Saulo Saulo Katambala vs IGP and Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF BUKOBA)

AT BUKOBA CRIMINAL APPLICATION NO. 32737 OF 2024 SAULO SAULO KATAMBALA......................................... APPLICANT

VERSUS INSPECTOR GENERAL OF POLICE..... ......................... 1st RESPONDENT REGIONAL POLICE COMMANDER (KAGERA)............... 2nd RESPONDENT OFFICER COMMANDING DISTRICT (BUKOBA)............3rd RESPONDENT OFFICER COMMANDING STATION (BUKOBA)............. 4th RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS............... 5th RESPONDENT

RULING 22nd and 26th November, 2024 BANZI, J.: The applicant who is a police officer of the rank of Assistant Inspector has filed this application seeking a writ of habeas corpus following his detention at Bukoba Central Police Station. His application was made under sections 390(l)(a)(b), 391 and 392A (1)(2) of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the "CPA") and rules 2 and 7 of the Criminal Procedure (Habeas Corpus) Rules, GN No. 150 of 1930 and supported by affidavit of Dastan Mujaki, learned Advocate. According to the affidavit, the applicant is detained at Bukoba Central Police Station on criminal allegation of unnatural offence and the efforts to bail him proved futile. Page 1 of 5 The respondents resisted the application through the counter affidavits of Messrs. Elias Petro Subi and Jamal Ismail Issa, learned State Attorneys. According to their counter affidavits, the applicant is detained for disciplinary matters which are not related to criminal matters. In that regard, they contended that, this Court lacks jurisdiction to entertain this application. When the matter was called for hearing, the applicant was represented by Mr. Dastan Mujaki, learned Advocate whereas, the respondents enjoyed the services of Ms. Judith Mwakyusa, learned Senior State Attorney assisted by Mr. Jamal Ismail Issa, learned State Attorney. Since the jurisdiction of this Court has been

challenged, before delving into the merit of the application, parties where probed to address the Court on the issue of jurisdiction. Taking the floor first, Ms. Mwakyusa submitted that the applicant is held in custody for misconduct which is purely a disciplinary matter and thus it has nothing to do with criminal offence. According to her, being employment matter, the applicant is supposed to challenge his detention to the Permanent Secretary of Ministry of Home Affairs instead of seeking a writ of habeas corpus before this Court. That is to say, the applicant cannot refer his dispute to this Court before exhausting the available remedy. To support her position, she cited the case of The Registered Trustees of the Islamic Solidarity v. Jaabir Swalehe Koosa and Others (Civil Page 2 of 5 Appeal Nq.245 of 2022) [2024] TZCA 188. In addition, she cited section 4(3) of the CPA which provides for a requirement for administrative matter to be dealt administratively before resorting to criminal machinery. On that basis, she submitted that, this Court lacks jurisdiction to entertain this application. Thus, she prayed for the application to be struck out. In his reply, Mr. Mujaki was of the view that, this Court has jurisdiction to entertain this application. According to him, the submission concerning disciplinary matter were mere words as they did not state the kind of disciplinary

actions facing the applicant. There is no affidavit from the respondents clarifying the alleged disciplinary proceedings. Thus, section 4(3) of the CPA is inapplicable. Equally, the cited case of The Registered Trustees of the Islamic Solidarity v. Jaabir Swalehe Koosa and Others is distinguishable as it deals with trespass to land. He insisted that, since the applicant is detained for allegation of unnatural offence, this Court has jurisdiction to entertain this application. In her short rejoinder, Ms. Mwakyusa emphasised that, this Court has no jurisdiction to entertain this application because the applicant is detained for disciplinary and administrative matters. I have carefully considered the submissions from learned counsel for both sides. There is no dispute that, the applicant is the employee of Police Page 3 of 5 Force. That is to say, he is a police officer of the rank of Assistant Inspector. Being a police officer, everything regarding his duties and other affairs is guided by law. According to regulation C21 of the Police Force Service Regulations, 1995, where a senior or junior police officer is alleged to have committed a disciplinary offence which in itself constitutes a criminal offence, under any written law, his prosecution before a court of law is preceded by disciplinary proceedings. Apart from that, according to paragraph 43 of the Police General Orders No.

106, any allegation on serious offence against the police officer cannot be prosecuted in the court of law prior to the approval of Inspector General of Police. It is apparent from the provisions of the law stated above that, whenever there is criminal allegation against a police officer, such officer cannot be subjected to criminal machinery including being arrested, detained and arraigned to the court of law before such officer is subjected to disciplinary processes. Thus, basing on procedure stated above, it goes without saying that, the applicants detention cannot in any way be on criminal allegation as alleged by learned counsel for the applicant in his affidavit. Conversely, his detention is on disciplinary matters as claimed by the respondents in their counter affidavits which this Court cannot interfere, Page 4 of 5 even by way of writ of habeas corpus. Thus, his complaint concerning his detention ought to be channelled to his employer. That being said, it is my considered view that, this Court has no jurisdiction to entertain this application whose basis is on disciplinary matters. As a result, this application is misconceived and is hereby struck out for being incompetent. It is so ordered. I. K. BANZI

JUDGE 26/11/2024 Delivered this 26th November, 2024 in the presence of Mr. Dastan Mujaki, learned Advocate for the applicant who is also present and Mr. Erick Mabagala, learned State Attorney for the respondents. Page 5 of 5