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.. .- IN 'i THE HIGH ,1 ., .• .. COURT . OF T.Al:JZANTA AT DAR ES SALA/1.TII ·ECONOl\rJI C CRil\/lfil S JURI:BDI CTI ON (Dar es Salaam Registry) MISC. ECONOMIO CRIMES C11SE HO• 82 OF L985 Q The Republic versus • b lt, ·.SHAURI Lffi\'!ANA 2. Tu10HAMED S,'\ID 3. MRISHO SAID :-"1 4. HAl',ITSI KAT.ARI 5 • SELEMANI $ALID:1 . RULINGiORDE11 ;{!UBUVA "." J. Thia is a.n application for bc"ti1· pending the DDP' s decisj_on whether pr not to put the applicant/accused on trial. The application . is filed i.mder the provision of Section 29(4)<8of the Economic and Organised •\ . Crime Control Act, 1984, The a;)plicant was arraigned on a charge· of Unlawful possession of offen~ive weapon contrary to Section 8(1) of the Nationa~ Security Act 1 1970 read toget:q.er with item 15 of the schedule to the Economic and'Organised Crime Control Act, 1984. At the hearing of this application on 7th August; 1984, .'~e hearing . 1.-- of the application had to be adjourned in order to enable LIJiss Phillip J.,learned State Attorney to verify on the allegation by the a.pplica:r:it to have been ... in detention for 5½ years. At the resumed hearing to day, l:/Iiss· Phillip, the State Attorney has confirmed that ·,'· from her verification,: it is true that the applicant had been in detention ,,. for the same ti offence for 5½ years •before he was there- after talren to court to answer this charge. Mr. Rai

tbatha learned oounsel appeared for the applic2nt-and Wiss Phillip learned State Attorney appeared for the Republic. At the hearing of the appeal 'L'fr. Raithatha streneously argued that the applicant was facing a . "~· ® bailable offence and that the matter was entirely within the dis- cretion of. _the court in that the High Court was not bound by the .. . . ·. ·. :·'. "". ~ . . ¢onditions stipulated under section 35(3) of the Economic and Orga- .-· ._:;_. ·•:· :. ' ·msed .:Cr.imE:i Control Act, 1984. Ylhen pressed by the court to· clarify on whert~e·~-.-the High Court is ~ound by the cond~ tions of bail 'laid .. - 2 - Section 35(3) of the Act on it was down underL'.,di"scretionary, learned counsel Mr. Baithatha went further _in categorically asserting that because sub-section (3)(c) of Section 35 expressly denies the grant of bail for an offence of possessing firearms, the court should not at all consider or have regard to such pro~_ision at this stage when the DPI' has not made up his mind to put the applibant on trial. It was further urged by Mr. Ra.ithatba that. the court should in exercising its discretion 1 t~.ke into account the fact that for about 5} yearn 1 the applicant was kept in detention vrhen !J,e ·- was finally takr':-::i. to the Police station and hence to the District Court ,, whcr:e the proposed charge was read over to him. Before· the District Court, the

applicant was made aware of his right to petition the High Court for bail under Section 29(4) of the Economic and Organised Crime Control Act, 1984. I-fence this application. JfI -~nderst'ood Mt. Bai thatha I s submission, it was h{s view that the appiicant having spent 5½ years in detention for tr-,e same alleged - offence, this was sufficient punisl1ment, for which at least,_ the · court should exercise linience in granting bail. -• On the o.ther hand, l\'fiso Phillip learned State Attorney vecy . _briefly addressed the court as follows-. ~he In the first place, :·,;,. 1i:x:pre ssed. _, . he;r- lack of lmowle dge as to the correct position regarding ···\the ,·,. ·claim by the applicant having been under detention for , 5½ years.. That being ari. assential and serious aspect touching on the. .,, ;:C'ghts of ' the appl~capt under the. law 1 the court ordered fOJ'.' an adj o:?r~ent of the appeai until to-day 10th August, 1985 in order to enable her to veri~y the position. The verification on the point is as indicated 7 at the outset. It was Miss Phillip I s submission tba t the applicant :,. was facing a very serio¥s charge for which bail should not be granted. She drew the court's att~ntion to the provisions of Section 35(3)(c) of the Economic and Organised Crime Control Act 1984, which in no uncertain terms providf: 8J110r:Ig othc,rs, · that bail should not be granted if the

applicant is involved in a charge of being in possession of firearm. Having listened to the very persuasive argu~,nt by both counsel .\ for the applicant and the Republic as well o.s having had due regard to the circumstances of the case as can be gatheTe1 from the facts available, the crucial issue for determination is whether haVing regard to the nature of the offence 1involved as ,;(,11 as the' applica_ble law, bail should be granted as prayed. • •.••••••.• /3. .L .·= 3 , .= Before· the DPP has made up his rninc1 wheth0r or not to put the applico.nt on trio.l,, the High Court is fully seized with jurisdiction to deal with bail application3,loGged under Section 29(4) of the said Act, before the Economic Crimes Court is constituted in terms of Section 3 of the Act. In- dealing with bail application under Section 29(4) of the Act by the High Court 'the Court of Appeal of Tanzunia in the e>ase of Director of Public Prosecutions v. I. Ally Haji Ahmad 2. Yona .[(aponda and 9 others. (Court of Appeo.l of Tanzania Criminal e Appeal iJos. 44 and 45 of 1985) observed:- 1 ' •••• In any event, o.ctins under Section 29(4), there · is no~hing to prevent a High Court •judge, in his - j discretion, from im)osing conditions akin to those spelt out in Section 35. In exercising his aiscretion, . the judge will of-course take into a.ccount the princi- . ple of equality before .the law, embodied

under the constitution, by imposing bail. conditions which do not differ too·much from thooe applied by the Court under ... Section 35." Fw my pc.:rt, while I am bound and w:i. th the greatest respect go by the decision of the court of Appeal in its very elaborate judgement which leaves no ambiguity on bail applications attended to by the High 1 Court ... before the DPP has made up his mind to put the applicant on trial, I would express my view even furthGr regarding the discretion vel3ted ( in the High Court judge. In my view, there seem to be a lacuna some- , where in the provisions of the :~:conomic and Organised Crime Control Act, 198/ pertaining to the bail conditions which the High Court. • can impose while dealing v.d.th applications under section 29(4). That is, somewhere under Section 29 of t}1e Act, there ought in my view, to be insE:rtcd a clause which'would make it mandatory for the High Court to impose conditions similar to those laid under Section 35. ' t To do otherwise, in my opinion, does not accord or reflect the same • seriqusness or rationale thnt the legislature ,had intended in enacting " . ,' a legislation providing for a specific machinery . in dealing v.d.th . Economic crimes if dif'ferent conditions of granting ba:i..l ·for the .:same ·· . . ~ type of offence are left open for:ioposi. tion by the High ,, Qourt •and the. . Economic Crimes Court a; the

st:.ic;es of. S!=)cfions. 29 and 35 differently • •••• , •• /4. ... - 4 I am ir~clined to think tii.ut o. r:1ore sat!sfactory'situation would . be attained if it were expressly provided in the Act that the • . 11 · cour.ts," that is·, the Hi@1 Court .snd the •Economic ·:bfime Court '' ". ., shall impose conditions of bail set.out under Section 35 of the Act. In . this, way, I thi~k, not only consiste~cy i~ bail conditions • • • for the offences triGd under t~e ~ct would be maintained throughout . ·the coun:try ~t the se·ction 29(4) stage but it .would also in effect , 0 · reflect the same ~ight and seriou3ness that the.legislature seemed to . " 1', have behind the enactment•of the legislature dealing with Economic Crimes,,cases.' ·J.s it is now under the law as lut:idly restated by the Cfourt •oft App~_al, ~ th discretion in imp;sing the bnil conditions set· ·• .. out uncier Section . 35 of the J,ct by ... the High Court,. inconsistencies ' •\ and variations in bail conditions imposed by different judges in divers, I-Iigh Court Registries in the cbuntryk cam1ot b~~ruled out .• This coes not augury well il'i the eyes of the pubil..ic in a nation • • ,1\lhi~h has take:i:i the bold step of waging a war against the crimes ~ '~designaJe~ as e.conomic crimes under n 11spGcia:j. court Irf8chinery. Put in~ other words, the discretion.ps indicated ,above, if anything at all • • ' .., ..

J r~ , wa~ers down the seriousness envisaged ~ehind the war·against the • • I now tur!-1 specifically to the appl·ication before the court.,._ On th2:3, I ~o not accept I.:i·. l~i thatha I s submission that the court . shou),d l1ot consider the ;_)1vvi:sio;10 of sectip!1 35 (3) ( c) part:Lcularly as this provision denies the e;rant ,,of bail. .• This is so, bec~use in my humt.le opinion, ,as demonstrated above, it would be an unrealistic . .. _. of case with different . ai;rcrf, if not a·superfical one to approach one and ,.... . the same type ... I ~ . standards o.t different stageR, 1 That is, if Wtr. 'Raithatha 1 s submission is tenable, it would amount to tacitly . accepting double or different standards in approach by the High Court at the st~ge of Section 29(4) anc1 t:1e Economic Crime court at the stage of Section 35.- I do not think.tbat would be a heal thy situation, • • . On the contraryt in my view, thoueh as the law stands now 7 the High . ' Court 2ven though dealing with bail application only a.t the stage & 1' ♦ t1 when the. ,DPP. has not f wade up his min:1 to tiut the ~pplicant • on trial, ~ should as far as possible impo~e simil;.\r condi ti•ons of bail as those • ' • • • that would be imposed by the Economic Cr_:inie ·court if not the same, In order to do that, consideration~ to tl:ie conditions laid down uncter · section 35 of the-Act should be resorted•to. . . From that point of view, Nr. B.aithatha 1 s submission on'th;_,t Groun-1 cannot be sustained. '