edward joseph rweyemamu vs republic 2019 tzhc 47 31 october 2019

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 165 OF 2019 EDWARD JOSEPH RWEYEMAMU........ ..APPLICANT

VERSUS THE REPUBLIC...................................... RESPONDENT ( Origin: Economic Crime Case No. 54 o f 2017, Dar es Salaam Resident Magistrate's Court at Kisutu)

RULING Date o f Last Order:16/10/2019 Date o f Ruling: 31/10/2019 S.M. KULITA, J. The applicant in this matter one EDWARD JOSEPH RWEYEMAMU together with one other person are charged with an economic case registered as Economic Case no. 54 of 2017 at the Resident Magistrate's Court of Dar Es Salaam at Kisutu. The offence that the accused persons have been charged with is not bailable at the subordinate court hence this application. According to the charge sheet which has been annexed to this application that offence charged is read:- "Occasioning loss to a specified authority, contrary to paragraph 10(1) of the 1st schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002]" The applicants lodged the application by way of chamber summons supported by an affidavit drawn and filed by Nehemia Geofrey Nkoko. It is made under sections 29(4)(d) and 36(1) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2002] (hereinafter to be referred as the Act). In reply to this application the respondent lodged the counter affidavit sworn by the Learned State Attorney Ms. Tully Helela. The said pleading was accompanied with a certificate from the Director of Public Prosecutions (DPP) objecting the applicant to be released on bail on the ground that the safety and interests of the Republic will be prejudiced. During the hearing in

respect of the said objection the Learned State Attorney Tully Helela submitted that the DPP has filed a certificate objecting the applicant to be released on bail in accordance with section 36 of the Act. She went on to submit that once the DPP files the certificate with a view that the security or the public interest is likely to be prejudiced the accused person cannot be released on bail. The Learned State Attorney further submitted by citing the cases of EMMANUEL SYMPHOLIAN MASSAWE Vs. R (CAT), Criminal Appeal 252 of 2016 (unreported) and DPP vs. LEELING LING, Criminal Appeal no. 508 of 2015 (unreported) at page 15, line no.7, the decisions by Court of Appeal which established the "validity test" for the DPP's certificate. Ms. Helela stated that those conditions setforth in the aforementioned cases are the following i. That the certificate must be in writing ii. That safety and interest of the Republic must be stated to have been prejudiced if bail is granted. iii. That the certificate should relate to the criminal case which is pending trial or appeal. The Learned State Attorney concluded by submitting that the certificate filed fulfills the conditions set in the above cited cases and section 36(2) of the Act. She also stated that the DPP is not compelled by the law to mention the public interest or the public safety that will be endangered if bail is granted. She just

prays that the application for bail should not be allowed for that purpose. In his reply the Applicant's Counsel, Mr. Nehemia Nkoko submitted that he objects the DPP's certificate due to the fact that the provisions used to pray for bail are sections 29(4)(d) of the Act, as amended by Act no. 3 of 2016, not section 36. He said that s. 36 of the Act is used only when the High Court, Economic Division is ready to hear the case after committal or when the subordinate court is vested powers to entertain hearing of the economic case after the DPP has filed a consent as per section 12(3) and (5) of the Act. In that regard the Learned Advocate cited the case of DPP vs. ANETH JOHN MAKA ME, Criminal Appeal no.127/2018 and a number of other cases to cement his argument. Mr. Nkoko also submitted that the DPP's Certificate had not been pleaded in the counter affidavit. It was therefore wrong for the Respondent to raise its issues at this forum. He said that it is an afterthought idea by the Respondent of which should not be entertained for lack of basis. It is Mr. Mkoko's submission that the DPP has been filing the certificates but they were rejected by the courts for being found defective. He said that the DPP uses to appeal and withdraw the appeals, thereafter he files fresh certificates if he finds the accused further struggles for bail. This happened in the matter at hand in which the

certificate filed by the DPP was found defective in the Misc. Economic Cause no. 5 of 2018 at the High Court Economic Division hence did not sustain, but having so filed this other application the DPP came up with another certificate. Mr. Nkoko said that this is the abuse of the court process. In conclusion Mr. Nkoko submitted that the current certificate has been filed in bad faith and abuse of court process. To support his argument, he cited the case of DPP vs. ALLY NOOR DIRIE & ANOTHER (1998) TLR 2002, and EMMANUEL SYMPHOLIAN MASSAWE Vs. R (CAT), Criminal Appeal 252 of 2016 (unreported) in which it was held that the certificate can be disqualified if the DPP has acted in bad faith. He therefore prays for this court to disregard the said DPP's certificate. In her rejoinder the Learned State Attorney Helela submitted that, it is true that the certificate was filed but it was withdrawn thereat the Economic and Corruption Division as it was filed by mistake and it was not in compliance with the condition that the certificate must relate to the lower court's criminal case. Hence the DPP filed the present certificate. The Learned State Attorney further submitted that the fact that the DPP withdrew the certificate it does not mean that he acted on bad faith. As for the case of pleadings, the Learned State Attorney submitted that counter affidavit and certificate are two

different documents which work at different times. She submitted that the issue now is the certificate of which the Applicant's Counsel has failed to justify stated whether it has not met the required condition. She prays for this application to be dismissed. I have carefully gone through the submissions from both parties and noticed that there is no dispute that the DPP has filed a certificate to object bail, the issue for determination is whether the application for bail can be entertained by this court after filing of the DPP's certificate. In determining the aforementioned issue, I have this to say; the current position of the law is that, once the DPP has filed a certificate to object bail, under section 36(2) of the Act, the court can no longer inquire into the application for bail to determine whether the applicant can be released on bail. What it can do is to determine the validity of the said DPP's certificate. In the case of DPP vs. LING LING, Criminal Appeal No. 508 of 2015, Court of Appeal of Tanzania, at Dar es Salaam (unreported) in which the aforementioned position of the law was given by referring to the case of DPP v. ALLY NURU DIRIE & ANOTHER, (1988) TLR 2002, the principle of validity test was established in which it was held that the validity test of the DPP's certificate is for the same to fulfil the following conditions; 1. The DPP must certify in writing to the effect that the safety or interests of the Republic are likely to be prejudiced by granting bail in the case.

2. The certificate must relate to a criminal case either pending trial or pending appeal. The Learned State Attorney, Ms. Helela in her submission stated that once the certificate of the DPP has been filed the law requires the court to look at the validity of the DPP's certificate, and if the court is satisfied that it has passed the validity test, it should not grant bail to applicant/accused. In the matter at hand, there is no doubt that the DPP's certificate filed before this court has passed the validity test. The applicant's Advocate stated in his submission that the certificate has been filed in bad faith due to the mere fact that the DPP has in several occasions withdrew the certificate from the court. But it should be noted that the first certificate which was filed at the High Court Economic Crime Division was defective for being cited a wrong case number and not otherwise, that alone cannot stand as evidence that the DPP has acted in bad faith. Furthermore, the fact that the said Division is no longer dealing with bail consideration, the application for bail that was entertained before it and appealed at the CAT and then withdrawn by the DPP; is overtaken by event. That's why the applicant decided to lodge this new application for bail at this District Registry of the High Court at Dar es Salaam, the organ which have been vested that powers of bail consideration instead of the Division for such cases emanating from Dar es Salaam zone. From the aforementioned reasons I find the applicant's allegations that the filing of a certificate was in bad faith or in abuse of the court process have no legal weight. The certificate filed by the DPP has passed validity test as required. The application for bail is therefore dismissed. S.M. KULITA

JUDGE 31/ 10/2019