farid had ahmed others vs director of public prosecution 2013 tzhc 2142 11 march 2013

IN THE HIGH COURT FOR ZANZIBAR HELD A T VUGA CRIMINAL APPICA TION NO. 4/2012 FROM CRIMINAL CASE NO 9/2012 BETWEEN 1. FARID HAD AHMED 2. MSELEM ALIM SELEM 3. MUSS A JUMA ISSA 4. AZZAN KHALID HAM DAN 5. SULEIMAN JUMA SULEIMAN 6. KHAMIS ALI SULEIMAN 7. HASS AN BAKAR SULEIMAN 8. GHARIB AHMADA OMAR ----------- APPLICANTS. V/S DIRECTOR OF PUBLIC PROSECUTION --------- RESPONDEN T. Date o f Last order: 28/02/2013 Date o f ruling: 11/03/2013 RULING MWAMPASHI, J. The applicants namely Farid Had Ahmed, Mselem Aii Mselem, Mussa Juma Issa, Azzan Khalid Hamdan, Suleiman Juma Suleiman, Khamis Ali Suleiman, Hassan Bakari Suleiman and Gharib Ahmada Omar who stand charged with four offences under the National Security Act, Cap 47 (Revised Edition o f 2002) of the Laws o f Tanzania and the Penal Act, 2004, (Act No. 6/2004) of the Laws of Zanzibar in Criminal Case No. 09/2012 which is pending for hearing before this court were firstly brought before the court on 25/10/2012. When their case was called before the High Court Registrar Mr. George J. Kazi for mention the applicants who by that time were not represented made an oral application for bail. The application was strongly opposed by the Director o f Public Prosecution (Zanzibar) on two grounds. The first was that the High Court Registrar before whom the bail application had been presented had no jurisdiction to entertain the application because the case the applicants face is before the High Court. The second ground for the objection was that the court could not grant bail to the applicants because the DPP had already filed to the Court a certificate objecting the grant of bail under S. 19(1) and (2) of the National Security Act, Cap 47 (R.E 2002) of the Laws of Tanzania. The Registrar of High Court in his ruling delivered on the same date i.e on 25/10/2012, overruled the DPP’s first point of objection that he had no jurisdiction. He held that a High Court Registrar or Deputy Registrar has jurisdiction to entertain and determine a bail application in a case triable by the High Court because that is the practice of the court since 2004 following a verbal directive by the Chief justice of Zanzibar issued by him under S. of the High Court Act, 1985 that all criminal cases filed in the High Court should firstly be handled by the Registrar or Deputy Registrar until when the cases are ready for hearing when they are to be assigned to High Court judges. He further held that according to the said Chief Justice directive the Registrar or Deputy Registrar as the case may be, has powers to entertain and determine all minor applications brought to the court including applications for bail. After holding that he had jurisdiction the Registrar went on determining the bail application and in the final result he dismissed the application on the ground that the certificate filed by the DPP under S. 19 of the National Security Act prohibits and bars the court from granting bail. Aggrieved by the said ruling of the High Court Registrar the applicants have now filed this application. The application is filed under S. 3(1 )(a) o f the High Court Act, 1985 (Act No. 2/1985) and S. 150(1) of the Criminal Procedure Act, 2004 (Act No. 7/2004) and it is supported by an affidavit of one of the applicants’ counsel Mr. Abdalla Juma Mohamed. The orders being sought by the applicants as listed in their Chamber Application are in the following form;- (a) That the honourable court be pleased to review the ruling of the Registrar of the High Court Zanzibar (Mr. George Kazi) dated 25th day of October, 2012 in Criminal Case No. 09 of 2012. (b) That this honourable court be pleased to declare that the ruling issued b^ the Registrar of High Court of Zanzibar dated 25* day o f October, 2012 in Criminal Case No. 09/0f 2012 contains error apparent on the face of the record. ( c) That this honourable court be pleased to nullify a certificate issued by the Director of Public Prosecutions Zanzibar on 25th October, 2013 under the National Security Act Cap 47 RE, 2002, certifying that if the Applicants shall be granted bail the safety of Zanzibar shall be in prejudice. (d) That this honourable court be pleased to grant bail to the applicants accompanied by lenient and reasonable conditions. (e) Any other order(s) which this honourable court deems just and reasonable to the Applicants. At the hearing of this application the Director of Public Prosecutions Zanzibar was represented by the learned state attorneys Ms. Raya Issa Msellem and Mr. Ramadhani Nassib. The DPP did also file an affidavit in reply of Ms. Msellem to oppose the application. As for the applicants four learned counsels namely mr. Salim Toufiq, Abdalla Juma Mohamed, Suleiman Salim and Mr. Rajab Abdalla Rajab appeared and argued for the application on behalf of the applicants. In the coursed of this application a sort of objection which has to be dealt with firstly by this court was raised by the DPP concerning the propriety and maintainability of this application. It was argued by Mr. Ramadhan Nassib that the application should be dismissed because the court has not been properly moved and that the application is in fact incurably defective. Mr. Nassib submitted that S. 3(1) and (a) of the High Court Act, 1985 cited by the applicants is not a correct provision enabling this court to entertain this application. He also contended that even S. 150 (1) of the Criminal Procedure Act, 2004 which has also been cited is irrelevant because that provision cannot be used to move the court by the applicants but that it can only be invoked by the court suo mutto. It was further submitted by Mr. Nassib that since it appears that this is an application for review o f the Registrar’s ruling then the proper course was for the application to be sent back to the Registrar himself and not to be brought before the High Court judge. It was lastly argued by Mr. Nassib that the application is incurably defective because it is supported by an affidavit which is very argumentative and which is full of legal arguments. He pointed out that paragraphs 5, 6, 7 and 8 of the affidavit should be expunged. L R esp o n d er to the raised objection it was submitted by Mr. Rajab Abdalla Rajab for the applicants that the court is properly moved under S. 3(1) (a) of the High Court Act, 1985. He argued that since there is no specific provision in our Criminal Procedure Act on how a decision made by the High Court Registrar sitting in a High Court case is to be challenged then the cited provisions are proper. This court was referred to the case of lnteryremier Holdings (T) limited) vs.Precision Air Services Limited, Comm. Div. Petition No. 17/2010, DSM (Unreported) where it was held among other things that failure to cite a correct provision to move the court is not fatal if a specific provision does not exist. Mr. Rajab did also cite the case of Euro Helicopter where the Court o f Appeal held that inherent power of the court under S. 95 of the Civil Procedure Code is exercisable where no governing procedure is provided by the law. He argued that S. 3(1 )(a) of the High Court Act gives this court unlimited and inherent powers as S. 95 of the Civil Procedure Code does. On the argument that the affidavit filed in support of the application is incurably defective it was submitted by Mr. Rajab that the affidavit is not that much defective. He also contended that it has to be appreciated that rules of procedure should not be applied to impede justice. On this he referred the court to the case of General Marketing Co, Ltd vs Sharif \ 19801 TLR 61 and that of Makame Vuai Ussi vs Palmleave ltd and 2 Others, High Court Civ Misc. App. No. 13/2008, Zanzibar (unreported). Mr. Rajab did therefore pray for the dismissal of the objection. I would start with the question whether the application is properly before the court or in other words whether the court is properly moved. As pointed out above this matter arises from strange state of affairs. The High Court Registrar determined the bail application in the case which is before the High Court. He did so even after his jurisdiction was strongly questioned and objected. We are all very aware that unlike our Civil Procedure Decree, Cap 8 of the Laws of Zanzibar which under Order LI rule 1(1) specifically and clearly provide what are the powers o f the High Court Registrar in High Court’s suit and that any person dissatisfied with the Registrar’s decision has the right to challenge it before a High Court judge, the Criminal Procedure Act, 2004 has no such provisions. It is not provided anywhere in the Act or by any other law on how a decision by the High Court Registrar in a criminal matter triable by the High Court can be challenged. Because of this anomaly this court does not think that the application at hand is not properly before the court. Under the circumstances of this matter this court agrees with Mr. Rajab that this court has jurisdiction to determine the application and that the court is properly moved under S. 3(1 )(a) of the High Court Act, 1985 which provide as follows:- 3(1) The High Court o f Zanzibar shall continue to exist and shall as heretofore have;- (a) Unlimited jurisdiction to hear and determine any civil or criminal proceedings under any Law in force in Zanzibar. With due respect this court does not agree with Mr. Nassib that this application was supposed to be sent to the high Court registrar who is the one who made the ruling being challenged herein for him to make a review of his ruling. The main issue in this application is whether the Registrar who is not a High Court judge had jurisdiction to entertain the bail application in the High Court case. The other issue is on the validity as well as the effect of the bail objection certificate issued by the DPP pursuant to S. 19 of the National Security Act. The Registrar firmly held that he has jurisdiction and also that the court is barred to grant bail by the DPP certificate. I do not think and in fact I see no good reasons for the same issues to be brought before him again for review. With due respect again Mr. Nassib is wrong in his argument that an application for bail cannot be brought under S. 150(1) of the Criminal Procedure Act. 2004 and that the provision can only be invoked by the court suo mutto. S. 150(1) is the very right provision under which the court can be properly moved by an accused seeking to be granted bail provided he is not facing the offences named therein to which bail is prohibited. Turning now to the question that the supporting affidavit is incurably defective in that it is argumentative and full of legal argument this court is of the considered view that although it is true, to some extent, as argued by Mr. Nassib, that there are some legal argument here and there in the affidavit and that bearing in mind the nature of the matter at hand the affidavit is to some extent unnecessarily argumentative and therefore that some rules of affidavit have been offended still the court does not agree with him that the defects are not curable and that the application can for that reason be dismissed as prayed by him. There are important issues in this application that need to be attended by this court and as it has been correctly argued by Mr. Rajab supported by the cases cited by him, legal technicalities should not impede administration of substantive justice. The interest of the court should be in achieving substantive justice. Minor legal technicalities should not be allowed to deter or impede the court in any way in dispensing substantive justice. This is what even our Constitution (The Constitution of the United Republic o f Tanzania of 1977) requires us to do. Article 107A (2)(e) of the Consitution provide as follows:- (2) In delivering decision in matters o f civil and criminal nature in accordance with the laws, the court shall observe the following principles, that is to say:- (a ) ..... (b ) ...... ( e ) ........... (d)........... (e) to dispense justice without being tied up with undue technical provisions which may obstruct dispensation o f justice. In the case of Microsoft Corporation vs. Mitsumi Computer Garase Ltd (2001) 2 EAR at page 467, and as amplified by this court in the case o f Makame Vuai Ussi cited by the applicant, Ringera, J had the following to say;- irules o f procedure are the handmaidens and not the mistresses o f justice. They should not be elevated to a fetish. Theirs is to facilitate the administration o f justice in a fair, orderly and predictable manner, not to fetter or chock it. Deviations from or lapses inform and procedure which do not go to the jurisdiction o f the court or prejudice the adverse party in any the legal instrument thus affected9 For the above given reasons the objection raised by the DPP is therefore overruled. The court has been properly moved and the application is maintainable. Turning to the merits of the application it was argued by Mr. Abdalla Juma Mohamed for the applicants that as explained in the supporting affidavit the ruling by the High Court Registrar dated 25/10/2012 refusing bail to the applicants has to be quashed because the Registrar had no jurisdiction to sit and determine the application in the case which is triable by the High Court. It was insited by Mr. Abdalla Juma that the application needed to be determined by a High Court judge and not the Registrar. On this issue in regard to whether the High Court Registrar had jurisdiction to entertain and determine the application there was no objection from the respondent DPP. Mr. Ramadhan Nassib readily conceded that the Registrar had no jurisdiction. He reminded the court that on the very first day the application was made before the Registrar the DPP raised the objection that the Registrar had no jurisdiction because he was neither a High Court judge nor a magistrate with extended jurisdiction but the objection was overruled by the Registrar. On the issue whether the High Court Registrar Mr. George J. Kazi he being neither a High Court judge nor a magistrate with extended jurisdiction had jurisdiction to entertain and determine the bail application in the High Court case it is agreed by both sides i.e the applicants and respondent, that the Registrar had no jurisdiction. This court is of the same view with the parties that the High Court Registrar grossly erred in hijacking the High Court powers when he decided to entertain and determine the bail application in the High Court case. It is a considered view of this court that the process o f determining whether or not an accused has to be released on bail is a judicial process. It is not an administrative process. Bail applications just as it is for trials need to be determined and presided over by judicial officers with the required judicial powers and in accordance with he law. It is much desirable therefore that it is the trial court that should entertain and determine an application for bail made by an accused therein. Bail applications should be entertained and determined by properly constituted courts and not by any court or judicial officer. A subordinate court or judicial officer has no power under our present laws in Zanzibar to entertain and determine bail applications in a case triable by a superior court particularly in a case triabe by the High Court. It has to be noted here that before the defunct Criminal Procedure Decree, Cap 14 of the Laws of Zanzibar was overhauled and replaced by the Criminal Procedure Act, 2004 {Act No. 7/2004) we had in Zanzibar committal proceedings under Part V I 1 of the said defunct Criminal Procedure Decree. Under that procedure an accused charged with an offence triable by the High Court had to undergo a preliminary hearing conducted by a relevant subordinate court before he is committed to the High Court for trial. Under that procedure subordinate courts or judicial officers empowered to preside over those committal proceedings has wide powers extending to powers to discharge the accused if there is no sufficient evidence for the accused to be put on trial. Such subordinate courts has even powers to determine and admit to bail accused persons under S . 193(3). Such powers are no longer given to any subordinate courts or judicial officer in our present Criminal Procedure Act, 2004. It is therefore clear that the High Court Registrar had no jurisdiction to entertain and determine the applicant’s bail application. The court was not properly constituted because it was presided by the Registrar who is not competent to sit or preside over the High Court case and application. In his attempt to justify that he had powers to entertain and determine the application the High Court Registrar put it that the Chief Justice pursuant to S. 13 of the High Court Act, 1985 issued a verbal directive since 2004 directing that criminal cases lodged in the High Court should in initial stages be dealt with the Registrar or Deputy Registrar till when they are ready for trial and that while such cases are before the Registrar bail applications and other minor applications can be entertained and determined by the Registrar or Deputy Registrar as the case may be. He also stressed that that has been the practice since then and that so far there has been no objection or complaint. He also stated that some of the cases have even successfully gone up to the Court of Appeal. With due respect I do not agree with the Registrar’s standing. First o f all I do not think and believe that the Chief justice really could have that easily and verbally take away High Courts powers and give it to any other court or judicial officer. If there was a necessity of doing so i.e that those powers o f the court be exercised by the Registrar or any other subordinate court or judicial officer then that would have been done by legal instruments and not by a verbal directive. The Chief justice, to my understanding, might have directed for the cases to be called before the Registrar only for mention until when they are ready for trial before a High Court judge, which is in itself also questionable, but not that the Registrar can also preside and determine bail applications and other applications filed in the case before it is assigned to a High Court judge. It should however be emphatically pointed out here that the main issue in the application before this court is not whether or not it was proper for the High Court case to be sent and handled by the Registrar during when it is not ready for trial till when it is ready but what is before this court is whether or not the Registrar had powers to preside and determine the bail application in the case triable and filed in the High Court. Secondly S. 13 of the High Court Act under which the Registrar says the Chief Justice made the purported directive does not give such powers to the Chief Justice. It does not give powers to the Chief justice to take away High Court jurisdiction and give it to the Registrar. S. 13 given powers to the Chief justice in as far as the High Court business is concerned. It gives him powers to regulate and distribute the business of the High Court within the High Court and amongst High Court judges. It is provided under that S. 13 that;- The Chief Justice shall regulate the distribution o f business in the court, and all actions and proceedings before the court shall be heard and determined by a single judge, unless the Chief Justice otherwise directs or where the law provides otherwise. The Registrar was also wrong in holding that since the Registrar has been presiding and determining bail applications in High Court cases since 2004 without any objection then the practice is now the law and that it cannot be objected. If it is true that the Registrar had been presiding and determining bail applications in High Court cases since that long then that is not a healthy practice. It is even not in accordance with the law and it cannot therefore be condoned. I also do not think that this particular issues has ever reached the Court of Appeal for determination as it was held by the Registrar. High Court cases passed through the Registrar might have gone up to the Court of Appeal by way of appeal or otherwise but unless my memory fails me, there is no case in which the issue has been in respect of whether the Registrar of the High Court of Zanzibar has power to preside, entertain and determine bail applications in cases triable by the High Court of Zanzibar that has ever reached the Court of Appeal. There are number of cases in which the highest court of this country i.e the Court of Appeal of Tanzania, has held that for trials proceedings and decisions to be valid, courts before which such trials, proceedings and decisions were conducted and made must be properly constituted and presided by judicial officers with jurisdiction. In the case o f Thomas Elias and Two Others vs. /?[1993] TLR. 163 a Principal District Magistrate presided over a case in the Resident Magistrates Court. The District court had concurrent jurisdiction with the court of the Resident Magistrate to try the case in question but the case had been lodged in the later court. The Principal District Magistrate conducted the trial, convicted and sentenced the accused persons/appellants. When the case reached the Court of Appeal by way of appeal the court considered whether the trial court was properly constituted and if it was not, whether the defect could be cured. In its judgment the Court of Appeal nullified the trial court proceedings quashed the conviction, set aside the sentence insisting that that was a wrong case for the Principal District Magistrate. The Court held as follows;- (i) The Principal District Magistrate though in terms ofjurisdiction had the power to try the case fo r such offence as the law stands under the M agistrates9 Court Act, 1984, was not competent to sit and preside over the case in the court o f the Resident Magistrate. (ii) Proceedings and deliberations o f a court which is Not properly constituted are a nullity. (Hi)The provisions o f s. 387 and s. 388 o f the Criminal Procedure Act, 1985, cannot be invoked to cure such a defect because the irregularities, errors and omissions curable under these provisions not have occasioned a failure o f justice and, more importantly, they must proceed from a trial by a court o f competent jurisdiction. Recently in the case of the Secretary General Bilal Muslim Mission vs. Mwinyishehe A. Mwinyishehe, CAT, Civil Ref. No. 6/2011, Zanzibar, (unreported), where the Deputy Registrar of the Court of Appeal had extended time within which one party could file his written submission after being so informally requested by the party’s advocate, the Court o f Appeal quashed and set aside the Deputy Registrar’s order because powers to entertain an application for extension of time is vested to a single Justice of Appeal as per Rule 60 of the Court of Appeal Rules, 2009. the Court of Appeal held inter alia that:- Hhe Deputy Registrar ultra viresly usurped the powers o f the Court under Rule 10 o f the Rules by invoking Rule 13(7)(g) o f the Rules and granted extension o f time to the respondent/appellant. ..... it is the Court which has powers to extend time and not a Registrar or Deputy Registrar....Deputy Registrar is not a Court\ For the above given reasons the entire proceedings in regard to the applicants’ bail application, the decision and the entire ruling of the High Court Registrar dated 25/10/2012 are therefore a nullity. Notwithstanding that the entire proceedings in regard to the bail application before the High Court Registrar have been declared a nullity by this court for reasons vastly demonstrated above I find no harm if I would also air my views and understanding on what is the correct construction of S. 19(1) and (2) of the National Security Act particularly on the validity and effect o f the certificate of bail objection issued by the DPP under that provisions. It was Mr. Abdalla Juma’s submission for the applicants that the certificate of bail objection issued by the DPP under S. 19(1) and (2) of the National Security Act has no effect in as far as powers of the court to determine and grant bail to the applicants are concerned and that the same does not limit or prohibit the court in deciding the application. The main reason given by him to support his argument was that the certificate issued under those provision is directed to the police not to the court. He further contended that the mere mentioning of the court in sub-section 2 has no effect because sub­ section 2 cannot be construed or applied in isolation o f sub-section 1. He urged the court to construe the provisions in accordance with S. 5 of the Interpretation of Laws and General Cluases Act. 1984 and hold that the prohibition is for the police not the court. Mr. Nassib for the DPP did simply argue that the certificate having being properly issued by the DPP is prohibitive not only to the police but also to the court. As already pointed out earlier the Registrar in his’ ruling agreed with the DPP and held that the certificate prohibits and bars the court from granting bail to the applicants. Let me begin by reproducing in extenso the whole of S. 19(1) and (2) of the National Security Act, Cap 47(R.E.2002). It is provided under that provision thus:- 19(1) Notwithstanding anything in this section contained, no police officer, after a person is arrested and while he is awaiting trial or appeal may admit that person to bail if the Director o f Public Prosecutions certifies in writing that it is likely that the safety or interests o f the Republic would thereby be prejudiced. (2) The certificate issued by the Director o f Public Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge o f a police station and shall remain in effect until the proceedings concerned are concluded or the Director o f Public Prosecutions withdraws it (emphasis supplied). I must confess at this very stage that I do not see any problem as to whom does a bail prohibitive certificate which is issued by the DPP under S. 19(1) of the National Security Act is directed and intended to prohibit. I do not see why and how it is being argued that the prohibition extends to the court. It is very clearly provided under S. 19(1) that the prohibition is on the police and not the court. The prohibition under S. 19(1) is meant to bar and prohibit the police from admitting to bail an accused whose bail is objected by the DPP in writing i.e by the certificate o f bail objection. What is provided under sub-section 2 does not in any way mean or cannot be construed to include the court in the prohibition directed to the police under sub-section 1. What is provided under sub-section 2 is only is only on when or at what time the certificate issued to the police by the DPP under sub­ section 1 takes effect and for how long. According to sub-section 2 the certificate issued for that purpose takes effect only from the time it is filed in court or when it is notified to the officer in charge of a police station. In order for the certificate to be effective the DPP is required to file the certificate either to the court or notify the officer in charge of a police station. The DPP has therefore two choices if he desires his certificate to be effective. He can either file it to the court or notify the officer in charge of the relevant police station. The certificate, according to sub-section 2 remains into effects until the proceedings are concluded or the certificate is withdrawn by the DPP. This last part on how long the certificate remains in effect is somehow confusing. It is hard to understand what proceedings are meant here. Are the proceedings before the police or are those before the court? We all know that once an accused person is brought before the court the police powers on bail ceases. Be as it may, even if it means the court proceedings still the certificate filed by the DPP under S. 19 o f the National Security Act does not bar or prohibit the court from determining and deciding whether or not bail can be granted depending on the relevant circumstances and in accordance with the law. The prohibition is for the police not the court. The certificate issued by the DPP under S. 19 o f the National Security Act does not in any way whatsoever limit or prohibit the court from exercising its constitutional powers in determining whether or not bail is to be granted after taking into account all relevant factors surrounding the case in question. The first reason as demonstrated above is that the prohibition under S. 19(1) is to the police not the court. The second reason is that even if the prohibition was meant by the legislature to extend to the court, which I do not believe is the case here because the legislature would not have failed to clearly state so, still the court discretionary powers in bail applications could not have been just simply limited in that manner. That the legislature intention in enacting S. 19 of the National Security Act was not to include or prohibit the court can be evidenced by the fact that under the Criminal Procedure Act (Cap 20 R.E 2002) of the Laws of Tanzania there are provisions in regard to the DPP certificate of bail objection whereby the court is clearly included and prohibited alongside the police. Under S. 148(4) of that law the DPP is empowered just as it is in S. 19(1) and (2) of the National Security Act to issue a certificate for bail objection. There is however a small but a very significant difference between S. 148(4) of the Criminal Procedure Act and Sub-section (1) of S. 19 of the National Security Act. In Sub­ section (1) o f the National Security Act the court is not included while in Sub-section (4) of s. 148 of the Criminal Procedure Act the court is included. It is also important to note that while under S. 148(4) of the Criminal Procedure Act the prohibition to the police and court is drafted in restrictive and mandatory way in S. 19(1) of the National Security Act the prohibition which is on the police only is not mandatory. It is provided under S. 148(4) of the Criminal Procedure Act (Cap 20 R.E 2002) that;- Notwithstanding anything in this section contained, no police officer or court shall, after a person is arrested and while he is awaiting trial or appeal may admit that person to bail if the Director or Public Prosecutions certifies in writing that it is likely that the safety or interests o f the Republic would thereby be prejudiced; and a certificate issued by the Director o f Prosecutions and a certificate issued by the Director o f Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge o f a police station and shall remain in effect until the proceedings concerned are concluded or the Director o f Public Prosecutions withdraws it There is therefore a very significant difference between the DPP’s certificate for bail objection issued by him under S. 19 of the National Security Act (Cap 47 R. E 2002) and that issued under S. 148(4) of the Criminal Procedure Act (Cap 20 R. E. 2002) in as far as to whom the prohibition is directed and on its effectiveness. It is further a considered view of this court that if the certificate for bail objection issued by the DPP under S. 19(1) and (2) of the National Security Act and filed to the court is to be construed to have prohibitive effect to the court in as far as powers of the court in determining and granting bail is concerned then the doctrine of separation of powers particularly between the executive and the judiciary would be greatly offended. The discretion o f the court in matters of bail would be removed. If that would be the case one would wonder what are courts for? If one authority from the executive arm o f the Government would be allowed to just come to the court and direct the court that bail should not be granted to a certain accused person because if it is granted the safety and interests of the nation would be prejudiced and the court would just readily concede without being firstly satisfied that the national safety and interests would really be prejudiced if bail is granted then the court would be nothing else but a toothless dog. If we really believe in human rights and the rule ;of law then we must not allow the liberty of accused persons, wlio before the law, are presumed innocent to be easily curtailed. If the liberty is to be curtailed let it be so curtailed in accordance with the law and for good and sufficient reasons. The court should be and must remain the fountain of justice and the shelter for those whose liberty and other human rights are unjustifiably curtailed or when such rights are in danger of being curtailed. One o f the prayers by the applicants in their chamber application is that the certificate by the DPP filed in court be nullified. It is a considered view of this court that no wrong or err has been committed by the DPP in filing the certificate to the court because that is what is required under S. 19(2) of the National Security Act. However in doing so and as amply demonstrated above the certificate does not limit powers of the court or bar the court from granting bail where there are good reasons for doing so. The certificate prohibits the police and not the court. The certificate cannot therefore be nullified as prayed by the applicants. The certificate is filed to the court to notify the court that the DPP may strongly object the bail application and it can be effective only if it is substantiated with good reasons or grounds to the satisfaction of the court. The court must be satisfied that if bail is granted really the safety or interests of the Republic would be prejudiced. It is the duty of the DPP to so satisfy the court and as always those whose liberty is sought to be curtailed by the DPP certificate should be given a fair chance to defend themselves before the court makes its decision whether or not to grant bail. The applicants in their chamber application did also pray for bail to this court. In view of what has just been explained above I do not think this court is in position to reasonably decide in this application whether bail can be granted or not. The DPP need to be given enough opportunity to substantiate his stand that the safety or interests of the Republic would be prejudiced if bail is granted to the applicants and on the other hand the applicants need to be given a fair opportunity to defend themselves. Unfortunately the parties to this application were not, though not deliberately, afforded that opportunity. This court is also of a view that since the oral bail application made by the applicants in person wa not made to a properly constituted court and since the applicants are now properly legally represented they can now make a well and proper application for bail to the court. The application for bail is therefore refused and the applicants are advised to file a proper fresh application. The application is therefore partly granted to the extent and in the manner explained above. The proceedings in regard to the applicant’s bail made before the High Court Registrar and the ruling dated 25/102012 are hereby declared a nullity. The prayer for bail is refused for reasons given above but the applicants are advised to file a fresh and proper application. Sdg: Abraham Mwampashi, Judge. 11/03/2013. * th Delivered in open court this 11 day of March, 2013 in the presence of the applicants with their advocate Mr. Toufiq and in the presence o f Ms. Raya Msellem and Mr. Ramadhani Nassib for (SA) for the DPP (respondent). Sdg: Abraham Mwampashi, Judge. 11/03/2013. I CERTIFY THA T THIS UE COPY OF ORIGINAL o'- REGISTRARyHIGH COURT ZANZIBAR. z- Mbs/.