Director of Public Prosecutions vs Anjelina Ojare (Criminal Appeal No. 21 of 1997) [1998] TZHC 2130 (1 July 1998)

.. J • . ,· ,,,> ·• "'.' \ .. •· CRIMH;i\L /1.PPEbL :t--0" 21 OF 1997 THE DIRECTOR OF PliBLIC PROSECUTIONSo. o ••• .1\PFELL:';NT ' 1\l,D . NJ Ll"' J nEc:p;.,,,nr:'":T l:c /'!.. .r:::.i ·11\ 0 J .. RE•••aie•tt .. e-0000.:o•oooc~~"'Jco.., r . ._, •'t""J'-1~•-'I.· (ApAl from th0 judmnt of thn Hi~~ .-Court of Tanzenia at .r,rusha) (Nchalla J.) I dated the 2(th day of March, 1j97 in Criminal APJal No. 31 of 1,96 KISANGr.:, J. A. : This afp0al aris?s from the jud1m:or;t of the Hih Court (Nchalln, J.) which UJhE'ld .:,r,r'I 3ffirrn"'rl the rulin(! of the resident ma,istrate' s c0urt rartiP<.:; bail to th!'? r-::> soniient~ Th€ bcktround to the-: case rpay ,-· s0t out brh,fly 1 ns Court for bail unr1Pr section 14~. (1) of th2 Criminal Procedure Act. The application was :na<lP at a timt- when proceedin!S &f a preliminary in'-1-liry into a charce of murrier against thP r€!sponrit?nt were 1tP.ninf i.n that court. The application was rsisb~<i by the prosution on the ,round ·t:hot un<ir section 14~ (5) Ca) of the ..:riminal ri:oc,,dure Act the offence of murder is not haila~~~: nri that in any case the R2sirlent Maistrate•s Court. has n.o jud sdiction t"J gr.ant bail in respect of murrler ,., whic\ was not t;ia:Ole lty that Court.· The m=~istrate ovPrrul<"d the c>~t<=!ction al':rl .~ranted bail. 71,P. Dir':"ctor of Puelic Pr'.)SF'("'.td:ionr appn.;,lPd unsuccessfully to the High Court wi-.._ich,

• f 2 1.: , ' .. l·ea.dy stated, affir.med the rJecision of the rsident M •. . .. r:•;.,,;·i.tr3te 1 s ,court, hence tne presnt appe.al to this Court • . i· Before us the appellant:. nirecto.t' of i?ublic Pr.,.,sccutior,s Wii.'S refreserted by Mr .. K.i'1. Mussa, lParnP.ri Principal Shb:! . Att.r-r'!ey, while tne rP.sp,..,rviert was arlvocate for by Mr ... A. Mgwai, ' .. ,.. lerr.ed ar1voc-1te. · Counsel rqinterl out that. a nolle prose11ui in re_spct of the charge had ;.ilready ,. .... en entered o~ )lehalf. of the riir.ktor of Public Prsec1Jtions, und that this appeal was now in.tend· onlY to Get the record rtght.

1. TJo~t. t)s,<:!·· 1",'H"'" .J.vig~ ti.r~<'l i:1 csfming jurisd:i.c.tion. ver a. matter· f.liin wi thiri t~~ provisions ef nrticlc ~ 1: -to 29 of th~ Cl"ln.cti'h!.tion with1',t O""ll'llplyil'l'J with the · .. rrovision!: of the Bas1c Rigi-;t nu ties - t Enfcremnt Aet.
2. hat th 1.caF'l=\ee jil<"'·~ ~r,.d i!:i 1 in rantinq- h.iil v.0nt::rry to ection 142 (5) Ca) f th ~~ifflinMl Purc Act. ,., '. .. ' ..
3. '?t· tt'I! l~~~'! ,-"~~~ c:r~ · in b,e,l<l'ing • .. thA t. s·E>ctiYn 14 ( 5) ( c1. / o: the Criminal -~,elli!dr-, Aet: vi.oli\t,er. .!"t:fole·-.. '13 (fi) (b) · -• 15 ( 2) k) ~f the· Co ti 'ku tio1'\ atid that ti-\e 5aA~ c-«rmot·· ~~ · pplied rin<l •· •11:f o,( i,y '.he eour~:, · '. 4.. 'IN THE ALTERNATIVE to ,•rowni · 2 herein;:i1'v '.thet learhed Juage non-cirected himself on the }'Osi tior,. of the lw ae it exi.ctcd efore t!1E' enactment o-! section 140 (5) (a) »eft""! upboldin a~d- affirming hP. C'lecision of b.e sul"odnat0. courte

3 on + .. E, fh-s·:; grounri the thrust of Mr- Mussa' s submission is that the :r:rnd jurlge wrongly conirleed anrl ecided on a matter f2· 1 1i:1g ..,;ithin Articles 12 to 29 of the Constitution which m2tter came to the High Court by way of appeal from the district ccurt. According t, the learned counsel the matter coulri have · · ~~n col'!idere<i <'!l'lrl decirle upon -ey the High Court only. if it was. rought to that court pursuant to the proceure pro7ided for 1994. In response to that, Mr. MC¥Wai maint,.iied tha·!: tl--.c le.arJle~ judge w~s justified to hear and :clccide the rr2tter on ,$. "!:- . ap:-e,3.l from the district court .. ·'',A". .. clence through tbe reCOl'cl ~hows. that the issue of the

• . . ' constitutionality of section 1~ (5) · ( a) of the Criminl Procedure Act was rise<l in the district court. Suhmissions 0:.1 behalf of the portie~ in that court were centered on whether or not that preTision viol:tted te fundamental ri')ht of personal freedom ''at .. t-Ji,e in,":lividucrl, anct the right 'lf .i.n ccused perso:i to he presul!lE'd innoent until proved cruilty ;;is 13uranteed under Articles 13 (6) ,(:It) und 15 -( 1) (")f the_ Consti tu tio1'1 Af the U:·.i tcd Repuhlic, .Jaercinfter to be refer11:erl t9. :5irn:?"1lf a!'.: the Cons ti tu tio·n. That was tle.a.r.ly 11· matter fdling within Artir:les 12 to 2:1 of the C . Constitution, and· the pel"tinen.t que!'tibn that follnws is: Whgt 'w.:; ·.t)le PJ:'.'.Oedur- to he- a'doJtte,d in Ji.andliJ,g that question. That ucstion was raised squrely in the High Court uring the firt A:r"!'el\l. T•ere •it WM sul"mi tted that the trial magistrate had no competence t0 consider the issuA of the egnstitutionRlity of section 148 (5) (a) of the Criminal Procedure Act, and tht once that isue was rtiised before him e wa ohliged to refer it to the Hi~h Court for.~etermination in terms of section 9 (1) of the Basic Rights and Duties Enforcement AcL That provisiori says that:-

.. .;..., -- 4 n9 - ( 1) When" in any roceedin"I s in a suot'dinate court any ustion arises as to the contrvention of any of the provisions of section 12 to 2!1 of the Constitutioti, th2 ptesirling magistratF shall, unl2ss the parti0 s to. th; 0 procP.edinJs :1grP.P. to the contrary or.thP Magistrate is of the opinion that the raisin, of the qve stion is me.re·ly frivol0us or vexatious, refer th questior\ t0 thP- H:i.h Cour.t f::ir decision; save that if thE>,. question arises before a.Primary Court the magistrate shall r0fer th 0 :qustioP to the court of a resirlent maqistrat-::: which shall determine whethPr or not there exists a matter for rP.f P. renCl~ to thP High Court. 11 ThE learned Jud·e, howe,ver, rejectect the submission, proceeded to consider th2 constitutionality of section 148 (5) (a) and eventu.lly uphE>ld the decision of the tri.:l magistrate which had ' t•- -,ranted :..il hold.i:ng., iJI! the process, sP-ction 14n (5) (,.) to •e· inconsistent with th"! Constitution. In rejecting thP sur-mission the learned judge refer.red to sections 4, 5 and 1r '.)f the Jiasic !'>iahts ancl Duties Enforcement Act. Section 4 provides:- 11 4. If any prson allege.s that any of thP provisions of sections 12 to 2, of the Constitution has een, is bein, or is likPly to b contravene.ct in relation to him 1 hP may, without preju0ice to any other. ac'don wJth r<?s11ect to the same matter that is lawfully available, npply to• t)10-, . .-Hi!h Court for ·redress." .... /5

5 section 5 provies in effect that nn ggrieved person wJ10 goe to th0 HiQh Court for rParss pursu0nt to srction 4, shall do so ly'filir.g c ,etition t~ thct cur.t. Thn sPction "10 (1) F.or thP purpos 0 s of ht:.:=1r.ing 2rC1 • etnrmining ny jetition mde unrler this ct including r0f0r0ncRs made to it under s'?ct:i.on ; th? Hih Court shall :t,c. compOSf>d 0£ three Judl!i.::?S of thP High Court sVP that th etrmir3ti0n whethet an epplicRtion is frivolous, v 0 atious or otherwisP fit .£0:r h1?3rirg may be' mad<-" by 2 singl0 Judg'?. of trir- High Court. 11 The learnH jurle, therefr~ tok th viw that although the matter b,?fre him w,:is not 1an 2!f,plic,ation by way of a .etition under sectin S, he was nev0rthel~~s, ntitlfd to de2l with it I I I pursu 3nt to. the opt ion under sec tin ti whr<:?PY th'? ;:igr.J.r,?Vd party could t3ke any 0thi2r acti0n, lib~ the ppeal in the ihstant case. And since he was dealig with th~ mattr as an th 0 r4\Uiremnt of thr~~ juges under section 10 (1) dio not 1. arise. With nue respect \ve cannot a,-r20,.with the construction ,ut y· the jur:lge on section 4 of the Act. We do not think that the expr2ssion "····· e.ny oth.,:,r action ""•o• 11 in th;:it provision ii,cluns r.n ap•!?al lying to the Hi~}:l Court. In the instar-t case, for P:l{amplP, the ag~,r;-ived person w;=:,s Mrs. Ojare on:whose •E>half 0 it Wc,t ;:illegf'c! that section 1".J.e (5) (a) of thel Criminal Procedure Act was violativr-- of her basic right as I g1..1arc.ritee>d i.,,y Articles 13 (I) ... (•) .and 11, (_1) of thr-; Constituti:mo

6 J...: .. tcrs of section 4, thrfnre,'.it was Mrs. Ojare who had the ortj_on wh,:::,ther to go to thf.: High Cnurt or t:, b,;ki:: any oth!"r. action lawfully .cJVailahh to h€r for redrss. When tJlle matter •went to thP High Court, how0ver, this w=is not at the inst0.nce of Mrs. ejare. It was at the instanc<:: of the _Director of Public Pros'2'cutions who was alleing, not th::;t s0ction 148 (5) Ca) w2s violative of Mrs. ojare: shasic ri1ht but, that the district court had no competence to consir,er 2nd decide on th-2 consti tutio- • nali ty of· that sPction. In other worrl s t.he allegation or complaint y•Mrs. Ojare and that by the irector of Public Prosecutions differed c0mpletly from Pach oth'r. In the circumstances, therefore, it is plain that Mrs. jar0 has nither applied to tha Hig• C'.'ourt for redress under. section 4 of th Basic Rihts and DU ties Enf orceri-10nt Ac tl which would involve filing . petition. to that court under section 5 of·the same ct, nor has she exercised any other option which was lawfully availahle to her. In other words the appeal ta the High Court cannot be rgardAd as any other actiofi which was lawfully availhr to Mrs. Ojare as the learl"J,:;a judge thought, bec2.use the nJtJ.Hal ws not at th0 instance of Mrs. Ojare and it was not alleging any infri~~~m2nt of hGr •asic ri~ht. Even.•assumin, .. that Mrs. Ojare had lost in the istrict court arl then appealed to the High Court, this could n?t have arr:ounted to hPr r-x.-:,rcisino an_othe-r action or option lawfully available to her in terms of section 4. · Because at that ela4Je Mrs. Oj,arP., havin9 thtJs lost the action in the district court., w0uld hav'? only or:_e option L,wfull y open b::i her, anywey,. and th.-~t J.s to ,:i::ip-=-l to th0. High Court... No other option would -= J.aw-.f1Jlly open lo her and therefore the provision woul4•ie meaninglss. • •• /7 J '

7 ·;,J.-=-, think that th,'3 expression ''any oth.-,r action •••• lowfully availal,le •••• " as used in. section 4 ?,pplies to situations wh;:ire an alleged wrong, .. th0ugh capable of ··he:i,ng · rec1r-essd as a violation of a basic right ·unrlPr thP. Constitution, the victim of it, ni':'verth(?.1°ss, 0pts to seP.k rsdrsss under thr-- ordinary law. Take, for instance, the wrong- of unlawful confinem2nt. P.. person wh0 complains of it may, ir. terms of section 4 a>.pply to the Hi1h c·o1,.1rt for redress or institute crimiral or c:i.vil proceedi:r:-.gs undr the brijin8.ry law. Thus we are sntisfieo that there was non-compliance with thA provisions of sectj_on 4 of the Basic Rights and nuti,'?.s EnforcmAnt Act. The complainant on whose· •ehalf it was alleged that section 148 (5) (") of the Criminal Proced1,.1re Act was violative of h'?r basic right as guarant.ed under Articles 13 (8) (:.) and 15 (1)° of the Constitution :r,eithP.r applied to th2 High Court, 'nor 1=xercis,;,:a ,,,.any other option which was 1awfully availahl!':' to h•=8:-' for ·rcdrss. The learned judge therefore erredi; failing t8 hold that there was such non-compliance. T)\e view we take of the matter is that when· the issue of <,, constitutionality of section 148 (5) (a) was raised in the dj_stric t court, the. trial P..agi.str;::ate should have proceeded in accordance with the procedure laid down under section , ( 1) of th~ Bash Rights .and Duties EnforcE;ment r.ct reprorluced earlier iT) this judgement. Und,:.r that pr.ocP.dure the magistrate hacl a du'cry t0 r.e·f,,,r that issuP to th0 High Court for ·aeci·sion '. unless:- (a) the :parti.<?s a-gred t'J thr-:> contrary, 0 ¢ ••

8 (b) the magistrate was of the opinion that the raisin~ of that question before him wag merely frivolous or vexatious. Neither (a) nor (b) was appliccibl'= in this case, and so the trial magistrate hr, no otion but to rfer the 1uestion to the High Court for decision. This h0 di not cto; he considerAd the uestion hinself and necided on it. Ol,_viously, in terms of section (1) bf the Act he had no competence or jurisdiction to o so. To that extent,_ therefore the proceedings were null anc-. voirl, and thi:- learned judge should have held so. Mr. Mgwai submitt.=.,rJ that section 9 ( 1) of the Basic· Ri,hts and Enforcernnt Act was not applicable •ecause it was i»c::msistent with so.ction 4 of the same Act quoted above. He contend0.d that thr-> use of the word "mayn in that section meant that an aqgrir-ved per son has the option whether to go to the High Court or to a subordinate court for redress and that his client harl opterl t,J IP to the :'li.strict court. We noted, hy th way, that this line of ariument is ifferent from that adopterl hy the larned judge who maintained that the complainant had referred the matter to the Hiqh Court throuh an appea::. Th true position however, is that fVirso O_jare dl~ ot go to thP residsnt magistrate court to seek redress of a violaticin of h0-r basic riqht. 3he had simply applied for bail in that court, anrl. ir, the course of r.guing the aprlicati·:m ;by .. the parti0s or thP.ir r""pnsentati VE•s, the i_s sue of cons ti tutionali ty of sect,io 148 (5) (a) of th,,c Criminal Pr-:1c':'rl1Jr" i'>.ct 2rose. Then the point is that c-ncs the r.cs~.dent rna_gistrate court had taken cognizance that a c·:msti tutional uuestion had thus ariser,., it had to n,£er such questi0n· ta the !-ii~b Court for dec:i sion .. - .

9 because, as has been rlemonstratd above, the conditions specifie un<ler s. ~ (1) for displacing that duty were non- existent. In yet another attempt to show that sction 9 (1) had no application _here, Mr. Mgwai contenc'led that in any Cnse that provision sought to clerogat<;:: from ;\rticle 30 ( 3) of the Consti tution4 The unofficial English wrsion of that provision says thi:!t:- n3iq (3) Any person allegin~ that any ?revision in this Part of this Chapter or in any law concerning his right or duty owed to him has beeq, is being or is likely to be violated •Y any person any where in the United RepuJcilic, may institute proc'$edings for redr€,SS in the High Courto" Counsel rei teri'lh:<'l the contertion that the word "may" as used in the provision meant that the aggrieved person haa the option or discretion whther to go to the High Court or to the district court f-:>r redress, and consistPnt therf:"with his cliP.nt oted ,r to go t0 the district court. Therefore, in his viPw, sction ..... ·"' (1) of the Act cannot now be invoked to defeat or deroate from Article 30 (3) of the Cons ti tu Uon, the supreme law of the land. The answer to this is that ~uh-Article (3) of Article 30 of the Constitution must not.ere.ad in i.solation. It has to ·,e re-:id together with -'ub-/1.r'ticle 4 (a) of th•2 same.Article, ,:_!gain the unofficial En<Jlish version of which rearis:- ••• /10

10 ) "30 (4) Subject to the other provisions of this Constitution, th,;, High Court shall have original jurisdiction to hear and detP.rmine any mattF.r brought before it pursuant tq this Article; and the state authority may enact le.-;islation for th2 purpose of - (a) reguiating procedure for ins ti tu ting proceedings pursuant to this l\rt;i..cle; 11 Pursuant to this sub-/1rticlP., .Parliament enacted the Basic Ri1hts and outi.es Enforc12ment Act, so that su.b-Articles (3) and 4 (a) of th€ Constitution have now to be read together with this Act. When that is done, the import is that a :pe:r,:son 0 ._ ,•· ' '(" who comp·lains of a violation of his basic right has the oi,ton whether to seek redress in the High Court by filing a peition in that court, or to take any othr-:r action· lawfully available to him such as instituting _a civil suit under the ordinary law to recover aamagP.sf say, for unlawful confinement. But where in the cour?e of any proceedings in the subo.,:-dina te court the issue of violation of a basic right of a party arises, then the trial na,is_trate must refer such q:u_estion to the· Hi13"h. Court for detrmination. However if thi?. parties agree tha·t the ..-ustion I ,, shold not be referred t.") thP High Court, then th": magistrate .\ may prOCe":'d- under - th€' ordinary law to dispose. of the suit or preedings he fore him. Again if, on th,"Jt question hf ing rai ssod L--, I thF:: dis tric't court. thP magistrate is of th'::· opiriion ti,a t the I ' raising of it is oerely frivolous or vexatious, thP.n he can overru].E:: it .and proceed- to conclucte the proceedings under the ordinary law. His decision· on whther the raising. of thE'· estion was fri'Volous or v.:cxatious is appealable or refra).E- ,- r.:--- 1::.1. to t!1e High Court.

11 It follows, theref0re, that tha trial magistrate had no comptence or jurisdiction to hear and decide on the constitutionality .of section 148 (5) (a) of the Crimir.cil Procedure Act which was raised before hime That was a matt•2r to h<::> r.;:,,fered to the Hi;h Court for decisj_on, which was not done. To the xtP.nt of such omission or error, the proceedins in th<? district court were null and void. TAat then settlo.s the fir.st ground of appeal. Since the other grounds -:,f appeal arise from matt":'rs which were purportedly decirled oh Y the district court and affirmed by < the Hi'h Court, it follows that the·decision of the High Court was had in law in as much as it was based on a nullity. It purported to e based on a matter which was not •fore the court, and to uphold a decision which was no decision at all or which did not exist in law. It is, therefore, not necessary to cor.sider the other grounds of app€al. I the result the appeal by the Directr of Public Prosecution is allowed. The judgf;rtJEnt of the. High Court is .ashed, and the ruling/orer of the district court is declared null and void. Ordinartly we would have sent the matter back to the 0istrict court for continuation of the heari, of the ma.tter accordin1 to law from the stcTI~P. immediately followin! the raisin! of the c0nstitutional issue :.,:?fore that court. However, such -c--:,urse of ~ction is now overtaken by the event in the=:- light of the nolle prosi=:"fUi which was c::nter.e·d in .this case. · D1\TED at DAR. SS SALM,M this 1st day of July, ••• /12

J ·.· .12 RoH. KISi-\NGA JUS.TICE OF APPEAL D~·Za LUBUVA JU STICE OF APPEAL att, ~1is is a true copy of the original. ~ .. \ .. ~ ' ·' I .,t{ l . ( fl' ~ 'Y .o, ENIOR DEPUTY REGISTRAR J