The appellate bench composed of five justices - Stella Mugasha, Gerald Ndika, Jacobs Mwambegele, Mwanaisha Kwariko and Ignas Kitusi - found that the lower court erred in its decision.
On May 18, High Court judges Dr Benhajj Masoud, Seif Kulita and Dr Juliana Masabo delivered a ruling that section 148 (5) of CPA violates Article 13 (3) (6)(b) and 15 (1) (2) of the Constitution of the United Republic of Tanzania.
The section in question restricts bail to persons charged with murder, treason, terrorism, armed robbery, trafficking of narcotic drugs and money laundering offences.
In a judgment delivered in the morning yesterday, the Court of Appeal bench quashed the decision of the High Court in Dickson Sanga’s case, declaring that section 148(5) of the CPA is in compliance with the limitations set under the constitution.
The petitioner moved the High Court in a constitutional petition challenging the provisions of section 148(5) of the CPA that denies bail to accused persons in various offences, the most popular at the time being money laundering. The petition was filed at the High Court and assigned tok the judges as Miscellaneous Civil Cause no 8 of 2019 with the Attorney General as the respondent.
Sanga was seeking orders that section 148(5) of the CPA infringes on 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.
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 Universal Declaration of Human Rights.
The petitioner similarly argued 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.”
He cited the offence of money laundering as being arbitrarily applied and thus continually abused where most offences are now non-bailable, saying this provision is being used to ‘fix somebody,’ upon which an accused is held for years in pre trial detention.