• New Bail Conditions to Foreigners
• Granting Bail to Co-accused Persons When Bail Applied by One Accused
• What Amounts to Actual Amount in a Charge in Bail Consideration

On 27^th of August 2021, the High Court of Tanzania, delivered a ruling on granting bail in circumstances where there are more than one accused persons charged with economic offences in the same transaction and some accused persons have applied for bail while others have not.

The decision was delivered by Hon. Mruma, J. in Miscellaneous Criminal Application No. 187 of 2021 (originating from Economic Case No. 62 of 2021 before the Resident Magistrates Court of Dar es Salaam at Kisutu) between Nasib Mmbagga, Edward Simon Haule and Lee Dong Lee versus. The Republic, at the High Court of Tanzania, in the District Registry of Dar es Salaam.

Background to the Application.

The Applicants in the above  application are charged with two offences where the1^st and 2^nd Applicants are charged with abuse of power contrary to Section 31 of the Prevention and Combating of Corruption Act, [Cap. 329 R.E 2019] read together with Paragraph 21 of the 1^st Schedule and Sections 57(1) and 60(2) to the Economic and Organized Crime Control Act [Cap. 200 R.E. 2019] “herein after referred as EOCCA” and all the three Applicants are jointly charged with occasioning loss to specified authority contrary to Paragraph 10(1) of the First Schedule and Section 57(1) and 60(2) to EOCCA before the Resident Magistrates Court of Dar es Salaam at Kisutu.

For reasons that charges facing the Applicants are bailable, they therefore applied for bail pending trial and committal before the High Court pursuant to Sections 29(4) (d) and 36(1) of EOCCA since District and Resident Magistrate’s Courts are only vested with jurisdiction to entertain bail applications for economic offences if the value of subject matter is below TZS 10,000,000/= under Section 29(4) (d) of EOCCA.

Court’s Observation;

In determining bail application before it, the High Court, among other things, pin pointed some issues including the following:

1. Bail Conditions to Foreigners;

The Court, on scrutinizing bail conditions to foreigners, observed the following points;

• An accused person being a Tanzanian or a foreigner has [may be] to be released on bail as a matter of right pending hearing and determination of his case, unless there are some compelling reasons.
• In case one or more of the accused are foreigners, bail conditions imposed may differ to reflect that background.
• A magistrate or a judge is bound to impose conditions of bail on the ground of parity except where circumstances attract different conditions for different co-accused person(s), for instance where a co-accused is a foreigner or is a minor.

2. Bail to Co-accused Persons When Bail Applied by One Accused;

In determining the question as to whether if co-accused persons can be granted bail in circumstances where only one accused person has applied for bail, the Court had the following observation;  

• Once bail is granted in a case it is available to all co-accused and if a co-accused doesn’t wish to exercise his right to be released on bail, then he should simply abstain from exercising that right. The reason behind is that bail implies exercising the right to be released during the pendence of the trial and there is no law which mandatorily requires an accused person to be released on bail.
• The doctrine of parity is a desirable principle that all persons are equal before the law and are entitled, without any discrimination, to protection before the law and the Court has discretion to admit the accused person to bail even if he did not apply for it pursuant to Section 36(1) of EOCCA.
• In a situation where bail application has been instituted before the High Court while original records are in the subordinate court, for the High Court to grant bail, it should exercise its discretionary powers under Section 36(1) of EOCCA and Section 148(1) and (5) of the Criminal Procedure Act (Cap 20 R.E 2019] “the CPA” and on its own motion grant bail to co-accused persons who are jointly charged with the Applicant(s).
• Presumption of innocence means that pre-trial detention should not constitute punishment and the fact that accused persons are not convicts, should be reflected in their treatment management.

3. Actual Amount in a Charge.

In determining the issue on what amounts to an actual amount in a charge, the Court observed that;

The term “actual” as the one denoting a situation where the amount involved has been proved or at least there is a prima facie evidence that it is real. An actual amount of money can be proved to be real when it is accompanied with a statement of audited account of the transaction involved and therefore an actual money or value of the property can only be that which has been duly proved, tested and formally admitted before the Court, either by way of affidavits or viva voce evidence or there is prima facie evidence to that effect.

The Court went further and said that, it is very dangerous for the Court to rely wholly on mere statement of the person who drafted the charge and believe that the amount stated therein is real or actual money involved.

In light of  the above Court’s approach, all the three Applicants were admitted to  bail on the following conditions; that each accused person must sign a bail bond of Tanzanian Shillings 6,452,548,516/= with the Resident Magistrate Court of Kisutu; each accused person must secure two reliable sureties working in the government or any reputable organization within the country; 1^st and 2^nd Applicants or any of their sureties to deposit a Tittle Deed exhibiting that they own within the United Republic of Tanzania an immovable property worth not less than Tshs. 250,000,000/= with the Resident Magistrate Court of Dar es Salaam, at Kisutu; the 3^rd Applicant, a foreigner, to secure a letter of assurance of his appearance from the Embassy or any Diplomatic Representative of his country in Tanzania and lastly all Applicants to surrender their passports to the Immigration Department and if they wish to travel abroad then the Immigration shall return the passport(s)with leave  of the Court.

Observations;

This ruling on bail application has set a leeway by addressing the dilemma that has been facing many advocates when applying for bail in a case where co-accused persons in the same case have not applied for the same.

The ruling has not only set a good precedent but has  as well saved Courts’ time from issuing bail on diverse occasions, saving Courts conflicting from their own decisions when issuing bail with different conditions for offences alleged to have been committed in the same transactions and generally to serve the interest of justice by living in the doctrine of presumption of innocence as well as equality before the law which derive their legality under Article 12(1) read together with Article 13(6) (b) both of the Constitution of United Republic of Tanzania, 1977.

Authored by:

Edson-Ryan Mahalu & Rayson Elijah,
Victory Attorneys & Consultants,
IT Plaza Building 1st Floor,
Ohio Street/Garden Avenue,
P.O. Box 72015,
Dar es Salaam, Tanzania.
+255 752 089 685
info@victoryattorneys.co.tz