19960701 TZHC Dar es Salaam

CPIMil'J."\L APPEi-..L J\.O~ 21 OF 1997 THE- DIRECTOR OF Plii3LIC PROSECUTIONS •••••• AFFELI..;,_NT ANJELINJ... O,'.U,RE ••••••••••••• < o • • • • • • • " , • • ,, PESP~NDSNT (Ap~Pal from th0 jud,2ment of th~ Hi,h court of Tanzania at !,rusha) (Nchalla ~ J.) dated the 24th day of Ma~ch, 1997 in JUDGEfJiCNT OF THE COURT This appPal aris0s from the ju_d,m-=,nt of the Hi.,-h Court (Nchalln, J.) which upheld and affirm d the rulin, of th; 0 resident ma,istratP' s c0urt ~rar.ting bail to thP. r~s~ondent. follows: ThP- resrondert app1i 0 d to the. Resident Magistr3te 1 s Court for bail unr1Pr sectio:, H,e (.1) of th2 Criminal Procedure Act. The application was ma<lP at a time when proceedin,s ef a preliminary in~iry ·1nto a char.-e of murr1er against thP resrondent were pP.n~ir! in that court. The application was r::> siste<l by the pros~ution on the !'round that unciAr section H~ (5) ( 8 ) of the ;rim5.na1 Proc(~dure Act the offence of murder Court has no ju.dsdict;ion t8 ']rant bail in respect of murrler whidt was not t;ir1ble •y that Court. The m=~istrate ovPrrul<"d Pr-osPr'.ut.i.onr app~ali':'d unsuccE'ssfully to the High Ceurt w"l-.ich, ) 1. 2 Q~ ~-~,~ady stated, affirm~d the rlecision of the resident M, . rr ;..,;i:::tr3te• s court, hence the pre~nt appeal to this Court. 1 - , Befor~ us the appc llant Direc tot' of ;:>ublic ProsccutioT"s w.. s r_er!'.estr-.ted r,y Mr- K.M •.Mussa, lPar.n"ed Principa.1 statA .. . le~rr.ed arlvoc~te. Couns~l ~ointen out that.a nolle prose1ui in resptl!~t o~. the. ch.rge hi=id already }>..-en ':!ntered be ~eha.lf. of the r,ir~tor of !'ublic Pr,,secutions 7 and that this appeal wc1s now intendl"<i only· to !;et the record rtc;ht. . 1. !-1"ai! .t111.(!! l"arJ'IA·ci J\,lrlg~ nrr,><rl i:n. c::;~Hming jurisdiction ave:i;- ti. matter· fa11in~ wi thiY'\ tloii! i,rovisi.on~ <,f nrticle:- ~ 12 · to 2~ of th~ c.-,n:ti~tion with~lit o_N11plyi~g with the r,rovislol"I~ of' the iasic r?ight~ Duties· E:nforef!'.1•,rent .!\et • .2~ ~hat th~ ~ai-~e ji\'"-~ ,•~fr~d' i~ la?:t i:A 'l"rantinq- b.ii 1 C"Jmtr.~ry to section· 142 ( 5) (o_) ~f th~ ~r.i1ninf'\l :ti~urc Act. i1- '1111\~.~ _ti,.-_ l~~.vt~~: ;4"1l~!~-.-~·!'~ in b.-:il<lil"lg thAt section 148 (5) Cn) o; the Criminal ,, ~.~C;oi!d1J.r--- ,.Aet Viol.i.ter; '•~.r;le·r.; · 13 ( fi) (b.) ·t ~•~- 15 ( 2) (d, ~f the· ~OJI!! ti hl tion a·nd .. tha·t ti>.e ,!Ht~P. ·qomot•:t,E!l · .ipplied and . '< r~fb"l'?"• .by.. the e~ur~:,. IN THE ALTERNATIVE,. . to 'lfroYntl 2 herein.tee>"!<: the lParnect Jucige non-cirected himself on the 1-:i-ositioP. of. the T-r·l ae it exi:::.ted •efore t11'? ,;,nactm8nt o:':·sec:tion 14tl (5) . ,. ,~11J .;i~~f()r""! 1.n,boldiJ"l'j a:1d affirming °lhP: decision of t~e su~or~}nat0. court~ 3 l ~. on ~;-,;.E; first· grounrl the thrust of Mr. Mussa' s submission is that t~i l~:rn9d jurlge wrongly ~onsirlered and decided on a matter f2'ling within Articles 12: to 29 of the Constitution which rn~tler cam~ to the High Court by way of appeal from the district ccur.t. According t, the lcar!'ed counsel the matter coulrl have ~~ri col'!~inererl anrl ctecirle~ upon 1'y the High Court only if i t was. · •r.ought to that court purfmatit to the pr-ocec'lur.'e p1·0·:d.ded for- under the E~sic Qights lhrl nutiei Ehfotce~eAt A~t Nob 33 Of 1994. In response to that• Mr. M~ai• me!f-ttJtir~ed tha-l: ti¼) i~ar•e~ judge w~s justifi~d to hear and clcci~e t~e ma!teb oh t f. ~ ap~e;:..l from the district court. '''··A ,1.nce through the reCOl'li ~hows ·that the is sue 0£ the constitutionality ·of section 14.fl (5) (a) of the Cri·min~l Procedure Act was r~ised in the district court. Suhmissions o~ behalf of the portie~ in that court were centered on whether or not that · · preYision viol;tted th': fundamental ri')'ht of persoRal freedom .... ' of t/1\e i:nt'.iividual, anr1 the right <,f ~n .:i.ccusect perso:·1 to be presume,~( inno~ent until proved cruil ty as gu-'lranteect under Articles 13 (6) C•) t:1nd 15 ( 1) ~f the Consti tu tio:n nf the U:-;.i tcd Republic, I' .•laercim,fter to be refereerl to sim!'ll:r ae the Constitution. Tha't was clearly ,1· matt~r h.lling ·within •Artir.J.es 12 to 2:) of the C . Constitution, l'.!nd · the pertinel"lt que!'tion that fol10ws .is: Wh.:it \;,~~ tlie pl:"o'-edur-<> ·to b~ ado11ted in !ilandlii,g that question. That ~ucstion was raised squ~rely in the High Court <luring the first -'PrieAi. T:tere it W~,!; sul'mi tted that the: trial magistr-ate had no competence t0 consider the issuP. of the eenstitution~lity of section 148 (5) (a) of the Criminal Procedure Act, and th~t once that i~sue was r~ise~ before him ~e wa~ ohliged to refer it to the Hi~h Court for.~et~rmination in terms of section 9 (1) of the Basic Rights and Duties Enforcement ACto That provision says that:- 4 1'9 - (1) 1.r,1her0 in any __ }H'OCGfdin•s in a su,ordinate court any ~uestion arises as to the contravention of.any of the provisions :)f ses::tion 12 to 2!''·. of ~he Constitution, th2 pr8sic1ing ma,istratF' shall, unl2ss the partic>'s to th0 p roc0.edings agrP.P. to 0 the c-:mtrary or th!':' Magistrate is of the op'inion that th'= raisin~· of the quest ion is mP.r1::ly frivol0us or vexati.ous, refer thfi ftUest:i.or. t0 th0 Hi~h Court f:Jr decision; save that if the ~estion arises before a.Primary Court thP magistrate shall r0fer thP e;-uP. stion to the court of a resirlt?nt magistratf-! which shaJ.l determine wh2t1:l.'?r or not there exists a matter for rP.fererice to thP High Court.,, The, learned jud1e, howE-ver, rejected the submission,. proceeded to c-::msider the constitutionality of section 148 (5) (a) and <?!Ventu.illy ufh8lr-1 the decision of the tde.l magistrate which had ~'rantPrl. W-.iil holding·, iP' the process, ~ection 143 (5) (.-) te :We inconsistent with; th"! Constitution. In rejecting thP surmission the learned judge refer.red to sections 4, 5 · and 1r- ,:if the ;la sic !"ichts and Duties Enfotcement Ac. t. S':?ctiori 4 provid!'.'s=~ ,c 11 4~ If any person alleges that any of _._tHP provisions of sections 12 to 2, of th~ Constitution has been, is bein, or is lik~ly to bP contravened in relation to him 1 hP may, without prejuctice to any other action wlth r~S]'ect to the same matter that is lawfully available, nPJ.ly to thP Hi~h Cm1rt f'::lr ·redress.'' .... /5 5 secti6n 5 provi~es in effect thai 2n ~ggrieved ~erson who goes to th0 Hi~h Court for redr~ss pursu~nt to section 4, shall do so )y fj_li;)g c ,eti_tion t'.) thzat court. Thl:'n section u16 (1) For th<=> purpos0s of hc=n:-ing ?r~ • det r~ining any petition rn~de unrier this 0 Act including r0fer0nces mad~ to it under sect.ton ,., th? Hi~h . .Court shall be composPcl of three Jud,,~ s ·of tht': High Court s~vP that thP determination whether an epplication 1i·frivolo0s, voxatious or otherwisP fit .fr,:r ho.::1.rir.g m?ly be~ made by ? si.ngl0 of thP High, Court.:• 11_ The l•:=>arnc>ci jurl~e, the.t~ef::irc-: taok the vfrw t_hat al though th2 matter bcfor-€ him was not: ;,n application by w3.y of a itetition under sections, he was neverth~l~ss, ~ntitled to de2l with i t pursuant to the option under section 4 wher2by the Ag~rieved party could toke any othRr act~0n, lib3 the 2ppeal in the inst~nt case. And since he was dealiDg with th~ matt@r as an appeal, he was again entitled te sit as a sirgle Jud,e, ~nd so th 0 r""~irem,;:,nt _of thr""e junges under section 10 ( 1) did not 1. arise. - With riue respect we cannot a,ree with the co~struction !9Ut ,.y the· ju('ge on section 4 of the Act. We do not think that the expr.:ssion " ••••• e.ny oth2r action" .... !, in· th;:it provis~on ir:cludP.s en ap~eal lying to the Hi~h Court. In the instart case, for e¥ampl"', the ag~ri1?.ved person Wi3S Mrs. Ojare on whose •~halfi i t WF.1S alleged 0 that section 14t (5) (a) of the Criminal Procecture Act wa$ violativp of· her, basic right as g1.-1arc..nte1?d i.,y.Articles 13;(~) .(»)· and 1'i (1) of th~ Constitution. ( 6 L_ tc1::-r:is of s0.ction 4, th~r""foi:-'::, it wcis Mrs. Ojare who h;:;.d the ortion whPther t~ go to th~ High Court or t0 tak~ any oth0r a~tion lawfully available to her for redress. When the matter went to thP High Court, how0ver, this w::is not r1t the inst.1nce of - Mrs. 9jare. It was at the instanc~ Qf the Director of Public Prosecutions who w2s all0~ing, not th-:1t s0.ction 148 (5) (a) Wes violative of Mrs. ojare' s basic ri1ht but, that the district court had no competence to cohsirier and decic:re on the cons ti tu tio- nality of that sPction. In other words the allegation or complaint •y Mrs. Ojare and that by the ~irector of Public Prosecutions differ~d completely from Pach othDr. In the circumstances, I 'thP.i:'P.for2, it is plain thnt Mrs. «>jar0. has neither appliefi. to thf> I Higl Court for redress under section 4 of the Basic Rights and Duties Enforce~cnt Act, which would involve filing a petition to that cour-t under section 5 of the sam~ ,\ct, ncr has she _exercised any other option which was lawfully avftil~hle to h~r. In other words th0 appeal to th~ High Court cannot be regarded as any other actiofi which was lawfully availahle ·, to Mrs. Ojare as the lear~ed jµdge thou13ht, b,2.c2use the nppeal w;:is r.ot at thP. instcmce of J'v~rs. Ojare and it w2s not alle!ir:9 any infriPgn.m~nt of her »asic riaht. Sve:a assumin~ that Mrs. Ojare hctd lost in the ctistrict court ar.11 ths-n 3ppec:leo to the High Court, this could n0t have arr:ount(:-d to h~r E"-X•?rcisir.~ 9_noth,:>r action or option lawfully avai.lnble to her in, terms of SE'ction 4. · Because 2t that ~taqf Mrs. Ojar?., ·havin~ thus lost the action in the district couit, w0uld hav~ only oPe option lawfully o~en b~ her, anywey,. and th':lt is to a.:_JpF';-,1 to th~ High Court. No other option would k>e J.aw£-u lJ. y OlJ<?n -b-, her and the~fore the provision woul4 te meaningless. :~ ••• /7 7 think that the e~pression ''any oth"°r action •••• lawfully availa't;le •••• " as use<i in section 4 applies to situations where_ an alleged wrong, thou~h capabl-2 of h(;'ing redr:-essed as a violation of a basic right unrler thP Constitution, the victim of it, n~verthP.l·:::.ss, 0pts to s~ek. r-sdr\":~ss under th0 ordinary law. Take-, for instance, the wroriq of unlawful confinement. /J.. per son wh0 corr.plains of it may, i:r,. terms of section 4 ?.!)ply to the I-figh_ Court for redress or institute crimiral or civil proceediJO.gs ,. i uhdAr the Ordinary law. Thus we are snU.sfien that there was non-compliance with th0 provisior,s o't section 4 of the Basic· Rights and Duties Enforc~m~nt Act. The complainant on whose »ehalf it was alleged that section 148 (5) (~) .. , of the Criminal Procedure Act was viola ti v2 of h?r ha sic right as guaranb"'ed under l\rticl8 s 13 ( 6) ()) and 15 (1) of the Constitution neith2r applied to th2 High Ci':>Urt, 'nor. 1=xer.cised ar.y othe:r option which was lawfully avail 9:blf:'.' to· h;:;'_{:-' for rcdr'"ss. The learned judge therefore erred~ in ·tailing t'.) hold that there was such non-c,'.)mplianceo 1~e view we take of the matter is that wh~n th? issue of constitut~onality of section 148 (5) (a) was rais~d in the ,.. district c-::iurt, the trial no.agistratc should have proceeded in (l accordance with the procedure laid down under section , (1) of the Bash: Rights and Duties EnforcEm:mt I;.ct ·repro0uced E;arlier iI") this judgement. Und,?r that pr.oceaure the magistrate had a d~iry t0 ref~r that is sur:=- to th0 High Court for deci'sion unless:- (a) the ~artiPs agreed t".) thf: contrary, o'r 8 (~) the magistrate was of the opinion ' . that the raisin~ of that question before hi~ was merely frivolous or Vf:?Xatious. Neither (a) nor (h) was applicable in this case, and so the trial magistrate hati no O!)tion but to r0f:2r the ~ue·stion to the . High Court for decision. Tbis h~ din not do; he cons~derP.d the wuestion hins~lf and decided on it. Obviously, in terms of \ section 5 (1) of the }\,ct he had no competence or jurisdiction to ~o so.. To that extent, therefor0: ,the proceedings were null and voirt, and the lParned judge should have held so. Mr. Mgwai submitt;:::,rl thi3t section 9 (1) of the BasiC' Ri~hts and Enforccm~nt Act wr3s not applicable because it was !~consistent with ssction 4 of the same ·Act quoted above. He conten00.d that thP use 0f the word Hmay 11 in that section meant that an aqgrieved person has the option whether to go to the High Court or to a subordinate court for redress and that his cli£,nt had opterl trJ 90 to the :'li..strict court. W'2 not~d, hy th~ way, that this line of arqument is ~ifferent fro~ that adopte<l hy the 1°arned judge who maintainPd that the complair.ant had referred the me.tter to the Hi«Jh Court throug~ a~ appea!. The true position however, is that Mrs. Ojare did not go to thi:: resirJsnt magistrab2 court to seek redress _of a violation of her basic ri.o.-ht. She had simply applied for bail in that court, anri. ir, the course of ar9uinf· th~ applicati·:m ey •· the parti0s or th12ir r"'~Fes';-ntatives 1 the issue of cons ti tutionali ty of sect,io1', 148 (5) (a) of thc-, Criminal Ptoc<?rlur-0 /:>.ct 2rose. Then the point is that once the res~.dent magistrate court had taken c09nizance that a ccmstitutional uuesUon had thus ariseJI'., it had a ,:;ut:1 7o rP._fer such q1..~e stion to the Hi!ll,..,Court for de-c:i sion 9 b2.cause 1 as has been clE:monstn:itr>d above, the conditions specifierj unrler s. ~ (1) for displacing that duty were non- In yet another attempt t~ show that s~ction 9 (1) had no application here, Mr. Mgwai contended that in any c;c1se that provision sought to.rlerogate from Article 30 (3) of the Constitution • . The unofficial English vArsion of that provision says th.c!t:- 11 3~ (3) Any person allegin, that any :;:,revision in th.is Part of this Chapter or in any law concerning his right or du1:y .owed fo him has been, is being or is likely to be violated ~y any person any where in the Uniten • RepuJ,ilic, may institute proc~edings for redress in the High Court.", Counsel rei ten:ib~<'I the conb~rtion that the word "may" as used in the provision meant that the aggrieved person haa the option or discretion wh~ther to go to the High Court or to the district €ourt f-:>r redress, and consistPnt therF?with his cliPnt OJtted to go t, th<?: district court. Tl:ierefore 1 in his viPw, s::>ction , ,( 1) of the Act cannot now be invokerl to d•2feat or d<=-ro,a,te from Article 30 (3) of the Constitution, the supreme law of the· land. The answer to this is that ~uh-Article (3) of Article 30 of the Constitution must not .e read in isolation. It has to· :.e•,re3d toge:ther with ~ub-!-lrticle 4 (a) of th;2 same Article, again the unofficial Enrylish version of which rearis:- ••• /10 f 10 i~!·, :, ,. . "30 (4) Subject ~o th2 other provisions .a . ;_ :J of this Constitution, th~ High Court shall have original jurisdiction to hear and det~rmine any matt~r brought b~for~ it pursuant tQ this ArticlP.; and th~ stQte authority may enact lei:;islation for the purpose of - (a) regulating procedure for instituting proceedings pursuar-t to this l\rticle;" Pursuant to this sub-I1rticlA•• Parliament enacted the Basic Rights and Duties Enforcf'ment Act, so that sub-Articles ( 3) and 4 Ca) of the Constitution have now to he re::1d together with this Act. When that is done, the import is that a per son who cornp'lains of a violation of his basic right has the option whether to seek redress in the High Court by filing a petition in that court, or to take any 0th,~:r action lawfully ava:i.lahle to him such as instituting a civil suit under the ordinary law to rec_over damagPs, say, for unlawful confinement. But where in the course of any rro~eedings in t~e subordinate court the issue ·of'· vio],ation of a basic right of a party arises, tpen the trial b-:1g:i;strate must refer such question to the Hi~h Court for determina~ion. Howevf:'!r if the parties agree that th~ ~<?stion sho\\ld not 'be referred t'.) the High Court, ·then th<?_ magi.s~rate may proceF?n under the ordinary law to dispose of the suit; or proceedings before him. Again if, on that qwosticjn aein! rai s~d in this district c0urt, thf' magi.str·ate is of th:::· opil"'ion that the raising of it is nerely frivolous or vexatious~ then hE> can overrulis'. it and proceed to cone lucte the proceedings un~er the ordinary law. ~is decision on whether the raising of th~ flfllestion was frivolous or v~xatious is appealable or referable , r:--- - 1.:.-, . to the High Court •. . "'•h-• :~' ·• ""~r 11:t 11 , It follows, theref~r2, that tha tri~l magistrate had no competence or jurisdiction to hear and decide on the constitutionality of sectLm 14? (5) (a) of the Crimirc1l Procedure Act which was raised before him. That was a matter to b'? rPferred to the Hi'11 Court for decision, which was not done. To the PXtent of suth omission or error, the procecdin~s in th0 district court were null and void. T~at then settl0s the fir.st ground of appeal. Since the ot~er grounds of appeal aris~ from rnatt~rs which were purportedly decinect on ~y the district court and affirmed by the Hifh Court, it follows that the·d~cision of the High Court was had in law in as much as it was bc1sea on a nullity. It purported to :,e based on a matter which was no} .•:.efore the court, and to uphold a decision which was no necision at all or which did not exist in law. It is, therefore, not necessary to co~sider thA other qrounds of appeal. 1, the result the appeal by the Director of Public Prosecution is allowed. The judgement of the High Court is ,:uashed, anct the ruling/or~er of the district court is declc1red null and void. Ordinarj:ly we would have sent the matt.:::,r back to the 0istrict court f0r continuation of the hea~in, of the matter accordin~ to law from the staiE> immediat<.~ly follo~in,- thP. raisint of the c0nstitutional iss~e ,efore thet court. HowE!ver, s 11ch ,c-,urse of ~cti.on is now ov~rtaken by the ev'?nt in tht? light of the nolle pros<::f1Ui which was r:ntered in t1'is casR. · D/.TED at DA.R. SS Sil.I,i•J:,M this 1st day of July, ••• /12 12 R.H. KISA.NGA JUSTICE OF APPEAL D.· z. LU SUV A JUSTICE OF APPEAL ·,, JUSTICE '9F J.PPEAL, \.. 'Dz