ZUBERI BILANGOYE

IN THE HICH COURT OF TANZANA (TABORA DISTRICT REGISTRY) AT TABORA MISC. CRIMINAL APPLICATION NO. 11063 OF 2024 1. ZUBERI RAJABU BILANGOYE ........................ APPLICANTS 2. SAMWELI NYAWITA KALI MA VERSUS 1. OFFICER COMMANDING DISTRICT OF KALIUA (OCD) 2. REGIONAL CRIMES OFFICER TABORA (RCO) 3. REGINAL POLICE COMMANDER TABORA (RPC) RESPONDENTS 4. INSPECTOR GENERAL OF POLICE (IGP) 5. DISTRICT COMMISSIONER OF KALIUA DISTRICT 6. ATTORNEY GENERAL RULING Date of Ruting: 29/04/2024 Before A.Mambi, J This is an application for habeus corpus filed by the applicants. The application was filed under section 390 (1), (a), and (b) and 191 of the Criminal Procedure Act Cap 20 [R.E.2022] read together with Rule 2 and 12 of the (habeas corpus) Rules GN 150/1930. With the assistance of the i learned counsel Mr. Kelvin Kayaga the applicants in their application have filed the application under chamber summons praying for the following orders to be made ex-parte; EXPARTE a) Directions in the nature of Habeas Corpus directed to the Respondent, either by themselves or their agents or their representatives to have the bodies of Zuberi Rajabu Bilangoye and Samweli Nyawita Kalima. b) The Applicants be immediately produced before the honourable Court pending the hearing of this application inter parties. c) The Applicant be released from the unlawful custody of the Respondents forthwith. d) Prohibit the respondent unlawfully detaining applicant as well compelling the Respondent to discharge his duties in line with the applicable laws. e) Any other order(s) which this honorable Court deems just and reasonable for the applicants. INTERPATE a) The applicants also prayed the following orders to be made interpret; directions in the nature of Habeas Corpus directed to the Respondent, either by themselves or their agents or their representatives to have the bodies of Zuberi Rajabu Bilangoye and Samweli Nyawita Kalima the Applicants, be immediately produced before the honorable Court. 2 b) Order that the Applicants be released from the unlawful custody of the Respondents forthwith. c) An order prohibits the respondent unlawfully detaining applicants as well compelling the Respondent to discharge his line with the applicable laws. d) Any other order(s) which this honorable Court deems just and reasonable for the applicants. During hearing, the respondent was represented by the Learned State Attorney Ms. Wivina Rubangila while, the applicants were represented by the Learned counsel Mr. Kelvin Kayaga. The Learned Counsel for the applicants Mr. Kelvin Kayaga informed this Court that the matter has been overtaken by event as the applicants have been brought before the District Court of Kaliua. He thus prayed for this Court to the effect that the application be withdrawn. The Learned State Attorney for the respondent had no objection. Having heard both submission from both parties, this Court had to make an enquiry by perusing the records before making decision. Before I make the final order as to whether prayers by the applicant are granted or not, I wish to highlight the meaning and rationale of the legal terms that emanate "habeas corpus "from Latin words. Literally, habeas corpus is a writ requiring a person to be brought before a judge or court, especially for investigation and determination of a restraint of the person's liberty, used as a protection against illegal imprisonment. The phrase is from the Latin habeas, and person singular present subjunctive of habere, "to have", "to hold"; and corpus, 3 accusative singular of corpus, "body. Indeed Habeas corpus, as a ancient common-law writ, is issued by a court or judge directing one who holds another in custody to produce the person before the court for some specified purpose. Although there have been and are many varieties of the writ, the most important is that used to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. In most countries, the courts can use the writ of habeas corpus to determine if a state's detention of a prisoner is valid. See, e.g. Knowles v. Mirzayance556 U.S. Ill (2009), Felker v. Turpin 518 US 1051 (1996) and McCieskey v. Zant 499 US 467 (1991). It should be noted that one cannot file a writ of habeas corpus unless he/she shows the prosecution has detained the person. The complete phrase habeas corpus [coram nobis] ad subjiciendum means implies that "that you have the person [before us] for the purpose of subjecting (the case to examination)". In the ancient times these words of writs included in a 14th-century Anglo-French document requiring a person to be brought before a court or judge. With also noting that the habeas corpus first originated back in 1215, through the 39th clause of the Magna Carta signed by King John, which provided "No man shall be arrested or imprisoned, except by the lawful judgment of his peers and by the law of the land,". During that time (Middle Ages) habeas corpus was used to bring cases from inferior tribunals into the king's courts. The modern history of the writ as a device for the protection of personal liberty against official authority may be said to date from the reign of Henry VII (1485-1509), when efforts were made to employ it on behalf of persons imprisoned by the Privy Council. Consequently, by the reign of Charles I, in the 17th century, the very writ 4 was fully established as the appropriate legal process for checking the illegal imprisonment or detention of people by inferior courts or public officials. Generally, a writ of habeas corpus is a court order that is made upon application by the party. This particular court order demands that a public official deliver an imprisoned or detained person to the court and show good cause for their detention. The writ allows a prisoner or detainee to challenge the legality of their confinement. Indeed Habeas corpus which in Latin means "yot/ should have the bod)/' has roots in English common law and this writ translates that "you should have the body". Consequently, English courts began actively considering petitions for habeas corpus in 1600. While habeas corpus had initially originated as an instrument in opposition to the king's "divine right to incarcerate people," there were many other constables and other authorities during those times, who imprisoned or detained people for various reasons. Accordingly, in the middle ages habeas corpus was also developed as the king's role to demand account for his subject who is restrained of his liberty by other authorities. The habeas corpus remedy is now recognized as constitutional right in most countries including Tanzania. The rationale behind habeas corpus is right under the law to avail an accused or detainee with right to be heard. This oldest writ is a summons with the force of a court order and it is addressed to the custodian and demands that a prisoner or detainee be brought before the court. Once the particular petition is brought before the court and that the custodian is obliged to present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. One reason for the writ to be sought by 5 a person other than the prisoner is that the detainee might be held incommunicado. In other words, the phrase habeas corpus means "[we command] that you should have the [detainee's] body [brought to court]"; that is, that the detainee be brought to court in person for the court to determine the legality of detaining that person. Courts at modern times have prayed a big role in expanding the writ to be part of protecting personal liberty as constitutional rights. Similarly saying that, the fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, had in McC/eskey v. Zant once emphasized the importance of habeas corpus, writing in his decision in 1830, that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause." Most Courts have recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected. 1 am aware that in Tanzania though the procedure for filing an application for habeaus corpus are found under Section 390 (1), (a), and (b) and 191 of the Criminal Procedure Act Cap 20 [R.E 2022] read together with Rule 2 and 12 of the (habeas corpus) Rules GN 150/1930, the constitution of the United Republic of Tanzania also under Article 13 also provides for right to be heard which can be linked with habeas corpus. Indeed section 391 of the Criminal Procedure Act Cap 20 [R.E 2022] empowers the High Court to issue writs. In my view Article 13 of the constitution which deals with right to be heard can also be relevant since bringing person to court mean giving that person right to be heard. Indeed Article 13(6) (a) 6 includes the right to be heard amongst the attributes of the equality before the law, and declares in part" "Wakati haki na Wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa mahakama au chombo kingine kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu". See also the decision of the court in MBEYA-RUKWA AUTO PARTS & TRANSPORT LIMITED vs. JESTINA GEORGE MWAKYOMA Civil Appeal No.45 of2000. In this regard, habeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment or detention. Indeed Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power. It is a cardinal principle of law that an individual cannot be imprisoned or held in custody inside a prison cell or any confinement cell unless he/she has first been brought before a court of law, which decides whether or not it is legal for the person to be kept in prison or under any place. The Right of Personal Liberty envisaged in different human rights conventions and Article 13 of the Constitution of the United Republic of Tanzania is one of the most basic human rights. It follows that, habeas Corpus which literally means "to produce the body" is a protection against illegal and arbitrary detention of a person. The application for habeas corpus determines whether the individual has been arrested according to the procedure established by law. The writ allows a prisoner or detainee to challenge the legality of his confinement. The writ of habeas corpus may extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, 7 or by which the rightful custody of any person is withheld from the person entitled thereto. It should be noted that the purpose of the writ of habeas corpus is not to determine the guilt or innocence of a prisoner, but only to test the legality of the accused/detainee's detention. However, in our case at hand having realised that the applicants have been brought before the lower court, the learned Counsel for applicants changed his mind and prayed to withdraw his application. On the other hand, the prosecution had no objection. This court having satisfied itself that the applicants had already been brought before the court, I found that the application has been overtaken by events. In this regard, the application is withdrawn as prayed. A , A. J MAM BI, J JUDGE 29/04/2024 Ruling delivered electronically through eCMS this 29th day of April 2024 in presence of the learned State Attorney for the Persecution and the learned Counsel for the applicants. JUDGE 29/04/2024 Right of appeal explainer JUDGE 29/04/2024 8