DPP powers retained in economic cases, court ruling says

Dar es Salaam. The Director of Public Prosecutions (DPP) will continue to have and exercise the power to effectively object the granting of bail to persons who are accused of economic sabotage-related crimes – doing so even without having to give a reason or reasons for the objection, the Court of Appeal of Tanzania has ruled.

The ruling was made only a few days after the same Appellate Court had decided to declare illegal the DPP’s power to effectively object to an accused person’s bail without giving any reason(s) therefor. This was in accordance with Section 148(4) of the 1985 Criminal Procedure Act (CPA) Cap. 20.

This newest ruling was delivered on Friday following an appeal by a legal officer of the Reli Assets Holding Company Limited (Rahco), Mr Emmanuel Massawe, who requested the Court to grant bail to him (and his co-accused) as they face economic sabotage charges at court.

In the event, Mr Massawe and his co-accused requested the High Court to grant them bail in 2016, following objections from the DPP in accordance with Section 36(2) of the Economic and Organised Crimes Control Act.

Pleading through his counsels Rugemeleza Nshala, Fulgence Massawe and Jeremiah Mtobesya, Mr Massawe asked the Appellate Court to nullify the High Court decision, using the recent ruling on granting bail. “The DPP’s certificate could only be invalid where it is proved that he acted in bad faith, or abuse of the court process, something which was not established and proven before the trial court,” read the joint ruling delivered by Justice Mbaruku Mbaruku, Justice Richard Mziray and Justice Rehema Mkuye of the Court of Appeal.

The Judges said that an appeal by Mtobesya was a constitutional case in which he was questioning Section 148(4) of the CPA that gave the DPP the powers to object to bail by filing a certificate, while the appeal by Mr Massawe and others was about being denied bail by the High Court.

On February 2 this year, the Court of Appeal ruled in the Mtobesya case that Section 148(4) of the CPA was against the Union Constitution.

The ruling was delivered by five Justices, namely Justice Bernard Luanda (Leader of panel), Justice Kipenka Mussa, Justice Bethuel Mmila, Justice Stellah Mugasha and Justice Jacob Mwambegele.

During the hearing of the appeal by Mr Massawe, the court was satisfied by the submission of the principal state attorney from the DPP’s Office, Tumaini Kweka, that when the DPP files an objection against a bail, the court can do nothing to the contrary – unless it is satisfied that the objection was made in bad faith.

The Justices said that the court has set three conditions for the DPP’s certificate to be valid. These are that the certificate must be in writing; the certificate must be to the effect that the safety and public interests of the United Republic are likely to be prejudiced by granting bail in a given case; and, thirdly: the certificate must relate to a criminal case that is either pending trial or pending appeal.