Hussein S/O Ibrahim @ Janjit vs The Republic (Misc. Criminal Application No. 98 of 2017) [2017] TZCA 1370 (14 December 2017)

,..;; : '. • \ \·.· \ ~;, , IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY) AT ARUSHA MISC- CRIMINAL APPLICATION NO. 98 OF 2017 i (Originating from Resident's Magistrate's Court of Arusha Economic Case No. 78 of 2017) I I HUSSEIN S/O IBRAHIM @ JANliT ............................ APPLICANT VERSUS ' THE REPUBLIC .......................... ~ ........................... RESPONDENT Date of last order: 06/12/2017 Date of Ruling: 14/12/2017 BEFORE: HON. S.C. MOSHI, l RULING I I This is an application for bail pending final hearing and determination of economic case No 78 of 2017 in the Resident Magistrate of Arusha at I Arusha. The application has been made under section 29 (4) (d) and section 36 (1) of the Economic and Organized Crimes Control Act, Cap 200 RE 2002. I The application is supported bi an affidavit of the applicant. When the application came up for hearing the applicant was represented by Mr. Mgalula learned advocate while the 1respondent/Republic was represented by MR. Felix Kwetukia learned State Attorney. 1

Mr. Kwetukia learned State Attorney started by addressing the court that, the Director of Public Prosecution (DPP) under Section 36(2) of the Economic and Organized Crimes Control Act, Cap 200 has filed a certificate on 17/11/2017 praying the Court not to grant bail because safety and interest of the Public would be prejudiced. He prayed the Court to enforce this certificate under Section 36 (3) of Cap 200 which provides that Certificate would take effect on the date it's filed in Court and shall remain in effect until the proceedings concerns are concluded or the DPP withdraws it. Opposing the DPP's certificate and submission by the learned State Attorney Mr. Mgalula submitted that, Section 8 of the National Prosecution Service Act, of 2008 says that in the exercise of his power the DPP would consider the need to do justice and need to prevent abuse of legal process. It's was his view that the DPP's Act of filling certificate is a total abuse of legal process and total abuse of furnishing justice to the accused. He went on telling this court that, The Constitution recognizes. The presumption of innocence. The DPP's Act presumes that the accused are guilty. He contended that, the Constitution is the basic law. It gives rights and a duty to the citizens Article 15 provides for personal freedom. The State's act is confinements and unlawful detention. It doesn't even give reasons how would Public Interest be jeopardized. It was his further submission that, the certificate is an afterthought which abuse the legal processes. If the DPP thought that it was for Public 2

interest he should have opposed the bbil when he filed the case and not when the applicant applies for bail. In iine with all his submissions he did ' pray that the certificate be disregarded and the applicant be released on I bail. In his rejoinder Mr. Kwetukia said that, Regarding the National I Prosecution Act Section 8 and the argument that OPP has abused legal process and committed injustice; per Section 8 (a) (b). The counsel has ' omitted Section 8 (c) which says tat the director shall observe the principle of Public interest. It is obvious that Section 8 is covered through Section 36(2) of Cap 200; for safety and interest of Public. In view of that the OPP has complied with the law, ;performed his duties and has not abused the legal process. Regarding Art 15 and innocence presumption; Mr. Kwetukia said that, there is an avenue for the applicant to go to the Constitution Court. And on the argument that i this is unlawful detention and confinement; he said that all what wa done is in accordance with the law and it was not done on personal desires, and that there is no law which requires the DPP to file the Certificate when filling the charge; It's only when the accused applies for bail that the DPP may file the certificate. I have considered the submission of both parties. There is no dispute that the DPP Filed the certificate under section 36 (2) of the Economic and ' Organized Crime Control Act, Cap 200 that the accused person who is the applicant HUSSEIN IBRAHIM @ JANJIT Should not be granted bail on the ground that the safety and interest of the Republic will be prejudiced. ! 3

In his submission the counsel for the applicant submitted that the DPP had acted in bad faith by filing Certificate of denying bail to the appellant as he did not even give reasons how would the public interest be jeopardized. This issue need not detain me as in accordance to the construction of the provision of section 36 (2) of the Economic and Organized Crime Control Act, when the certificate is filed before the court denying bail to the accused the court's hand is tied, according to that section, it is enough for the DPP to state in writing that it is likely that the interest of the Republic would be prejudiced. The law does not require the DPP to give reasons why he think that interest of the Republic would be prejudiced. Therefore, the applicant's counsel misdirected himself when he needed the DPP to give reasons in the certificate denying bail. In the case of Ally Nuru Dirie& Another [1988] TLR 252 Court stated the tests which should be met for a valid DPP's certificate, which are; (i) The DPP must certify in writing and (ii) The certificate must be to the effect that the safety or interesting (sic) of the United Republic are likely to be prejudiced by granting bail in the case; and (iii) The Certificate must relate to a criminal case either pending trial or pending appeal. The holding in the case of Dirie (supra) were quoted in approval by the Court of Appeal in the case of The DPP vs. Li Ling Ling, Criminal Appeal No. 508 of 2015 (unreported). Thus, the DPP's certificate denying bail must only meet the above tests, and since the certificate filed by the 4

DPP in this case met the above tests I therefore find that my hands are tied to grant the applicant the bail pending determination of his case. In the upshot, the applicant's application lacks merit the same is dismissed. S.C.~I JUDGE 14/12/2017 5