JUDGMENT OF THE COURT

Transcription

1 AT OAR ES SALAAM CORAM: MANENTO, JK., MLAY, J., AND MIHAYO, J. MISC. CIVIL CAUSE NO. 117 OF 2004 JACKSON S/O OLE } OLE MJOMBA... PETITIONERS MJOMBA AND 19 OTHERS Date of last order Date of Judgment - 21/9/ /7/2007 JUDGMENT OF THE COURT This petition has been filed under the provisions of the Basic Rights and Duties Enforcement Act [cap 3 R.E. 2002]. The twenty petitioners were, at the time of filing, accused persons in Moshi Resident Magistrate's Criminal Case No. 16 of They were jointly charged of two counts under the Penal Code [Cap 16 R.E. 2002]. In the first count, they were charged of conspiracy to commit an offence contrary to section 384 of the Penal Code. And in the second count they were charged of armed robbery contrary to section 287 A of the Penal Code. All of them pleaded not guilty to

2 the charges facing them. They were remanded under the provisions of section 148 (1) (a) of the Criminal. Procedure Act [Cap 20 R.E. 2002], (the Act), which has this to say: "148 - (1).... (2). (3). (4). (5) A po/ice officer incharge of a police station or a court before whom an accused person is brought or appear~ shall not admit that person to bail if - (a) that person is charged with- (i) murde~ treason armed robbery or defilement (ii) """"""""""""""""""""""""""""""""""" (IIi) """"" II"""""""""""""""""""""" #I""""" On 25/5/2005 a nolle prosequi was entered by the Director of Public Prosecutions (DPP) in respect of eleven accused persons and as we write this judgment, the case against the remaining petitioners might have been finalized either way. But, as rightly

3 stated by Mr Ojare, learned counsel, who together with Mr. J.J.A. Mwale, learned counsel advocated for the petitioners, in view of the provisions of Article 30 (3) of the constitution of the United Republic of Tanzania (the Constitution), the said petitioners have a locus standi in this petition on account of an alleged breach of their fundamental rights. Article 30 (3) of the Constitution says:- "30. (3) Mtu yeyote anayedai kuwa sharti lolote katika Sehemu hii ya Sura hii au katika sheria yoyote inayohusu haki yake au wajibu wake/ limevunjwa linavunjwa au inaelekea litavunjwa na mtu yoyote popote katika Jamhuri ya Muungano/ anaweza kufungua shauri katika MahakamaKuu." The respondent is the Attorney General. He is represented in this petition by Mr Mwaimu, learned Principal State Attorney and Mr. Mtimbwa, learned State Attorney. They have vigorously resisted the petition. The hearing was conducted by way of written submissions. The petition is centred on alleged violations of Basic Rights as depicted in paragraphs 5, 14 and 16 of the petition, which are better quoted in extenso as follows:- "5. That the denial of bail to the petitioners under section 148 (5) (a) of

4 the Criminal Procedure Act violates Article 15 (2) (a) of the Constitution of the United Republic of Tanzania 14. That the provisions of section 9 (3) of the Criminal Procedure Ac~ which restrict the disclosure and furnish or supply of prosecution witnesses statements only to the person who gave information relating to the commission of the charged offence, is arbitrary, unreasonable and lacks any legitimate objective and gravely impedes the petitioners fundamental right to a fair hearing guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. 16. That the inordinate delay, caused by the prosecution of affording the petitioners a fair trial within a reasonable time is violative of section 225 (4) of the Criminal Procedure Act and Article 107 A (2) (b) of the

5 Constitution of the United Republic of Tanzania. The respondent's denials to the alleged violations are contained in paragraphs 3, 8, and 10 of the answer to the petition. The paragraphs are framed as follows:- "3. That contents of paragraph 5 and 6 are strongly denied. The Respondents avers (sic) that the denial of bail to the petitioners under section 148 (5) (a) of the Criminal ProcedureAct 198~ does not violate Article 15 (2) (e) as long as the procedural safeguards guaranteed under it were observed. 8. That the contents of paragraph 14 are noted. The Respondents avers (sic) that Section 9 (3) of the Criminal Procedure Act are in law the current procedure and have been adhered to. In particular, the statutory procedure does not operate against Article 13 (6) (a) of the Constitution of the United Republic of Tanzania.

6 10. That the complaint in paragraph 16 is disputed and that the Respondents have not violated section 225 (4) of the Criminal Procedure Act and Article 107 (2) (b) (sic) of the Constitution of the United Republic of Tanzania." The petitioners are saying that denial of bail for the offence of armed robbery under section 148 (5) (a) of the CPA violates Article 15 (2) of the Constitution which has this to say:- "15 - (2) Kwa madhumuni ya kuhifadhi haki ya mtu kuwa huru na kuishi kwa uhuru, itakuwa ni marufuku kwa mtu yeyote kukamatwa, kufungwa, kufungiwa, kuwekwa kizuizinl kuhamishiwa kwa nguvu au kunyanganywa uhuru wake vinginevyo, isipokuwa tu - (a) katika hali na kwa kufuata utaratibu uliowekwa na sheria. (b)... (not relevant) Mr Ojare opened his arguments on this by saying:

7 UYourLordships; the basic legal contention of the petitioners in challenging their denial for bail for the offence of armed robbery under section 148 (5) (a) of the CPA1985; is that the said provision of the law is draconian. It has no safeguards of the mandatory procedure prescribed by law enshrined in Article 15 (2) (a) of the Constitution. It is standardles~ arbitrary and unreasonableprovision; whichjettisons the presumption of innocence, a cardinal principle in our criminal law process, in the most tyrannical manner." The learned advocate complained of the lack of procedure prescribed by law for denying bail to an accused person charged of armed robbery which he said violates Article 15 (2) (a) of the Constitution and as settled by a decision of the Court of Appeal of Tanzania (the Court of Appeal) in Director of Public Prosecutions vs. Daudi Pete (1993) TLR 22. He said denial of bail can only be justified if and when a set procedure as provided under Article 15 (2) (a) of the Constitution, is satisfied through an objective judicial appraisal. Otherwise, learned counsel said, lack of a procedural safeguard as required by law is a way of justifying indefinite pre - trial detention which is illegal and unconstitutional for violating Article 13 (6) (a).

8 The learned counsel addressed the court extensively as to whether denial of bail for offences of armed robbery under section 148 (5) (a), is saved by Article 30 (2) of the Constitution. He said denial of bail under the said provision is arbitrary and a standardless sweep which can conveniently and advantageously be misused by the law enforcement authorities to victimize the petitioners who are not a threat to the state or to public order and safety and therefore cannot be saved under Article 30 (2) of the Constitution. Learned counsel referred us to the case of D.P.P. vs Daudi Pete (supra) as a leading case as to whether denial of bail is saved by Article 30 (2) of the Constitution, an issue which was deit with in other subsequent cases of Kukutia Ole Pumbun and Another vs Attorney General and Another [1993] TLR 159 at page 166 and Mbushuu alias Dominic Mnyaroje and Another V. Republic [1995] TLR 97 at page 112. Mr Ojare was not finished. He said, in effect that the impugned section does not satisfy the two tests of lawfulness and proportionality as laid down by the Court of Appeal in the cases mentioned above. This is because, he said, the provisions of section 148 (5) (a) are arbitrary in that the section lacks adequate safeguards against abuse by those in authority when using the law, it lacks a road map and sins against the natural justice principle of audi alteram part em. And because there is no right of appeal and the court has no discretion, the section is neither compartible with the rule of law or natural justice.

9 The learned counsel took the view that denial of bail under section 148 (5) (a) of the CPA is not a restriction on an individual accused person but a total prohibition regardless of whether the concerned accused person is a danger to the interests of defence, public safety or public order or not. He said the law is a catch- all provision and has infact been used against both accused persons who can legitimately be charged with the offence of armed robbery and those who legitimately cannot; merely by vindictiveness or victimization. That section he said, is capable of being misused by law enforcement authorities as an engine for harassment persecution and oppression of innocent people. On whether a compelling legitimate objective exists for the state to impose denial of bail for the offence of armed robbery, learned counsel for the petitioners posed the question as to whether such restriction is not more than is reasonably necessary to achieve the legitimate objective. After quoting from the case of Julius Ishengoma Francis Ndyanabo V. Attorney General [2001] 2 E.A. 285 and Kukutia Ole Pumbun (supra) learned counsel submitted that the restriction or denial of bail under the impugned section is both unreasonable and disproportionate. Mr. Ojare gave five reasons for his saying so as follows. One, it is unfair for the state, which is an interested party to arrogate itself so much power to deny an accused person of his freedom by merely charging him of the offence of armed robbery and both the trial court and the accused person are rendered powerless to question the rationale of

10 ?7_,-;t; -;~f::,_... :q,,'~"._~ denial of bail. Two, it is presumed that a person arrested and charged of armed robbery shall have been properly investigated. That eleven accused persons in the substantive case had their charges withdrawn by the DPP after 11 months of incarceration leaves no doubt that the police are misusing the law to punish innocent people. Three, the denial of bail under section 148 (5) (a) is unreasonable because it is limitless in terms of time and space. It is unreasonable in time because no time limit is providedby the law for investigations and/or trial of the accused person. It is unreasonable in space because the time one stays in remand during investigation and trial is never considered in sentencing. Four, the restriction on bail is disproportionate as there are other legal procedures to cater for the mischief. These are providedin sections 20 (1), 73 (a) (e) and (g), 148 (4) of the Act. Five, the restriction for bail for the offence of armed robbery is extremely disproportionate and lacks any rational nexus to the object sought to be achieved. This is because the minimum sentence for armed robbery is 30 years imprisonment. Yet there are offences that attract life imprisonment like gang rape and unnatural offences which are bailable. The respondent replied by saying that section 148 (5) (a) is not violative of Article 15 (2) (a) of the Constitution, as the Article stipulates the need to abide to legal procedure in order to justify one's liberty and vice versa. The learned Principal State Attorney said the restrictions in section 148 (5) (a) are not violative of any

11 Constitutional provision as they have been made in accordance with principles enumerated therein. As to whether denial of bail is saved by Article 30 (2) of the Constitution, the learned Principal State Attorney said yes, in the sense that the Article can be construed to mean that the rights of the majority in the society should not be infringed or interfered by a few persons. The court was referred to the case of Francis Coralie Nullin v. Union Territory of Delhi, Administrator, AIR 1981 SC 746 Para (1981) 1 SCC 608. He said by literal interpretation, Article 30 (2) of the Constitution does not put any limit as to when public interest can be protected reasonably but does recognize that the establishment of the public interest criteria is reasonable fair and just. Mr Mwaimu referred us to the case of Gandhi vs Union of India, AIR 1978 SC 597 and said a person's liberty and life can be deprived if two conditions are complied with. The first condition is that there must be a law and the second is that there must be a procedure prescribed by that law provided that the procedure is just, fair and reasonable. He submitted further that it is not possible to provide safeguards for every possible situation. But in applying section 148 (5) (a) of the Act, the court has to consider the interest of the society as one critical element and the release of the petitioners in this case would create public disorder and disturb other members of the society. The respondent further argued that the

12 impugned section is good law because it accommodates public interest. The second complaint is in respect of section 9 (3) of the CPA which has this to say:- "9 - (3) Where in pursuance of any information given under this section proceedings are instituted in a magistrate's cou/t the magistrate shall, if the person giving the information has been named as a witness, cause a copy of the information and of any statement made by him under subsection (3) of section 10 to be furnished to the accused forthwith. fi Mr. Ojare complained that the section is too restrictive, a reversal on the previous section and goes against the spirit of the law as was stated in the case of Republic vs. Saimon Bernard and 3 Others Criminal Revision No. 5 of 1997 (Dar es Salaam Registry - unreported). He went on to say the section is violative of Article 13 (6) (a) of the Constitution which says:- "13 - (6) Kwa madhumuni ya kuhakikisha usawa mbele ya sheria, Mamlaka ya Nchi

13 itaweka taratibu zinazafaa au zinazozingatia misingi kwamba - (a) wakati haki na wajibu kwa mtu yeyote inapohitajika kufanyiwa maamuzi na Mahakamaau chombo kingine cho chate kinachohusika/ basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu/ na pia haki ya kukata rufani au kupata nafuu nyingine kisheria kutokana na maamuzi ya Mahakama au chombo hicho kinginecho kinachohusika." The learned counsel referred us to Kukutia again and said the equality envisaged in Article 13 (1) embrases not only ordinary persons but also the Government and its officials, and all must be subjected to the same rules. He said the provisions of section 9 (3) are geared to impede and disadvantage the accused person, because under the section, an accused person will always be in the dark as to the nature and quality of the prosecution evidence against him. This will put him in a position of not charting out his defence properly.

14 On the authority in the case of The Attorney General v. Lesinai Ndeinai and Joseph Saleyo Laiser and Two Others [1980] TLR 241 learned counsel referred the court to the following cases from other jurisdictions. Juma and Others v. Attorney General [2003] 2 EA461 at 467 (Kenya); Olum and Another v. Attorney General (2002) 2 ea. 508 at 509 (Uganda); R.V. Stinchcombe (1992) LRC 58 (Canada); Malapo v. Director of Public Prosecutions (1998) & LRC 146 at 158 (Lesotho) and Republic v. Georges (1999) 4 LRC 147 (Sychelles), where the observation cutting through was that an accused person has a right of accessto statements taken by police from potential witnesses. The respondent countered by saying the provisions of section 9 (3) are not violative of Article 13 (a) and (b) of the Constitution because after the closure of the case for the prosecution the defence will have time to prepare their case by accessing witnesses' statements from the prosecution. The learned Principal State Attorney said the petitioners may as a matter of right ask to prepare by reading the said statements by witnesses. He said allowing the disclosure of their statements would create a likelihood of being intimidated, compromised or may disappear and therefore there had to be a law to providefor the witnesses' protection in the interests of the society. The learned State Attorney concluded by saying that the provisions of section 9 (3) are not unreasonable and have a legitimate objective.

15 The third complaint advanced for the petitioners is that noncompliance with the provisions of section 225 (4) of the Act is violative of Article 107 A (2) (b) of the Constitution. Mr. Ojare said that although it has been settled by the Court of Appeal that non compliance with section 225 (4) and (5) does not vitiate a criminal trial, [see John Joseph Omunge and Julius Jenene v. Republic [1993] TLR 131 at 136; Director of Public Prosecutions v. Foya Mathayo [1995] TLR 23 at 24 and Deemay Saali and 2 others v. Republic Arusha Criminal Appeal No. 80 of 1994, unreportedj, those decisions were made out of the context of Article 107 A (2) (b) of the Constitution which came into force in And the question now should be whether the prosecution should be allowed to justify and get away with pre trial delays on the mere basis of "thorough investigations before prosecution and whether this does not render nugatory the right to speedy trial as protected under Section 225 (4) and (5) of the CPAand Article 107 A (2) (b) of the Constitution." The learned Principal State Attorney does not appear to have tackled this complaint head on. He said Section 225 (4) of the Act does not violate Article 107 A (2) of the Constitution and that the principles of natural justice have been met in so far as the petitioner' case is concerned. arguments. We have given due considerations to the contending issues and We commend learned counsel for their assistance. We

16 are now going to deal with the issues as raised and shall do so seriatim, starting with the provisions of section 148 (5) (a), then section 9 (3) and lastly section 225 (4) of the CPA. As was said by this court (Lugakingira J. as he then was) in Rev. Christopher Mtikila vs Attorney General [1995] TLR 31: "Where the issue is whether a law is unconstitutional the court looks at the law itself not at how it works." The learned judge went on to quote from the Indian case of Prakaland Jena v. State, AIR 1950 Orissa 157 where it was said: "In order to determine whether a particular law is repugnant or inconsistent with the Fundamental Rights it is the provisions of the Act that must be looked at and not the manner in which the power under the provision is actually exercised.. or repugnancy does not depend upon the exercises of the power by virtue of the provisions of the Act but on the nature of the provisions themselves."

17 We agree and we shall adopt this approach in dealing with the impugned provisions abovementioned. We shall now go on to consider the legal issues raised regarding those provisions. The first issue is whether denial of bail for the offence of armed robbery under section 148 (5) (a) of the Criminal Procedure Act, 1985 is violative of Article 15 (2) (a) of the constitution. When dealing with this issue and if we find that the section is indeed violative of Article 15 (2) (a) of the Constitution we shall then consider whether denial of bail for the offence of armed robbery under that section is saved by Article 30 (2) of the Constitution. The fact that the Constitution is the supreme law of the land has long been settled. A law that is inconsistent with the provisions of the Constitution shall, to the extent of that inconsistency be void. This is also settled. The general principle governing Constitutional interpretation was well laid down in the cerebrated case of Julius Ishengoma Francis Ndyanabo (supra) where the Court of Appeal held at page 493, inter alia:- "The constitution is a living document with a soul and consciousnessas reflected in the Preamble and Fundamental Objectives and Directive Principles of state policy. It

18 should not be crippled by technical or narrow interpretation." \\Provisions founding on fundamental rights have to be interpreted in broa~ liberal and strict manner to jealously guard those rights" \\Legislation is presumed to be constitutional until the contrary is proved and the onus is upon the person challenging the constitutionality of a legislation to prove so. It should receive a construction that will make it operative and not inoperative' And finally: \\The onus is on the person supporting a restriction on a fundamental right in reliance of clawback or exclusion clause, to justify the restriction."

19 We are likewise governed by the principles as stated and we shall therefore have them in mind when dealing with this petition. Is denial of bail for the offence of armed robbery under section ( 148 (5) (a) of the Criminal Procedure Act violative of Article 15 (2) (a) of the Constitution? The petitioners are saying since (5) (a) has no safeguards of the mandatory procedure as prescribed under Article 15 (a), since it is arbitrary and unreasonable then it violates the Constitution and this court must say so. The respondents are resisting. They are saying, in effect, that denial for bail is saved under Article 30 (2) of the Constitution. It is common ground that the leading case on the issue at hand is Daudi Pete (supra). In that case, the provision complained of was section 148 (5) (e) which read as follows:- "148 - (5) A police officer incharge of a police station, or a court before whom an accusedperson is brought or appears, shall not admit that person to bail if - (a) (b) (c) (d)

20 (e) the act or any of the acts constituting the offence with which a person is charged consists of a serious assault causing grievous bodily harm on or threat of violence to another person, or having or possessing firearm or an explosive. (f) (g) The Court of Appeal, in a far reachingjudgment said that section was violative of Article 15 (2) (a) of the Constitution because it did not state the circumstance under which bail was to be denied and did not state the procedure prescribed by law under which bail could be denied. The court found that the provisions of section 148 (5) (e) are not saved by Article 30 of the Constitution and said:- "In our considered opinion the provisions of section 148 (5) (e) are so broad that they encompass even accused persons who cannot reasonably be construed to be such a danger in terms of the relevant paragraph of the Constitution. For instance/ these provisions cover an accused person who/

21 II while defending himself or his property against robbers uses excessive force resulting in the death of one or more of the robbers. They also cover an accused person who finds someone committing adultery with that person~ spouse, and being provokecl, seriously assaults and causes grievous bodily harm to the adulterer." It would appear the Government reacted by the passing of the Written Laws (Miscellaneous Amendments) Act, No. 12 of 1998 where paragraph (a) of subsection (5) was deleted and replaced by the present paragraph as referred above. Mr Ojare argued that that is not enough because section 148 (5) (a) does not contain the "procedure prescribed by law' for denial of bail to an accused person charged with the offence of armed robbery. This, the learned counsel said, contravened the provisions of Article 15 (2) (a) of the Constitution. Mr Mwaimu, learned Principal State Attorney submitted that there is nothing wrong with section 148 (5) (a), and the restrictions therein are not violative of the Constitution and they have been made in accordance with principles enumerated in the Constitution. If we understood him well he seems to be saying that because the Constitution allows for the enactiment of laws, then these laws

22 cannot violate the Constitution. With respect we think this is a misinterpretation of the law. Any law enacted is always tested against the Constitution. And we say it one more time that if it is inconsistent therewith, then to the extent of the inconsistency, it is void. And in that vein, we do not think this is a matter of a technicality under Article 107 A (2) (b) of the Constitution. The issue we are dealing with is substantive. In Daudi Pete, the Court of Appeal had this to say, inter alia:- "Under Article 15 (2) (a) of the Constitution a person may be denied or deprived of personal liberty under "certain circumstances" and subject to a procedure prescribed by law." We would therefore agree with Mr. Ojare that because there is no procedure for denying a person bail under section 148 (5) (a), the provisions of that section are violative of Article 15 (2) (a) of the Constitution and we so hold. Is denial of bail for armed robbery under section 148 (5) (a) of the Act saved by Article 30 (2) of the Constitution? This is our answer. In Daudi Pete it was held that becauseof the co-existence between the basic rights of the individual and the collective rights of the society, it is common to find limitations to the basic rights of the individual in practically every society. The concern is how the legal

23 system harmonises the two sets of rights. The court has to take into account and strike a balance between the interests of the individual and those of the society of which the individual is accomponent. The Court then said:- \\Theprovisions of (5) (e) of the Act violatearticle 15 (2) (a) of the Constitution and woultt therefore/ be null and voitt unless saved by Article 30 of the Constitution because any piece of legislation falling wholly within the parameters of Article 30 of the Constitution is valitt notwithstanding that it may be violativeof basicrights of the individual." We are minded of the fact that denial for bail under section 148 (5) (a) of the Act is in the interests of defence, public safety and public order. We take judicial notice of the recent past when this country was rocked by a wave of unprecedented bank robberies, highway robberies and car - jackings. We are however guided by the authority in Daudi Pete where the court said:- \\Since the objective of the relevant paragraph of the Constitution is the "ensuring"or protection of "the interests of defence/ public safety public order" etc.

24 w section 148 (5) (e) would be saved if the denial of bail is aimed only at accused persons who are capable of being a danger or threat to the interests of defence/ public safety or public order' And in Kukutia (supra) the Court said at page 166:- "A Law which seeks to limit or derogate from the basic right of the individual on ground of public interest will have special requirements/ first such a law must be lawful in the sence that it is not arbitrary. It should make adequate safeguards against arbitrary decision and provide effective controls against abuse by those in authority when using the law. Secondly the limitations imposed by such law must not be more than is reasonably necessary to achieve the legitimate objective. This is what is also known as the principle of proportionality." (emphasis ours) The same principles were again applied two years latter in the case of Mbushuu (supra) when the court said:

25 "In Kukutia we went on to explain what me meant by ''arbitrary.// We said the law under investigation should make adequate safeguards against arbitrary decisions and provide effective controls against abuse by those in authority when using the law." The word "arbitrary" Seventh Edition as:- is defined in the Black's Law Dictionary, "depending on individual discretion determined by a judge rather than by fixed rules, procedures or law - founded on prejudice or preference rather than on reason or fact Now, are there enough safeguards against arbitrary decisions in denial for bail for the offence of armed robbery? In our considered opinion, we think the problem starts with the meaning of "armed robbery. // Robbery is defined in section 285 of the Penal Code which says:- "285. Any person who steals anything anc/, at or immediately before or immediately after the time of stealing ic uses or threatens to use actual violence to any person or property in order to detain or

26 retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of robbery." The offence of "armed robbery' was given a definition under the Written Laws (Miscellaneous Amendments) Act No.4 of 2004 where a new section 278 A was introduced in the Penal Code which says:- ''278 A. Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is in company of one or more persons, and at or immediately after the time of stealing uses or threatens to use violence to any person, commits an offence termed ''armed robberynand on conviction is liable to imprisonment for a minimum term of thirty years with or without corporal punishment"( emphasis supplied) Before the coming into existence of section 278 A of the Penal Code, the Court of Appeal in the case of Joseph v. Republic [1995] 278 at 281 said this in defining" armed robbery' II though there is no express and specific definition of what constitutes TLR.

27 , "armed robbery" it is clear to us that if a dangerous or offensive weapon or instrument is used in the course of a robbe~ such constitutes "armed robbery" in terms of the law.... In this context, the weapons are, in our vieht, not confined to firearms only, other types of weapons such as knives are also included' (emphasis ours) It is clear from the above that the clarification is not at variance with section 278 A of the PenalCode. Did the law envisage all such situations of robbery besides the use of fire arms? The types of offensive "weapons" and "instruments" are limitless. From clubs to rasor blades, from stones to teeth, from bicycle spokes to iron bars from hoes to hammer etc, etc. A head butt when efficiently executed in a robbery can be as dangerous or more dangerous than a knife. We are satisfied that the definition as provided in section 278 A of the Penal Code, and the definition as given in the Joseph's case (supra) is so wide that it is difficult to bring it within the meaning of armed robbery envisaged by the framers of section 148 (5) (a) (i) of the Criminal ProcedureAct. It should be bourne in mind that the essenceof the offence of robbery, as distinguished from theft, is the use off or threat to use..- violence/ for the purpose of obtaining or retaining the thing stolen.

28 ) / The violence or threat to use violence, will in most cases involve the use of some "weapon" or "instrument". It cannot be accepted that by section 148 (5) (a), Parliament intended to deny bail to any person who commits robbery, just because robbery involves violence and the violence is threatened or effected by any weapon or instrument. This appears to be the effect under the correct definition of armed robbery. As we pointed out above, the legitimate objective for denial of bail for armed robbery was to protect the society against dangerous criminals using firearms and organized gangs that hold up Villages, hijack buses or rob banks, people and homes. But as it is, with the definition provided, it is so wide as to encompass even unintended suspects. To that extent we would go by the observation by Mr. Ojare that:- "Section 148 (5) (a) of the Act is not a restriction on an individual accused person but a total prohibition regardless of whether the concerned accused person is a danger to the interests of defence, public safety or public order or not" As we pointed above, the provisions of section 148 (4) (a) were the subject of interpretation in Daudi Pete. The provisions of section 148 (5) (a) are not different in effect, because:-

29 "they encompass even accused persons who cannot reasonably be construed to be such a danger in terms of the relevant paragraph of the Constitution.... they are so broadly drafted that they are capable of depriving personal liberty not only to persons properly considered to be dangerou~ but even to persons who cannot be considered to be dangerous in terms of the meaning of para (b) of sub- art (2) of article A provision of that nature attempts to protect society by endangering society (Daudi Pete pp 43-44)'. We hold that the absence of a "procedure prescribed by law" as provided in Article 15 (2) (a) of the Constitution, the administration of the provisions of Section 148 (5) (a) is susceptible to abuse, and cannot therefore be saved under Article 30 (2) of the Constitution. As regards to the offence of "armed robbery", we find that section 148 (5) (a) of the Act is violative of Article 15 (2) (a) of the Constitution. What has taxed our minds a great deal is whether we should strike the impugned section from the statute books. After a careful consideration, we have come to a considered position that we should

30 )_.._ ~,:: not, for the following reasons. One, as we said above, we are aware that this country is locked in a war aga'inst armed robberies. The country saw an upsurge of unprecedented armed robberies of all descriptions in recent past. A warlike operation had to be mounted by the security agents to curb it. We are also aware that the situation is not yet back to normal. Two, we are also aware that some of these robberies are organized from outside our borders. And three, we are as well aware that the government is working hard to equip the police force so that it may be in a position to meet the challenges of the day. All the factors taken together, we think, this is a fit case for invoking the provisions of Article 30 (5) of the Constitution which says: "30 (5) Where in any proceedings it is alleged that any law enacted or any action taken by the Government or any other authority abrogates or abridges any of the basic right freedoms and duties set out in Articles 12 to 29 of this Constitution and the High Court is satisfied that the law or action concernect to the extent that it conflicts with this Constitution is voict or is inconsistent with this Constitution then the High Coutt if it deems fit or if the circumstances or public interest so require~

31 instead of declaring that such law or action is void, shall have power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law or action concerned within such a period and in such manner as the High Court shall determine/ and such law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the High Court lapses/ whichever is the earlier.ii We say so because we think the circumstances prevailing today are not conducive for striking down the provisions of sections 148 (5) (a) (i) of the Act. The above sub article says, inter alia:- "... the High Court if it deems fi~ or if the circumstances or public interest so require~ instead of declaring that such law or action is void, shall have power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law..... II

32 We hereby invoke the powers conferred upon this court as stated above and direct that the Government should take measures to have the definition of the offence of armed robbery rectified so as to fit only the suspectswho are really a threat to public order and security, [and] who are the targets of the impugned section. We also direct the Government to take measures to put in place the "procedure prescribed by law' as provided under Article 15 (2) (a) of the Constitution, by which a person charged of armed robbery may be denied bail. likewise, under the powers of the High Court as provided in that part of Article 30 (5) which says:- ".. and such law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the High Court lapse~ whichever is the earlier," we hold that section 148 (5) (a) (i) in relation to armed robbery shall still be good law for a further eighteen (18) months from the date of this judgment, during which the Government shall have complied with the above mentioned directions. This now brings us to the second point for determination. This concerns the provisions of section 9 (3) of the Act as quoted above. The present section 9 (3) of the Act was introduced by the Written

33 , Laws (Miscellaneous Amendments) Act No.9 of subsection reads as follows: The original "Where in pursuance of any information given under this section proceedings are instituted in a magistrate's court, the magistrate shall, If the person giving the information has been named as a witnes~ cause a copy of the information and of any statement made under subsection (3) of Section 10 by the person against whom or in respect of whom the accused is alleged to have committed an offence to be furnished to the accusedforthwith. 11 This means that the words "under subsection (3) of section 10 by the person against whom or in respect of whom the accused is alleged to have committed an offence' were deleted and substituted by the words \\by him under subsection (3) of section 10." The effect of the amendment is that whereas before that amendment an accused person was entitled to the statement of all the witnesses, the law now is that he is entitled to the statement of the victim only, if that statement is there, or the statement of whoever gave the information leading to criminal proceedings being

34 .,...,, instituted in a magistrate's court. Mr. Ojare for the petitioners argues that the present subsection is too restrictive such as to violate Article 13 (6) (a) of the Constitution. The respondent countered by saying he does not see how the provisions of section 9 (3) of the Act impede the petitioners' right to a fair hearing as guaranteed under Article 13 (a) and (b) of the Constitution. This is because there is usually enough time for an accused to look into the statements of would be witnesses before the trial begins. At the close of the case for the prosecution, the respondent submits, the accused can ask for time to prepare. The' respondent then said:- "Allowing the disclosure of their statements would create a likelihood of their being intimidated, compromised or disappearance (sic). The law had to provide for their protection according to the interests of the society as a whole." This court (Nsekela, J. as he then was) said this in Saimon Bernard (supra):- "An accusedperson is entitled to know and have a clear picture as to what charges he is facing and the nature of the evidence

35 that will be led against him. This will enable him to prepare his defence and be able to utilize such statements to test the vel}' foundation of the prosecution case. It is therefore imperative for such statements to be made available to such an accused person. " But, the law as it is today, the prosecution can refuse to give to the accused witnesses' statements except that of the complainant and they would be perfectly correct. Subsection (3) of Section 10 of the Act has this to say:- "10 - (3) Any police officer making an investigation ma~ subject to the other provisions of this Part, examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined The whole of the statement, including any question in clarification asked by the police officer and the answer to it shall be recorded in full in Kiswahili or in English or in any other language in which the person is examined, and the record shall be shown

36 or read over to him or if he does not understand the language in which it is written it shall be interpreted to him in a language he understands and he shall be at liberty to explain or add to his statement He shall then sign that statement immediately below the last line of the record of that statement and may call upon any person in attendance to sign as a witness to his signature. The police officer recording the statement shall append below each statement recorded by him the following certificate:- ''/ hereby declare that I have faithfully and accurately recorded the statement of the above named " The statements taken under the above quoted section form the basis of the case for the prosecution. They are the statements of would be witnesses. And for purposes of prosecution, the statement of the complainant may not be so important, it may not comprise the core of the evidence upon which the prosecution case rests. The crucial evidence may lie within the statement of one or other of the witnesses. Would denying the accused person access to such statements be justified?

37 Counsel for the petitioners referred us to a number of case law from other jurisdictions on the issue of equality before the law and the principle of a fair hearing, in relation to disclosure. In Pumbun (supra) the Court of Appeal had this to say:- "We reject Mrs Sumari's submission that because the Government is responsible for the wider interests of the society, then it should not be placed on an equal footing with an ordinary person. We can find no justification for the distinction. We think that the equality before the law envisaged in Article 3 (1) above embraces not only ordinary persons but also the Government and its officials; all these should be subjected to the same legal rules." As we said above, the persuasive authorities on disclosure are many. We think the Kenyan case of Juma and others vs Attorney General [2003] 2 E.A. 461 may be very relevant. In that case the court said:- "when one of the contestant's has no pretrial access to the statements taken by the po/ice from potential witnesses the contest can neither be equal nor fail'

38 "justice is better served when the element of surprise is eliminated from the trial and the parties are prepared to address issues on the basis of complete information of the case to be met" "It is therefore surprising that in criminal cases in which the liberty of the subject is usually at stake/ this aspect of the adversary system can be supported to linger on/ and it is even more surprising that there should be resistance to any extent to discovery in criminal practice. Non-disclosure is a potent source of injustice." And far away from our jurisdiction in the Supreme Court of Canada in the case of R.V. Stiveheambe [1992] LRC 54 it was held:-

39 "In indictable offences the crown had a legal duty to disclose all relevant information to the defence. The fruits of investigation which were in possessionof the crown were not its property for use in securing a conviction but were the property of the public to ensure that justice was done. The defence was under no obligation to assist the prosecution or make a reciprocal disclosure and was entitled to assume a purely adversarial role toward to prosecution." (emphasis supplied) We associate ourselves with the persuasive pronouncements from these jurisdictions on the issue of fair trial. We however think, much as our country's criminal system may wish to get to that stage, time is not yet ripe. We say so because requiring all the statements of would be witnesses to be made available to an accused person will require that they be typed. This will definitely be very expensive and will also delay trials because we are aware that presently, the police do not have such resources, equipment and manpower. This will further defeat the very purpose of section 225 of the Act. And above all, this court will be naive if it shuts its eyes to the possibility of interference with witnesses when pre-trial disclosure of all statements is allowed.

40 But, our criminal system is not without remedy. During the preliminary hearing under section 192 of the Act, an accused is told the nature of the case facing him. And during the trial, an accused or his advocate may demand to see the statement made by the witness before cross-examination of that witness and an accused person or his advocate may even ask for an adjournment in order to study the statement in question. In our considered opinion, the principle of fair trial has to take into account other ruling factors. The idea is to see to it that as much as possible an accused person is not prejudiced in his defence when he faces his accusers and is given as much latitude as possible so that he can defend himself. Therefore as it is, we think section 9 (3) satisfies this criteria and we should not drive to a stage where the law is rosy on paper but impracticable of implementation. We hold that section 9 (3) of the Act is not violative of Article 13 (6) (a) of the Constitution. Section 225 (4) of the Criminal Procedure Act [the Act] has been a subject of debate since its enactment. It has come to us again in this petition, under paragraph 16 thereof quoted above. The subsection says:- "225 (4) Except for cases involving offences under section 39, 40, 41, 43, 45,

41 48 (a) 59 of the Penal Code or offences involving fraud, conspiracy to defraud or forge~ it shall not be lawful for a court to adjourn a case in respect of offences specified in the first Schedule to this Act under the provisions of subsection (1) of this section for an aggregate exceeding sixty days except under the following circumstances- (a) (b) whenever a certificate by a Regional Crime Officer is filed in court stating the need and grounds for adjourning the case, the court may adjoin the case for a further period not exceeding an aggregate of sixty days in respect of offences stated in the First Schedule to this Ac~' whenever a certificate is filed in court by a State Attorney stating the need and grounds for seeking a further adjournment beyond the adjournment made under paragraph (a), the court shall adjourn the case for a further

42 period not exceeding in the aggregate/ sixty days/ (c) Whenever a certificate is filed in court by the Director of Public Prosecutionsor a person authorized by him in that behalf stating the need for and grounds for a further adjournment beyond the adjournment made under paragraph (b) the court shall not adjourn such case for a period exceeding an aggregate of twenty four months since the date of the first adjournment given under paragraph (a).if (emphasis added) The petitioners are saying that these provisions, when not complied with, violate Article 107 A (2) (b) of the Constitution which has this to say:- " 107 A (2) Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria/ Mahakama zitafuata Kanuni zifuatazo/yaani

43 (a)... (b) Kutochelewesha haki bila sababu ya msingi" (emphasis added). This Article of the Constitution came in operation with the 2002 amendments. Would the courts have held differently in the cases cited if the same issue were to come up for decision? In the case of DPP v. Fonja Mathayo (1995) TLR 23, the Court of Appeal restated the finding in John Joseph Onenge (supra) that breach of the provisions of sections 225 (4) and (5) of the Criminal Procedure Act, 1985 does not necessarilyvitiate the trial unless it is shown that the accused has been prejudiced in his defence or that the adjournments did affect the substance of the conduct of the trial. The Court of Appeal however, said:- "At the same time we desire to make it quite clear that we do not in any way view lightly breaches of the provisions of section 225 of the Criminal Procedure Act which have been designed to protect and safeguard the liberty of the accusedperson in a criminal case."

44 ''It is for that reason that we renew our call upon the magistracy to be more vigilant in the application of that section in order to ensure that accused persons really enjoy the protection whichthe provisionsof that section seek to accord to then." (emphasis ours) We think the problems under section 225 of the Act are compounded not by the law itself but its application. Our criminal justice system is still growing. We have not reached the level where all investigations are carried before arrest. Our criminal detection mechanisms are not yet advanced. Our manpower is not yet seasoned and in many cases, our people do not have permanent or reliable physical addresses. With globalization, crime is becoming more sophiscated and criminals more mobile. Cross boarder criminal activities are on the increase. The aggregate period, for offences under the First Schedule of the Act, which is provided for investigations is a total of 24 months. If this period is closely monitored by the magistracy it will fail within the parameters of:-

45 tii I "kutochelewesha haki bila sababu ya kimsingi" ( not to delay justice without justifiable reason)" As provided in Article 107 A (2) (b) (supra). With an eagle eyed magistrate in command of the proceedings before him, the prosecution cannot fail to comply with the provisions of section 225 (4) of the Act without consequences. What has given us anxious moments are the provisions of section 225 (5) of the Act, which says:- "225 - (5) where no certificate is filed under the provisions of subsection (4), the court shall proceed to hear the case or, where the prosecution is unable to proceed with the hearing discharge the accused in the court save that any discharge under this section shall not operate as a bar to a subsequent charge being brought against the accused for the same offence. " (emphasis supplied) We think this subsection totally defeats the very purpose of subsection (4). This is because once the prosecution has failed to comply with subsection (4) the logical thing to do for the trial magistrate is to discharge the accused. This is because he cannot

46 force the prosecution to proceed if they are not ready nor can the magistrate prosecute the case himself. Discharging the accused, will almost surely result in his immediate rearest and the charges being laid at his door again. This means the pendulum starts afresh. We are satisfied that this is not in the interest of the accused, unless it was clearly stated in a proviso that the discharged person may not be rearrested before investigations are completed. We make no further comment on this. We were asked to say if non compliance of section 225 (4) of the Act by the prosecution is violative of Article 107 A (2) (b) of the Constitution. We think it is not because non compliance is a question of administration and not a deficiency in the subsection itself. Each act of the prosecution will be judged on its own circumstances. Non compliance with the provisions of section 225 (4) of the Act cannot therefore be violative of Article 107 A (2) (b) of the Constitution. We so hold. We think we have delt adequately with the certificates of adjournments under section 225 (4) (a) (b) and (c) of the Act. The petitioners are asking this court to give guidance on whether non compliance with the above mentioned subsection is not required in cases of armed robbery. We think that the only exeptions under section 225 (4) of the Act relate to offences under sections 39, 40, 41, 43, 45, 48 (a) and 59 of the Penal Code or offences involving