“Raging” debate on bail sorted by Tanzania’s highest court

3 May 2019 · Carmel Rickard

When members of a country’s highest judicial forum speak of a dispute that is “raging” in the courts there, readers should take note. Obviously, something important is going on. In the case of Mwita Joseph Ikoh and two co-accused, that “something” is the issue of which court has jurisdiction to consider whether they may be given bail: the high court, or the specialised division of the high court that deals with corruption and economic crimes. Earlier this month the Court of Appeal decided the question – and the “raging” debate should now be settled.

Read the judgment on TanzLII

As the rest of Tanzania was getting ready for year-end celebrations in December 2017, six people in the Mwanza region found themselves in deep trouble. Instead of spending time at home over the holiday they were in jail, after being arrested in relation to drugs charges. The six now find themselves charged under the Drug Control and Enforcement Act with trafficking in “precursor chemicals”.

According to the prosecution, they were using a Mercedes Benz and a trailer on which were loaded 200 drums of ethyl alcohol – a total volume of 50 000 litres. Not content to wait for trial behind bars, three of those arrested wanted to ask for bail. Their urgent application was directed to the High Court’s Corruption and Economic Crimes Division, where they found little satisfaction.

While a judge of that division found that it was legally able to consider the application, the next two findings left the three accused no further forward. First, the court held that it could decide on the “correctness” of the charge sheet – but only when the trial began, not during the bail proceedings. Second, and of even more concern to them, the court held that the offence with which the group was charged was “unbailable”.

Those decisions were challenged in the Court of Appeal, where three judges were asked to reconsider the outcome.

On member of the panel, Judge Gerald Ndika, wrote that in his view and the view of his two colleagues, the first matter to decide was whether the Corruption and Economic Crimes court had jurisdiction to consider the application for bail.

He quoted from the law on bail applications, that “in all cases where the value of any property involved in the offence charged is ten million shillings or more” a bail application made “at any stage before commencement of the trial” was “vested in the High Court”. The wording at this point was different from other sections where various courts were given jurisdiction to consider bail at particular stages of a trial.

Here, however, according to the Court of Appeal, the law gave the “High Court” jurisdiction to grant bail where the value of any property involved in the offence charged was ten million shillings or more before the start of a trial in the Corruption and Economic Crimes Division of the High Court.

The appeal judges said that there had been “a raging debate” at the High Court level over whether the Corruption and Economic Crimes Division of the High Court had exclusive or concurrent powers to consider and grant applications for bail.

In a number of cases, the Corruption and Economic Crimes Divisions decided that it had jurisdiction to consider and grant bail. However, there were also decisions of the High Court in which that court held that it – and not the specialised corruption division – had exclusive jurisdiction to hear and decide on bail.

Against this background, which had seen the development of two schools of thought on the question, the court noted that the issue had also recently been considered by the Court of Appeal, in an unreported decision. In that appeal, which came from the specialised corruption division, the person charged was waiting for the start of trial. She was charged with an economic offence involving thirty million shillings. When she applied for bail to the Corruption and Economic Crimes Division of the High Court, that court “affirmed its exclusive jurisdiction on the matter” and thus dismissed a preliminary objection raised by the State on the court’s jurisdiction.

On appeal, however, the Director of Public Prosecutions strongly argued that the power to grant bail in cases involving such amounts was “exclusively exercisable” by the High Court, rather than its specialised division. This view was supported by the Court of Appeal which found that the High Court, rather than the specialised division of the high court, had the power to deal with bail applications “in all economic offence cases where the value of any property involved is ten million shillings or more”.

In the view of the appellate division, it made sense to interpret the law in this way because if all the High Courts could hear bail applications they could be considered more promptly than if only the Corruption and Economic Crimes Division of the High Court could do so.

Judge Ndika said that he and the rest of the bench hearing the current case were of the view that the earlier appeal decision should be followed, and they thus “had no difficulty in holding” that the specialised court had no jurisdiction to consider bail in matters involving more than the stipulated amount.

The appeal court thus held that the bail proceedings in the specialised court was a nullity “for want of jurisdiction” and the decision of the court below was thus set aside.

Carmel Rickard

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