Freeman Aikael Mbowe vs The Director of Public Prosecution & Others (Civil Appeal No. 382 of 2021) [2024] TZCA 836 (30 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. J.A.. MAIGE, 3.A. And KHAMIS, J.A.^ CIVIL APPEAL NO. 382 OF 2021 FREEMAN AIKAEL MBOWE . .....................................................APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTION ...................... 1 st RESPONDENT THE INSPECTOR GENERAL OF POLICE . .......................... 2 nd RESPONDENT THE ATTORNEY GENERAL ................................................ 3R D RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania , Main Registry at Dares Salaam) (Mqetta, J.) dated 23rd day of September, 2021 in Misc. Civil Application No. 21 of 2021 JUDGMENT OF THE COURT 20th & 30th August, 2024 MAIGE. 3.A.: Article 13 (1) of the Constitution of the United Republic of Tanzania, 2017 ("the Constitution"), provides for equality before the law and prohibits any form of discrimination. Under sub-article (3) thereof, such right and other civic rights set out in part III of the Constitution are justiciable. To ensure that such right is duly protected, sub-article (6) requires the state authority to put in place procedures which are appropriate or that which observe the following principles:

(3) When the rights and duties o f any person are being determ ined by the court or any other agency, that person sh all be entitled to a fa ir hearing and the right o f appeal or other legal remedy against the decision o f the court or o f the other agency concerned. (b) No person charged with a crim inal offence shall be treated as guilty o f the offence until proved guilty o f that offence: (c) No person sh all be punished fo r any act which a t the tim e o f its commission was not an offence under the law, and also no penalty sh all be im posed which is heavier than the penalty in force a t the tim e the offence was committed: (d) For the purpose o fpreserving the rights or equality o f human beings, human dignity sh all be protected in a ll activities pertaining to crim inal investigation and process, and in any other m atters fo r which a person is restrained , or in the execution o f a sentence; ( e) No person sh all be subjected to torture or inhuman or degrading punishm ent" To prevent any possibility of a suspect of criminal offence from being mistreated in the hands of the Police contrary to the safeguards under Article 13(6) (d) and (e), section 29 (1) of the Economic and Organized Crimes Control Act (the EOCCA), makes it mandatory for a suspect under

arrest to be produced to the district court within whose local limit the arrest was made, within 48 hours after his arrest. Besides, to ensure that, the suspect is afforded a fair right to be heard in terms of Article 13 (6) (a) of the Constitution, sections 29 (2) and (3) of the EOCCA and 131 of the Criminal Procedure Act ("the CPA' ) require the district court to which the suspect is produced to fully explain to the suspect the charge he is facing and avail him an opportunity to access legal representation. Having been arrested by the police on 21st July, 2021 under the behest of the first and second respondents, the appellant, together with three persons not parties to this appeal, were, on 26th July 2021, arraigned at the Resident Magistrates' Court of Dar es Salaam ("the committal court") j for two counts, namely: conspiracy contrary to section 4(1), (3) (i) (i) and 27 ( c) of the Prevention of Terrorism Act read together with paragraph 24 of the First Schedule to, and section 57(1) and 60(2) of the EOCCA; and provision of funds to commit terrorist acts contrary to sections 4(1), (3) (i) (i)h of the Prevention of Terrorism Act, read together with paragraph 24 of the First Schedule to, and section 57(1) and 60(2) of the EOCCA. Believing that his basic rights had been infringed, the appellant applied to the High Court of Tanzania (Main Registry) under Article 30(3) of the Constitution and section 4 of the Basic Rights and Duties Enforcement Act ("the

BRADEA") for a declaration that the first and second respondents together with the committal court violated his basic rights complained of in the originating summons and his affidavit in support thereof. In the first limb of the complaints, the appellant accused the first and second respondents for failure to produce him to the court within the prescribed period of 48 hours in that, while he was arrested on 21st July, 2021, it was not until on 26th July, 2021 that he was produced before the committal court. As a result of the omission, the appellant further complained, he was, during incarceration, treated inhumanely to the extent that he was made to sleep on a concrete floor and subjected to verbal abuse. In the second limb of the complaints, the appellant blamed the committal court for violating the provisions of section 29(2) and (3) of the EOCCA and 131 of the CPA in two ways, namely; failure to avail him with a copy of the charge sheet and an opportunity to access legal representation such that he was unrepresented when he was initially arraigned at the committal court. In the counter affidavit deposed on their behalf, the respondents denied the asserted violation of the appellant's basic rights. On top of that, they filed a notice of preliminary objections questioning the maintainability

of the petition for among others, want of exhaustion of the available alternative remedies as per section 8(2) of the BRADEA. The objection was sustained and the petition struck out as a result. In reaching to that decision, the High Court observed: " A t the moment there are crim inal proceedings going on a t Crim inal tria l court where the present petitioner is charged with the offences from which the reliefs or orders sought in the case have originated. I am o f the view that the petitioner may take the opportunity to raise his allegations over there. Therefrom, this court would be clothed with jurisdiction after he has exhausted that the respondents have acted in a manner that is calculated to interfere with proper adm inistration o f Crim inal justice or dispensation o f Crim inal Justice. In the circum stances I am satisfied therefore that this court lacks jurisdiction to entertain the allegation lodged by the petitioner who could equally present such allegations to be addressed by the present Crim inal tria l court." Unhappy with the decision, the appellant has appealed to this Court faulting the High Court for dismissing his petition on the ground that he has other alternative remedies. On that ground, the appellant urged the Court to quash and set aside the respective ruling and order of the High Court and direct for hearing of the petition on merit. 5

When the appeal cama up for heciririg before us, the appellant was represented by Mr. Peter Kibataia, learned advocate, while the respondents were represented by Mr. Daniel Nyakiha and Ms. Getruda Songo, both learned Senior State Attorneys assisted by Mr. Kefa Anase, learned State Attorney. Though the counsel would have, in terms of rule 106 (l)and (7) of the Rules, filed the'fefe/aitt ‘Written^subnrtfssJ’rdns, they opted to proceed orally in terms of rule 106(10) (b) of the Rules. Parties appear to have a common understanding that a petition under BRADEA does not lie where there are available alternative remedies unutilized. What divides them is whether there is a proper forum through which the appellant's complaints would have been redressed. To that end, Mr. Kibatala submitted that, the reliefs sought in the petition being purely constitutional, could not, as suggested in the decision of the High Court, be addressed in a criminal court whose power is limited to determination of guilt or otherwise of an accused. He insisted that, the jurisdiction to determine constitutionality of a law or conduct is exclusively vested in the High Court duly constituted for that purpose and there is no way that it can be addressed in a criminal proceeding. If the trial was before the subordinate court, he submitted, such an issue would be addressed

under section 9 (1) of the 8RADEA by way of reference to the High Court. The respective provisions read as follows: "9 -(lJ Where in any proceedings in a subordinate any question arises as to the contravention o f any o f the provisions o f Articles 12 to 29 o f the Constitution, the presiding m agistrate shah, unless the parties to the proceedings agree to the contrary or the m agistrate is o f the opinion that the rising o f the question is m erely frivolous or vexatious, refer the question to the High Court fo r decision; save that if the question arises before a prim ary court the m agistrate sh all refer the question to the court o f a resident m agistrate which shall determ ine whether or not there exists a m atter for reference to the High Court . " In rebuttal, Mr. Nyakiha argued in effect that, since the appellant's complaints to the High Court pertained to the alleged abuses of the procedure in dispensing criminal justice, it could have been addressed by way of judicial review in terms of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act. In support of his submission, he cited the case of A ttorney General v. Dickson Paulo Sanga (Civil Appeal No. 175 of 2020 ) [2020] TZCA 371 (5 August 2020; TANZLII). In rejoinder, it was submitted for the appellant that, the reliefs sought in the petition by their nature, cannot be addressed by judicial

review under the respective provision. He submitted further that, the facts in the cited case and the instant one are quite different in that, the issue involved in the former case was constitutionality of an enactment, whereas in here, the issue is constitutionality of actions of the officers of the government. For a start, Article 30 (3) of the Constitution gives right to any person who alleges that any of the provisions of Articles 13 to 29 of the Constitution has been, is being or is likely to be contravened in respect to him, to apply to the High Court for redress. As we held in Attorney General v. Jerem ia M tobesya (Civil Appeal No. 65 of 2016 ) [2018] TZCA 347 (2 February 2018; TANZLII), the respective provisions are used where, like here, "the petitioner seeks to enforce a basic right or duty in relation to his personal in te re st" Conversely, where the petitioner seeks to protect the right of another or the public at large, the appropriate provisions is Article 26(1) of the Constitution. This position was underscored in the famous case of Rev. Christopher M tikiia v. Attorney General [1995] TLR 31. What remedies can be granted in a petition for basic rights and duties, is set out in article 30 (4) and (5) of the Constitution and have been clarified in section 31 of the BRADEA in the following words: n 1 3 -(l) Subject to this section, in making decisions in any suit, if the High Court comes to the conclusion that

the basic rights, freedom and duties concerned have been unlaw fully denied or that grounds exist fo r their protection by an order, it sh all have power to make a ll such orders as shall be necessary and appropriate to secure the applicant the enjoyment o f the basic rights, freedom and duties conferred or im posed on him under the provisions o f A rticle 12 to 29 o f the Constitution. (2) Where an application alleges that any law made or action taken by the Government or other authority abolishes or abridges the basic rights, freedom or duties conferred or im posed by A rticle 12 to 29 o f the Constitution and the High Court is satisfied that the laws or action concerned to the extent o f the contravention is invalid or unconstitutional, then the High Court shall, instead o f declaring the law or action to be invalid or unconstitutional, have the pow er and discretion in an appropriate case to allow Parliam ent or other legislative authority, or the Government or other authority concerned, as the case may be, to correct any defect in the im pugned law or action within a specified period, subject to such conditions as may be specified by it, and the law or action impugned shall until the correction is made or the expiry o f the lim it set by the High Court, whichever be the shorter, be deemed to be valid. (3) The pow er o f the High Court under this A ct shall include the pow er to make a ll such orders as sh all be necessary and appropriate to secure the enjoym ent by

the applicant o f the basic rights, freedom and duties under the provisions o f Articles 12 to 29 o f the Constitution should the Court come to the conclusion that such basic rights, freedoms or duties have been unlaw fully denied or violated or that grounds exist for their protection by an order ," Under section 8(2) of the BRADEA, an application for infringement of the Articles of the Constitution under Part III cannot lie where adequate means of redress for the contravention in question is " available to the person concerned under any other law ." Mr. Kibatala contends that, since the reliefs sought are declaratory orders as to the constitutionality of the respondents' actions, they are within the exclusive jurisdiction of the High Court constituted under section 10(1) of the BRADEA and as such, they cannot be entertained by any other forum. It has to be noted that the claim by the appellant was that the conducts complained of were violative of the procedure in the EOCCA and CPA which seek to safeguard the basic rights set out under Article 13(6) of the Constitution. It was not that the respective laws were by themselves repugnant to the basic rights protected under Article 13 of the Constitution. It follows therefore that, if the High Court constituted under section 10(2) of the BRAEA is to hear the petition on merit, the subject of its interpretation will be the provisions of those statutes. In effect, therefore, 10

it will be deciding whether the procedures set out in those statutory provisions have been violated. The issue involved, we have no doubt, is primarily that of the lawfulness or otherwise of the actions and not of the constitutionality of the same. On this, Ignacio Barrajo Iniesta, remarked, in his Limits of Fact, Law and Remedies: Myths and Realities of Constitutional Review of Judicial Decisions Constitutional Court of Spain Experience, (Venice Commission https//www.venice.coe.int - accessed on 27th August 2024) at page 9 thereof, the remarks which we fully subscribe to, that, "" the Constitution is the province o f constitutional courts; ait rem aining iaw s and regulations is the province o f ’ordinary court'." In our humble view, for the purpose of determining the appropriate forum, it was important to distinguish between a conduct which is illegal and that which is unconstitutional per se. We say so because, in a country like ours which is governed by the rule of law and constitutionalism, whatever action the state authorities take must have its legitimate foundation from the Constitution. Therefore, if this is taken literally, it may mean that, every breach of the law gives raise to constitutional review cause of action. Definitely, this will render the Constitutional review jurisdiction as good as the general court's jurisdiction while the intention ii

of the legislature has been that the constitutional review jurisdiction is a special jurisdiction reserved for purely constitutional matters. We took such a caution in Attorney General v. W.K. Butambaia [1993] TLR 46 where we remarked that, constitutional matters being serious, "should be reserved for appropriate and really momentous occasions." In the same way, Lord Diplock, while speaking of the Constitution of Trinidad & Tabago made the following persuasive statement in Harrikissoon v. Attorney General of Trinidad & Tabago [1980] AC 265, 268, which was quoted with approval by the High Court in Tanzania Cigarette Company Ltd v. Fair Competition Commission and Another (Misc. Civil Application No. 31 of 2010) [2012] TZHC 31 (28 September 2012; TANZLII): "The notion that wherever there is a failure by an organ o f governm ent or a public authority or public officer to com ply with the law this necessarily entails the contravention o f some human right or fundam ental freedom guaranteed to individuals by Chapter 1 o f the Constitution is fallacious . " The actions complained of in the petition are alleged to have happened both before and after the matter was taken to the committal court. Obviously, therefore, those actions which were allegedly committed before the appellant had been taken to the committal court and which 12

might have already affected the appellant, would have not been dealt with by the criminal court. Come what may, in as long as what are alleged to have been committed or omitted are prohibited by statutory laws, they would, if proved, amount to abuses of powers by the respective government authorities to the extent that they are utra vires the law. Such an illegal conduct can effectively be addressed by way of ordinary judicial review whose primary purpose is to supervise the legislature and executive branches where they exceed their statutory powers. This was the position in the Attorney General v. Dickson Sanga (supra) where it was observed: "7/7 his oral submissions, the Solicitor General contended that, a remedy o f ju d icia l review is available to the accused personf on alleged abuse o f authority by the DPP. Apart from agreeing with the Solicitor Genera !' it is our firm view that the Constitution which is the supreme law o f the land frowns on the abuse or misuse o f procedures in dispensing crim inal justice . Thus, in case o f any abuse by the DPP the safeguard and remedy is to seek ju d icia l review before the High Court by invoking the Law Reform (Fatal Accidents and M iscellaneous Provisions) Act, [CAP 310 R.E. 2002] as correctly asserted by the Solicitor General." 13

In holding that, we are not unaware of the prohibition under section 8(4) of the BRADEA which provides that: "(4) For the avoidance o f doubt, the provisions o f Part VII o f the Law Reform (Fatai Accidents and M isceiianeous Provisions) Act, which relate to the procedure for and the power o f the High Court to issue prerogative orders, sh all not apply for the purposes o f obtaining redress in respect o f m atters covered by this A c t " It is our understanding, however that, the application of the ordinary judicial review is excluded in the above provisions where the matters complained of are covered by the provisions of the BRADEA. In this case, we have clearly held that for reason of being mere abuses of statutory powers and the constitutionality of the respective statutes being not at issue, the complaints in question do not fall within the purview of the BRADEA. For those complaints alleged to have been committed by the first and second respondents officers after or soon before the arraignment of the appellant to the committal court, the law is very clear to us. As we observed in A ttorney General v. Jerem ia M tobesya (supra), " despite the numerous statutory powers accorded to the DPP, it should be appreciated that, in a crim inalproceeding, she is no more than a party who, 14

along with accused person, deserves equai treatm ent and protection before the law ." In that regard, therefore, the first and second respondents were, much as the criminal proceeding was still intact, answerable to the court for whatever wrong they might have committed and which relate to the fairness of the trial. In that respect, we are inspired by the following statement of Lord Loury in the case of Roy v. Kensington and Chelsea and Westminster Family Practitioners Community [1992] 1 ALL ER 705: " The principle rem ains in fact that public authorities and public servants are, unless clearly exempted ' answerable in the ordinary courts fo r wrongs done to the individuals." The complaint that the appellant was not availed with a copy of the charge sheet and that he was not afforded access to legal representation, could, in so far as it affected the appellant's right of fair trial, be dealt with by the criminal court during trial and on a further appeal to the Court, assuming the question was determined against the appellant. If the appellant's claim extended to any personal injury as a result of the alleged violation of the law by the first and second respondents, he would have made use of the private law remedies to litigate for compensation.

From the foregoing, it may be apparent that, effective remedies to address the appellant's complaints exist within the ordinary laws and, therefore, the petition, as correctly decided by the High Court, was premature for want of exhaustion of the available remedies. The appeal is, therefore, dismissed for being without merits. This being an appeal arising from the enforcement of the basic rights and duties, we shall not give an order as to costs. DATED at DAR ES SALAAM this 29th day of August, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The judgment delivered this 30th day of August, 2024 in the presence of Ms. Magdalena Mwakabungu, learned Senior State Attorney for the 1st, 2n d and 3rd Respondents who took .brief .for Mr. Peter Kibatala, learned counsel for the Appellant; is hereby certified as a true copy of the original. — A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 15