Freita Walter & Others vs Republic [1991] TZHC 7 (3 May 1991)


Kyando, J.: This is an application for bail-pending trial. The applicants, Freitag Walter, huber Waldermar, C Maurice Boutinon and Fritz Koch, who are indicated in the charge sheet to be all Europeans, face a Criminal charge in the District Court of Ilala, at Kisutu. The charge contains two counts of indecent assault. The first count alleges that the applicants, on or about the 1st of April, 1991, at 4.00 hours, at Mikocheni 'B', in Dar es Salam, D did unlawfully and indecently assault one Mariam Benson "by stripping her naked and facilitating their male dog to have sexual intercourse to the said Mariam Benson". The second count alleges assault by the applicants by photographing the scene alleged in the first count.
When they were brought before the Court below all the applicants pleaded by denying the truth of the allegations E contained in the charge. Then they applied to be released on bail pending trial. The application was refused. In his ruling refusing bail dated 11.4.91 the learned Magistrate who heard the application stated:
As I said two days ago, this offence is quite unusual. The DSM public has not forgotten it. That is why there are increased F security measures; that is why the accused had to be brought through my private entrance this afternoon. For their own safety, I remand them in custody. G
Following the above ruling they have now filed this application in this Court. they are all represented by Mr. Bwahama, learned advocate. Mr. Teemba, Principal State Attorney, appeared on behalf of the Director for public prosecutions at the hearing of the application in this Court. H
Soon after the application was filed here and soon after papers relating to it were served on the Director of Public Prosecutions (DPP), he (the DPP) filed a certificate -under s.148(4) of the Criminal procedure Act, 1985 (CPA), as amended. The Certificate States: I

(Made under section 148(4) of the Criminal Procedure Act., No. 9 of 1985, as amended by Act No. 10 of 1989) FREITA E WALTER & OTHERS v. REPUBLIC (Kyando, J.)
I ERNEST LAZARO KEMBELA MWIPOPO, The Director of Public Prosecutions in the United Republic in terms of section F 148(4) of the CPA as amended by Act. No. 10 of 1989 do hereby CERTIFY that 1. FREITAG WALTER, 2. HUBER WALDERMAR, 3. MAURICE BOUTINON AND 4. FRITZ KOCH charged with the offence of indecent assault c/s 135 (1) of G the Penal Code be Not admitted to bail pending trial as it is likely that the safety of the Republic would thereby be prejudiced. Dated at Dar es Salam this 25th day of April, 1991
Section 148(4) CPA, by virtue of which DPP issued his certificate provides:
I 148-(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 A the Director of Public Prosecutions certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced.
There is also section 148(4A) which provides: B
148 - (4A) A certificate issued by the Director of Public Prosecution 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 Cconcluded or the Director of Public Prosecutions withdraws it.
At the hearing of the applicant's application before me Mr. Teemba objected to bail, relying on the DPP's D certificate and the provisions of the law reproduced above. Mr. Bwahama countered by challenging the validity of the provisions in s. 148(4) CPA. He contended that these provisions are invalid vis à vis the constitution of the United Republic of Tanzania. He said they have been so held and struck down in the now celebrated case of E Daudi s/o Pete v R., (HC) Misc. Criminal Cause No. 80 of 1989 (Mwanza Registry) (unreported). He prayed that I follow that case in this application and declare s. 148(4) CPA null and void for being in conflict with the constitution and disregard the Certificate filed by the DPP. F
Mr. Teemba replied by stating that whether a piece of legislation is in conflict with the constitution or not is a matter for parliament; he said it is Parliament which has the power to declare a statute null and void and not the Courts. He submitted therefore that I had no power to pronounce on the validity or otherwise of the provisions of S. 148(4) CPA. As to the case of Daudi s/o Pete v R. (Supra) he pointed out that the Republic has appealed G against the decision in that case and the matter is now in the Court of Appeal, the highest and final court in Tanzania, awaiting judgment.
I think with utmost respect, Mr. Teemba is mistaken in the view he holds, i.e. that this Court has no power to H declare a statute null and void and that it is only Parliament which has such power. For in all countries with written constitutions, as is the case with Tanzania, the constitution is supreme. It is the supreme or fundamental law of the land. If therefore any other legislation is inconsistent with the constitution, that other legislation is, to the I

A extent of the inconsistency, void. The responsibility for declaring such legislation void lies with the Courts of law. This is elementary and I hardly need to refer to any authorities. It suffices to point out that the principle was incorporated, e.g. in the Uganda constitution of 1966 (See Articles 1 and 87) and the Lesotho constitution of 1966 B (See Article 2). See also Article 30(3)-(4) of the Constitution of the United Republic of Tanzania, 1977.
It is elementary, too, that a decision of one judge of this Court (the High Court) does not bind another or other judges of this same Court. It is only decisions of the Court of Appeal which bind this Court. So, though it is good C policy that decisions of the same court should be consistent and unconflicting, I am, as a matter of principle, not bound to follow the decision in the case of Daudi s/o Pete v. R. which was relied on by Mr. Bwahama in attacking D the validity of the DPP's certificate and s.148 (4) CPA on which it (the certificate) is based. That decision was rendered by a judge of this Court. And to my knowledge, since that decision was rendered it has stood alone; no other judge in this Court has followed or supported it. In the case of Charles Mwakalinga v R., which Mr. E Bwahama also referred to, Bahati, J. did not seek to follow the decision in the Daudi s/o Pete Case. All that Bahati, J. , said in that case was that the District Court was bound by the decision in Pete's Case and acted correctly in feeling it was bound by decision in Pete's Case and acted correctly in feeling it was bound. This was, F of course, based on the cardinal principle that decisions of this court bind courts subordinate to it. Bahati, J., did not, as stated already, say that he was agreeing with the decision in Pete's Case and therefore that the lower court applied it correctly it terms of the merits of the decision in that Case (Pete's case).
G Mr Bwahama made several other points in his submissions both oral and written - in support of this application. In my view, however, and as Mr Teemba rightly pointed out, the crucial point at this stage in the matter is the validity or otherwise of the provisions of s.148 (4) CPA and the DPP's Certificate filed on the basis of them, i.e. H the provisions. Fortunately, and as Mr. Teemba again rightly pointed out, the case of Daudi s/o Pete v R. on which Mr Bwahama relied in challenging the validity of the provisions and the certificate, is presently before the Court of Appeal for appeal purposes. To my knowledge the appeal has been heard already and it is only the I judgment which is pending delivery. The very issue of the validity or otherwise of s. 148(4) CPA is one of the issues for determination in that appeal. It would then, to my mind be prudent

and a matter of good sense to await the determination on the issue by Court of Appeal. I hold so. A
In the meantime, the DPP's Certificate, issued under the provisions of s.148(4) CPA holds sway and operates to bar the release of the applicants on bail. Bail is accordingly refused. B
Bail refused accordingly.


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