State challenges judgment to empower subordinate courts

MASATO MASATO and FAUSTINE KAPAMA

Attorney General (AG) George Masaju.

THE Attorney General (AG) office has filed a notice of appeal against the High Court order to the office to initiate legal changes to empower subordinate courts to assess evidence on record for committal cases.

Attorney General (AG) George Masaju has told the ‘Daily News’ that for now the order cannot be executed pending the appeal hearing and verdict by the Court of Appeal. He declined details on the basis behind the appeal, saying they will be provided before the court.

The judgment, which allow subordinate courts in the country to hear and determine committal cases such as murder, treason, illicit drugs, among others, which are only triable by the High Court, has attracted mixed feelings among legal practitioners.

While some officials from the Attorney General’s Chambers, including the Director of Public Prosecutions (DPP), say such judgment is impracticable and whose implementation would be wastage of time and resources, defence lawyers describe the decision as right one, progressing and celebrating.

The DPP, Mr Biswalo Mganga, told the ‘Daily News’ in Dar es Salaam that the outcome of the decision issued by a panel of the High Court comprising Judges Aloysius Mujulizi, Salvatory Bongole and Eliezer Feleshi was debatable issue among stakeholders and needed a special research.

“They want to take us back where we came from. It is impossible, it is impracticable. What they are proposing now was the position before amendment of Criminal Procedure Act (CPA) in 1985, when a thorough research was conducted,” the DPP said.

According to him, the implementation of what the judges have proposed in the judgment would amount to double trials for same witness in the same case. “It cannot be possible one witness to testify before the lower court and at the High Court again,” he said.

A senior official from the Attorney General’s Chambers, who could not wish his name to be disclosed, described the court’s decision on the subject as lacking legal force and therefore, not binding on the part of the Attorney General (AG), as the government chief legal advisor.

He said that upon scrutiny of the judgment in question, he discovered that the person who had moved the court to give such decision had intended sections 244 and 245 of the Criminal Procedure Act, which deal with committal cases declared unconstitutional for contravening Article 13 of the Constitution.

“But the judges of the High Court have ruled to the contrary, having observed that such provision are proper and thus lacking the basis for directing the Attorney General to make amendments of the laws to allow subordinate court to determine committal cases,” the officer said.

According to him, he understood the reason behind the petitioner filing the constitutional case that too much time was being spent to wait the committal proceedings to be conducted since the accused person is taken to court for the first time.

“I would have suggested the petition could have focused on the time limitation for conducting committal proceedings in order to cure the mischief. He would have moved the court to put a time limit from the day the accused is arraigned for the first time for such proceedings to be held,” he suggested.

He added that upon expiry of the agreed time limit, the law would have compelled the DPP to either withdraw the charge and re-file the same after completion of investigations or file a special certificate for extension of time to conduct further investigations, stating reasons for the extension sought.

However, Dr Damas Ndumbaro, who is a seasoned advocate, differs with the AG officials’ position, saying, “This is a right decision and has been timely issued to mitigate lot of injustices the accused persons have been experiencing when waiting their cases to be transferred to the High Court for trial.”

Dr Ndumbaro pointed out that senior magistrates should be conferred with extended jurisdictions to determine committal cases to reduce the workload of the High Court and to expedite early disposal of such cases for timely justice to the accused persons.

In a separate interview, long serving advocate Alex Mgongolwa was quick to react, “This is a very progressing decision with a view of reducing congestions in prisons.”

He said further that the implementation of the decision would ensure dispensation of criminal justice takes its course. “Accused persons have been remaining in remand prison for quite long time waiting committal proceedings conducted by subordinate court without any trial.

At least through this decision they will be considered bail, pending trial,” he said. Prof Leonard Shaidi also supported the court’s decision as would help to reduce the delay in adjudicating the cases in question, as opposed to the previous procedure where the accused persons were compelled to wait until their cases are transferred to the High Court for more than three years.

Another seasoned advocate, Mr Jerome Msemwa, almost gave similar sentiments, but was quick to add that “this is a celebrated decision, which everyone has to support as there are lots of injustices being committed to the detriment of accused persons.”

He pointed out that it was so sad to note that the accused persons would be forced to remain in custody for so long, waiting the investigations to be completed and when the investigations are completed after three to four years, the DPP enters a nolle prosequi.

“Let the prosecutor and investigators fear God. In other jurisdictions, investigation is carried out first before the accused person is taken to court. Here (Tanzania) is the opposite. One will stay in remand for four years but later discharged after completion of investigation. This is not justice at all,” he stressed.

In the judgment that has attracted much attention in the legal fratenity, High Court judges Aloysius Mujulizi, Salvatory Bongole and Eliezer Feleshi ruled that it was high time for subordinate courts to be extended with jurisdiction to assess the evidence on record for committal cases filed there.

They advised the AG to make better provisions in section 245(3) and 246 of CPA that would ensure the fundamental rights of the accused, victim of crime and the mandate by the court to regulate, control and dispense justice according to law.

The judges further said the procedure should be set out to vest such powers at least to senior and principal resident magistrates who, being seasoned magistrates with good experience to meaningfully deal with the committal cases.

Such move, they held, would be in terms of section 245 (1) of the CPA with a view to ruling out whether the accused person has a prima facie case to warrant his plea and trial by the High Court, as envisaged by section 178 of the CPA.