Tanzania’s Criminal Procedure Act includes provisions that automatically refuse bail to people charged with certain offences. Earlier this year the high court found that mandatory prohibition of bail was unconstitutional. The court's decision restored discretion to the judiciary and meant that the question of whether to grant bail, whatever the alleged offence, would have been a matter for the individual judge to decide. But the high court finding was overturned by the Court of Appeal this week. Five judges of the appeal court said mandatory barring of bail did not amount to an ouster clause, and that the constitution was not infringed by making certain offences ‘unbailable’.
Behind this week's decision by Tanzania's Court of Appeal lies a growing problem: the increasing number of offences added to the list of ‘unbailable’ matters, and the alleged misuse of these ‘unbailable’ provisions to hold more and more people in prison for many years, on the grounds that further investigations are pending. Sometimes suspects may even be held, without bail, for longer than their prison term would be if convicted.
Readers in countries where the grant of bail is always a matter for the courts to decide, regardless of the offence allegedly involved, might find it a novel concept that courts might be barred by law from considering – let alone actually granting – bail to someone who is being investigated in connection with a particular offence. The section of the Criminal Procedure Act that provides for unbailable offences was challenged earlier this year, and the high court in Tanzania delivered a decision declaring as unconstitutional, the section providing that certain offences were ‘non-bailable’. Tanzanian law was thus set to become similar to that of most other constitutional countries on the question of bail and judicial discretion.
However, the Attorney General immediately challenged the outcome and this week five judges of the Court of Appeal overturned the high court’s decision. They found that provisions making certain offences ‘unbailable’ did not infringe the constitution. They said that a previous high court decision had already found the provision being challenged in this case was constitutionally valid. It was thus not open to the high court to have made the finding it did.
Turning to the question of whether the high court was correct to have found that the provision ousted the power of the courts to consider the question of bail, the appeal court quoted with approval from an earlier decision that for the judiciary ‘to disregard the clear provisions of the law for the sake of breaking new ground is not only an invitation to anarchy, but an invitation to violate the constitution.’
The courts had to operate within the confines of the constitution and under the law of the land. Where the court’s powers were limited by statute, as in these disputed provisions, ‘that cannot be said to be an ouster of the court’s mandate to administer criminal justice.’
‘That is so because it is settled law that a piece of legislation which prohibits the grant of bail to persons charged with specified offences does not amount to a takeover of judicial functions by the legislature.’
Having dismissed the idea that the disputed provision amounted to an ouster of the court’s powers, the appeal court said that non bailable offences were serious, ‘necessitating detention pending trial’. True, there was no ‘requisite procedure for denial of bail’, and that was contrary to Article 15 (2) (a) of the Constitution. ‘It is glaring that, although the circumstances are prescribed in the impugned provision, no envisaged procedure is prescribed. This could be attributed to the historical context of the legislation whereby, from its enactment to date, apart from increasing the offences which are non-bailable, it has not gone beyond that.’
The court said that even if the disputed section infringed Article 15 (2) (a) of the constitution, derogation from basic rights was allowed in some circumstances, such as here where the provisions were needed to ensure the ‘availability of the accused during trial’, and to ‘ensure peace and order to the community whose rights are fundamental and must be protected.’
One of the questions raised through this case – misuse of the ‘unbailable offences’ provisions to keep people in prison for many years – has become something of a national scandal. A respected Tanzanian law firm explained in a recent newsletter to clients that there is a growing public outcry over the process in terms of which accused persons are taken to court even before investigations are complete. Then, because they are being investigated for unbailable offences, they are kept in prison ‘with investigations … never being completed and accused staying in remand prison for many years.’ The newsletter continues that there are many accused persons who have been held in prison for more than five years, whose cases ‘are still being investigated’, but because their offences are ‘unbailable’, they cannot be released on bail.
At the end of the appeal court’s decision the judges also made reference to this issue. ‘We are aware of the prolonged investigation and prosecution which make some of the persons accused of non bailable offences to stay in remand for so long, and in some instances beyond the prescribed terms of imprisonment [for] the offence, if found guilty.’
These were ‘operational problems’ that could be dealt with by the executive, they said.
In an extraordinary comment, absolving the court from any responsibility for the impact of its decisions, the judges added: ‘On our part, when the constitutionality of statute is pursued, we look at the provision itself and not what would happen in its operation.’
They added that accused persons who felt they were the victims of abuse of authority could ask for judicial review.
The appeal court’s decision is no surprise. Tanzania’s apex court has already made clear in another significant decision that it was comfortable with compulsory provisions in relation to the judiciary – provisions that judges in other jurisdictions might well find unconstitutional.
Take the issue of it being mandatory for judges to impose the death penalty for certain crimes in Tanzania. While the trend elsewhere is against the mandatory imposition of the death penalty for certain crimes, regardless of the circumstances, Tanzania’s appeal court as recently as last year, declared that mandatory punishment was constitutionally valid.
In Kenya, for example, the law had said that judges had to impose the death penalty for murder. But Kenya’s Supreme Court recently held that while it makes no finding on the constitutionality of the death penalty itself, the court was not prepared to countenance law that deprived judicial officers of their ‘judicial discretion’, particularly in matters of life and death.
The statutory provision had meant that Kenyan judges could impose no other sentence in cases of murder, than the death penalty. The Supreme Court found that a court was entitled to impose such a sentence if, having considered all the factors, the judge came to the decision that it was appropriate to do so. Otherwise it could impose the sentence that, in the discretion of the judge and given the facts, was appropriate.
Tanzania’s apex court, however, has found no problem with the country’s mandatory death penalty provision. Likewise, it has now found no problem with removal of judges’ discretion to consider bail in relation to certain offences.
* Lawyers involved in bringing the case said that they intended to make an urgent approach to the African Court on Human and Peoples' Rights on the question of 'unbailable' offences.