Friday, July 2, 2010

Director of Public Prosecutions v. Daudi Pete

Court of Appeal (Nyalali C.J., Makame and Ramadhani JJ.A.): Criminal Appeal No. 28 of 1990

May 16, 1991

This appeal by the Director of public Prosecutions concerned the right of bail. The respondent was charged with the offence of robbery with violence c/s 285 and 286 of the Penal Code. The District court of Musoma denied him bail, as the offence was not bailable under s.148 (5)(e) of the Criminal Procedure Act 1985. The respondent appealed to the High Court. The High Court (Mwalusanya J.) held that s.148 (4) and (5) of the Act was unconstitutional for violating several articles of the Constitution concerning Basic Rights, and the doctrine of separation of powers between the Judicature and Legislature, and therefore granted bail. The DPP was aggrieved by the decision, hence this appeal.

Constitutional Law-fundamental rights-enforcement-whether Articles 30(3) and (4) of Constitution sufficiently confer original jurisdiction upon High Court to entertain proceedings in respect of actual or threatened violations of Basic Rights, Freedoms and Duties in absence of basic legislation for enforcement

Constitutional Law-fundamental rights-enforcement- where specific provision under Constitution in article 30(3) and (4) concerning enforcement of Basic Rights and Duties, any proceedings for that purpose to be instituted under that specific article of Constitution.

Constitutional Law-fundamental rights- bail- denial-one of two situations under which person may be denied or deprived of personal liberty-Article 15(a)- denial to be under certain circumstances and a procedure law must prescribe.

Constitutional Law-fundamental rights-bail-denial-s. 148 of Criminal Procedure Act-whether any prescription in s. 148 or elsewhere for the requisite procedure for denial of bail in terms of Article 15(2)(a) of the Constitution existed

Constitutional Law-discrimination-interpretation-whether selective prohibition against bail contained under s. 148(5)(e) of the Criminal Procedure Act not discriminatory in terms of Constitution Articles 13(4) and (5)

Constitutional Law- separation of powers-infringement-whether legislation prohibiting the grant of bail to persons charged with specified offences does not amount to a take over of judicial functions by the Legislature.

Constitutional Law-legislation- violation-whether saved if could be construed as being wholly for “ensuring the interests of defence, public safety, public order’”, - s.148 (5)(e) of Criminal Procedure Act-whether saved if the denial of bail was aimed at the interest of defence, public safety or public order.

Held:

1. Articles 30(3) and (4) of the Constitution sufficiently confer original jurisdiction upon the High Court to entertain proceedings in respect of actual or threatened violations of the Basic Rights, Freedoms and Duties. Until Parliament legislates under Article 30(4), enforcement of Basic Rights, Freedoms and Duties may be effected under the procedure and practice that is available to the High Court in exercise of its original jurisdiction, depending on the nature of the remedy sought.

2. The High Court has unlimited inherent jurisdiction to adjudicate upon any legal matter unless there is express statutory provision to the contrary. However, as there is a specific provision under the Constitution in Article 30(3) and (4) concerning the enforcement of the Basic Rights and Duties, any proceedings for that purpose must be instituted under that specific article of the Constitution.

3. One of the two situations under which Court may deny or deprive a person of personal liberty under the Constitution is Article 15(a). This may be done only under certain circumstances under a procedure law must prescribe. There was no prescription in s. 148 or elsewhere for the requisite procedure for denial of bail in terms of Article 15(2)(a)

of the Constitution.

4. The selective prohibition against bail contained under s. 148(5)(e) of the Criminal Procedure Act is not discriminatory in terms of the Constitution Articles 13(4) and (5) as the accused are denied bail on the basis of their actions or conduct.

5. The doctrine of separation of powers is fringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of laws and adjudication of rights and duties in disputes either between individual persons or between the state and individual persons. Legislation prohibiting the grant of bail to persons charged with specified offences does not amount to a take over of judicial functions by the Legislature.

6. Any legislation that falls within the parameters of article 30 is constitutionally valid, notwithstanding that it may violate basic rights of the individual. But the legislation must fit squarely within the provisions of that Article in that it could be construed as being wholly for “ensuring the interests of defence, public safety, public order’”, etc. Thus the provisions of s.148 (5)(e) would be saved if the denial of bail was aimed at the interest of defence, public safety or public order.

7. The provisions of Section 148(5)(e) was so broad that it encompassed even accused persons who could not reasonably be construed to be dangerous in terms of Article 30(2)(b) of the Constitution.

To the extent that s. 148(5)(e) violates the Constitution, it is declared null and void in terms of article 64(5) of the Constitution. It is struck off the statute book. Appeal dismissed.

1 comment:

UnknownDecember 28, 2019 at 1:54 AM
Good notes
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ERICK MACHUA-LAW AND POETRY

American lawyer and poet Archibald Macleish (892-1982) rose to the lofty position as official Librarian of Congress. In an article entitled Apoligia, he wrote:

"... law and poetry share important relations between them and exert mutual influence on each other. We have seen that law and poetry share language as their working medium; language shapes the chaos of experience in law and poetry; and law and poetry are products of human ingenuity and imagination.

"... law and poetry differ from one another as well. Law tends more toward the scientific dimension of human thought; poetry tends more toward man's artistic side. Law is often an act of power; poetry makes no claim on power."

In a 2006 article in the Roger Williams University Law Review called Law and Poetry, authors Eberle and Grossfield wrote:

JUST THINK ABOUT THE FOLLOWING POEMS

HE WANTED

By Franklin Waldheim

A law firm commanding
Position of standing
Requires a general clerk.
A man who's admitted
To practice, and fitted
To handle diversified work.

Must know the proceedings
Relating to pleadings,
The ways of preparing a brief.
Must argue with unction
For writs of injunction
As well as for legal relief.

Must form corporations
And hold consultations,
Assuming a dignified mien.
Should read each decision
And legal provision
Wherever the same may be seen.

Must analyze cases
And get at their basis,
Should never be idle or slow.
Must manifest learning
In all things concerning
The matters referred to below:

Attachments and trials,
Specific denials,
Demurrers, replies and complaints.
Disbursements, expenses
And partial defenses,
Ejectments, replevins, distraints;

Estoppels, restrictions,
Constructive evictions,
Agreements implied and express.
Accountings, partitions,
Estates and commissions,
Incumbrances, fraud and duress.

Above are essentials,
The best of credentials
Required - and handsome physique.
Make prompt application,
Will pay compensation
Of seventeen dollars a week

........................................................................

The Idea of Order at Key West.

By Wallace Stevens

She sang beyond the genius of the sea.
The water never formed to mind or voice,
Like a body wholly body, fluttering
Its empty sleeves; and yet its mimic motion
Made constant cry, caused constantly a cry,
That was ours although we understood,
Inhuman, of the veritable ocean.
...
It was her voice that made
The sky acutest at its vanishing.
She measured to the hour its solitude.
She was the single artificer of the world
In which she sang. And when she sang, the sea,
Whatever self it had, became the self
That was her song, for she was the maker. Then we,
As we beheld her striding there alone,
... .
Oh! Blessed rage for order, pale Ramon,
The maker's rage to order words of the sea,
Words of the fragrant portals, dimly-starred,
And of ourselves and of our origins,
In ghostlier demarcations, keener sounds

...............................................................

Law Like Love

W. H. Auden

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.