Any legislation that takes away, or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed them guilty even before the court has said so
August 23, 2023
Legal & Human Rights Center and Tanzania Human Rights Defenders Coalition v United Republic of Tanzania
Application No. 039/2020
African Court on Human and Peoples’ Rights
B Kioko, VP & J; B Tchikaya, RB Achuor, S Mengue, TR Chizumila, SI Anukam, DB Nsebeza, M Sacko and DD Adjei, JJ
June 13, 2023
Reported by Faith Wanjiku and Brian Okumu
International law – treaties – African Charter on Human and Peoples’ Rights (the Banjul Charter) – rights of individuals -– the right to freedom from discrimination – whether Article 2 of the Charter was violated through the application of section 148(5) of the CPA where bail was denied for offences such as murder, treason, armed robbery, defilement, illicit trafficking of drugs, terrorism and money laundering among other offences – African Charter on Human and People’s Rights, 1981, article 2
Criminal law –accused persons – rights-the right of an accused to be presumed innocent until proven guilty – where there was an unreasonable restriction of bail for certain offences – whether article 7 of the Charter was violated through the application of section 148(5) of the CPA where bail was denied for offences such as murder, treason, armed robbery, defilement, illicit trafficking of drugs, terrorism and money laundering, among other offences – African Charter on Human and People’s Rights,1981, article 7(1)(b)
The respondent state enacted the Criminal Procedure Act (CPA) Chapter 20 of the Laws of Tanzania on November 1, 1985. The applicants averred that section 148(5) of the CPA violated various provisions of the African Charter on Human and People’s Rights (the Charter), the Universal Declaration of Human Rights (the UDHR), the International Covenant on Civil and Political Rights (the ICCPR) and the Constitution of the Republic of Tanzania (the Constitution).
The applicants submitted that the above-mentioned human rights instruments and the Constitution proscribed discriminatory laws. In addition, the instruments required the respondent state to guarantee all citizens the right to equal protection of the law, and other rights which attended the right to a fair trial.
The applicants asserted that section 148(5) of the CPA violated the above enumerated rights by unreasonably restricting bail to individuals charged with certain offences. In that regard, the applicants submitted that by prescribing unbailable offences, section 148(5) of the CPA affected two categories of entities: individuals and the judiciary. The former were deprived of their basic rights enshrined in the Constitution and relevant international instruments whereas the latter, as a result of the mandatory nature of the provision, was denied any discretion in bail applications pertaining to the said section.
The applicants also contended that despite several cases having been filed in the domestic courts challenging section 148(5) of the CPA, the provision had still been upheld as being constitutional and consistent with international human rights instruments.
i Whether the applicants exhausted the local remedies of their national courts within a reasonable time.
ii Whether articles 1, 2and7 of the Charter were violated through the application of section 148(5) of the CPA which denied bail to offences such as murder, treason, armed robbery, defilement, illicit trafficking of drugs, terrorism and money laundering, among other offences. Relevant provisions of the law
African Charter on Human and People’s Rights, 1981 (the Charter)
The member states of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.
Every individual shall be entitled to the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
1. Every individual shall have the right to have his cause heard. This comprises:
a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
b) The right to be presumed innocent until proved guilty by a competent court or tribunal;
c) The right to defence, including the right to be defended by counsel of his choice;
d) The right to be tried within a reasonable time by an impartial court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. No penalty may be inflicted for an offence which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
The Criminal Procedure Act, Cap 20 of the Laws of Tanzania
Section 148 – Provisions as to Bail, Recognizances and Bonds
(3) The High Court may, subject to subsections (4) and (5) of this section, in any case direct that any person be admitted to bail or that the bail required by a subordinate court or a police officer be reduced.
(4) Notwithstanding anything in this section contained, no police officer or court shall, after a person is arrested and while he is awaiting trial or appeal, admit that person to bail if the Director of Public Prosecutions, certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced; and a certificate issued by the Director of Public Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge of a police station and shall remain in effect until the proceedings concerned are concluded or the Director of Public Prosecutions withdraws it.
(5) A police officer in charge of a police station or a court before whom an accused person is brought or appears, shall not admit that person to bail if-
(a) That person is charged with-
(i) Murder, treason, armed robbery, or defilement;
(ii) illicit trafficking in drugs against the Drug Control and Enforcement Act, but does not include a person charged for an offence of being in possession of drugs which taking into account all circumstances in which the offence was committed, was not meant for conveyance or commercial purpose;
(iii) an offence involving heroin, cocaine, prepared opium, opium poppy (papaver setigerum), poppy straw, coca plant, coca leaves, cannabis sativa or cannabis resin Criminal Procedure Act (Indian hemp), methaqualone (mandrax), catha edulis (khat) or any other narcotic drug or psychotropic substance specified in the Schedule to this Act which has an established value certified by the Commissioner for National Co-ordination of Drugs Control Commission, as exceeding ten million shillings;
(iv) Terrorism against the Prevention of Terrorism Act;
(v) Money laundering contrary to Antimoney Laundering Act;
(vi) Trafficking in persons under the Anti-Trafficking in Persons Act;
(b) It appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety;
(c) It appears that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded;
(d) It appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety;
(e) the offence with which the person is charged involves actual money or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of a bond: Provided that, where the property to be deposited is immovable, it shall be sufficient to deposit the title deed, or if the title deed is not available such other evidence as is satisfactory to the court in proof of existence of the property; save that this provision shall not apply in the case of police bail.
- The applicants had complied with the requirement of the exhaustion of local remedies under article 56(5) of the Charter and the respondent’s state’s objection was dismissed. The rule of exhaustion of local remedies was paramount and aimed at providing States the opportunity to deal with human rights violations within their jurisdictions before an international human rights body was called upon to determine the state’s responsibility for the same. For local remedies to be exhausted, they had to be available, effective, sufficient, and not unduly prolonged. The rule did not in principle require that a matter filed before it had to have been filed before the domestic courts by the same applicant especially in a public interest case. What had to be demonstrated was that prior to the seizure of the court, the respondent state had had an opportunity to deal with the substance of the matter through appropriate domestic proceedings.
- The court rejected the objection based on non-filing of the application within a reasonable time and held that the application had complied with rule 50(2)(e) of the Rules. It was noted that the filing of the application within 3 months and 15 days after the exhaustion of local remedies was expeditious and therefore reasonable.
- The applicants’ claim under section 148(5)(a) of the CPA had been settled in accordance with the principles of the Charter. However, the claims under section 148(5) (b) -(e) had not been settled and thus the application complied with rule 50(2)(g) of the rules in respect of the said provisions of the CPA. The court recalled that the concept of settlement implied the convergence of three major conditions: identity of the parties; the identity of the applications or their supplementary, consecutive or alternative nature or whether the case flowed from a request made in the initial case; and the existence of a first decision on the merits.
- The court found that the requirement of the identity of the parties was not met because in a previous case (Anaclet Paulo v Tanzania) contended by the Respondent State, the applicant was a convict of armed robbery who sought to protect individuals’ rights allegedly violated in his trial before the national courts. However, in the instant case, the applicants were NGOs seeking to protect the rights of the public at large, arising from a public interest case before the national courts. As regards the identity of the applications, the court had to decide whether the legal and factual basis of the claims were the same by examining the alleged violations and prayers of the applicants. The applicants’ interests in Anaclet Paulo v Tanzania and the instant case only converged to the extent of section 148(5)(a) of the CPA.
- All the admissibility conditions had been met: the applicants had been clearly identified by name in fulfillment of rule 50(2)(a) of the rules; the language used in the application was not disparaging or insulting to the respondent state or its institutions in the fulfillment of rule 50(2)(c) of the rules; and the application was not based exclusively on news disseminated through mass media as it was founded on the CPA in fulfillment of rule 50(2)(d) of the Rules. Therefore, the application was held to be admissible.
- Discrimination occasioned by virtue of the operation of Sub-sections 148(5)(b) and (e) of the CPA violated article 2 of the Charter to the extent that certain categories of accused persons were barred from receiving bail, irrespective of their personal or other circumstances. The court distinguished between various forms of discrimination such as direct discrimination and indirect discrimination. Direct discrimination was a differentiation of persons or situations on the basis of one or several unlawful criterion/criteria whereas indirect discrimination occurred where there was a disparate effect on groups or individuals as a result of specified measures or actions. In the instant case, by virtue of sub sections 148(5)(b)-(e) of the CPA which outrightly barred courts from considering an application for bail by accused persons who had served a sentence exceeding 3 years and those who had been charged with offences relating to property worth over 10 million shillings, it in effect, treated such persons less favourably as compared to accused persons charged with offences which fell out of the ambit of section 148(5) of the CPA. The respondent state did not give the details as to how the impugned law provided the guarantees it claimed and it had not given cogent reasons as to why the law was not of general application.
- The outright denial of bail provided for under section 148(5) of the CPA was neither necessary nor proportionate to the aim that it sought to achieve. section 148(5)(a), (b) and (c) violated the presumption of innocence under article 7(1)(b) of the Charter. The essence of the presumption of innocence was for an accused person to be considered innocent throughout all the phases of the trial until the delivery of judgment. The presumption of innocence espoused that the burden of proof beyond a reasonable doubt rested on the prosecution and any doubt should had benefitted the accused.
- In the absence of judicial control of the granting or denial of bail, section 148(5) of the CPA the right to be heard under article 7(1) of the Charter. Article 7 of the Charter permitted every person who felt that their rights had been violated to bring their cause before a competent national court and in the realization of that right, the position or status of the victim or the alleged perpetrator of the violation were irrelevant and every complainant was entitled to an effective remedy before a competent and impartial judicial body.
- In light of the above holdings, the court found that the Respondent State violated articles 1, 2, 7(1) and 7(b) of the Charter through the application of section 148(5) of the CPA.
Application allowed; each party to bear its own costs.
i. The respondent state to take all necessary constitutional and legislative measures, within a reasonable time, and in any case not exceeding 2 years, to ensure that section 148(5) of the CPA is amended and aligned with the provisions of the Charter to eliminate violations of the Charter.
ii. The respondent state to publish the judgment, within a period of 3 months from the date of notification, on the website of the Judiciary, and the Ministry for Constitutional and Legal Affairs, and ensure that the text of the judgment was accessible for at least (1) year after the date of publication.
iii. The respondent state was to submit to it within 12 months from the date of notification of the judgment a report on the status of implementation of the decision and thereafter, every 6 months until the court considered that there had been full implementation of its decision.
iv. The respondent state violated articles 1, 2, 7(1) and 7(b) of the Charter through the application of section 148(5) of the CPA.
v. Each party would bear their own costs.
Relevance to Kenyan Jurisprudence
The Constitution of Kenya, 2010 (the Constitution) has endowed its citizens with rights of enormous importance whenever they are in trouble with the law in order to ensure fairness not only to the victim but also to the accused. Among these crucial rights are the rights of arrested persons and the right to a fair trial. However, for purposes of the above case, the relevant provision is confined to article 49(1)(h) which is stated as follows:
An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
A further pertinent provision is also found in article 50(2)(a) of the Constitution which provides thus:
Every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.
It is also worthy to note that the right to bail has been vividly captured under section 123 of the Criminal Procedure Code below:
(1) When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any drug related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced
Section 123 A
(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
(a) The nature or seriousness of the offence;
(b) The character, antecedents, associations and community ties of the accused person;
(c) The defendant’s record in respect of the fulfillment of obligations under previous grants of bail; and;
(d) The strength of the evidence of his having committed the offence;
(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a) Has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b) Should be kept in custody for his own protection.
In the pre-2010 Kenyan constitutional dispensation, it was not possible for an accused person to be granted bail if they were charged with a capital offence. However, consequent to the promulgation of the 2010 Constitution, all criminal offences became bailable subject to specific conditions that would be considered by the court in its discretion. The court noted in Republic v John Kahindi Karisa and 2 others (2010) eKLR regarding article 49(1)(h) as follows:
“This Constitutional provision came into force after the promulgation of the New Constitution. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is Death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence e.g. murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.”
Besides statute and case laws, the Bail and Bond Policy Guidelines also guide the courts in their discretion while determining whether to grant or deny bail to accused persons. In addition to the factors for consideration of bail captured in section 123 of the Criminal Procedure Code, other non-exhaustive factors from the guidelines were cited in Republic v Sabit Mamuor Deng and another (2020) eKLR as follows:
a) The likelihood of interfering with witnesses.
b) The need to protect the victim or victims of crime.
c) The best interest of child offenders.
d) Whether the accused person is a flight risk.
e) Whether the accused person is gainfully employed.
f) Public order, peace and security.
All the above-mentioned provisions of the law clearly denote the rights that are attendant to an individual should they find themselves in legal trouble. However, these rights are not at all absolute as the court will endeavor to balance the interests of the accused persons with the society which is aggrieved and is pursuing justice.
Kenya, like the respondent State in the case above, also subscribes to the African Charter and the Maputo Protocol, which were ratified on 23rd January 1992 and 6th October 2010 respectively. Essentially, Kenya is one of the State Parties that are bound by the laws of the Charter and it is expected to fulfill its obligations thereunder, among them respecting and promoting the human rights of its nationals pursuant to article 1 of the Charter.