IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(MAIN REGISTRY)

AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO. ………..OF 2019

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF

TANZANIA [1977 CAP 2 R.E 2002] AS AMENDED FROM TIME TO TIME

AND

IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT (CAP 3 R.E.
2002)

AND

IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY OF

CERTAIN PROVISIONS OF THE CRIMINAL PROCEDURE ACT CAP 20 RE 2002

BETWEEN
ONESMO OLENGURUMWA…………..........................PETITIONER

AND

THE HONOURABLE ATTORNEY GENERAL.................... RESPONDENT

ORIGINATING SUMMONS

(Made under Articles 26(2) of the Constitution of the United Republic of

Tanzania of 1977 Cap 2 RE 2002 as amended and sections 4 and 5 of the
Basic Rights and Duties Enforcement Act, Cap 3 RE 2002) and Rule 4 of
the Basic Rights and Duties Enforcement (Practice and Procedure) Rules,
2014 G.N. No. 304 of 2014)

Page 1 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
LET ALL THE PARTIES CONCERNED appear before
Honourable....................................………………………….......Judges sitting in
Chambers, on the…….......…day of …………………………2019 at ....................O’clock
in the forenoon or so sooner thereafter, on the hearing of the petition when the
petitioner or his counsel (s) may be heard on an application for the following
reliefs:-

1. Declaratory order that the government, (Executive, Judiciary and the

Parliament) has Constitutional duty and mandate to observe, protect and
preserve the rights and freedoms guaranteed, entrenched and protected by
the provisions of the Constitution of the United Republic of Tanzania of 1977.

2. Declaratory order that sections 178, 243, 244, 245, 246, 247 248, 249,
250,256, 257, 258 and 259 of the Criminal Procedure Act Cap 20 RE 2002 are
unconstitutional, null and void, and same sections be expunged from the
statute book.

3. Each party to bear its own costs.

4. Any other or further order or relief which the Honorable Court shall deem fit
to grant.

ON THE GROUNDS THAT;

a) That, in the year 1985, the Parliament of the United Republic of Tanzania
enacted the Criminal Procedure Act [CAP 20 RE 2002] to provide for the
procedure to be followed in the investigation of crimes and the conduct of
criminal trials and for other related matters.

b) That, the said Criminal Procedure Act was assented to by the President and
became law on the 1st November 1985 vide GN No 375 1985.

c) That, the Criminal Procedure Act 1985 is subject to and is not supposed to
contravene the provisions of the Constitution of the United Republic of

Page 2 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
 Tanzania of 1977 Cap 2 RE 2002 (as amended from time to time) (the
Constitution).

d) That, provisions of law contained in the Criminal Procedure Act, Cap 20 RE

2002 mentioned in paragraph 2 of the reliefs contravene the Provisions of
the Constitution, Violates the fundamental rights and freedoms of people,
suppresses the rule of law and the due process of the law, and encourages
abuse of power and authority.

e) That, under Article 64 (5) of the Constitution, the Parliament has the
obligation to enact laws which do not contravene the provisions of the
Constitution, and under article 26(1) of the Constitution the Government has
an obligation to observe the provisions of the Constitution.

f) That, the Petitioner has the right to and enjoy the rights and freedoms
guaranteed, entrenched and protected by the Constitution and the
Government, including the Parliament, Executive and its agencies and the
Judiciary have the duty and obligation to observe and protect, and not to
violate the rights and freedoms guaranteed, entrenched and protected by
the Constitution.

SPECIFIC ARTICLES VIOLATED IN PART III OF CHAPTER ONE OF THE

CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 CAP 2 RE 2002
AS AMENDED

a) That, sections 178, 243(2) and 243 of the Criminal Procedure Act Cap 20 are
unconstitutional as the procedure there negates the principle of fair trial
which is protected under Article 13(6) (a) of the Constitution, in that in
providing for committal proceedings and preliminary inquiries which subject
the accused person to delayed hearing of their cases.

b) That, section 244 of the Criminal Procedure Code 1985 is unconstitutional in

that it is discriminatory and is violative of Article 13(1) of the Constitution of
the United Republic of Tanzania.

Page 3 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
c) That, section 245 of Criminal Procedure Cap 20 RE 2002, contravenes the
provisions of Article 13(6)(a) and (2) of the Constitution as;

i) It allows the violation of the right of fair trial in that an accused is not
required to plead to the charge or to state anything in relation to the
charge before the commencement of committal proceedings;

d) It allows the violation of Article 13(6) (b) of the constitution in that an accused
in not considered for bail neither can he apply for bail before the court which
he is charged;

i) That, section 246 of the Criminal Procedure Act Cap 20 RE 2002

contravenes the provisions of the Constitution as;
ii) It violates the right of fair hearing entrenched and protected under article
13(6)(a) of the Constitution in that even before committal to the High
Court the accused is not asked to plead to the charge neither is the court
mandated to determine whether or not on the available statements a case
has been made against the accused person and which warrants the denial
of liberty;
iii) Contravenes the provision of article 13(6)(a) of the Constitution by;
Violating the right to be heard which is one of the pillars of the right to
access to justice and to courts of law.

e) That, section 247 (4) of the Criminal Procedure Act Cap 20 RE 2002
contravenes the provisions of article 13(6)(a) of the Constitution in relation
to fair trial as it does not provide for an adequate mechanism in which the
accused person who is in remand during all the period of his committal can
get witnesses for his case.

f) That, section 248 of the Criminal Procedure Act Cap 20 RE 2002 contravenes
the provisions of article 13(6) (a) of the Constitution on fair trial as it does not
provide for a time limit within which an accused person shall be taken to
court for trial after filling the information making is prone and subject to
abuse.

Page 4 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
g) That, section 256 of the Criminal Procedure Act Cap 20 RE 2002 contravenes
the provisions of the Constitution as it violates the right to a fair trial
entrenched and protected under article 13(6) (a) of the Constitution in that
during all this time an accused is not asked to plead to the charge he is facing
and further no mechanism has been set to ensure speedy trial of his case in
the High Court and lastly no time limit has been set between his being
charged to the time when his trial will commence in the High Court.

h) the impugned provisions which enacts committal proceedings and

preliminary inquiries by the subordinate courts for offences triable by the
High Court are unconstitutional and void as;

i) there is no legitimate purpose or mischief for which ………………

the impugned
provisions were intended to save or cure;

ii) they are not saved by limitations imposed under Article 30(2) of the
Constitution;

iii) section 192 of the Criminal Procedure Act which enacts preliminary
hearing (PHg) to determine matters not in dispute as effective means of
accelerated trials and disposal of cases conducted even in trials by the
High Court is an effective way, alternative and substitute of the
proceedings introduced by the impugned provisions;

iv) they do not provide safeguard against abuse, misuse of law and abuse of
powers by allowing or encouraging prolonged and arbitrary detentions
and long imprisonments without trial while awaiting committal or
completion of preliminary inquiries particularly on non-bailable offences;

v) long imprisonments, confinements and detentions of the accused persons

awaiting investigations, committal proceedings and preliminary inquiries
violates the right to presumption of innocence, and meets the purpose of
trial by punishing suspects and accused persons by imprisoning them
before they are tried.

Page 5 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
This Originating summons has been taken at the instance of the Applicant and is
supported by the affidavit of the applicant ONESMO OLENGURUMWA sworn at
Dar es Salaam on the ………. Day of October 2019, which shall be read at the time
of hearing together with other and further grounds to be adduced at the time of
hearing thereof

GIVEN under my HAND and SEAL of the Court this.............day

of…………….................2019.

..................
REGISTRAR

Presented for filing this…………..day of……………………………2019.

….…….........………….
REGISTRY OFFICER

COPY TO BE SERVED ON:

SOLICITOR GENERAL,
THE OFFICE OF THE SOLICITOR GENERAL,
10 KIVUKONI ROAD
P.O. BOX 71554
1149 DAR ES SALAAM.
Tel: +255 22 211 8178
Fax: +255 22 211 3236
Email: info@osg.go.tz
Website: www.osg.go.tz

Page 6 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
JOINTLY DRAWN AND FILED BY:

MPALE KABA MPOKI, ADVOCATE

MPOKI & ASSOCIATES, ADVOCATES,
NUMBER 4, REGENT STREET,
REGENT ESTATE, KINONDONI,
ADJACENT TO SUNRISE PRIMARY SCHOOL,
P.O BOX 14232,
DAR ES SALAAM.
Tel: +255 684 555 552
+255 718 385 928
+255 622 888 822
Email: info@mpokiassociates.co.tz

AND

DAIMU HALFANI, ADVOCATE

MISNAK LAW CHAMBERS,
3RD FLOOR, HOUSE NO. 10,
PLOT NO. 67 BLOCK 4,
LUMUMBA/AMANI STREETS,
OPPOSITE ILALA DISTRICT COURT,
P.O. BOX 515,
DAR ES SALAAM.
E-MAIL: info@misnaklaw.co.tz
Mobile: +255 777 036 411

Page 7 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(MAIN REGISTRY)

AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO. ………..OF 2019

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF

TANZANIA [1977 CAP 2 R.E 2002] AS AMENDED FROM TIME TO TIME

AND

IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT (CAP 3 R.E.
2002)

AND

IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY OF

CERTAIN PROVISIONS OF THE CRIMINAL PROCEDURE ACT CAP 20 RE 2002

BETWEEN

ONESMO OLENGURUMWA…………..........................PETITIONER

AND

THE HONOURABLE ATTORNEY GENERAL................. RESPONDENT

AFFIDAVIT

Page 8 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
I, ONESMO OLENGURUMWA, Adult, Christian and a resident of Dar es Salaam
hereby affirm and state as follows;

1. That, I am the petitioner herein and conversant with the facts to be deponed
herein.

2. That, the respondent is the chief legal advisor of the Government of the
United Republic of Tanzania and represents the government and public
institutions in all court matters and actions.

3. That, the petitioner is challenging the provisions of the Criminal Procedure

Act (impugned provisions) which have been described in the originating
summons which enacts committal proceedings and preliminary inquiries by
the subordinate courts in respect of offences triable by the High Court as
being unconstitutional, null and void.

4. That, in the year 1985, the Parliament of the United Republic of Tanzania
enacted the Criminal Procedure Act [CAP 20 RE 2002] to provide for the
procedure to be followed in the investigation of crimes and the conduct of
criminal trials and for other related matters.

5. That the impugned provisions described in the originating summons are not
saved by the provisions of the constitution and the major source of delays in
trials and prosecution of criminal cases, prolonged detentions and long
imprisonments without trial of accused persons and suspects.

6. That, the impugned provision contravene the Provisions of the Constitution,

Violates the fundamental rights and freedoms of people, suppresses the rule
of law and the due process of the law, and encourages abuse of power and
authority. The impugned provisions described in the originating summons are
not saved by the constitution.

7. That, the impugned provisions are constitutionally challenged as;

a) Being discriminatory and violate the right of fair trial and hearing,
accused person cannot plead to the charge or to state anything in

Page 9 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
 relation to the charge before the commencement of committal
proceedings;
b) do not allow accused person to apply and be considered for bail by the
court which he is charged for committal;
c) the committal court is not mandated to determine whether or not on
the available statements, facts and evidence a case has been made
against the accused person and which warrants the denial of liberty;
d) Violates the right to be heard which is one of the pillars of the right to
access to justice and to courts of law; and do not provide for an
adequate mechanism in which the accused person who is in remand
during all the period of his committal can get witnesses for his case;
e) do not provide for a time limit for the committal proceedings and within
which an accused person shall be taken to court for trial is prone and
subject to abuse;
f) there is no legitimate purpose or mischief for which the impugned
provisions were intended to save or cure, they are doing more harm than
good and preliminary hearing (PHg) which determine matters not in
dispute is effective means of accelerated trials and disposal of cases
conducted even in trials by the High Court and is an effective way,
alternative and substitute of the proceedings introduced by the
impugned provisions;
g) do not provide safeguard against abuse, misuse of law and abuse of
powers by allowing or encouraging prolonged and arbitrary detentions
and long imprisonments without trial while awaiting committal or
completion of preliminary inquiries particularly on non-bailable
offences;
h) long imprisonments, confinements and detentions of the accused
persons awaiting investigations, committal proceedings and preliminary
inquiries violates the right to presumption of innocence, and meets the
purpose of trial by punishing suspects and accused persons by
imprisoning them before they are tried.

8) That, the impugned provisions of the Criminal Procedure Act, Cap 20 RE 2002
as amended contravene the Provisions of the Constitution of the United
Republic of Tanzania of 1977, Violates the fundamental rights and freedom

Page 10 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
 of people, suppresses the rule of law and the due process of the law, and
encourages abuse of power and authority.
9) That, the Criminal Procedure Act Cap 20 RE 2002 as amended or its offending
provisions have not been repealed to conform to the provisions of the
Constitution of the United Republic of Tanzania of 1977.

10) That, the petitioner is citizen of and a resident in Tanzania, and subject to the
laws of Tanzania including the Criminal Procedure Act CAP 20 RE 2002. The
Petitioner herein has the right to ensure and take measures to ensure that
the constitution and the laws are protected.

11) That, the present petition is not res judicata and the grounds and facts have
never been dealt and determined by any competent court.

VERIFICATION

What is stated above in paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(d), 7(e), 7(f),
7(g), 7(h), 8, 9, 10 and 11 is true to my knowledge.

Verified and signed at Dar es Salaam this..............day of .........................2019.

.....................
DEPONENT
SWORN at Dar es Salaam by the said )
ONESMO OLENGURUMWA who known )
To me personally/identified to me by.............)
..........................................................the latter)
Being known to me personally this……….........)
............day of ..........................................2019)

Page 11 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
BEFORE ME:

FULL NAME:..................................................

SIGNATURE:..................................................

ADDRESS:.......................................................
TITLE: COMMISSIONER FOR OATHS
Presented for filing this .....................day of .................................2019.

.....................................
REGISTRY OFFICER

COPY TO BE SERVED ON:

SOLICITOR GENERAL,
THE OFFICE OF THE SOLICITOR GENERAL,
10 KIVUKONI ROAD
P.O. BOX 71554
1149 DAR ES SALAAM.
Tel: +255 22 211 8178
Fax: +255 22 211 3236
Email: info@osg.go.tz
Website: www.osg.go.tz
JOINTLY DRAWN AND FILED BY:

MPALE KABA MPOKI, ADVOCATE

MPOKI & ASSOCIATES, ADVOCATES,
NUMBER 4, REGENT STREET,
REGENT ESTATE, KINONDONI,
ADJACENT TO SUNRISE PRIMARY SCHOOL,
P.O BOX 14232,
DAR ES SALAAM.
Tel: +255 684 555 552
+255 718 385 928
+255 622 888 822
Email: info@mpokiassociates.co.tz

Page 12 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings
 AND
DAIMU HALFANI, ADVOCATE
MISNAK LAW CHAMBERS,
3RD FLOOR, HOUSE NO. 10,
PLOT NO. 67 BLOCK 4,
LUMUMBA/AMANI STREETS,
OPPOSITE ILALA DISTRICT COURT,
P.O. BOX 515,
DAR ES SALAAM.
E-MAIL: info@misnaklaw.co.tz
Mobile: +255 777 036 411

Page 13 of 13 Onesmo Ole Ngurumwa vs AG. Petition Challenging constitutionality of Committal Proceedings