19951023 TZCA Dar es Salaam

. . . .. . IN THE COURT OF APPEAL OF fANZANIA .AT DAR ES SALAAM • (CORAMt. KlSA~GA, J.A., MFALILA, J.A.,.And LUBUVA, J.A.) ,·,. ·,\. CRIMINAL APPEAL NO. 190 OF 1994 :i .,;.1-: '· ' Between '. : t, ··,,• •• > NURDIN AK~SHA. • • • • • • • • • • • • APPELLANT . :'.r•-': .: . \ ._ ,,. An d ·I' THE REPUBLIC • • • • • • • • • • • • • RESPONDENT (Appeal from the decision of the High Court of Tanzania at bar es Sale.am) (Chua, J.) dated the 13th day of July, 1994 in Mi'scellane.oue Economic Criminal Cause No. 10 of 1994

JUDGEMENT OF THE COURT MFALILA, J·.A.: 1 In the Resident Magistrate's Court at Oar es Salaam, the appellant Nurdin Akasha was charged with three counts under the Economic and Organized Crime Control Act 1984. The charges involved unlawful importation and possession of dangerous drugs ., -i~ and corrupt transactions. The drugs involved were 1,096,719 r·•·: .... •· .-· ,: ~ ,: kilogrammes of Methaqualone alias Mandrax valued at Shs. 4t997,SOO,OOO/=. The trial Resident Magistrate found and held that t~~ charges in all three counts had not been proved .,_ ...~ n d reaso~ble dou~.~ and acquitted the appellant with an ,...... \ \ . order ~ he be\r~leasea,._~rom remand custody~ But he was , I •' <,''. ,,,•'. arrested sh~n after leaving,the court premises and taken to r :'\/-:. \ the Central '.Police Station. He was served with a detention order. 11J, .' -"I ,; ~ _.·,,·. ' . ·; • ••• /2 ·~. _if/. . .' / !.,~i: ,;·:i:{>.' I • 2 since then he has been detained under thG Preventive Detention J\ct. ' ' Following this detention, a. habeas corpus application was lodged in the High court seeking the following.directions and orders: (1) •That Nurdin Akasha having been acquitted by the Dar es sa~aam Resiaent.Magistrate's· Court (Matui, PRM) on 20/5/94, the immediate detention of the said Nurdin Akasha on.the said 20/5/94 infringed his rights as a freeman and ' this infringed ~.:·.\ ..·,. . the

cons ti tu tJ.cn of the United Republic .... of Tanzania • <t-: . ;~ . ' (2) That the said illegality be remedied by -: this honourable Courf nullifying the. t/.~. ' I detention of Nurdin Akasha~ ( ' (3) That Nurdin Akasha be released immediately. these were the three 6rders· and directions contained and sought iri ,th~ applic~tion filed on behalf of the appellant, and this application w~~ supported by.the affidavit of one Shamsa \ Abdtilrahman Niran who described herself as the appell~nt•s aunt~ After the respondent Republic had filed their counter affidavit · and a reply thereto had been filed by the appellant, the hearing of·the application was set down. But. what is clear from the . record of proceedings is that the nature of the application took a comple.tely c1ifferent turn. Instead of proceeding on the basis I of the application before itt the Court was misled into dm,s1deririgr·the cons ti tutionali ty of the Act unC,er which the a?pellant·was <letaine~. After hearing-arguments from beth sides, the learned judge held that ·although the Preventive oetenticn Act ·has a numl>~r of _s_hcrtccmings i.e. a. detainee •is not giveh the i •••• /3 .i 3 - right t0 be heard, still it had sufficient s~feguards to pass the ' test of constitutionality. Accordingly he ~eld that the Act was cQnstitutional and that therefore the appellant was validly. detained under it. The appellant

lodged.this appeal complaining in the substantive ground that the learned High Court Judge erred 1 in law ''in h0ldi ng that the Preventive ·Detention Act had sufficient ·safeguards and as such constitutional. nurirtg the ·he_arlng of this appeal 1 Dr. Lamwai learned cc,unsel . . . who appeE1red for the appellant; submitted forcefully on the c0nstitutiona11ty of the i?r~ventive Detention Act. He argued that . . the Act 1·s lmconsti tutional because.· 1t lacked basic safeguards • ~ ·t • • before the powers ·un<ler it ere invoked anC,_ that if the detainee ·has a right to make any repre?entetionst these are limited to the formalities and. procedures not the reasons for such detention. ,, . ;.,.~-. '- ... ,. , Mr. Sengwti'j! leerned Ptincipal state Attorney argued to the t.:": \' •.·., ', contrary. on behalf of the Republic~ ' '• !.'' . In out view these arguments are neither here nor there beciatise as we have in<licat~d the High Court was misled· and went I .' -~str~y. In the result it went off 6ourse and decineo an issue ' which was not fo.rtnally before !ti leavihg the formal prayers in the applic~ticn tinansweteai l I!' As aitea~y ihd!cate<lt the appiicatlon before the High Court ,was for the issuance of direction$ in the nature or habeas corpus that:' (1) Nurdi? Akasha having been acquitte<l by .the Dar es Salaam Resident Ma,istrate's Court ~Matui, PRM) on 20/5/94, the ··.

'. ' /~~~) }::~. . _.; •••• /4 l •, "·+ .... 4 immediate ~etention cf the said Nurdin . Akasha · on the s_aid 20/5/94 infringed his rights as a rreeman and this inf ring ea· the cons ti tu ticn of the Uni tea Republic of Tanzania. , C-2) The said illegality be remedied by this honourable Court nullifying the detention of Nurdin Aka~ha. (3) Nurdin Akasha be released immediately. . . . Iri ,al~ the three praye·rs asked fort none of them challehges -the Constitutionality of _the Act under which the appellant was ·.t, I rtetained. They challenge the legality of his detention not because the Act under which this was done is unconstitutional, but because such detention wes oroerea after the appellant was acquitted by a court of law and that therefore such ctetention infringed his rig~ts as _a freeman,.the rights which are protecterl by the . ' constitution~ This was the basis of the application before the Court and tl)at therefore because the detention is illegal for the aforementione~ reasonsr the .Court was aske~ to remedy the situation by·nullifying the detention or~er and ordering the irnmerliate release of the appellant. The cohstitutionality of the Act 1s ~aited for the first time in the reply to the counter affidevit. This part of the. reply therefore was just hanging in the air fer ·it was not supporting anything in the origi~al application. In the course of his submissions

in the. High Court, Counsel for the appellant e\ed for the followi~g prayers which .played a major role in m i s l ' g the Court: · •••.• /5 5 (a) Tha·t tha'court under Section 390 (t)(b) of the CPA make a finding that tpe applicant is being illegelly·anrl improperly detainea an<l O~<ler, th~t he be set ~t liberty imtnerUateiy. (b) That whoever has the custcciy of the applicant be ordereo to pi:oduce him !rl tourt. ! '. .. , ,. :·'+ ,- - <c > .That the court: declare the I? reventi ve -t~r' t>etarition Act un~ohstitutionai ~nd · I ~oid to be struck off the statute book.· -It is ci~sr then. that while prayers in ·ca) a~ci (b) above ar.e C~btairted in and ·supported b~ the application before the Courtt the prayer in (c) seeking to hav~ the Prev~ntive oetsntion Act decl~rcd . . . . uncohstitutiorial is hot part of the b~iginal application and the 'affidavit supporting it. Indeedf or. Lamwai 1 s reply in Court confirms. thi~ wheh he aubrnitted: "However we concede that there was a preventive detention or~er signed on 20/5/94. We conceda that our-appellant was detainea, what we are not conceding ·is the legality of_the President to use ,his powers un~er section 2 of the Preventive Detention Act to counteract the c\ecision of the Court. 11 This was a correct statement of the·issue before the Court based 0n the application befcre it. As a matter cf fact the question of the

constitutionality of the Act being a new issue was raisert by Mr. Naali Cout'lsel for the respondent Republic. In his submissions .. in the High C<?iirt! he saidi ..... /6 A 6 - .,· ·::··: "The chamber application and the affidavit . ,·: ·. I •. . , in support which were drawn up by Kashumbugu advocate and .the counter affidavit drawn up . .·.~:.~~\ by myself all have cove::-ed matters regarding. t~e legality of the detention under the Preventive Oetentiop Act that: i- (1) It amounts to an infringement of ,·, ' . .,,~ ~ the .basic rights. (?f the applicant iiJr~, · (2) That·the Execu~ive_ ihterferes with the Judiciary. 1.f/':.:.: ; ,. Th~se are. the matte~s at issue. In reply to ; /...'' ... ·, €he counter affidavit drawr by Lamwai,up Dr. '\ ! there is raised a fr~sh·· i~sue and that is.· the issue of constitutiohality. This amounted .·' . . . ; ':' ,: to tiking the Court by ~utprl~e and he is estop~ed from bringihg matters which were not I •• I ·• iri 'ttie affidavit•. 'J.'he Cotirt should not ~oh~ider the questl6n ,• ' of. ~on~titutionality , I • : / of ~he Preventive ,oetehtion Act. Dr. Lamwai is estopped from britlg1ng the-_ matter._ This 1~ b~cause it was ~ct in the ofiginal • ( affidaV-1 t. of the applicant. 11 Irl ~ns~~t to this Objectiont Dr. Lamwai told the Court that • • • • • 1 : in.hii submi~sion the references to the c:ottstitution in the I '. . . ',,, -~·

·j applieatiort· to the effec~ that the ~ppellahtis detention infringed · .... . ' . _;,. , . J..' - the ct)nstibfioh of tl:'ie United Republic raised the,issue of the .L ~ . . constitutionality ., . of the Preventive oetenti<m Act under which \ . . the detention was ordered. The learned judge did not ~ake any ruling on this but in ou~ vieW D.t, Lamwai' .s reply had no validity. In the ~pplieatloh, it is stated that the detention of Nurdin Akasha· on 20/5/94 infringed h:f.s rights as a freerrtat'l and this •••• /7 7 ; (i.e. the infringement . . . of rights) infringed or was in violation of the'constitution of the United Republic of Tanzania. The Court was therefore asked to'quash this detention which infringed the constitutional rights .of the appellant and order ·his immediRte release, The Court was being asked to order the immediate release of· the appell~nt n~t because the Act under which he was detained . . ' is. unconstitutional, ·but because the· detention was ordered following hi~ acquittal bX a court of law and that this violated ·his basic· ·rights to personal freedom under the constitution. In other words what was being challenged by the application was not the constitutionality of the Act used to-detain the appellant, but the legality of his detention foilowing an acquittal.by a court of law. It ~s ther~fore_ our task to bring the whole case back on track ·b .,,; .

and ... determine - . .. the appeal ~· \ . . solely on. . the .basis of the application . . i·.=: ( .,• .. 1 , . . . .- • ' before the ·H~gh · Court .. namely that the •application in the High court was in the nature of a habeas corp~s. In support ~f his argument that thl::!- Preventive Detention Act , was wrongiy lis_ed after a Court order acquitting the appellant, Counsel citea· the decision of this Court in DPP vs. Mehbciob Akber µaji and Others CA Criminal Appeal NO~ 28/92 in which this cotlrt . s~ated th_at the Prevet1tive Detention Act was not meant to supplement -~he Criminei Law and that the two should not be used in tandeM as it were. In or. Lamwai's view, this is what the Governmeht.did in this case, they were pursuing criminal and administrative measures ,. st the same time. Mr. Senqwaji countered .this argument by distinguishing the two cases. In his subrniss_ion, the Mehboob Akber . · Haj i _case is different from the present ca.se in that in the Mehboob case the Government invoked administrative measures to netain the • • • ./R /~ :?~~~,,. ,-~ f t ' .. . ~ '. ,·. . ~ i .,~~ ··.' ~:. ~ . ,• •: .. '., 8 ·accused while ·th<:!ir cas~ wa·s pending in Court. In the present case the Court proceedings .had been .terminated -by the acquittal of the_. accused. we. are satisfied that this distinction is valid. In the. · r Mehboob case the decision to detain the, accused was

taken following '' . 'I · t~e C9urt order releasing them on bail. Thus the accussd .were ·1 . . det~ined while their case was pending in Court. The detention ' was issued. to counteract t~e Court order ~-leasing, them on · ord~r- . I -beil. In the present case the accused·was arrested-and detained a~~er his case • was I terminated in· his favour. There ·was thus no· case pending against him when he was picked 'by the police. as he left· the court· house. It cannot therefore be Si:!id that parallel ' . . _: . . . •, · tne~hods were being used sirnul teneously sc, as to· bring this ·ease :wlthin the p~incipies enunci~ted in the ~Cob case. Considering \ what the appeila~t's mother had done i.e. escaping from hospital .··while ~nder guar~, and the dubicus cirtumstances in.which the . . .I , . . appel1aht wa$ actjuitted, there were genuine fears that ·the · ·" , . ·. aE:>pellant i.ioµid, escape before the state filed the appea1 egeinst his-acquittah '' ·In the circumstances. we are sat!sfi'ed tiiat the appeilant wa$ ' l . I .. ,, .· . p~operly detained and this fact did. no.t · <.:onflictt with. the Court :orders. There was no interference with court deeisions as the ' courts· had at that stage termina tea the proceedings_· against the I ' ',. !_ '·- appellaqt. ! 't This ·is the basis on which the Hi~h • Court should . have ...- .. made its decisio~ in upholding the appellant's

detention rather . -..... than on the constitutionality of the J\ct which was nc'.. t before it. i ; I ' ' ••• .,/9 ' . J I ' / ' l. . \ , . ,. \ 9 ..... It was brought in through the back door. 'Whether or not th~ Preventive Detention Act is constitutional will have to ewait a relevant occasion. Accordingly we <li smiss the appeal in its entirety~_ ... DATED AT DAR ES SALAAM THIS 23RD DAY OF OCTOBER, 1995. R.H. K!SANGA

JUSTICE OF APPEAL L.M. MFALILA

JUSTICE OF APPEAL .. 1 n.z. LUBUVA

JUSTICE OF APPEAL I certify that this is a true copy of the original. 1 .1 (M.~) DEPUTY ·REGISTRAR ... ·' I I ·'-, I •• -".1 I , 9 '. I, I • Whether or not the 1 ,P.reY,e_ntive oeteritio n Act is constitutional will have to eweit e r~levant_occasio~.,. l the appeal in its entirety. ' 0 THIS 23kb bAY Or' OC'roBER, i; . ·.. . ...., ', ~-. ; R.H. I<ISANGA: JUSTICE OF 'APPtAL I . , ~}\?l• . ~... ~ .. ;/.i ..• L. M1, MFAL_ILA I ' JUSTICE OF ~APPEAL ' , I i ( I _--.__ D. z. LUBUVA JUSTICE-OF 'APPEAL . s a true copy of the ·originel. I· } " , \ . -,~ ) ' . ,_~t ·~.· ~-~ -· (M.~,7'~ALI

DEPUTY REGISTMR . ·I I,