article 107A, lay down the basic principle of
equality before law, non-discrimination and rights and duties of a person to be adjudicated
upon by an impartial, independent body, meaning, judicial and quasi-judicial bodies. In order
to operationalise these basic principles, Article 13(6) stipulates that the law shall provide for
procedures which would follow the following principles:

(a) Right to a meaningful hearing before an impartial, independent body;

(b) Right of appeal or review of the decision made by a court or any other like body;

(c) Right to be presumed innocent until proved guilty;

(d) Absolute bar on retroactive criminal legislation;

(e) Right to be treated with dignity throughout the criminal process from the time
of investigation to the time of judgement/sentencing and imprisonment;

(f) Freedom from torture or other cruel, inhuman or degrading treatment or

punishment.

I suggest that paragraphs (a) to (c) cumulatively stipulate the absolute minimum of a judicial
process. All other processes and procedures that courts follow are built on or are an elaboration
of these foundational principles. Furthermore, access to justice is a fundamental right as was
decided in the case of Julius Ndyanabo.11 Right of ‘access to justice’, it is suggested, is a short-
hand for describing a person’s right to the judicial process when his or her rights and duties are

11
Julius Ishengoma Francis Ndyanabo v. Attorney General [2004] TLR 14.

5
being determined. This means that the judicial process is not simply a matter of procedure but
a fundamental constitutional (human right) under the Bill of Rights.

In a number of cases, the Bar (and subsequently the courts) have framed the argument around
two operative concepts – ‘usurpation’ and ‘ouster’. The argument runs as follows: in stipulating
a statutory bar to grant of bail in Section 145(5) of CPA, the legislature ‘takes over’ (the phrase
used in Daudi Pete by the Court of Appeal) or usurps judicial functions of the courts, contrary
to the principle of separation of powers under Article 4. Daudi Pete decided firmly that in
providing such a bar the legislature does not take over judicial functions. This holding has been
subsequently applied in a number of cases (see, for instance, Mariam Mashaka and Gideon
Wasonga in the High Court and in Jeremia Mtobesya in the Court of Appeal). A different
framing of the argument runs thus: statutory bar to admitting an accused to bail amounts to the
legislature ousting the judicial power or constitutional mandate of the court (phraseology of
Dickson Sanga (HC)). The court, in the phraseology of Jeremia Mtobesya, “eliminates the
judicial process.”12 Occasionally these two arguments which stem from different premises are
confused and interchanged by the Bar and the Bench. Taking over of ‘judicial function’ is used
alternatively with ousting of judicial process. The case par excellence illustrating this
confusion, with respect, is Dickson Sanga (CA).

This is how the Court summarised the submission of the Attorney General.

In the third ground of appeal, it was the appellant’s [AG’s] complaint that the
High Court wrongly held that section 148(5) of CPA ousts the judicial
process in considering the possibility of admitting to bail a person accused
of a non bailable offence. It was submitted that a legislation which prohibits
the grant of bail to a person charged with certain offences does not amount
to take over of judicial functions. On this, it was pointed out that, the High
Court wrongly arrived at such a decision having opted to choose some
portions in the case of Daudi Pete (supra) which suited their course leaving
out the crucial determination on the ouster or otherwise of the jurisdiction of
the courts.13 (Emphasis in italics supplied)

It can be seen that AG’s argument flows effortlessly between ouster of judicial
process/jurisdiction and take-over of judicial function as if they meant the same thing. A careful

12
Jeremia Mtobesya (CA), ibid, p. 20.
13
Dickson Sanga (CA), ibid. pp. 12-3.

6
reading of Masoud, J’s judgement (HC) in Dickson Sanga shows clearly that there was no such
confusion. As a matter fact, the High Court upheld Daudi Pete’s holding that the denial of bail
does not amount to take over of judicial functions (passim) but nevertheless held that it does
amount to the ousting of the judicial process. Unfortunately, the Court of Appeal adopted the
AG’s argument. It held:

Since it is settled law that a legislation which prohibits grant of bail does not
oust judicial function, the cases of Smith v. AG (supra) and Martin Kpebu
(supra) are distinguishable considering that they had dealt with the fate of a
statute which ousts judicial process which is not the case in the present
matter. In this regard, it was with respect, wrong for the High Court to
conclude that, the impugned provision ousts judicial process which renders
the third ground of appeal merited.14 (Emphasis in italics supplied)

Once again it can be seen that the Court seems to be using the concept of taking over of ‘judicial
function’ with ouster of ‘judicial process’ interchangeably. It is not clear from the judgement
of Mugasha, JA if the Court of Appeal had access to the Ghanaian Supreme Court Judgment
in Martin Kpebu.15 In that case, the Court was invited to declare Section 96(7) of the Criminal
and Other Offences (Procedure) Act, 1960 (Act 30) as amended by the Criminal Procedure
Code (Amendment) Act 2002, (Act 633) and also as amended by the Anti-Terrorism Act, 2008
(Act 762) of Ghana unconstitutional. The amended section 96(7) reads:

A court shall refuse to grant bail:

(a) In a case of treason, subversion, murder, robbery, hijacking, piracy rape

and defilement or escape from lawful custody, or acts of terrorism;

Nowhere the Ghanaian statute deals with the ousting of judicial process. Ousting of the judicial
process is not explicitly stipulated in any statute, whether Ghanaian or Tanzanian. In substance,
section 96(7) of the Ghanaian statute under consideration in Martin Kpebu is similar, mutatis
mutandis, to section 148(5) of CPA under consideration in the Dickson Sanga. The concept of
‘judicial process’ is not statutory; rather it is deduced by courts from the provisions of the
Constitution which stipulate the principles of a fair trial in courts of law. With respect, in my

14
Ibid. pp. 49-50.
15
Martin Kpebu v. Attorney General, Supreme Court of Ghana, Ghana Legal Information Institute,
https://ghalii.org/gh/judgment/supreme-court/2015/114

7
view, Martin Kpebu’s case was not distinguishable from Dickson Sanga. Its ratio applied
equally to Dickson Sanga.

Closer home, the Court of Appeal in the case of Jeremia Mtobesya declared Section 148(4) of
CPA which gives powers to DPP to issue a certificate objecting to bail, unconstitutional. In a
well-argued judgement Mussa JA, following Daudi Pete, reasoned that the provision of CPA
which subjected the granting of bail to DPP’s discretion was unconstitutional because, among
other things, it “completely eliminates the judicial process in matters of personal liberty” 16.
The Court had no qualms about using the phrase ‘judicial process’ although it is nowhere
explicitly mentioned in any statute. Speaking through Masoud, J., the High Court in Dickson
Sanga applied both Daudi Pete and Jeremia Mtobesya as the following quote amply clarifies.

The statement of principle which we deduced from Daudi Pete and Jeremia
Mtobesya are relevant to the present petition challenging section 148(5) of
the CPA denying bail to [sic!] a host of offences specified as non-bailable.
There is nothing on the principle suggesting that in so far as it relates to
“procedure prescribed under the law” as envisaged under Article 15(2)(a) of
the Constitution, it was not meant to equally apply to the present case in
which the envisaged “procedure prescribed under the law” was significantly
relevant. We accordingly applied the principle as we laid the provisions of
Articles 13(3), (6)(b), and 15(2)(a) of the Constitution beside the impugned
provision of section 148(5) of the CPA and endeavoured to determine
whether the constitutional provisions invoked squared with the former.17

Let me pause at this stage to make two observations on the above quotation. First, the High
Court does not make a distinction of principle between Daudi Pete and Jeremia Mtobesya
which pertained to statutory bar and DPP’s certificate respectively denying bail and the case
before it (Dickson Sanga) which involved statutory bar on bail. In principle, the Court implies,
the two situations are similar, a position with which we respectfully agree. Whether a court
refuses bail as a result of the DPP’s certificate or as a result of the statutory provision barring
bail, the outcome is the same. Both situations oust the judicial process of the court and deny
the accused the right to a fair determination of his rights. Gedion Wasonga’s case also treated
the certificate and the statutory bar on the same footing. Secondly, the Court read together, in

16
Jeremia Mtobesya (CA), ibid. p. 433.
17
Dickson Sanga (HC) ibid. pp. 28-9.

8
our view correctly, Article 15(2)(a) and 13(3) and (6)(b) in that both these Articles in substance
provide for judicial process.

To be fair, it must be pointed out that Daudi Pete was squarely based on Article 15(2)(a).
Nonetheless, it made an observation on Article 13(6)(a) which it found to be inapplicable to
the case at hand because “that part of the Article concerns only situations ‘when rights and
obligations are being determined’ and not situations such as under Section 148(5)(e) when the
court make a particular order, without discretion.’”18 It is difficult to understand the difference
in the two situations that the Court is trying to draw. In both cases, the matter of substance is
that the accused is denied his/her basic right to a hearing and the court is denied to apply its
judicial discretion.19 Fortunately, this was obiter and does not form part of the ratio of Daudi
Pete. The remark was perhaps made per incuriam. The High Court in Dickson Sanga got
around this observation in Daudi Pete rather disingenuously by stating that “Unlike in the
present matter, Article 13(3) of the Constitution which provides for powers to the court and
state agency established under or by the law to protect and determine rights of an accused
person was not invoked in Daudi Pete (supra).”20

A more momentous issue is the way the Court of Appeal treated Jeremia Mtobesya in Dickson
Sanga on the central issue of ousting of judicial process. Speaking through Mugasha, JA, it
said:

Apart from the Judiciary being the only organ of the State having final
authority in the administration of justice, the courts must operate within the
confines of the Constitution and in accordance with the law of the land.[21]
In this regard, where the powers are limited by statute, like it is the case in
the impugned provision, that cannot be said to be an ouster of the courts’
mandate to administer criminal justice. This is so because it is settled law
that, a piece of legislation which prohibits the grant of bail to persons charged
with specified offense does not amount to a takeover of judicial functions by
the legislature. Moreover, the High Court and the respondent herein relied on

18
P. 38.
19
It is somewhat strange that the Court of Appeal in Dickson Sanga read Daudi Pete to have implicitly considered
Article 13(3) when the Court in Daudi Pete expressly said that Article 13(3) was inapplicable to the situation at
hand (p. 55).
20
Dickson Sanga (HC) ibid. p. 27.
21
The phrase “law of the land’ is sometimes misused. It does not mean any law on the statute book. “Law of the
land” is only that law which is valid. See Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu [1966]
1 EA 514.

9
 the case of Jeremiah Mtobesya (supra) which is in our considered view
distinguishable from the matter under scrutiny. We are fortified in that
account because in that case, the Court was confronted with a quite distinct
scenario and had to determine the validity of the sole statement of the DPP’s
certificate denying bail to the accused person.22

So, in the Court’s view, Martin Kpebu was distinguishable because it involved judicial process,
unlike the case at hand (i.e. Dickson Sanga) and Jeremia Mtobesya23 was distinguishable
because it involved DPP’s certificate unlike the case at hand (i.e. Dickson Sanga). So, what did
Dickson Sanga involve? I would respectfully argue, as I have done above, that there is no
material difference between barring of bail via DPP’s certificate or by statute in that both result
in the denial of judicial process. It is the absence of judicial process which is the core issue in
both situations and that was the issue that the Court was called upon to resolve in Dickson
Sanga. In spite of its somewhat convoluted argument, the Court eventually did find that Section
148(5) lacked the requisite procedure (judicial process?) and therefore is “ex facie ultra vires
the Constitution”24 but went on to hold that it was saved by the derogation clause in Article
30(2). I will discuss the derogation clause below but before that there are two more issues -
access to justice and presumption of innocence - which in my view are pertinent to bring on
board under the rubric of judicial process.

A. Access to Justice

Julius Ndyanabo is the most definitive authority of the Court of Appeal on the meaning, purport
and reach of the right of access to justice. Samatta, CJ (rtd) who delivered the Court’s judgment
considered the right of access to justice as “one of the most important rights a person is entitled
to enjoy in a democratic society.”25 It was one of the three pillars of a democratic constitutional
order that Tanzania is. Samatta, CJ put it this way:

We agree with Prof. Shivji … that the Constitution rests on three fundamental
pillars namely, (1) rule of law; (2) fundamental rights; and (3) independent,
impartial and accessible judicature. These three pillars of the constitutional

22
Dickson Sanga (CA) ibid. pp. 48-9.
23
Ironically Mugasha, JA who wrote the judgement of the court in Dickson Sanga was on the bench that decided
Jeremia Mtobesya.
24
P. 59.
25
Julius Ndyanabo ibid. p. 21.

10
 order are linked together by the fundamental right of access to justice. As
submitted by Prof. Shivji, it is access to justice which gives life to the three
pillars. Without that right, the pillars would become meaningless, and
injustice and oppression would become the order of the day.26

What does access to justice mean? Does it simply mean bringing a matter to a court of law or
does it mean more than that? Again, the Court of Appeal in Julius Ndyanabo gives us a succinct
answer. In the High Court, the majority decision had reasoned that the petitioner had accessed
the court “by filing his/her pleadings and paid the necessary court fees.” The Court of Appeal
disagreed.

With great respect to the learned Judges, we cannot agree that access to
justice constitutes mere filing of pleadings and paying the required court-
fees. The right to have recourse or access to courts means more than that. It
includes the right to present one’s case or defence before the courts. …
Access to justice is not merely knocking on the door of a court. It is more
than that.27

So, what is the additional process implied by the phrase “more than that” that would go towards
constituting the right of access to justice? Elsewhere the Court said, “Anyone seeking a legal
remedy should be able to knock on the doors of justice and be heard.”28 (Emphasis supplied).
Putting together these observations of the Court we can safely conclude that access to justice
is constituted by, at the minimum, the following three ingredients: (1) right to present one’s
case; (2) right to be heard by an impartial, independent body, that is, a court of law; and (3)
power of the court to deliver a verdict by the exercise of its judicial discretion. Cumulatively
these three ingredients are nothing else but what is called the judicial (or due) process. In the
ultimate, the Court in Julius Ndyanabo decided that the petitioner who had to deposit a hefty
five million shillings as security for costs before his/her petition could be fixed for hearing was
denied access to justice or in other words denied the right to the judicial process and therefore
the mandatory provision of the Election Act requiring such a deposit was unconstitutional. The
material substratum of Julius Ndyanabo is analogous to Section 145(5) of the CPA. In both
situations, a person is denied access to justice meaning to avail of the judicial process. Julius

26
Ibid. p. 23.
27
Ibid. p. 30.
28
Ibid. p. 24.

11
Ndyanabo was therefore, in my view, an eminent authority to cite in the Constitutional petitions
challenging the constitutional validity of sub-sections 145(4) and (5) of CPA.

Surprisingly, while Julius Ndyanabo has been cited in virtually all the constitutional petitions
under discussion, in none of them it was deployed to buttress the proposition that the said
impugned provisions of CPA denied the accused access to justice. Rather it was cited both by
the Bar and the Bench in reference to the general principles of constitutional interpretation.

B. Presumption of Innocence

Article 13(6)(b) stipulates the age-old principle of criminal justice that a person is presumed
innocent until proved guilty in a court of law. The Bar in virtually all the constitutional
litigation under discussion have argued that the bar to bail is tantamount to prejudging a person
and therefore is contrary to the presumption. Daudi Pete decided that “denying bail to an
accused person does not necessarily amount to treating such a person like a convicted
criminal…”29 Unfortunately, the Court did not provide its own reasoning for this holding.
Instead it simply agreed with the holding of Msumi, J. in R. v. Peregrin Mrope.30. In subsequent
cases, the Bar has understandably been reluctant to reopen the matter though in Dickson v.
Sanga, the High Court did make reference to it in the context of the Ghanaian case of Martin
Kpebu but correctly concluded that its hands were tied by Daudi Pete. Nonetheless, it is
submitted that the Bar may wish to reopen the matter in an appropriate case in the light of
decisions in other jurisdictions and academic writings.

In Martin Kpebu, the Ghanaian Supreme Court speaking through Benin SJC argued
persuasively why denial of bail amounts to pre-judging the accused even before the court has
heard him and examined the evidence against him. It deserves to be quoted in extenso.

The grant of bail is one of the tools available to the court to ensure that a
suspect or an accused, as the case may be, is guaranteed his innocence until
the court has found him guilty. The presumption of innocence embodies
freedom from arbitrary detention and also serves as a safeguard against
punishment before conviction. It also acts as preventive measure against the
State from successfully employing its vast resources to cause greater damage
to a person who has not been convicted than he can inflict on the community.

29
Daudi Pete, ibid. p. 3, headnote.
30
R. v. Peregrin Mrope HC Misc. Criminal Case No. 43 of 1989 (Unreported).

12
 Therefore in my humble view any legislation, outside the Constitution, that
takes away or purports to take away, either expressly or any necessary
implication, the right of an accused to be considered for bail would have pre-
judged or presumed him guilty even before the court has said so. That would
be clearly contrary to this constitutional provision which guarantees his
innocence until otherwise declared by a court of competent jurisdiction.31

The Court’s assertion that denial of bail can cause greater damage to the accused than the
benefit that the society can derive from his/her detention is not speculative. It has been proved
through a number of studies in other jurisdictions that detention before trial is highly prejudicial
to the accused.32

Firstly, an accused who is in custody before he or she is pronounced guilty generates perception
of an element of guilt in the accused herself/himself and the community at large. Even the
bench is not immune from such a perception. I wonder what is the reaction of the Tanzanian
public when they see TV clips of an accused escorted by armed police to the remand room at
the Kisutu Resident Magistrate’s court and brought to court under armed escort. I ask myself
how many viewers when watching such clips would make a (fine) distinction between a
mshtakiwa (accused) and mhalifu (criminal). Secondly, studies in the UK, USA and Canada
have shown that:

(a) The acquittal rate of accused who are in custody is far lower than those out on
bail and conviction rate of those in custody is higher than those out on bail.

This is understandable because an accused who is out on bail is likely to be in

a better position to mobilise resources and support of family and friends to
defend himself/herself. He or she would be in a better position to trace
witnesses, verify facts and generally build his or her defence than a person in
custody who would be relying on the defence counsel, at best, to do the job.

(b) The ratio of plea of guilty is higher among the accused in custody than those out
on bail. “It is only the gloom of detention that must be compelling many to
plead guilty and put an end to the agony.”33 While there are no similar studies

31
Martin Kpebu v. Attorney General, Supreme Court of Ghana, ibid. p. 8.
32
These studies are discussed in BALSARA, S.D., “Bail not Jail – Empty the Prisons,” Volume 22 No. 3 Journal
of the Indian Law Institute, 1980 pp. 341-350.
33
Ibid. p. 343. In one case discussed by Sosteness Materu, the accused changed his plea of not guilty to guilty to
the count of money laundering while maintaining the plea of not guilty to the count of the predicate offence

13
 in Tanzania, we have recently witnessed a number of cases of people in custody
who following plea bargaining, have pleaded guilty and pledged to pay
enormous amounts of money in compensation and fines to escape the agony of
detention.34 How many in Tanzania can afford to pay such vast sums to secure
liberty! In the words of Justice Krishna Iyer, who was one of the towering
Supreme Court Judges of India, “the poor are priced out of their liberty in the
justice market …”35

Thirdly, studies have shown that detention before trial has deleterious (not infrequently
irreversible) effect on the mental and psychological health, not to speak of the economic
well-being, of the accused and their families. In Tanzania we know of at least two cases in
which the accused who had been denied bail could not attend the funeral, in one case, of
his father and the other of his mother.36 The trauma of not being able to pay last respects to
one’s loved one and give him or her a decent burial is incalculable. (Yet in both cases
neither the prosecution nor the court showed any sensitivity or sympathy!)

precisely to get bail. MATERU, Sosteness Francis, “Fighting Money Laundering through Criminal Prosecution
in Tanzania: A Critical Comment on Specific Aspects of the Law and Practice,” Volume 44 No. 2 Eastern Africa
Law Review, 2017, pp. 19-49 at pp. 42-43.
34
Plea bargaining in Tanzania which was introduced through the amendment of CPA (Sections 194A, 194B and
194C) in practice operates in a rather strange way (see The Written Laws (Miscellaneous Amendments (No.4)
Act, No. 11 of 2019). The accused through a letter to the prosecutor indicates his willingness to plead guilty.
Following such a letter the parties enter into negotiations in which the DPP (who obviously has an upper hand)
puts the amount that would be acceptable as “compensation”. Following such “negotiations” a plea agreement
is reached and filed in the court where the accused pleads guilty and ends up paying hefty sums as compensation
and fines following which the accused is released. This is very different from what is commonly known as a
plea bargain which entails an agreement in a criminal case between the prosecutor and the defendant whereby
the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor.
What is central is the Tanzanian system is the payment by the accused. It is therefore not strictly plea bargain
but rather illegitimate obtaining of money by the State which gets money for alleged offences which it is
incapable of proving before a court of law.
It is therefore not surprising that at a ceremony at the State House to submit the plea bargained money to the
President, the DPP triumphantly told the President that the Government had collected 12.3 billion shillings from
plea bargaining arrangements. “Mr Biswalo [the DPP] called the submission of the money collected and the
properties nationalised “a historic event” that has never happened before in Tanzania’s history.” (The Citizen,
10th February, 2020.).
Interestingly, the accused who was considered so dangerous to society that he/she could not be released on bail
is not given a custodial sentence on pleading guilty but rather set free on the society! Presumably he or she is
now cleansed of the “danger” he or she previously posed to society!
35
In the Supreme Court of India decision in Moti Ram & Others v. State of State of Madhya Pradesh 1978 AIR
1594 or 1979 SCR (1) 335 at p. 347.
36
Journalist Erick Kabendera was one of the two remandees was denied permission to attend burial of his mother
who had passed on during his incarceration. See “Jailed Tanzania Journalist Denied Release for Mother's
Funeral.” See https://www.business-standard.com/article/pti-stories/jailed-tanzania-journalist-denied-release-
for-mother-s-funeral-120010300064_1.html

14
 To sum up, as Balsara observes, “Imprisonment before conviction has a punitive content”37
and is an affront to human dignity which no one should suffer, much less an innocent
person. It is tantamount to mental torture both of which are frowned upon by our
Constitution.38 In my humble submission, therefore, for the reasons stated above, the
statutory bar on bail is unconstitutional being contrary to Articles 13(6)(b) and 13(6)(d)
[respect for a person’s dignity] and (e) [against torture]. The fact that neither the Bar (nor
the Bench39) have deployed Article 13(6)(d) and (e) in favour of the accused in the case of
non-bailable offences under discussion shows how, as a society, we have become
insensitive and indifferent to the plight and suffering of the people in incarceration! It
seems as if we have no compunction in sending people to jail.

IV. Article 15: Personal Liberty

Article 15 of the Constitution is usually cited on the right of every person to personal liberty
or freedom and which expressly stipulates circumstances under which a person may be
deprived of liberty. In Daudi Pete the court translated Article 15 into English thus:

(1). Man’s freedom is inviolable and every person is entitled to his personal freedom.

(2). For the purposes of protecting the right to personal freedom, no person shall be
subject to arrest, restriction, detention, exile or deprivation of his liberty in any other
manner save the following cases:

(a). In certain circumstances, and subject to a procedure, prescribed by law; or

(b). … (not applicable)

Besides being gender insensitive, with respect, the rendering is broadly correct. In my view,
though, the original Kiswahili phraseology is much stronger and has elements which are
missing in the Court’s translation. I would translate Article 15 thus:

(1). Every person has a right to be free and to live as a free person.

37
See BALSARA, S.D., “Bail not Jail – Empty the Prisons,” op. cit. at p. 343.
38
See Article 13(6)(d) and (e).
39
On this our courts are likely to have a standard text-book answer. It is not for them, they would say, to consider
an argument or an Article of the Constitution which has not been put before them by the Bar. Respectfully, in
my view, this is an outdated argument. In matters of fundamental rights and freedoms, more so in cases of
personal liberty, the judiciary ought to play a more pro-active role. For as leading judges all over the world –
barring a vanishing number of conservative, timid souls – have said ad infinitum that they preside over the
citadels of justice (and I would add mercy) which is the citizen’s last recourse against the oppressive state
apparatuses and repressive governments.

15
 (2) For the purposes of protecting and preserving every person’s right to be free and to
live as a free person, it is prohibited to arrest, confine, imprison, to put in detention,
to move forcibly or to deprive a person of freedom in any other manner save only –

(a) under circumstances and procedure provided by law, or

(b) … (not applicable)

The phrases and words underlined in my translation are missing in the Court’s translation. Sub-
Article (1) has two independent yet interrelated elements, “to be free” and to “live as a free
person”. The two do not mean the same thing nor to “live as a free person” is superfluous. “To
be free” is a static state while “to live as a free person” is a continuing state. One can be free
but not live as a free person. For example, a person living in fear of his or her freedom being
taken away any time is not living as a free person. In sub-article 2 the addition of the word
“preserving” to “protection” is meant to bring out the continuing state of living as a free person.
Whereas “protection” relates to “to be free”, “preserving” goes on to qualify “living as a free
person”. Therefore, freedom from fear is an important ingredient of personal freedom. Freedom
from fear has been expressly mentioned among the four freedoms (freedom of speech, freedom
of belief, freedom from fear, freedom from want)40 in the preamble of the Universal
Declaration of Human Rights, 1948.

Whereas disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a
world in which human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the highest aspiration of
the common people,

I give two examples, one real and another hypothetical to illustrate my argument. An Indian
friend of mine recently was informed that the city police of her city were intending to charge
her with a criminal offence for allegedly inciting protestors to violence. She has not been
charged nor her freedom restricted in any manner. So, she is free but she lives in fear of her
freedom being taken away any time which means she is not living as a free person. She will
probably never be charged and the alleged drafting of a charge against her was simply meant
to intimidate her. It is not unusual for state agents to implant fear to intimidate their targets. A

40
I am aware that these four freedoms were first formulated by the US President Franklin Delano Roosevelt in
1941 and pushed through the United Nations by his wife Anna Eleanor. Roosevelt, himself, typically for the
Empire’s president, used his doctrine of four freedoms to justify America’s intervention in World War Two.

16
hypothetical would suffice. A controversial person somehow indirectly receives a message that
her or his communication is being monitored by security agents. The message, even if not true,
obviously implants fear in the target. Thus he or she would not be living as a free person
contrary to Article 15(1) of the Constitution. Could it be argued that a person who is charged
with a non-bailable offence, say, money laundering, has been deprived of his or her freedom
from fear since that person cannot live as a free person, and in this case literally, because he or
she is in custody? If the answer to this question is in the affirmative, then sub-article 2 which I
will discuss presently assumes a new dimension which would have to be taken into account in
interpreting the “circumstances” and “procedure” stipulated in sub-article 2. Since this remains
a moot point and has not been tested in a court of law, I rest my case here.

Before I leave the issue of translation, I may as well point out another phrase (although not
directly relevant here) which in my view has not been rendered correctly. This is the phrase
“kuhamishwa kwa nguvu” which the Court translated as “exile”. Exile has a special meaning
and usually refers to a person forced to leave his or her country or even within the country
forcibly confined to a particular area. My translation of this phrase as “to move forcibly” has a
wider meaning. It would, for example, cover forced villagisation of the early 1970s, or forced
resettlement of people which is not uncommon in Tanzania, which the term exile would not
cover.

Daudi Pete is again an authority on the interpretation of sub-article two. Deprivation of

freedom would be within the Constitution, the Court held, only if the impugned law prescribed
the “circumstances” and the “procedure” for such deprivation. The Court had no problem in
finding the circumstances because the non-bailable offence concerned, robbery with violence,
stated the circumstances in some detail (“the act or any of the acts constituting the offence with
which a person is charged consists of a serious assault causing grievous harm on or threat of
violence to other person, or of having possessing firearm or an explosive”). But the Court had
a problem in finding the requisite procedure. Following the Indian case of Maneka Gandhi,41
the Court was of the view that it could not be just any procedure. At the minimum, the
prescribed procedure must be ‘meaningful’ in the sense that following it would make a
difference to the outcome presumably meaning that the procedure did not take away court’s
discretion. Secondly, the procedure must be fair and reasonable. Fairness and rationality are
criteria often used by courts to distinguish between ‘judicial’ and ‘administrative’ decision-

41
Maneka Gandhi v. Union of India [1978] 2 SCR 621.

17
making. In sum, as I argued above, the term ‘procedure’ in sub-section 2 refers to nothing less
than the judicial process. Since the impugned section of CPA (Section 148(5)(e), was wanting
in requisite procedure it violated Article 15(2) of the Constitution and therefore invalid. Next
the Court had to consider if the impugned provision was saved by the general derogation clause,
Article 30 of the Constitution.

V. The Derogation Clause

General derogation clauses are looked upon with askance by human rights jurisprudence and
rightly so because if they are followed literally, they would render fundamental rights
meaningless. Progressive judges in various Commonwealth jurisdictions, while
acknowledging the need for some limitation on rights, have interpreted derogation clauses
narrowly to save the core element of rights and freedoms. Article 30(2) of the Tanzania
constitution is a typical example of a very wildly-worded derogation clause. The Article is so
ambiguously formulated that its interpretation has become a touchstone for identifying
conservative and progressive judges. Judges who give the clause a narrow, restricted meaning
represent the progressive trend while those who apply the derogation clause broadly stand for
the conservative trend in Tanzania’s human rights jurisprudence.

The Court of Appeal in the case of Kukutia Ole Pumbun v. AG42 laid down some tests that an
impugned legislation must pass before it can be saved by the derogation clause. The statement
of principle needs to be quoted in extenso to appreciate fully the tests laid down by Kukutia:

… a law which seeks to limit or derogate from the basic right of the individual
on grounds of public interest will have special requirements; first, such a law
must be lawful in the sense that it is not arbitrary. It should make adequate
safeguards against arbitrary decisions, and provide effective controls against
abuse by those in authority when using the law. Secondly, the limitation
imposed by such law must not be more than is reasonably necessary to
achieve the legitimate object. This is also known as the principle of
proportionality. The principle requires that such law must not be drafted too
widely so as to meet everyone including even the untargeted members of the
society. If the law which infringes a basic right does not meet both

42
Kukutia Ole Pumbun v. Attorney General [1993] TLR 159.

18
 requirements, such law is not saved by Article 30(2) of the constitution, it is
null and void.

A purposeful rendering of the principle laid down in the form of tests would be something like
this:

(1) The law must not be arbitrary in that it must provide sufficient safeguards and controls
against abuse by those in authority;

(2) The limitation must satisfy the principle of proportionality meaning it is reasonably
necessary to achieve the legitimate object and is not drafted so widely that it could
include unintended members of society.

Kukutia came after Daudi Pete but Pete had already foreshadowed the principle of
proportionality. In the language of Nyalali, CJ, the impugned provision should not be so
broadly drafted that it amounts to a rat-trap which would catch both rats and humans. These
tests or principles ought not be applied mechanically in the fashion of a check-list; rather the
courts must always remain conscious of the objective of laying them down in the first place.
The objective is to ensure that the application of the derogation clause should not result in the
whittling down of basic rights and freedoms and render them meaningless. Since Daudi Pete
and Kukutia, courts have only paid lip-service to applying the principles laid down in those
cases because in practice they have given derogation clauses a free rein resulting in the erosion
of fundamental rights. Unfortunately, though, there seems to be a developing a trend to deploy
the derogation clause to save some of the provisions of statutes which are on the face of it open
to abuse. The non-bailable offence of money laundering, which includes a long list of offences,
which list, incidentally, can be enlarged at the will of the Minister of Finance (see above), is
one such provision. The recent Court of Appeal decision of Dickson Sanga is an illustration,
with respect, of the misapplication of the principle of proportionality laid down in Daudi Pete.

In Dickson Sanga, the petitioner was challenging the constitutionality of the whole of Section
148(5) which states a host of unbailable offences including money laundering (Section
148(5)(a)(v)). The High Court had considered whether Section 148(5) was saved by Article
30(2) and applying the principle laid down in Daudi Pete concluded that the said provision was
not saved because it was open to abuse and the section was so widely worded that it could even
capture unintended persons who could not possibly be considered dangerous to society.43 The

43
Daudi Pete, supra p. 37.

19
High Court’s reasoning is impeccable in that how can, for example, a fisherman charged with
‘illegal fishing’ because of using a prohibited type of net or a journalist charged with ‘tax
evasion’ for not declaring receipt of a few million shillings for his story filed with a foreign
media, could be considered so dangerous to society that he should be denied bail. (It will be
remembered that both ‘illegal fishing’ and ‘tax evasion’ are included in the long list of offences
which fall under money laundering.)

Yet the Court of Appeal made a short shrift of this reasoning. It reasoned thus:

In the matter under scrutiny the offences under consideration are murder,
defilement and treason contrary to sections 196, 137 and 39 respectively of
the Penal code; Trafficking in drugs contrary to section 15 of the drug Control
and Enforcement Act [CAP 95 R.E. 2019], Terrorism contrary to section 4 of
the Prevention of Terrorism Act, 2002, Trafficking in persons contrary to
section 4 of the Anti-Trafficking in Persons Act, 2008. The respective
legislation defines and categorise what constitutes non bailable offense and
read together with the impugned provision, the unintended people are not
affected considering that individuals must adapt their behaviour to the rule of
law as required by the international standards and jurisprudence.44
(underlining supplied)

First, it will be observed that the Court lists only some offences, not all in Section 148(5)
“which was under scrutiny”. It does not, for example, mention the most controversial offence
of money laundering.45 Second, it is not clear what is meant by the underlined words. Maybe
the argument – even that is questionable though – that “individuals must adapt their behaviour
to the rule of law as required by the international standards and jurisprudence” could apply at
the stage of sentencing when the accused has been convicted. But how could the court know at
the stage of application for bail that the individual accused did not adapt his/her behaviour to
the rule of law as required by the international standards and jurisprudence, whatever that
means. The Court went on to conclude:

44
Dickson Sanga (CA) supra p. 66.
45
It could perhaps be argued that the Court had already disposed of the sub-section on money laundering earlier
by holding that the High Court should have never considered the issue because the matter was res judicata
having been earlier decided by the High Court in another case. It is arguable if the principle of res judicata was
applicable given that the earlier decision was that of the High Court itself and therefore not binding on it. But
even if it were applicable, the Court of Appeal, in my view, could not shirk its responsibility to consider the
matter which was before it. And the whole of Section 148(5) (including money laundering) was in issue and
being challenged in the case.

20
 In view of what we have endeavoured to discuss, we are satisfied that while
it is true that section 148(5) (a) (i), (ii) (iii), (b), (c), (d) and (e) of the CPA
has no prescribed procedure regulating refusal of bail on the offences listed,
it meets the test of proportionality, legitimacy and lawfulness and thus saved
by Article 30(2) of the Constitution. Thus, the detention pending trial is
undoutedly the necessary restriction for attainment of the desired objective
which include among other, the interests of public safety and public order,
defence and protection of those involved in judicial proceedings such as
witnesses.

With respect, I did not find anything in the reasoning or argument of the Court which could be
said to support the conclusion that the restriction is necessary for “public safety and public
order, defence and protection of those involved in judicial proceedings such as witnesses.”

Dickson Sanga unfortunately does not quite fit in the progressive jurisprudence on derogation
clauses established by the Court in earlier cases such as Daudi Pete, Kukutia and Mtobesya.
One can only hope that on an appropriate occasion, in not too distant a future, the Court may
have an occasion to revisit its decision in Dickson Sanga to re-establish the progressive human
rights jurisprudence for which the Court through its earlier decisions became known in the
region.

VI. Conclusion

Justice Krishna Iyer of the Supreme Court of India in State of Rajasthan v. Balchand46 stated
that the “BASIC rule may perhaps be tersely put as bail, not jail…” The legislative and judicial
trend in our country is increasingly going in the opposite direction, “jail no bail”. The Judicial
System Review Commission established in 1974 which reported in 1977 originally
recommended the concept of non-bailable offences. It was reluctant and hesitant in doing so
because “once it is accepted that more offences be added into the present list of non-bailable
offences, it would be difficult to foretell where the process would stop.”47 Yet it was under
pressure from the public to make bail difficult in some offences. It thus ended up importing a
provision from the Zambian Criminal Procedure Code, 1957 under which the DPP would issue
a certificate barring bail. This was Section 123(4) of the Code which provided that:

46
A.I.R 1977 S.C. 2447 at 2448.
47
See UNITED REPUBLIC OF TANZANIA, The Report of the Judicial System Review Commission, Dar es
Salaam, Government Printer, 1977, paragraph 6.2.1 on p. 205.

21
 Notwithstanding anything in this Section contained no person shall be
admitted to bail, either pending trial or pending appeal, if the Director of
Public Prosecutions certifies that it is likely that the safety or interests of the
Republic would thereby be prejudiced.48

This became Section 148(4) of our CPA. The Commission expected and hoped that the DPP
would use his discretion to issue certificates “sparingly and conscientiously.”49 Unfortunately,
on both counts the Commission’s hope was dashed. Since then, and in particular in the last few
years, the list of non-bailable offences has been expanding exponentially. There is also the
public perception that the DPP has not been as “sparing and conscientious” in issuing his
certificate as the Commission had expected and hoped. The Executive using its majority in
Parliament seems to have opted for placing statutory bar on granting of bail presumably
because it lacks trust in courts to do the job.

Unfortunately, barring the exceptions discussed above, the judiciary has followed suit by
upholding validity of statutes barring bail in the process giving the impression that it has
abdicated its independent role. If such trend continues the Executive gets emboldened and
pushes through Parliament draconian legislation without regard to the Bill of Fundamental
Rights. Commenting on the then Government pushing through the Parliament constitutional
amendment whose effect was to overrule the High Court’s decision in Mtikila v. Attorney
General50 permitting independent candidates, Mwalimu Nyerere said:

This is very dangerous. Where can we stop? If one section of the Bill of Rights
can be amended, what is to stop the whole Bill of Rights being made
meaningless by qualifications of, and amendments to, all its provisions?51

In our system, only a bold and independent judiciary can restrain the Executive’s appetite for
swallowing citizens’ fundamental rights.

It must also be pointed out that even in cases of bailable offences, our courts, particularly at
subordinate level, have not shown great sensitivity either. Imposition of harsh conditions for
bail which many poor accused cannot fulfil has resulted in our remand prisons overflowing

48
See Act No. 50 of 1957 as amended by Act No. 36 of 1969 of Zambia.
49
See UNITED REPUBLIC OF TANZANIA, The Report of the Judicial System Review Commission, op. cit. on
p. 205.
50
Rev. Christopher Mtikila v Attorney General, 1995 TLR 31 (HC).
51
NYERERE, Julius K., Our Leadership and the Destiny of Tanzania, Harare: African Publishing Group, 1995,
p. 9.

22
with inmates. Besides the fact that a big number of remandees is a strain on the public purse,
it does not reflect well on our criminal justice system when hundreds of people are deprived of
their liberty even before they are convicted. Moreover, it is well known that remandees
languish in jails for long periods of time living in squalid conditions before their cases are heard
and completed. Moral, psychological and economic impact on the inmates is incalculable.
From anecdotal evidence, one also knows that the power of the police and prosecution to object
to bail is not infrequently misused and abused.52

Maybe all is not lost. Last year (2019), on the occasion of the admission of new advocates on
19th July, 2019, the Honourable Chief Justice Professor Ibrahim Juma made a terse comment,
in the context of overcrowded prisons, on the penchant of the Executive through the Legislature
to continue increasing non-bailable offences.53 In an off the cuff remark at a press conference
he recommended that there should not be any non-bailable offence, not even murder as is the
case in Kenya.54 He went further that the judiciary ought not to impose harsh conditions for
bail.55 But his legitimate call has gone unheeded both by the lower judiciary, the legislature
and much more the prosecution under the DPP’s office. The latter seem to believe that it is its
duty to oppose bail particularly in, what it considers, politically or economically “sensitive”
cases. So our prisons continue to be flooded by remand prisoners who languish in jails. And
they languish in jails for inordinately long time because the process of investigation is never
completed.

Besides the pragmatic reason the Chief Justice gave (overcrowding of prisons) for his remarks
against non-bailable offences, there is a bigger and nobler cause at stake, the cause of freedom.
All in all, the Bar, the Bench, the legal fraternity, academic lawyers and the public ought to be
sensitised that personal liberty and freedom of a person is precious. It ought not to be tampered
with or abused easily. Human dignity (“utu”) and freedom (“uhuru”) are inseparable. A

52
Many years ago, I appeared in one case in a Magistrate’s court on pro bono basis in which the accused had been
charged with a trumped-up charge at the behest of the accused’s creditor. The accused had failed to pay rent for
a room in a guest house. The owner got the prosecution to lay against the accused the charge of, if I recall
correctly, criminal trespass! He languished in jail for several days because he was not admitted to bail before I
had the charge dismissed and the accused acquitted.
53
See WA NYOKA, Kiangiosekazi, “Chief Justice Decries Tough Bail Restrictions,” Daily News (Tanzania), 3rd
August, 2019.
54
For a brief discussion of the Kenyan situation see MATERU, Sosteness Francis, “Fighting Money Laundering
through Criminal Prosecution in Tanzania: A Critical Comment on Specific Aspects of the Law and Practice,”
op. cit. pp. 46-7.
55
The video clip can be viewed at https://www.judiciary.go.tz/web/index.php?r=posts%2Fwebview&id=78
accessed on 24/09/2020.

23
society in which its members live under constant fear of being deprived of freedom – and
therefore of human dignity - cannot claim to be either democratic, free or progressive.

24