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Director of Public Prosecutions v Pete (Criminal Appeal No. 28 of 1990)  TZCA 1 (16 May 1991)
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THE DIRECTOR OF PUBLIC PROSECUTIONS…..APPELLANT
(Appeal from the Ruling of the High Court of
Tanzania at Musoma)
This appeal by the Director of Public Prosecutions hereinafter called the D.P.P. is one of three constitutional cases which have reached this court ever since Fundamental Rights and Duties embodied in the Constitution of the United Republic in 1984 became enforceable in March, 1988 by virtue of the provisions of Section 5(2) of the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984 (Act No. 16 of 1984). This case however is the first to be decided by the Court. It concerns the right to bail.
The Respondent, one DAUDI s/o PETE was charged in the District Court of Musoma District at Musoma with the offence of Robbery with violence c/s 285 and 286 of the Penal Code. He was denied bail and remanded into custody on the basis that the offence for which he stood charged was not bailable by virtue of the provisions of section 148(5)(c) of the Criminal Procedure Act 1985, (Act No. 9 of 1985). The Respondent was aggrieved by that decision, and the applied to the High Court at Mwanza for bail. The High Court, Mwalusanya, J. hold that the provisions of section 148(4) and (5) of the Act, which prohibited the granting of bail in certain cases were unconstitutional and therefore null and void. Mwalusanya, J. held that these provisions were violative of several articles of the Constitution of the United Republic of Tanzania, which concern Basic Rights, and the Doctrine of Separation of Powers between the Judicature and the Legislature. The High Court therefore granted bail. The D.P.P. was aggrieved by the decision of the High Court, hence this appeal to this Court.
While this appeal was pending before us, the trial in the District Court proceeded and the respondent was acquitted. Apparently and understandably because of this acquittal, the respondent lost interest in the D.P.P.`s appeal. He did not enter appearance before us inspite of our order made under Rule 3(2)(a) of the Rules of the Court for Notice of Hearing to be served upon him by publication in local newspapers. We are indebted however to Professor Mgongo Fimbo, learned Advocate, who agreed to act as AMICUS CURIAE so as to assist the Court to see the other side of the count of this case. We are also grateful to Mr. K. S. Massaba, learned Principal State Attorney, assisted by Mr. Matupa, learned State Attorney, who very ably represented the D.P.P. in this appeal.
The D.P.P. submitted a total of five grounds of appeal, two of which are contained in a Supplementary Memorandum of Appeal filed on 19 June, 1990. The main Memorandum of Appeal has three grounds. The two supplementary grounds of appeal read as follows: