Said s/o Mohamed vs The Republic (Miscellaneous Criminal Application No. 69 of 1998) [1998] TZHC 2081 (28 August 1998)

W THE HIGH COURT OF TANZANIA AT MWANZA MISCELLANEOUS CRIMINAL APPLICATICN NO• 69 OF. 1998 (Oriniginating from Mwanza District C0urt Criminal Case No. 711 of 1997) SAID s/o MOHAMED • • 0 • • o • • ~ • • •. • • • o • • , • APPLICANT VERSUS THE REl?UBL IC O O O e • •.• 11 O O • O O O O O e O O O O O O RESI?OODENT RULING NSEKELA 1 J .• This is an application for bail pending trial by the applicant Saidi s/o Mohamed who is charged with two others of the offence of written threats to murder c/s 214 o,f the Penal Cnde. In his supporting affidavit, the applicant says inter alia 1 that he has no criminal record, that he has been in remand prison fnr two years now and the trial has not taken off and that he has reliable sureties if his 13.Jpli-.tion will be grante~. Mr. Mbago learned Seninr State Attorney has submitted that on principle the Republic has no objection to the applicant being admitted to bail but with stiff conditinns attached in nrder to secure the availability 0f the applicant during trial!t Needless tn say cme of the paramount considerations in an application f this nature is that the applicant is presumed to be innocent until !' pl'OVed guilt.y. This is now embodied in Article 13 (6) (b) of our Constituti0n. Again one has t0 bear in inind Article 15 (1) of the Constitution as well This Cr,urt in the case of E_tEl v R /J97jJ HCD 391 had tp.is to say - "Aman whilst awaiting trial is as of right entitled to bai1 1 as there is a presumpti0ll of innocence until the crntrary is proved~r The principles that shnuld be followed when considering whether ~ nnt bail shl"Yllld be granted pending trial were succinctily stated • t O O O O O e •• /2 •.

... 2. by Dendy Ynung c.J • in th~ Bntswana Case of State v Se!5&gpi and an.,2~ /:r9fJ8' .;. :7g/ B.L.R. 163 at page 165 in the following words - , I n ._ The juc}.ge must do a balancing e:x:ercise , between the interests of the individual and those of the prnsecutinri arid the public generally. If the pr0secutiro is, unlikely to suffer frnm repea:ted criminal . ... ~~-. . . ' conduct whilst the accused is on bail; or if such prejudice as there.is canoe over come by imposing suitable conditions in the bail bond, an accused ought to be admitted,to.bail. But even if the risk that an accused will abscond cann()t be elited, that dnes n0t mean that the accused should not be admitted to bail. " ,· Tpere must be a substantial probability that the accused will nr,t face his trial ,, .. · '.:, . to justify refusal of bail. Considerati0ns which are relevant include the nature of the charge, the strength of the prnsecution case and the severity of the punishment" t ,: ....... I, for my part, wnuld subscribe tn these views ®d':taking, the Mid views into c0nsiderati0n, as the learned Seninr State Attnrney submitted, the offence is bailable bearing in mind that there are certain offences which a.re apparently non-ba1_lable. The evidence against the applicant at thi point in time is unknnwn by the Court and" therefr,re eannm hazard any assessment of the relative strength of the prosecuton ease ~thePWise end the sentence if the applicant is oonvicted is not that long. I w0Uld in the circumstances admit the applicant tn bail under the following c0nditions - (a) The applicant tn execute a bail bond in the sum of Shs• 50 1 000/=i (b). The applicant shnuld have two acceptable sureties by the C0urt who should each execute bailrbonds in like sum;

(c) The applicant to remain within the'muii.icipality of Mwanza during the. peridency of· the caqe .unle!ss,. othlll'Wise and for good cause. Permission to leave the municipality.should be first sought and obtained fr0m the Central Police Stati0n, Mwanza., (d) The applicant tn report at the said Central Police Station once a week 6n Saturday at 10,oo·a.m It is so 0rdere<l. < ·, .·• \ . . - . H. ·R• N$EKELA . JUDG~ 28.8.1998 i . ,· 213.8,98: Ruling.delivered in the presence of Mt. Magoma learned Principal State Attorney and the applicant. AT MWANZA 28th August, 1998 . I-I, R. NSEKELA JU:OOE .... :,.~ I hereby certify that this is: a tr.ue cr:ipy r,f the ()riginal. MWANZA