Court of Appeal upholds DPP powers in bail denial
THE Court of Appeal has upheld the Director of Public Prosecutions (DPP) powers to deny bail to persons charged with economic and organised crime related cases.
Justices Mbarouk Mbarouk, Richard Mziray and Rehema Mkuye, in their recent judgment, dismissed an appeal by Reli Asset Holding Company (RAHCO) Company Secretary Emanuel Massawe against the refusal by the High Court to grant him bail in the economic case he is facing.
In its decision, the court denied bail to Massawe for sole reason that once the DPP has filed a certificate in terms of section 36 (2) of the Economic and Organised Crime Control Act, objecting bail, the court could not entertain such bail application.
The justices concurred with the High Court verdict that once the DPP has validly filed the certificate under section 36 (2) of the Act, it bars the trial court from granting bail to the accused.
“We are of the considered view that it is not the requirement of the law for the DPP to give reasons for objecting bail where he considers that the safety or interests of the Republic are likely to be prejudiced,” they ruled. According to the justices, the DPP’s certificate could only be invalid if proved that he acted on bad faith or abuse of court process, which were not established and proved before the High Court. “For the immediately foregoing reasons, we find this appeal devoid of any semblance of merit. We accordingly dismiss it in its entirety,” the justices declared.
During the appeal hearing, advocates for Massawe, had attempted to persuade the court to follow the recent decision in the appeal between Attorney General and Jeremiah Mtobesya over constitutionality of section 148 (4) of the Criminal Procedure Act (CPA). The section also empowers the DPP to issue certificate to deny bail to accused facing other criminal offences than that falling under the Economic and Organised Crime Control Act.
In the appeal, five court of appeal justices declared the provision unconstitutional. The arguments by the counsel for the appellant were to the effect that section 148 (4) of CPA is quite similar to section 36 (2) of the Economic Act, the subject matter of Massawe’s appeal, hence it should be given similar interpretation and declare section 36 (2) as unconstitutional too. With respect, the justices said in their judgment dated February 21, 2018, that Mtobesya’s was a constitutional petition, challenging the constitutionality of section 148 (4) of the CPA.
But, the appeal by Massawe, they noted, is of criminal nature and its gist is to challenge the certificate of the DPP filed under section 36 (2) of the Economic Act, objecting the right to bail. They, therefore, failed to buy and apply the principle on the similarity of the two statutes. The justices pointed out that the modus operandi taken by the advocates for the appellant in their submissions gave an impression as if the court was dealing with the constitutional case.
“We wish to make it clear and emphasize that this is not the constitutional matter but rather criminal appeal premised on the subject of bail...at High Court level, the issue was application for bail and upon hearing both parties, the decision based on the issue was given,” they argued.
The justices said they were satisfied that the bail application was heard on merits and both parties through their respective counsel were fairly heard. “We find it strange when three counsels for the appellant complained to the court that the appellant was denied opportunity to be heard in the trial court. With respect, we don’t agree with them.
The trial before the High Court was fairly conducted,” they said. Justices of the court ofappeal, the highest temple of justice in the country concluded, “The complaint that the appellant was not given chance to express his views on the matter is baseless and unfounded.” Facts of the case indicate that the appellant and two others were charged at the Kisutu Resident Magistrate’s Court in Dar es Salaam with offences ranging from conspiracy to commit crime, abuse of position and occasioning loss to a specified authority, under the Economic Act.
The economic charge alleges that the appellant and his co-accused, on diverse dates between March 1 and September 30, last year, at RAHCO offices, procured consultancy services from Rothschild (South Africa) Proprietary Limited.
It is alleged that the procurement process didn’t adhere to the procurement procedures and made payment to the consultant for services, which were not rendered, subjecting RAHCO to 527,540 US dollar (over 1bn/-) loss.
Justices Mbarouk Mbarouk, Richard Mziray and Rehema Mkuye, in their recent judgment, dismissed an appeal by Reli Asset Holding Company (RAHCO) Company Secretary Emanuel Massawe against the refusal by the High Court to grant him bail in the economic case he is facing.
In its decision, the court denied bail to Massawe for sole reason that once the DPP has filed a certificate in terms of section 36 (2) of the Economic and Organised Crime Control Act, objecting bail, the court could not entertain such bail application.
The justices concurred with the High Court verdict that once the DPP has validly filed the certificate under section 36 (2) of the Act, it bars the trial court from granting bail to the accused.
“We are of the considered view that it is not the requirement of the law for the DPP to give reasons for objecting bail where he considers that the safety or interests of the Republic are likely to be prejudiced,” they ruled. According to the justices, the DPP’s certificate could only be invalid if proved that he acted on bad faith or abuse of court process, which were not established and proved before the High Court. “For the immediately foregoing reasons, we find this appeal devoid of any semblance of merit. We accordingly dismiss it in its entirety,” the justices declared.
During the appeal hearing, advocates for Massawe, had attempted to persuade the court to follow the recent decision in the appeal between Attorney General and Jeremiah Mtobesya over constitutionality of section 148 (4) of the Criminal Procedure Act (CPA). The section also empowers the DPP to issue certificate to deny bail to accused facing other criminal offences than that falling under the Economic and Organised Crime Control Act.
In the appeal, five court of appeal justices declared the provision unconstitutional. The arguments by the counsel for the appellant were to the effect that section 148 (4) of CPA is quite similar to section 36 (2) of the Economic Act, the subject matter of Massawe’s appeal, hence it should be given similar interpretation and declare section 36 (2) as unconstitutional too. With respect, the justices said in their judgment dated February 21, 2018, that Mtobesya’s was a constitutional petition, challenging the constitutionality of section 148 (4) of the CPA.
But, the appeal by Massawe, they noted, is of criminal nature and its gist is to challenge the certificate of the DPP filed under section 36 (2) of the Economic Act, objecting the right to bail. They, therefore, failed to buy and apply the principle on the similarity of the two statutes. The justices pointed out that the modus operandi taken by the advocates for the appellant in their submissions gave an impression as if the court was dealing with the constitutional case.
“We wish to make it clear and emphasize that this is not the constitutional matter but rather criminal appeal premised on the subject of bail...at High Court level, the issue was application for bail and upon hearing both parties, the decision based on the issue was given,” they argued.
The justices said they were satisfied that the bail application was heard on merits and both parties through their respective counsel were fairly heard. “We find it strange when three counsels for the appellant complained to the court that the appellant was denied opportunity to be heard in the trial court. With respect, we don’t agree with them.
The trial before the High Court was fairly conducted,” they said. Justices of the court ofappeal, the highest temple of justice in the country concluded, “The complaint that the appellant was not given chance to express his views on the matter is baseless and unfounded.” Facts of the case indicate that the appellant and two others were charged at the Kisutu Resident Magistrate’s Court in Dar es Salaam with offences ranging from conspiracy to commit crime, abuse of position and occasioning loss to a specified authority, under the Economic Act.
The economic charge alleges that the appellant and his co-accused, on diverse dates between March 1 and September 30, last year, at RAHCO offices, procured consultancy services from Rothschild (South Africa) Proprietary Limited.
It is alleged that the procurement process didn’t adhere to the procurement procedures and made payment to the consultant for services, which were not rendered, subjecting RAHCO to 527,540 US dollar (over 1bn/-) loss.
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