Court name
Court of Appeal of Tanzania

Director of Public Prosecutions vs Simon G. Marwa & Another () [1984] TZCA 1 (01 January 1984);

Law report citations
1984 TLR 330 (TZCA)
Media neutral citation
[1984] TZCA 1

Kisanga, J.A.: The two respondents were charged in the District Court with unlawful possession of a   H pistol and six rounds of ammunition contrary to section 8(1) of the National Security Act No. 3 of 1970.  They were convicted as charged, but the trial magistrate found that the gravity of the offence warranted heavier punishment than he was empowered to impose, and so he accordingly committed the respondents to the High Court for appropriate sentence.  Meanwhile the respondents appealed to the High Court   I against their conviction and it transpired that at the time of such appeal the respondents were in detention under an order made under
               
the provisions of the Preventive Detention Act (Cap. 490).  The High Court dismissed the appeal against  A the conviction but declined to pass sentence on the ground that the respondents had already been punished by being detained under the Preventive Detention Act and, therefore, they should not be punished twice for the same offence.  In doing so the learned High Court Judge stated that he relied on the  Bprovisions of section 21 of the Penal Code to which a detailed reference will be made later in this judgment.  The Republic now appeals against the refusal by the High Court to pass sentence on the respondents.  At the hearing of the appeal before us the Republic was represented by Mr. A. J. Saffari, State Attorney, while Mr. M. J. Raithatha appeared for both respondents. C
Mr. Saffari addressed us only briefly.  The substance of his submission was that punishment in this context is something which follows upon a trial and conviction.  It is something that follows judicial process, and it necessarily excludes extra-judicial acts including acts or orders of the Executive.  In the  D instant case, he contended, there was neither trial nor conviction.  There was only an Executive order which was not punishment within the meaning of section 21 of the Penal Code.
Mr. Raithatha addressed us at some length.  The thrust of his argument was that section 21 of the Penal  E Code should be construed liberally such that detention under the Preventive Detention Act amounts to punishment within the meaning of the section.  He cited some cases and sections of the Penal Code and the Criminal Procedure Code in support of his argument. F
As is already apparent from the preceding paragraphs, the point raised in this appeal is a narrow one.  It is whether a detention ordered under the Preventive Detention Act amounts to punishment in terms of section 21 of the Penal Code.  That section provides that: G
   21. A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law for the same offence.
We think that in order to rely on the provisions of this section, it must be shown that the person in respect  H of whom it is sought to do so has been punished under the law of the country which creates specific offence and prescribes specific sanction or punishment for such offence.  The law thus creating the  I offence must set out the specific offence in terms such that when the issue arises, as it does
                   
  A here, one can ascertain judicially whether it is one and the same offence for which it is being claimed that the person concerned has already been punished.  Likewise the law creating the offence must also provide in definite terms the sanction or punishment for the offence such that if and when need arises one   B can ascertain judicially whether the person concerned has, in fact, been duly punished in accordance with the law creating the offence.
It is against this background that we have to look at the relevant provisions of the Preventive Detention Act under which it is contended that the respondents had already been punished for being in unlawful   Cpossession of a pistol and six rounds of ammunition.  For the present purposes, the relevant provision of the Preventive Detention Act is section 2(1) which provides that:
   2-(1) Where -
D    (a) it is shown to the satisfaction of the President that any person is conducting himself so as to be dangerous to peace and good order in any part of Tanganyika or is acting in a manner prejudicial to the defence of Tanganyika or the security of the State or
E    (b)  The President is satisfied that an order under this section is necessary to prevent any person acting in a manner prejudicial to peace and good order in any part of Tanganyika, or to the defence of Tanganyika or the security of the F State, the President may, by order under his hand and the Public Seal direct the detention of the person.
A glance through this sub-section shows that the provision does not create any specific offence or offences.  All that it does is to empower the President to detain a person who conducts himself so as to   Gendanger peace and good order or the defence and security of the State; or to prevent a person acting in a manner prejudicial to such peace and good order or defence and security of the State.  It has to be   H acknowledged that there are numerous ways in which a person may be considered to conduct himself so as to endanger or to be prejudicial to peace  and good order or the defence and security of the State.  It is equally true that it is often difficult, if not impossible, in practice to know exactly why a person has been detained.  More so because the decision to detain is purely subjective depending on what the President   I considers to be conduct which is dangerous or
               
prejudicial to peace and good order or the defence and security of the State. A
This point may be illustrated by the facts of the present case.  At the hearing of the appeal in the High Court the respondents alleged that they had been detained, and were still in detention, for the same offence.  Whereupon the learned judge hearing the appeal investigated the matter, and his findings and  B conclusion are summarized in the following lines of his judgment:
   As for sentences to be imposed the Court had to investigate the authenticity or otherwise of the accuseds' allegation C that they were also being held under the Preventive Detention Act - Cap 490 of the laws for the same offence.  A letter ref. No. P. 220/180/7 dated 11/7/84 from the Principal Secretary Ministry of Home Affairs addressed to the Registrar in response to the latter's letter No. HCCC/C.170/4/30 of 2/7/84 says inter alia: D
      Ni kweli kuwa washitakiwa hawa waliwekwa kizuizini kwa amri ya Rais ya tarehe 10/3/1981 na hadi sasa bado wakochini ya amri hiyo kwa sababu za usalama wa taifa kwa  ujumla. E
After saying that the appellants are known to be bandits the letter continues: F
      kama uonavyo kuwekwa kwao kizuizini ni katika kuwazuia wasiendelee na vitendo vyao vinavyoharibu usalama wa Taifa.
   That being the reply from the Ministry of Home Affairs it is crystal clear that the appellants have been detained G because they are believed to be bandits.  I have no quarrel with their being detained under the Preventive Detention Act although it could be argued as to whether the Preventive Detention Act, Cap. 490, was meant to cater for offences covered under the Penal Code, Cap. 16 of the Laws! H
   However bearing in mind that the accused persons have already been punished for the offence of being in possession of offensive weapons by being detained; it will be contrary to the clear provisions of section 21 of the Penal Code for I this
               
A    Court to impose another sentence over and above the punishment of detention which the accused are still serving.
Upon reading the whole extract, one gets the clear impression that the respondents were detained on   B grounds of national security generally; they were known or believed to be bandits and therefore their detention was an attempt to prevent them from continuing with their activities which disturb the security of the nation.  Yet the learned High Court judge found that the respondents by being thus detained, had   C already been punished for being in unlawful possession of offensive weapons.  The position is by no means easy.  It seems to us that on the information available it is not clear what exactly the respondents had been detained for.  It may very well be that, as the Principal Secretary, Ministry of Home Affairs said in his letter referred to by the learned judge, the respondents as persons who were known or believed to be   D bandits were detained simply as a measure designed to prevent them from continuing their mischievous activities in the society.  If that is so it would seem plain that such detention was purely preventive in the sense that it was intended to prevent the respondents from committing possible offences.  As such it   E could  not properly be regarded as a punishment imposed on the respondents specifically for being in unlawful possession of a pistol and six rounds of ammunition.
So long as it is not possible to ascertain judicially what offence is created or committed under the   F Preventive Detention Act, the question of ascertaining judicially the sanction or punishment prescribed under the said Act does not arise.
In these circumstances we agree with the submission by the learned advocate for the Republic that the learned High Court Judge erred in refusing to sentence the respondents on the ground that they had   Galready been duly punished for the same offence.  For the reasons stated above we are firmly of the view that detention ordered under the Preventive Detention Act is not punishment within the meaning of section 21 of the Penal Code.  Accordingly we allow the appeal by the Republic, set aside the decision of   H the High Court refusing to sentence the respondents, with a direction that the respondents now be brought before the High Court for sentencing.  We would add that in deciding on what appropriate sentence to impose, we think that the court would be perfectly entitled to take into account the term which   Ithe respondents have or had served in detention under the Preventive Detention Act.
Appeal allowed.
               
A