The litigant who put his finger on the bail issue and brought it to court was a Tanzanian advocate, Dickson Sanga. His complaint was that the Criminal Procedure Act’s provisions relating to a growing list of offences as ‘non-bailable’, infringed the constitution.
Lawyers acting for Sanga argued that designating certain offences as matters in which bail was automatically banned had the effect of removing judicial discretion. They said that until 1984, the courts had the right to consider and award bail or not, depending on the circumstances. In 1985, however, the law changed and now listed ‘non-bailable offences’.
According to argument for Sanga, the Bill of Rights in the constitution, and the fact that Tanzania had ratified various international rights instruments, meant that the list of non-bailable offences should be scrapped. Instead, the list is growing.
No time limit
Making matters worse is that there is no time limit attached to the list of non-bailable offences, and so people are being kept in prison indefinitely, pending trial.
Sanga’s counsel referred to the situation in several other jurisdictions and argued that in these examples, ‘repressive laws’ in which bail was automatically refused for certain categories of offences did not exist. In Tanzania, however, provisions for non-bailable offences were ‘so wide that it includes even unintended persons’. The law also lacked effective safeguards and controls against ‘arbitrary decisions and abuse’. Further, it gave ‘excessive powers to the prosecution to decide the fate of an accused or suspected person’s personal liberty.’
The State Attorney on the other hand, said the constitution was not compromised by the provisions. Since the constitution permitted ‘derogations’ from rights, there was nothing untoward about the non-bailable law.
In their decision, the three high court judges hearing the matter listed the conditions under which bail was banned. The list not only names offences for which bail may not be given to suspects, it also lists circumstances under which someone may not be given bail regardless of the offence. This includes where someone has previously skipped bail, or where ‘it appears’ that the accused person had previously been sentenced to prison for more than three years. Under such circumstances, a court is not allowed even to consider bail.
In the view of the judges, there was a ‘momentum’ in extending the list of non-bailable offences that ‘has been consistently maintained’, and it ‘keeps escalating’.
They said that by removing the discretion of the courts to consider whether to grant bail and to set conditions for bail where it was granted, the law on unbailable offences violated the constitution. In particular it infringed the section that gave the courts power to ‘protect and determine the rights, duties and interests of every person’. The law, ‘to say the least’, ‘circumvents the jurisdiction vested in the courts’. It also created a situation in which ‘there were no controls or safeguards against abuse or arbitrary decisions’ against an accused person.
In Zanzibar, as opposed to mainland Tanzania, the law also spoke of ‘non-bailable offences’, but there the intention of the phrase and its use was quite different. It actually protected the rights of an accused and balanced those rights against the rights of society, all the while ensuring controls and safeguards against the abuse that could result from charging someone with ‘a non-bailable offence’ and then continuing to hold him in custody with no determined cut-off point.
In Zanzibar the courts could grant bail under certain conditions, even for offences described as non-bailable, leading the high court to conclude that in Zanzibar the term was used to indicate that in certain conditions the high court could refuse bail to an accused.
Having found serious problems with Tanzania’s legislation on the issue, what was the high court to do?
In an earlier, related, case, the court had decided not to strike out the whole of a provision of the Criminal Procedure Act. Instead, in July 2007, it gave government 18 months to fix the provisions and bring them into conformity with the constitution. However, despite the long time that had passed since then, nothing had been done to take account of the court’s critique of the law - even though amendments to the legislation had been made.
‘Regrettably, in which seems as contemptuous to the court order, the time frame for rectification had since elapsed without any meaningful procedure under which a person accused of armed robbery could be denied bail,’ the three judges commented. The judges hearing Sanga’s matter referred to the earlier case, and the lack of government response to their order, and said they were therefore now 'declaring' that, as had been found in 2007, armed robbery was no longer a non-bailable offence.
From this point on, the court’s decision has caused some consternation. Despite the fact that no efforts were made by government to remedy the infringements as found by the court in 2007, and that the court found this inaction amounted to ‘contemptuous’ behaviour, the three high court judges nevertheless chose the same route in concluding the Sanga case: just as it had done in the earlier matter, it gave the government 18 months to fix things. And the court did so despite the fact that the attorney general had not asked for a delay in order to allow the provisions to be rectified. One difference here, however, was that the court said if the required changes were not made by the deadline given, the disputed provisions would automatically become invalid and struck from the statute.
The very next day, the attorney general gave notice of an appeal against the decision, prompting further concern and confusion about the effect of the high court decision.
Reacting to the situation that has developed, observers have declared that the battle over bail is ‘far from over’, and that accused persons charged with unbailable offences will have to wait at least 18 months or more, if the appeal takes longer than 18 months to decide, before they would be eligible to apply for bail.