BELTIDA BENGESI YAKUPANDISHA

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM (CORAM: MZUNA, MGONYA, MWENEGOHA, JJJ) MISCELLANEOUS CIVIL CAUSE NO 16 OF 2022 IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 1977 - AS AMENDED FROM TIME TO TIME. AND IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT [CAP. 3 R.E. 2019] AND IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE AND PROCEDURE) RULES, 2014 AND IN THE MATTER OF A PETITION TO CHALLENGE CONSTITUTIONALITY OF SECTIONS 176(a), (b), (c), (d), (e), (f), (g), (h), (i) AND 177 (a), (b), (c), (d) AND (e) OF THE PENAL CODE CAP 16. [R.E. 2019] BETWEEN BELTIDA BENGESI..................................................... 1st PETITIONER MKAILE MATHIAS —————————-.............. 2nd PETITIONER NAJIA KHALFAN........... -............................................ 3rd PETITIONER VERSUS THE ATTORNEY GENERAL........ ....................................... RESPONDENT JUDGMENT 2Td May & 16th June, 2023. MGONYA, J. One of the paramount questions for determination in this matter is the constitutionality or otherwise, of section 176 (a), Page | 1 (b), (c), (d), (e)z (f), (g), (h), (i) and 177 (a), (b), (c), (d) and (e) of the Penal Code CAP 16. [R. E. 2019] as they are alleged to violate the rights of the Petitioners enshrined under Articles 12 (1), (2)z 13 (1), (2)z (4)z (6) (a) and (b), 15, 17(1), 19(1) and 29(1) of the Constitution of the United Republic of Tanzania (1977) as amended from time, Cap. 2 [R. E. 2002] (the Constitution), which respectively, guarantee equality of human beings, equality before the Law, Right to life, Right to person freedom of movement, Right to freedom of movement, and Right to freedom of religion. The said provisions of the Penal Code are Challenged on the account that they are unconstitutional as they are too wide, vague, unclear, without protection against abuse and therefore contravenes the right to equality, right to privacy and dignity, right to non-discrimination, right to be heard and fair trial, right to liberty and freedom of movement among others. The Petition was brought by way of originating summons under Article 26(2) of the Constitution of the United Republic of Tanzania, section 4 of the Basic Rights and Duties Enforcement Act, Cap. 3 [R. E. 2019] (herein to be referred as BRADEA) and Rule of 4 of the Basic Rights and Duties, Enforcement (Practice and Procedure) Rules 2014 and is based on the following ground: Page | 2 i. The provision of section 176(a), (b), (c), (d), (e), (f), (9), (h), (I) which criminalizes disorderly person, loitering or soliciting, wandering, begging or gathering alms, wandering or causing a breach of peace or a person who is not engaged in any productive work and has no any visible reasons of subsistence, idle and disorderly persons in the United Republic of Tanzania, is too wide, vague, unclear, without protection against abuse contravening the right to equality, right to privacy and dignity, right to non-discrimination, right to be heard and fair trial, right to liberty and freedom of movement, right to work and other fundamental freedoms as provided in the Constitution of the United Republic of Tanzania; ii. The provision of section 177(a) 177(a), (b), (c), of the Penal Code which criminalises rogues and vagabonds person in the United Republic of Tanzania, is too wide, vague, unclear, without protection against abuse contravening the right to equality, right to privacy and dignity, right to non­ discrimination, right to be heard and fair trial, right to liberty and freedom of movement, right to work and Page | 3 other fundamental freedoms as provided in the Constitution of the United Republic of Tanzania; and iii. The provision of Section 177(d) and (e) of the Penal Code CAP. 16 [R. E. 2019] which criminalises people in roads, highways and public premises, also consent to carryout private activities, making provision too wide, vague, unclear, without protection against abuse contravening the right to equality, right to privacy and dignity, right to non-discrimination, right to be heard and fair trial, right to liberty and freedom of movement, right to work and other fundamental freedoms as provided in the Constitution of the United Republic of Tanzania. Facts of this matter which can be discerned from the affidavits of the Petitioners reflects that on July, 2019 at Tandale, Manzese Kinondoni District, Petitioners were arrested at their residential houses and taken to Mburahati Police Station without being informed of the offence they committed to warrant the arrest. Thereafter, they were photographed while holding placard reading that "I am a prostitute". That the said pictures were spread via various social media and thereafter the Petitioners were charged at Sokoine Resident Magistrate Court at Dar es salaam with an Page | 4 offence under Section 176(h) of the Penal Code vide the Criminal Case No. 503 of 2019. On account of the aforesaid facts, Petitioners filed this petition before this court seeking for the following declaratory orders: One; that the provisions of sections 176(a), (b), (c), (d), (e), (0, (g)/ (h), (i) and 177 (a) (b) (c) (d) and (e) of the Penal Code (Cap. 16 R. E. 2019), are unconstitutional for offending the provisions of Article 12(1) (2), 13(1), (2) and (4), 13(6) (a), 15(1) (2), 16(1) and 29(1) of the Constitution of the United Republic of Tanzania of 1977 as amended; Two; the provisions of sections 176 (a), (b), (c), (d), (e), (f), (g), (h), (i) and 177 (a) (b) (c) (d) and (e) of the Penal Code Cap. 16 [R. E. 2019], be declared unconstitutional and expunged from the statute book immediately without allowing the Government to amend the same; Three; declaration that section 176 (a), (b), (c), (d), (e), (f), (g), (h), (i) and 177 (a) (b) (c) (d) and (e) of the Penal Code Cap. 16 [R. E. 2019], are outdated and does not align with the International Instruments that Tanzania has signed and ratified, and Four; being a Constitutional matter, each party has to bear its own costs. Page | 5 The Petition was accompanied by affidavits sworn by the three Petitioners, BELTIDA BENGES, MKAILE MATHIAS, NAJIA KHALFAN, and TITO MAGOTI, as human right lawyer for the Petitioners. The Petitioners, in their respective affidavits and joint affidavit deponed among others that they are Tanzanian Petty traders who have been informed about their rights under the laws of the land as provided under Constitution of the United Republic of Tanzania (1977) and that Section 176 and 177 of the Penal Code, Cap. 16 [R. E. 2019] are unconstitutional as they are broad and confers wide discretion of Law Enforcement Agencies to decide who to arrest, an act which impact distortional on vulnerable individuals in society and certain sexual orientation of an individual. That the implementation of the said provisions has affected the Petitioners and interfered with their Constitutional Rights and criminalises the status of an individual such as poor, homeless, unemployed as apposed to specific representable acts. Apart from making a general denial of the contents of the Petition, the Respondent unsuccessfully raised a preliminary point of objection challenging the competency of the petition on the ground that it is time barred and urged the High Court to dismiss the Petition. This Court dismissed the preliminary point of Page | 6 objection as it has no merit and ordered the Petition to be considered on its merits. Hearing of this Petition was through written submissions whereby the Petitioners were represented by Mr. Mpale Mpoki learned Advocate, assisted by Mr. Jebra Kam bole, learned Advocate, while the Respondent was represented by Ms. Narindwa Sekimanga, learned State Attorney. Both counsels complied to the scheduling order of filing their written submissions. As stated before, the main issue for determination is whether these impugned provisions contravene the Constitution of the United Republic of Tanzania. The same can be tackled clearly when the following issues are addressed: One; whether the offence from the impugned provisions is outdated, vaguely and widely formulated, Two; whether the offence from the impugned provisions is arbitrarily applied; Three; whether the arrest on the offence is unlawful, that the impugned provisions infringe fundamental rights and freedoms enshrined under Article 12(1). In his submission, Mr. Mpoki narrated the historical background of idle, disorderly, rogue and vagabond offences found in Africa which can be traced from 14th Century in Europe in which Page | 7 it was passed to make unlawful to refuse an offer to work, to stop the mobility of labour, and to force laborers to accept low wages. According to him, the law had little effect towards reducing the number of vagrant as it does not address the cause of the problem. According to him section 176 and 177 of the Penal Code are colonial era vagrancy offences and are repressive and are applied in practices in violation of basic legal notion like presumption of innocent. The learned Counsel further submitted that the offences are . universally applied in ways which allow broad police discretion and ignore the principle that arrest amount to reprivatisation of liberty and should be considered as a last resort. Mr. Mpoki alleged that conviction basing on these offences often occurs without due process of the Law. He referred this court to the persuasive case of Uganda namely MAYESO GWANDA vs. STATE [2017] MWHC 23 as per the Kalembera, J. which stated among others that the vagrant laws are now outdated. That it is unconstitutional and violated a range of human rights. . He further referred to various international instrument to persuade this court in this point such as the United Nations' Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Page | 8 Systems and their Development, Changing World, Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and their Development in a Changing World, adopted at the Twelfth United Nations Congress on Crime, General Comment No. 21(2017) of the Committee of the Rights of the Child, of the United Nations' Doha Declaration on Integrating crime Prevention and Criminal Justice, to mention but few. The learned Counsel insisted that the provision of sections 176 and 177 of the Penal Code often applies disproportionately to the poor in society who are likely to be assumed to violate such offences and are more likely to be found in circumstances that could lead to such arrest and who are less able to assert their rights and access to legal support to dispute unlawful arrest. He stressed his point by referring to the Advisory Opinion issued by the African court on human and peoples'rights NO. 001/2018, 4 DECEMBER, 2020. Further, Mr. Mpoki submitted to the effect that it is accepted the rights in the Constitution should be interpreted in a generous and broad fashion and limitations to such rights must be interpreted narrowly. That the rules of legality require that a Page | 9 statute should be interpreted in a manner that avoids absurdity. A statement of prohibited conduct must be clear and unambiguous and should leave no room for dispute or uncertainty as to whether particular conduct comes within the ambit of a proscription set out in the definition of the crime. The Counsel insisted that in construing the meaning of legislation, courts must be guided by the object and purpose of the impugned statute in determining its constitutionality. Submitting further, Mr. Mpoki agreed that the burden of proof is on the Petitioners to show that rights have been violated. However, once the Petitioners have established a prima fade violation of rights, the burden will shift to the Respondent to justify that the offences are a justifiable limitation of the rights in the Constitution. Mr. Mpoki went further to elaborate the rights of the Petitioners which are guaranteed in the Constitution of the United Republic of Tanzania of 1977 and infringed by the Respondents. It was submitted that the right to dignity is enshrined in Article 12 of the Constitution which provides that all persons are equal and entitled to recognition and respect for their dignity and also protected by Article 13(6)(d) of the Constitution which provides that "human dignity shall be protected in all activities Page | 10 pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence." To bolster on the above assertion, the learned Counsel referred this court to the case of HASSAN HUSSEIN mussa & ANOTHER JAMBO FOODS PRODUCTS CO. LIMITED (CIVIL CASE 84OF2020)[2022] TZHC9809(U MARCH, 2022)\V\ which this court described human dignity as follows: " Human dignity is at the heart of human rights. What is human dignity exactiy? At its most basic, the concept of human dignity is the belief that allpeople hold a special value that's tied solely to their humanity. It has nothing to do with their class, race, gender, religion, abilities or any other factor other than them being human. The term "dignity"has evolved over the years. The actual meaning of the word dignity" is established that someone deserves respect regardless of their status. It is something all humans are born with. Simply by being human, all people deserve respect. Human rights naturally spring from that dignity. Human dignity in our Jurisdiction is well recognized in our Constitution of the United Republic of Tanzania, (1977)..." Page | 11 I Further this court was referred to the AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS, ADOPTED ON 27 JUNE, 1981, in its article 4 and 5 to insist the same. The case of purohit and another v. the Gambia, (2003) AHRLR 96 (ACHPR) the African Commission on Human and Peoples' Rights (hereinafter referred to as the 'African Commission') and THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS' PRINCIPLES on the Decriminalisation of Petty Offences was also referred. It was insisted that in considering a similar offence, the African Court held that an offence such as that of sections 176 and 177 of the Tanzania Penal Code violate the right to dignity in several ways, including in its degrading connotations, the way it is enforced, and the disregard it has for persons attempting to sustain themselves. Regarding to the right to equality, it was elaborated how the Constitution guarantee and protect the right to equality. That Article 13(1) of the Constitution provides for the right to equality before the law and non-discrimination. Further it was referred that Article 13(2), which states that no law may contain a "provision that is discriminatory either of itself or in its effect". Page | 12 Article 13(4) was also referred provides that "no person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office". Article 13(5) defines the prohibited grounds of discrimination broadly as "nationality, tribe, place of origin, political opinion, color, religion, sex or station in life". Article 13(6) of the Constitution goes further to entrench other rights to protect the right to equality, including the right to dignity, the right to a fair hearing, the presumption of innocence, and freedom from torture and inhuman or degrading punishment or treatment. Article 29 of the Constitution encompass the universality of rights and emphasizes that Tanzania Seeks to guarantee the right to equal protection of all. The ADVISORY OPINION OF THE AFRICAN COURT was also referred. The Opinion concluded that vagrancy offences, such as those created by sections 176 and 177 of the Penal Code, violate a range of fundamental rights, including the right not to be discriminated against and the right to equal protection before the law. It was insisted that even the African Court explained that vagrancy laws effectively punish the poor and underprivileged, including but not limited to the homeless, Page | 13 the disable, the gender-nonconforming, sex workers, hawkers, street vendors, and individuals who otherwise use public spaces to earn a living. Notably, however, individuals under such difficult circumstances are already challenged in enjoying their other rights, including more specifically their socio-economic rights. For example, children connected to the streets are said to have often arrested under these offences in Tanzania in violation of children's rights and without rational basis. Children who live or find themselves on the streets are often described by police as unruly criminals. Mr. Mpoki submitted .that such an approach shows little appreciation for the circumstances which have led to children finding themselves on the streets, including domestic abuse, child neglect, disease, poverty, drought, lack of educational opportunities and conflict. From that misfortune, it was stressed that those are the issues for which society must take responsibility and which cannot be washed away by sending children to prison. Mr. Mpoki, the learned Counsel further submitted that the extent to which sections 176 and 177 are used to arrest and detain children who live on the streets, shows a criminal justice system which ignores the fundamental principle of the best­ page | 14 interests of the child. Instead, street children are arrested and detained by police and subjected to exploitation, abuse, discrimination and stigmatization both on the streets and by law enforcement officials. It was further averred that enforcement of these laws thus further perpetuates the stigmatization of poverty by mandating a criminal justice response to what are socio-economic and sustainable development issues hence vagrancy laws reinforce discriminatory attitudes against marginalize persons. To justify the above explanation, this Court was referred to the case of Re: Constitution of the United Republic of Tanzania, 1977 (77 of2005) [2006] TZHC 4 (24 April, 2006). With regard to the Right to a fair hearing and the presumption of innocence, Article 13(6) of the Constitution which recognizes the right to a fair hearing and the presumption of innocence the case of mbeya-rukwa auto PARTS & TRANSPORT LIMITED V. JESTINA GEORGE MWAKYOMA, CIVIL APPEAL NO. 45 OF2000 (UNREPORTED) in which the court of Appeal held that: "In this country natural Justice is not merely a principle of common law; it has Page | 15 become a fundamental constitutional right. Article 13(6)(a) includes the right to be heard amongst the attributes of the equality before the law." It was further submitted that individuals continue to be arrested for conduct which does not comply with the offence with which they are charged. According to Mr. Mpoki, section 176 is often used to arrest women presumed to be sex workers when . their conduct did not fall within the terms of section 176. That Sweeping exercises risk arrests without proper procedures or probable cause for arrest and persons arrested under sections 176 and 177 are often released immediately after their arrest, suggesting that there was no probable cause for the arrest and no intention to pursue the case judicially at the time when the arrest was made. According to Mr. Mpoki, arrest and detention under section 176 and 177 is often not a proportionate response to the conduct of the person arrested. That arrests under sections 176 and 177, especially during weekends, sometimes mean that persons are detained for longer than a day for what is a very minor offence, at police stations provide little or no food to persons in custody, and conditions are often unhygienic and hazardous. That Page | 16 the said arrests burden families who have to spend scarce resources to visit the police station, bring food and pay bill. Then this court was referred to the case of MAYESO GWANDA V. STATE [2017] MWHC 23, PER KALEMBERA J. MALAWI HIGH COURT, when was considering the constitutionality of a rogue and vagabond offence and held that arrests for behavior that was not in fact criminal, amounted to inhumane and degrading treatment and violated the right to dignity. The petitioners further submitted that the broad ambit of section 176 and 177 of the Penal Code result in persons being subjected to inhumane and degrading treatment and punishment. That in instances where specific groups of people are more at risk of being stopped. It was urged that petty offences like those in this matter be discouraged and decriminalized in statute books. Insisting on the same, this Court was referred to the Ouagadougou Declaration, the African Commission on Human and People's Rights' Principles on the Decriminalization of Petty offences which provides among others that petty offences are inconsistent with the right to dignity and freedom from ill-treatment on the basis that their enforcement contributes to overcrowding in places of detention or imprisonment. It went further to note that the Page | 17 Commission's concern with the adverse socio-economic impact of the enforcement of petty offences, including, the imposition of fines on persons without means to pay, prolonged or arbitrary pre­ trial detention, harassment by law enforcement officials, the economic and social cost to the families of people in detention, adverse health consequences from conditions of detention, and potential criminal records, which further entrench the marginalization and burden of people living in poverty. With regard to the right to personal freedom it was emphasized that Article 15 of the Constitution guarantees the right to personal freedom. Article 15(2) emphasizes that no person shall be arrested, imprisoned, confined, detained, deported or otherwise be deprived of his freedom save only under circumstances and in accordance with procedures prescribed by law or in the execution of a judgment, order or a sentence given or passed by the court following a decision in a legal proceeding or a conviction for a criminal offence. That Sections 176 and 177 of the Penal Code are ambiguous and accordingly disproportionate, discriminatory and arbitrary in application. Mr. Mpoki submitted that, because of the wide ambit of the offences, police discretion plays a pertinent role in determining who will be arrested, allowing prejudice, stigma Page | 18 and discrimination to become factor s in determining whether to arrest a person. It was further submitted that the African Commission Human and People's Rights' Principles on the Decriminalization of Petty Offences emphasizes that petty offences are often vague and overbroad, and do not always specify the conduct being criminalized or the requisite criminal intent. Therefore, law enforcement officials are given wide discretion to determine what activities constitute criminal behavior in a particular in a particular context, which often results in the law being applied in an arbitrary and/or discriminatory manner. It was opinioned that for an arrest to be legal, certain requirements contained in National Constitutions, Criminal Procedure Laws, and Regional and International Treaties, must be met such as meeting the requirements of proportionality, legality and necessity, in making the arrest, the officer should not use greater force than is reasonable to apprehend a suspect, person arrested must be informed of the reason for the arrest at the time of, or as soon as practicable after, the arrest; informing the person to be arrested of the right to remain silent, and be warned of the consequences of making any statement, the arrested person must be brought before a court within a reasonable time and usually Page | 19 I within 48 hours, not to be compelled a person arrested to make a confession or admission which could be used in evidence against him or her, an arrested person be given the right to be segregated from convicted persons; and an arrested person has the right to be released from detention, with or without bail unless the interests of justice require otherwise. Regarding the discretion to arrest, it was argued that a police officer may only arrest someone without a warrant if the officer has reasonable grounds to suspect that the person is about to commit an arrestable offence. Whether there is a reasonable suspicion that gives rise to the use of the discretion to arrest, should be influenced by several factors such as the arrestor to have an open mind regarding factors pointing to both innocence and guilt, the suspect should have the opportunity to deal with allegations before being arrested; for the suspicion to be reasonable, it must extend to all elements of the offence; and the arrestor must consider the rights of the suspect to human dignity and freedom. Further the Petitioners submitted that arrest is considered an appropriate response for behavior that does not denote criminal intent. That arrest is a violation of the right to liberty, security of person and dignity, and should be a measure of last not first resort. Page | 20 It was denoted that sweeping exercises tend to have very general objectives, meaning that persons are arrested, for being on the I street at night, even when they have not committed a specific offence or engaged in suspicious activity. Sweeping exercises are targeted at whoever the police deem to be 'undesirable7, including sex workers, vendors, street children, persons who beg and persons with disabilities. That the objective of a sweeping exercise is to assure the public that sufficient attention is paid to crime prevention. However, it was noted that, with the so-called sweeping exercise, people find themselves imprisoned or detained in potentially life-threatening conditions, especially in cases where they cannot afford bail or the fine, even when there is no proof of an actual offence having been committed, in violation of their rights. With regard to the right to privacy and personal security, Mr. Mpoki submitted that the same is enshrined in Article 16(1) of the Constitution. That the Petitioners' right to privacy is infringed when persons who are going about their daily activities are targeted to be questioned about their private life, and to have their person searched prior to or during an arbitrary arrest. According to Mr. Mpoki, a police officer's interference with a person who goes about his or her daily business negates the right Page | 21 to be left alone. Instead of sections 176 and 177 of the Penal Code protecting Constitutional rights, it contributes to its violation. To put emphasize on the same this court was referred to in Article 6 African Charter on Human and Peoples' Rights of 1981. The decision in the African Commission, in the case of Amnesty International and Others Vs. Sudan (Amnesty International, Comite Loosli Ba ch el a rd, Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa V. Sudan 48/90­ 50/91-52/91-89/93, November 1999) and concluded that Article 6 of the African Charter on Human and Peoples' Rights must be interpreted in such a way as to permit arrests only in the exercise of powers normally granted to security forces in a democratic society. Regarding the right to freedom of movement, it was submitted that the same is enshrined in Article 17 of the Constitution which provides for the right to freedom of movement. It was averred that, sections 176 and 177 of the Penal Code violates the Petitioners' right to freedom of movement in that they can be arrested and detained when going about their daily lives. Then this court was referred to the Human Rights Committee's General Comment 27, which guarantees liberty of movement to Page ( 22 be an indispensable condition for the free development of a person. To substantiate this point, the case of Malawi high court in BROWN V REPUBLIC, MWHC CRIMINAL APPEAL NO. 24 OF 1996 was referred, which held among others that it is not an offence merely to be found, during the night, on or near a road, highway, premises or public place. An unemployed or homeless person may be found sleeping at a market place or in a school building, just because he is poor, unemployed and homeless. It was opined that it is unjust and wrong to accuse such person of committing an offence. That offence should provide the public and the police with a clear standard of what constitutes prohibited conduct, yet the broad articulation of sections 176 and 177 leads to the continued arrest of persons in circumstances where the police are not aware that any offence has been committed. Thus, the offences, by their nature, leads to unlawful and arbitrary arrests. It was further argued that the fact that the courts have tried to interpret the offences narrowly, does not save it from unconstitutionality. Whilst the sections should be read to include an element of intent, this is not the case in practice. The offences continue to be applied in an arbitrary manner. Kenya High Court was referred, that it has cautioned that arrests based on a Page | 23 suspicion or belief that one is likely to commit a crime are purely subjective. It was his opinion that enquiries into reasonableness and necessity often overlap, and, for the purpose of this matter it will be discussed as a single inquiry into the proportionality of sections 176 and 177 of the Penal Code so as to balance the objective of the offence against the rights infringements caused by it. That in the case of JOSEPH OSUMUND MBILINYI& ANOTHER K THE COMMISSIONER GENERAL TANZANIA PRISON SERVICE & ANOTHER (MISC. CIVIL CAUSE 13 OF 2021) [2022] TZHC15340 (19 DECEMBER, 2022), the High Court found that the act of compelling prisoners to test for HIV and disclose or release testing results to third parties was not backed by law and therefore offended prisoners' right to dignity, privacy and freedom. Mr. Mpoki insisted that crime prevention is a legitimate Government objective, any measures proposed to deal with this objective should be well researched and not be arbitrary, unfair or based on irrational considerations. According to him, police respond to the use of sections 176 and 177 of the Penal Code, as they provide an important tool to prevent more serious crimes from being committed but cannot point to any evidence to support such claims. Page | 24 It was further submitted that the criminalization of a person before they have committed a crime or attempted to commit a crime is impermissible. The effect of sections 176 and 177 is not only the infringement of the rights of those arbitrarily arrested under the section. The policing and prosecution of the offence, which relate to suspicious as opposed to actual conduct, are a strain on the resources of police, courts and prisons. Thus, it cannot be shown that the alleged deterrent effect of the offences outweighs the negative impact the offence has on the functioning of the justice system and its ability to address serious crimes. It was further submitted that the offences further contribute to overcrowding in prisons, as a consequence for prisoners and pre-trial detainees, including poor nutrition and sanitation, increased transmission of communicable diseases, and a harmful impact on their physical and mental well-being. In this context, the offence becomes counter-productive, causing serious and continuous human rights violations. On the part of the Respondents, Ms. Narindwa Sekimanga learned State Attorney adopted an affidavit to be part of the submission. Learned State Attorney, began by submitting that generally that the provisions in this case, in the Penal Code, Cap. 16 [R. E. 2019] are clear, certain and not vague as they did not Page | 25 attract any multiple interpretation or conflicting construction. That the said provisions do not violate the right to privacy and right to dignity, right to liberty and freedom of movement, right to work and other fundamental freedoms. Learned Counsel insisted that the said provisions have been introduced in the statute so as to maintain peace and order in the society, through restriction of the disorderly movements and conducts in public places that may jeopardize public peace, safety as well as public properties and promotion of public morality through prohibition hence saved by Article 30(2) of the Constitution. While countering the Petition, the learned State Attorney's submission was based on the principle of limitation of rights, the principle of duty to abide by the Constitution, the principle of standard proof of Constitutional cases and the principle of presumption of Constitutionality of statute. That based on the said principles, the Petitioner's petition is said to be baseless and fall short of the standard under which this honorable court may invoke its power enshrined under Article 30(5) of the constitution read together with section 13 of the BRADEA to declare the impugned laws unconstitutional or direct the Government or the Parliament to correct the alleged defects. Page | 26 On whether the offence created by the impugned provision are outdated, vaguely, and widely formulated, the learned State Attorney submitted that the perception of the Petitioners that section 177 and 176 of the Penal Code, being post-colonial, that are colonial vagrancy offences and that they violate the basic legal notions like being innocent until proved guilty, universally applied, police officer being given wider discretion arresting and conviction without due process accorded to other offences, is not correct. Ms. Sekimwanga clarified that, many laws in Tanzania originate from India and England (Common Law) and were introduced in Tanzania through the Tanganyika Order in Council of 1920 whereby states from England and India were adopted and become applicable in Tanzania through section 17 of the said Order which is referred to as the reception clause. Learned State Attorney added that section 3(1) (a) of the Penal Code allows application of the common law in instances where the offence committed falls within the scope of the common law. Therefore, not only the Penal Code which originate from England and adopted to be applicable in Tanzania but also their other Laws. On whether the provision is vague and wide formulated, by referring to paragraph 38 to 99 of Mr. Mpoki's submission, Ms. Page | 27 Sekimanga submitted that in order for that conclusion to be drawn, rules of statutory interpretation have to be applied which provides that necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two view are possible or where the provision gives a different meaning defeating the object of the statute. It was further submitted that, the primary rule is to interpret the words of the statute as they are, literary. Referring to the principle of statutory interpretation, it was insisted that the words which form sentence of the impugned sections are simple and clear ordinary English. To substantiate the point, this court was referred to the case Of LAUSA ATHMAN SALUM VS. ATTORNEY GENERALCIVIL APPEAL NO. 83 OF 2010 atpage 11 and 22 in which it was held that " Where the court called to interpret a provision of the statute, that provision must be read in its context, according to G.P. SINGH in HIS PRINCIPLE OFSTA TUTORYINTERPRETA TION (9th ed. 2004) at p. 3 the context here means the statute as a whole, the previsions state ofthe law, other statutes in peri Materia, the general scope of the statute and the mischief that it was intended to remedy". Page | 28 Further, stressing on the same point, this court was referred to a litany of cases namely of DIRECTOR PUBLIC PROSECUTIONS VS. JULIETH SIMON PELEKA (CRIMINAL APPEAL NO. 94 OF 2019, COURT of APPEAL at page 15, and 16 where it referred TO the REPUBLIC VS. MWESIGE GEOFREY TITO, BISHAMU, CRIMINAL APPEAL NO. 385 of 2014 (Unreported), and BARNABAS MSABI NYAMONGE VS. ASSISTANCE REGISTRAR OF TITLES AND ANOTEHR, CIVIL APPEAL NO. 178 OF2018 to mention but few. Concluding on this issue, the learned State Attorney prayed the above allegation be disregarded and be considered unmeaningful. With regard to the allegation that the offence from the impugned provision to be arbitrarily applied, it was argued that the basic principles guiding in the administration of the said provisions of the Penal Code in Tanzania is that every citizen has the right to be protected in terms of health, safety and wellbeing of the general public. Further, it was submitted that sections 176 and 177 of the Penal Code are applied interned with other laws like the Criminal Procedure Act CAP 20 [R. E. 2019] which provides for the procedure on how to deal with criminal offences including those established under sections 176 and 177. Page | 29 r The learned State Attorney further added that the limitations of the impugned provision are justifiable by Article 11(1) and Article 30(2) (b) of the Constitution and the Government is required to take all measures to protect the public healthy, safety and moral and the limitation meets the requirement imposed in the case Of KUKUTIA OLE PUMBUN AND A NOTEHR VS. THE ATTORNEY GENERAL [1993] TLR159. On whether the arrest of the offence is unlawful on the ground that it leads to overcrowding in police cells, is done to individuals who are less able to assert their rights and access legal support and conducted without arrest warrant, it was submitted that the allegation are baseless as per Petitioners' affidavits they were arrested by the female police Officers. Further that their rights were explained and taken to Police station, and later arraigned to court and prosecuted when the investigation was completed and found guilty. It was submitted further that, the Petitioners have failed to show that they were unlawfully arrested and the offences created by the impugned provisions are based on the unlawful arrest as their arrest was done according to the procedure prescribed by the Criminal Procedure Act, Cap 20 [R. E. 2019] specifically section 14 of the CAP 20 R. E. 2019 and abuse of that provision does not renderer the said provision Page | 30 unconstitutional. Stressing on the said point Ms. Sekimanga referred this court to the case of rev, CHRISTOPHER mtikila vs. attorney general [1995] at page 34 where it was held that: " The constitutionality of the statutory provision is not found in what could happen in its operation but in what it actually provides for; the mere possibility of a statutory provision being abused in actual operation will not make it invalid." On allegation that the impugned provisions discriminate people on their status appearance and sex as per Petitioners' submission, it was submitted that the Petitioners failed to prove the same on the standards required in the Constitutional cases, which is beyond reasonable doubts. Again, Counsel referred this court to the case of REV. CHRISTOPHER MTIKILA (SUPRA), that they failed to substantiate the allegation that they suffered discrimination basing on their status. That the safeguard imposed before arrest is conducted to those who are suspect under the offence of impugned provision and the justification of the limitations imposed in the impugned provisions, failure to prove renders nonexistence of those facts. To bolster on nonexistence of facts, this court was referred to the case of center for strategic litation limited & Page | 31 ANOTHER ATTORNEY GENERAL & 2 OTHERS, MISCELLANEOUS, CIVIL cause NO. 21 OF 2019 (HC) unreported page 40-41, that:' "Apart from citing the provision of law, there must be facts showing that what is contained in the provision contradicts the Constitution. Those facts must be dearly shown in the affidavit supporting the petition and substantiated by the argument during submissions. This is what we call proof and as pointed out; they must be put in such a way that leaves no doubts..." Coming to the complaint that the impugned provisions infringes the fundamental rights and freedom enshrined in Article 12(1), (2), 13 (1), (2), (4), 6(a) and (b) 15, 17(1), 19(10 and 29(1), it was presented that its violation was not proved by ' fact on the standard required though from page 35 and 64 of the Petitioners' submission has cited provisions of the Constitution and different decisions within and outside our jurisdiction. That they have just amplified human rights including right to dignity. That same has not proved any alleged breach. It was further submitted that the said photographs alleged to be taken while in police station and displayed in social media do not prove that faces on the same belongs to the petitioners. Second, the said photographs did not follow the rules of electronic Page | 32 Transaction Act, CAP 442 R. E. 2022 as elaborated in the case of LUSAJO WATSON MWASEGE VS AG AND TANZANIA POLICE FORCE, civil case no. i of 2019 and the case of Emmanuel Godfrey MASONGA VS EDWARD FRANZ MWALONGO, MISC. CIVIL CAUSE NO. 6 OF 2015. Concluding, Ms. Sekimanga insisted that the Petitioners have failed to discharge their Constitutional duties to prove their case to the standard required in the Constitutional cases. Therefore, in the absence of proof rebutting the presumption of the Constitutionality of statute, the impugned provisions of section 176 and 177 of the Penal Code Cap. 16 [R. E. 2019] remain Constitutional. Learned State Attorney is of the view that the instant Petition is devoid of merits and therefore be dismissed with cost. While rejoining, Mr. Mpoki insisted that Tanzania has ratified different International Instruments, therefore accounts must be taken in interpreting the Bill of Rights. He insisted that though this court is not bound by the decisions of other Jurisdictions as argued by the Respondent, this court should consider decisions of other jurisdictions. It is Counsel's view that the limitation clause should not be interpreted to suppress the enjoyment or exercise of the rights and freedom enshrined in the Constitution, to a greater extent than reasonably required. Further that the Petitioners have a duty to Page | 33 abide to the law but also have the civic duty to challenge the unjust and unconstitutional laws as provided under Article 26(2) of the Constitution. Further that since Petitioners have established the Prima facies case on violation of their rights, therefore the burden shifted to the Respondent to justify limitation of their rights in the Constitution. Before determining this matter, let us state that, both sides have duly filed their respective well-researched submissions. We are indeed grateful for the professional pieces of works which will be taken on board in the cause of writing Judgment. Having carefully considered the submissions of parties and their evidence on record, the Court will now determine this matter basing on the main issues raised above which also covers the sub issues raised by Counsel for the Respondents, Ms. Sekimanga the learned State Attorney. Provisions which triggered this Petition are Section 176 (a), (b), (c)z (d), (e)z (f), (g), (h)z (i) and 177 (a)z (b)z (c)z (d) and (e) of the Penal Code CAP 16. [R. E. 2019] which for ease of reference are reproduced as here under: " 176. Any of the following persons: a) a common prostitute behaving in a disorderly or indecent manner in a public place or loitering or Page | 34 soliciting in a public place for the purposes of prostitution; b) a person wandering or placing himself in a public place to beg or gather alms, or causing or procuring or encouraging a child so to do; c) a person playing at any game of chance for money or money's worth in a public place; d)a person wandering abroad and endeavoring by the exposure of wounds or deformation to obtain or gather aims; e) a person who publicly conducts himself in a manner likely to cause a breach of the peace; f) a person who without lawful excuse publicly does any indecent act; g)a person who in any public place solicits for immoral purposes; h)an able-bodied person who is not engaged in any productive work and has no visible means of subsistence; i) or a person employed under lawful employment ofany description who is, without any lawful excuse, found engaged on a frolic ofhis own ata time he is supposed Page | 35 to be engaged in activities connected or relating to the business of his employment, shall be deemed to be an idle and disorderly person and shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a period not exceeding three months or to both. Section 177, Any of the following persons- a)a person convicted of an offence under section 176 after having been previously convicted as an idle and disorderly person; b) a person going about as gatherer or collector or contributions ofany nature or kind, under any false or fraudulent presence; c) a suspectedperson or reputed thief who has no visible means of subsistence and cannot give a good account of himself; d) a person found in or upon or near any premises or in anyroad or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose; or e) a person who, without the prior consent in writing in that behalfofthe District Commissioner, or, in the case ofan urban authority, the police officer in charge of the police in that Page | 36 authority, collets, or makes any appeal for subscriptions of money in any public place for any purpose, shall be deemed to be a rogue and vagabond, and shall be guilty of an offence and liable for the first offence to imprisonment for three months, and for every subsequent offence to imprisonment for one year: Provided that, paragraph (e) of this section shall not apply to: a) any person who, or the duly authorizes (a) any person who, or the duly authorized repsentative ofany organization which, has received the written consent of the Inspector-General of Police to collect, or make any appeal for, subscription of money for religious or charitable purposes; or b)any person authorized to collect or make any appeal for subscriptions of money under the provisions of any law, including any by-law, in force in Mainland Tanzania: provided further that, for the purposes ofparagraph (e) of this section, the definition "public place" in section 5 of this Code shall not be deemed to include any recognized place ofreligious worship" The said provisions are challenged by the Petitioners on the account that they are unconstitutional for violating their rights under Article 12(1), (2), 13(1) (2), 94), (6)(a) and (b) 15, Page | 37 17(1), 19(1) and 29(1) of the Constitution of the United Republic of Tanzania (1977). For the easier of reference, the said Articles are as here under reproduced; 12. - (1) AH human beings are born free, and are all equal. (2) Every person is entitled to recognition and respect for his dignity. 13.- (1) AH persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law. (2) No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect. (3) The Civic rights, duties and interests of every person and community shall be protected and determined by the courts oflaw or other state agencies established by or under the law. (4) No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office. (6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: Page | 38 (a) when the rights and duties ofany person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right ofappeal or other legal remedy against the decision of the court or of the other agency concerned; 15, (1) Every person has the right to freedom and to live as a free person. (2) For the purposes ofpreserving individual freedom and the right to live as a free person, no person shall be arrested, imprisoned, confined, detained, deported or otherwise be deprived of his freedom save oniy- (a) under circumstances and in accordance with procedures prescribed by law; or (b) in the execution of a judgment, order or a sentence given or passed by the court following a decision in a legal proceeding or a conviction for a criminal offence. 17, -(1) Every citizen of the United Republic has the right to freedom of movement in the United Republic and the right to live in any part of the United Republic, to leave and enter the country, and the right not to be forced to leave or be expelled from the United Republic. Page | 39 19. - fl} Every person has the right to the freedom to have conscience, or faith, and choice in matters ofreligion, including the freedom to change his religion or faith. 29. - (1) Every person in the United Republic has the right to enjoy fundamental human rights and to enjoy the benefits accruing from the fulfilment by every person of this duty to society, as stipulated under Article 12 to 28 of this Part of this Chapter of the Constitution." We find it is important to note that Tanzania is a democratic country which also promote Rule of Law. As per the Congress of the International Commission of Jurists held in Delhi in 1959, "the Rule of Law is a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but to establish social, economic, educational and cultural conditions under which the individual legitimate aspirations and dignity may be realized". For that case, addressing the main issue on whether the provisions of section 176 (a), (b), (c), (d), (e), (f), (g), (h), (i) and 177 (a), (b), (c), (d) and (e) of the Penal Code CAP 16. [R. E. 2019] are unconstitutional for offending the provisions of Article 12 (1), (2), 13 (1), (2), (4), (6) (a) and (b), 15, Page | 40 17(1), 19(1) and 29(1) of the constitution of the United Republic of Tanzania (1977) we will address the sub issues raised by the Petitioners and addressed by Ms. Narindwa Sekimanga, the learned State Attorney. We prefer to begin by noting that while scrutinizing the continuality of the impugned provisions, the general principles on the Interpretation of the Constitution and fundamental rights and freedoms as laid down in case law and some authors on Constitutional laws will be applied, as that is where the friction started by comparing with the impugned provision of the Penal Code, Cap. 16 [R. E. 2019], will be applied. The said principle was laid down by this Court in the case of REV. CHRISTOPHER MTIKILA (supra), we quote: "The constitutionality of a statutory provision is not found in what could happen in its operation but in what it actually provides for; the mere possibility of a statutory provision being abused in actual operation will not make it in valid". In the said case of rev Christopher mtikilia (supra) this court referred to the case ofV^VMM JENA VS. STATE, AIR 1950 orrisia 157 where it was held: Page | 41 "In order to determine whether a particular law is repugnant or inconsistent with the Fundamental Rights, it is the provisions of the Act that must be looked at and not the manner in which the power under the provision is actually exercised. Inconsistency or repugnancy does not depend upon the exercise of the power by virtue of the provisions in the Act but on the nature of the provisions themselves". Further, as noted by Ms. Sekimanga Constitutional rights and freedoms are not absolute. We fully agree with her. It is common ground that the fundament rights and duties enshrined from Articles 12 to 28 of the Constitution are not absolute. This has been provided in Article 30(1) (2) and (3). One of the reasons for derogation is for public interest. Peace, order and Safety through restriction of disorderly movements and conducts such as prostitution which jeopardize Public Morality are saved by article 30(2) of the Constitution. Further, International Instrument such as Article 29(2) of the Universal Declaration of Human Rights of 1948 has a derogation clause, Article 19(3) and 25 of the INTERNATIONAL COVENANTS ON CIVIL AND POLITICAL Page ] 42 RIGHTS OF 1966 AND ARTICLE 27 of the AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHT OF 1981. The assertion that the limitation should not be interpreted to suppress the enjoyment or exercise of the rights and freedom enshrined In the Constitution, has no basis as the Petitioners has not shown how limitations suppressed the enjoyment or exercise of their rights. This principle has been subscribed also in the case of ZAKARIA KAMWELA & OTHERS VS. MINISTER OF EDUCATION & VOCATIONAL TRAINING & ANOTHER (CIVIL APPEAL NO. 3 OF 2012) [2013] TZCA 167 (5 JULY 2013), reported in https://tanziii. org/akn/tz/iudgment/tzca/2013/167/eng@2013 -07-05. Further, Petitioners, like any other citizen are bound to obey the law and the constitution of the united republic OF TANZANIA, as mandated under Article 26(1). Unfortunately, the Petitioners herein are all physically able, therefore they cannot hide under the umbrella of unprivileged and be excused from the ambit of the law as obedience to the said provisions does not create any harm to them, rather enhance peace, order and safety to the whole society. Page | 43 Mr. Mpoki alleged that section 176 and 177 are colonial vagrancies offences and they violate basic legal notions such as being innocent until proved guilty, provide a wide discretion to the police officers when arresting and conviction the same time. That the provisions are from post-colonial period. We entirely subscribe with Ms. Sekimanga, that most of the laws of Tanzania has been inherited from colonialism and being adopted in Tanzania though the Reception Clause under section 17 OF THE TANGANYIKA ORDER IN COUNCIL OF 1920. Further the allegation the provisions are outdated does not hold water as the provision becomes outdated when it does not fit with the current needs of the society. Being inherited from colonialist alone does not put it to be outdated rather but through its social usage becomes fit to serve its purpose. Now with the increasing influx of population from countryside to town and some of them with no business, there is a need to regulate peace, health, safety, morality and order by maintaining provisions like section 176 and 177. Every nation has its vision and Development Goals to archive. In Tanzania youth are workforce toward achievement of those goals, therefore there must be strategies is place to protect the growing generation. Page | 44 The allegation that the offence from the impugned provisions are arbitrarily applied, we find the same does not hold water as submitted by Ms. Sekimanga the learned Counsel, the basic principles guiding in the administration for the said provisions of the Penal Code in Tanzania is that every citizen has the right to be protected in terms of health, safety and wellbeing of the public general and every Tanzanian Society has to be just, equal and fair in terms of moral and ethical standards that people must abide with. Therefore, the laws have to be obeyed by all citizens. Sections 176 and 177 of the Penal Code are applied in tandem with the Criminal Procedure Act CAP 20 [R. E. 2019] which provides for the procedures on how to deal with criminal offences including those established under section 176 and 177. Therefore, there is no arbitrariness in the said provisions. Further, Petitioners' have submitted that section 176 and 177 are vague and overbreadth, violating the principles of legality, we find this argument too has no merits as going through the plain meaning of statutory interpretation, that is by using the wording of the provision itself, the above impugned provisions are clear and certain. Conviction of the offence from the above provisions requires proof of both actusreaus and mensrea as they go through the same legal process of proof of offences prescribed in the laws of evidence and in the Criminal Procedure Act Cap. 20 [R. E. 2019]. Interpreting statute using of plain meaning was emphasized in different cases by the Court of Appeal of Tanzania, among them are: DIRECTOR OF PUBLIC PROSECUTION VS. JULIETH SIMON PELEKA (CRIMINAL APPEAL NO. 94 OF 2019) Page | 45 REPUBLIC VS. MWESIGE GEOFREY TITO BISHAM, CRIMINAL APPEAL NO. 385 OF 2014, BARNABAS MSABINYAMONGE VS. ASSISTANT, REGISTRAR OF TITLES AND ANOTHER, CIVIL APPEAL NO. 178 OF 2018. Regarding unlawfulness of arrest on the offences created by the impugned provision, in paragraph 40 of the written submission, Mr. Mpoki submitted that arrests are made based on an individual's underprivileged status and inability to give an account of oneself, therefore, arrests are connected to the status of individual being arrested and would not be undertaken but for the status of the individuals. We find this assertion too has no merit as the Petitioners after they had been arrested, were prosecuted, had a chance to prove their innocence like any other offence and challenge the arrest process in court. Further the procedure of arrest is regulated by the law which is the Criminal Procedure Act, Cap. 20 [R. E. 2019]. Congestion of remands cannot render the arrest unlawful, and the impugned provision unconstitutional as the same can be rectified by enlargement of the said remands. Despite that, the Petitioners have not proved beyond reasonable doubts that they were arrested unlawfully as in their affidavit they stated that they were arrested by the female police officer, then taken to police station, then were sent to the court and were Page | 46 prosecuted and found guilty. Standard of proof in Constitution cases is beyond reasonable doubts as was emphasized in the case of rev. Christopher mtikila vs. attorney general [1995] TLR 31 at page 34 where it was held that; "a breach of the constitution is such a grave and a serious that cannot be established by a mere inference but by proof beyond reasonable doubts". With all being said we conclude that the provision of section 176 (a), (b), (c), (d), (e), (f), (g), (h), (i) and 177 (a), (b), (c), (d) and (e) of the Penal Code CAP 16. [R. E. 2019], are Constitutional as they do not offend the provisions of Articles 12 (1), (2), 13 (1), (2), (4), (6) (a) and (b), 15, 17(1), 19(1) and 29(1) of the constitution of the United Republic of Tanzania (1977) as amended as alleged by the Petitioners. With that end, we proceed to dismiss this Petition and order no costs as it involves vulnerable groups of petitioners. Page | 47 It is ordered accordingly. M. G. MZUNA JUDGE 23/6/2023 JUDGE 23/6/2023 JUDGE 23/6/2023 Page | 48