CERTIFICATION

The undersigned certifies that he has read and hereby recommends for
acceptance by the Open University of Tanzania a Compulsory Research Paper
entitled The Law of Bail and its Applicability in Tanzania Primary Courts:
A Case study of Kisarawe District, in partial fulfilment of the requirements
for the degree of Bachelor of Laws.

………………………………………….

Abdulrahman O.J. Kaniki

(SUPERVISOR)

Date…………………………………….

i
 DECLARATION
AND
COPYRIGHT

I, Amalia Ludovick Mushi, do hereby declare that this research paper is may
own original work. It has not been, and is not currently being submitted for a
degree in any other University.

Signature …………………………………….

This research paper is a copyright material protected Under the Berne

Convention, the Copyright and Neighbouring Act, Cap. 218 R.E. 2002 and
other international and national enactments in that behalf, written on intellectual
property. It may not be reproduced by any means, in full or in part, without
permission of the author or the Open University of Tanzania.

ii
 ACKNOWLEDGEMENT

I am deeply indebted to several people who have helped me in one way or

another to complete this study. It is very difficult and almost impossible to
mention all by names, but this should by no means be deemed to be a lack of
appreciation for their moral and material support which they accorded to me.
To them all I owe my sincere gratitude.

However, my supervisor Mr. Abdulrahman O.J. Kaniki deserves very special

mention for devoting his valuable time to supervise me from the very beginning
of the study to its conclusion. He did special constructive criticisms and
comments which enabled me to come out with this paper. I believe that without
him things would have been very different.

I should also extend my sincere gratitude to the Librarian of the Faculty of Law,
University of Dar es Salaam, Mr. Komba who granted me permission to enter
and read research papers, dissertations and other sources in the Faculty of Law
Staff Library.

Special thanks should go to my beloved husband Mr. J.M. Kisoka for his
financial support as well as constructive encouragement when processing this
work from the start so its completion, and also equally indebted to my
adorable son Erick Mbeshere for his tolerance when I was pursuing my
studies.

Finally I would like to record my appreciation to my parents Mr. and Mrs.

Ludovick Mushi, my uncle John Kimwangana, together with my brother
Gaudence and his wife for their constant encouragement and help from the
beginning to the final of my studies. To them all, I am indebted.

iii
However, I remain entirely responsible for any error and omission found in this
study.

iv
 DEDICATION

This work is dedicated to my son Erick Mbeshere

v
 LIST OF CASES CITED

Abdullah Nassoro v. Rex (1921 – 1952) 1 TLR (R) 289

Bhagwaji Kakubai v. R 1 TLR 143

Jaffer v. R (1973) E.A.39

John Mswami and others v. R (1970) HCD 50

Nicholous Sarungi and others v. R (1975) LRT n. 58

Patel v. R (1570) HCD 391

R. v. Badger (1843) 4QB 468 472

R. v. Jaholale (1970) HCD 85

R. v. Peregun Mrope (1989) HC DSM Criminal Course No. 43 unreported

Reg. v. Haro Harrow Justices exp. Moris (1972) 3 WLR 697 699

Tito Douglas Lyimo v. R (1978) LRT.55

vi
 LIST OF LEGISLATION

(a) Local Legislations

 The Constitution of The United Republic of Tanzania, Cap 2 R.E, 2002

 Criminal Procedure Act, Cap 20 R.E 2002
 The Magistrates Courts Act, Cap 11 R.E 2002
 Criminal Procedure Code, Cap 20, [Repealed].
 The Penal Code, Cap 16 R.E, 2002
 Tanganyika Order in Council, 1920

(b) Foreign Legislation

 Bail Act, 1976 (English Law)

 Indian Criminal Procedure Code
 The Kenyan Constitution, Section 72 (5)
 The Kenyan Armed Forces Act,
 Justice of the Peace Act, 1979 (English law)

vii
 ABBREVIATIONS
Ag. J……………………. Acting Judge
Cap……………………... Chapter
CPA…………………….. Criminal Procure Act
CPC…………………….. Criminal Procure Code
DSM……………………. Dar es Salaam
EA……………………… Eastern Africa Law Reports
Ed………………………. editor/edition
Etc……………………… etcetera
GN……………………... Government Notice
HC……………………… High Court
HCD……………………. High Court Digest
Ibid……………………... Ibiden
J………………………... Judge
LLB……………………... Bachelor of Laws Degree
LLM…………………….. Maters of Laws Degree
LRT……………………... Law Reports of Tanzania
No………………………. Numerical (Number)
Op cit…………………… Opera citato
P……………………….... Page
QB……………………… Queen’s Bench
R.E…………………….... Revised Edition
R/Rex…………………... Republic/Regina
S……………………….... Section
SS……………………….. Sections
TLR (R)………………… Tanganyika Law Reports (Revised)
TLR…………………….. Tanzania Law Reports
v………………………… Versus/against
WLR……………………. Weekly Law Reports

viii
 ABSTRACT

This work seeks to address on the law of bail. Generally speaking, bail is there
always to let the accused person be free for a while pending his trial as long as
his guilty has not yet been established beyond reasonable doubts. It explores the
history of the law of bail in Tanzania from pre-colonial era, during colonialism
and later on in post colonial period to the present. The Criminal Procedure Act,
Cap 20, R.E. 2002 is the main law governing bail matters in Tanzania.
However in Primary Courts, the law regarding bail has some considerable
departure from the general law of bail which is found in the Criminal
Procedure Act. In Primary Courts the law of bail is found in part IV of the Third
Schedule to the Magistrates’ Courts Act, Cap 11, and R.E. 2002. The law
provides which offences are bailable and which are not. Bail is guaranteed as a
right to an accused person as provided for in the constitution, of the United
Republic of Tanzania Cap 2 R.E. 2002. But same of the provisions of the laws
on bail mentioned above provide restriction and limitations on granting bail to
an accused person. That is to say the law is not adequate hence something has
to be done on the society to remedy the situation. This research paper tries to
find out sources of the problem. Through interviews to magistrates and
members of the public it managed to get some views as to why many people are
curtailed their right to bail. The study also examines some judgment and
writing of different authors on bail matters.

ix
 TABLE OF CONTENTS
CERTIFICATION......................................................................................................................i
DECLARATION AND COPYRIGHT......................................................................................ii
ACKNOWLEDGEMENT........................................................................................................iii
DEDICATION...........................................................................................................................v
LIST OF LEGISLATION........................................................................................................vii
ABBREVIATIONS................................................................................................................viii
ABSTRACT..............................................................................................................................ix
CHAPTER ONE........................................................................................................................1
1. GENERAL INTRODUCTION..............................................................................................1
1.1 Background to the Problem..............................................................................................1
1.2 Statement of the Problem...........................................................................................4
2. Literature Review...................................................................................................................6
3. Objective of the Research...................................................................................................11
4. Significance of the Study.....................................................................................................11
5. Hypothesis............................................................................................................................11
6. Research Methodology.........................................................................................................11
7. Scope and Limitations of the Research................................................................................12
CHAPTER TWO.....................................................................................................................13
HISTORICAL DEVELOPMENT OF BAIL IN TANZANIA................................................13
2.1 Introduction....................................................................................................................13
2.2 Some Conceptual Aspects..............................................................................................14
2.2.1 Meaning of Bail.......................................................................................................14
2.2.2 Purpose of Bail........................................................................................................15
2.2.3 How to grant Bail....................................................................................................16
2.2.3 Different forms of Bail............................................................................................17
2.3 History of Bail in Tanzania............................................................................................21
2.3.1 Bail before Colonial Period.....................................................................................21
2.3.2 Bail during colonial period...............................................................................22
2.3.3 Bail in Post coronial Period to the present..............................................................23
2.4 Conclusion......................................................................................................................26
CHAPTER THREE.................................................................................................................27
3. GRANTING OF BAIL IN PRIMARY COURTS: THE LAW AND PRACTICE.............27
3.1 Introduction....................................................................................................................27
3.2 Some salient features of provisions of the law on bail.................................................27
3.3 Application of the law in a theoretical and practical frame work..................................30
3.4 The general overview of the problem.....................................................................31
3.5 Conclusion................................................................................................................33
CHAPTER FOUR....................................................................................................................35
4. FINDINGS OF THE RESEARCH......................................................................................35
4.1 Introduction........................................................................................................................35
4.2 The analysis........................................................................................................................35
4.3 Conclusion..........................................................................................................................43
CHAPTER FIVE......................................................................................................................44
5. Conclusions and Recommendations.................................................................................44
5.1 Introduction....................................................................................................................44
5.2 Conclusion......................................................................................................................44
5.3 Recommendation......................................................................................................45
BIBLIOGRAPHY....................................................................................................................46
QUESTIONNAIRE FOR COURT USERS MEMBERS OF PUBLIC......................................i

x
xi
 CHAPTER ONE

1. GENERAL INTRODUCTION

1.1 Background to the Problem

In general terms bail means a temporary release of an accused person

upon certain conditions pending the finalisation of court proceedings.
Bail is also defined as the setting at liberty one arrested or imprisoned on
others becoming sureties by recognizance. The party is delivered (or
bailed) into the hands of the sureties and is accounted by law to be in
their custody…1 It also means to set at liberty a person arrested or
imprisoned on security being taken for his appearance on a day and place
certain which security is called bail because the party arrested or
imprisoned is delivered into the hands of those who bind themselves for
his forthcoming2 discharge in the sense that persons liberty at that
particular time is tied up with conditions.3 In Tanzania bail is a
constitutional right as guaranteed by Article 13 and 15 of the Constitution
of the United Republic of Tanzania4 Bail is of three types These are:
police bail, bail pending trial and bail pending appeal. Under all
situations, bail is considered to be a right stake pending the due process of
the law. The law of bail is the part of the law governing procedure in
criminal trials and for Tanzania the provisions concerning bail are to be
found in the Criminal Procedure Act5 and other statutes.

And for primary courts the Criminal Procedure Code which is found in
the Third Schedule to the Magistrates’ Courts Act.6 is the one which is
1
Mozley and Whitely’s Law Dictionary, 10th Ed, Butterworth city, 1998, p. 43.
2
Blacks Law Dictionary, 5th Edition
3
Chris Maina Peter, Human Rights in Tanzania, Selected Cases and Materials, Koppe
Verlag, Koeln, 1997, p. 527.
4
Cap. 2 R.E 2002
5
Cap 20, R.E. 2002
6
Cap. 11, R.E. 2002

1
regulating bail matters. Unlike the verdict and sentence which come at the
end of the trial, bail consider actions present themselves just after the
charge is read out in court. Different people would tend to look at the
subject of bail differently However all this has much to do with the very
law on criminal procedure which has much room for improvement. This
is work on the examination on the law of bail generally and its
applicability in Tanzania primary courts. The problem to be discussed in
this work is on the statutory limitations and other judicial considerations;
together with the shortness of the provisions of the law governing bail in
primary courts as they are different from the general provisions of the law
of bail; on how both contribute difficulties and challenges to accused,
sureties and magistrates and end up in refusing accused their rights to bail
in one way or another. Kisarawe District is made a case study. Bail as an
aspect of criminal justice has a long history. In modern times, it is traced
to the Magna Carta7 which provided inter alia that no free man shall be
arrested or detained in prison unless by the law of the land.

In colonial Tanganyika, the status of bail to the accused person was

addressed elaborately by Justice Wilson in the case of Abdullah Nassoro
v. Rex.8 This case involved a charge of assault causing actual bodily harm
arising out of the clash between Arabs and Baluchis in Tabora. The
accused was appealing against the decision of the first class Magistrate of
the District Court who refused an application for bail pending trial.

The High Court he that granting of bail depended on whether it would be

detrimental to the interest of justice and good order. The Court went on to
caution that it was not enough for the prosecution to allege that granting
7
Magna Carta Chapter 39
8
(1921-1952) 1 T.L.R (R) 289

2
bail to the accused person would lead to failure justice. Allegations of this
nature have to be backed by solid and satisfactory grounds. As indicated
above, it is only where granting of bail would lead to failure of justice
that it could be refused. Since British colonial period todate bail in
Tanzania has been regarded as a right for accused person and not
privilege. For example, Mwesiumo J (as he then was) in the case of Tito
Douglas Lyimo v. Republic9 pointed out that bail is a right and not
privilege to an accused person, unless the court is convinced by concrete
evidence emanating from the prosecution that to grant bail would result in
a failure of justice.

As we have shown above, therefore, the traditional view is that bail is a

right and not a privilege to an accused person. The primary object of
remanding an accused person in custody is to ensure that he will appear
before the court to take his trial and not to seek to evade justices by
leaving the jurisdiction of the court.

Therefore, the test whether a person can be granted a bail or not is

whether the granting of it will be detrimental to the interests of justice. It
is for the prosecution to satisfy the court that this would be so if bail was
granted.10 This shows that court must be bestowed with discretion in order
to arrive at such a test. In other words the granting of bail is the discretion
of the courts.

9
(1978) LRT n 55
10
Mnzavas, J (as he was) in Jaffer V.R (1973) EA39

3
1.2 Statement of the Problem

This paper examines the law of bail generally as it is there always to let
the accused person be free for a while pending his trial as long as his
guilty has not yet been established beyond reasonable doubts. The
provisions of bail in Criminal Procedure Act11 gives out which offences
are bailable and which are not, also it gives out the limitations to be taken
into account by the courts before granting bail to an accused person as it
has been stated that; subject to certain statutory restriction all offences
other than murder, treason and armed robbery are generally bail able. See
section 148 (5) (a) of the Criminal Procedure Act.

These statutory restriction or limitations on bail are provided for in

section 148 (4) (5) of the Criminal Procedure Act,12 which includes a
certificate by the Director of Public Prosecutions, previous convictions,
violation of previous bail conditions accuser’s own protection and safety,
monetary/pecuniary consideration. Apart from those statutory limitations
there is also judicial considerations for example the court may ask itself
whether the accused may interfere with investigations as it was shown in
Bhagwaji Kakubai v. R.13 Also the court may look on whether the
accused is likely to commit other offences This legal position is reiterated
while on bail. The case of John Mswani and Others v. R14 where it was
held that, the possibility of the accused person committing other offences
while on bail should be considered before granting bail. However, this is
very minor factor because no body should be penalized for mere human
fears unless there are sufficient grounds to support the fear. Other factors
include residence of the accused person, how reliable are sureties and the
11
Cap. 20, R.E 2002
12
Ibid
13
1 T.L.R 143
14
(1970) HCD No. 50

4
like. It has to be understood that the given limitations and considerations
create delicate circumstances in which the magistrate should act judicially
otherwise by using the same considerations he, as a human being, either
by the influence of the prosecution side or of the complainant if in lower
courts or on hi own interests may decide to act biasly against the accused
person and refuse him his right to bail.

For example in the case of Nicholaus Sarungi and Another v. R 15 the

accused who were charged with an offence of robbery, when they
applied for bail they were refused due to the influence of the prosecutor.
On the other hand primary courts, the law regarding bail has some
considerations which depart from the general law of bail found in
Criminal Procedure Act. In primary court the law of bail is found in Part
IV of the Third Schedule to the Magistrates Courts Act. 16 This part of the
schedule, unlike the provisions in the Criminal Procedure Act on bail
matters in primary courts, is very short. Only sections 16 and 17 are
providing for bail matters, whereas only most of the provisions regarding
sureties discharge bail conditions are omitted. What is insisted is that
those who are concerned with the granting of bail in primary courts have
to familiarises themselves with general principles governing bail despite
the fact that there is a specific law on bail for primary courts. The
shortness of this law which governs bail in lower courts provides a loop-
hole, by using this loop-hole the accused are refused their bail in primary
courts by one reason or another including few people’s interests. It needs
to be realized that only common reasons like tampering with
investigations or flee which are oftenly given for denying bail to an

15
(1975) L.R.T. n. 58
16
Cap. 11 R.E. 2002

5
accused person are not, according to the case of R.V. Jaholale,17
sufficient reasons.

2. Literature Review

Many researches have been conducted on the subject of the law of bail
and the problem of its application in courts. However it has to be clear
that the law of bail is much more problematic in primary courts where the
provisions regarding bail matters are very few and they do not cover
necessary requirements As a result those who are concerned with the
granting of bail in these lower courts do not bother as sometimes they use
this as a loop-hole to refuse accused their right to bail. This makes people
to lose their constitutional right as granted under Article 13 and 15 of the
Constitution, where every person is guaranteed with the right to be free
and to live like a free person, and it is prohibited for any person to be
arrested, jailed, and kept in custody or to be deprived of his freedom. This
paper does not repeat what others have already written on the subject. It
only emphasizes that bail is a right to an accused person and the law and
the adjudicators have to be clear in providing this right in theory and in
practice. Various scholars have written on this topic although no efforts
were made to discuss bail in primary courts the following deserve a
mention. To mention few of them, as follows, Bahroon S.A, 1 in his work
examines and analyses critically from a historical point of view. statutory
provisions that tend to limit the right of an individual to bail in Tanzania.

He argues that, the law as to bail was changed in 1985, because of

communitarianism and collectivism and also that denying bail in certain
(1970) HCD No. 85
17

1
Bahroon, S. A., The statutory Limitations of the law of bail in Tanzania: A
March Towards To talitariarism: Being An Advanced Coursework paper
Submitted in partial Fulfillment of the Requirements for the Master of Laws
Degree in the University of Dar es Salaam. 1991/1992

6
offences would check the increasing of wave of crime obtaining in
Tanzania now.2 His work raises a number of questions in relation to the
change of law as to bail to the effect that’s, the right to bail has virtually
been grabbed from the individual. Even courts have been robbed of their
jurisdiction to grant bail in certain offences that fall under the respective
provisions that deny bail.3 Bahroon talks generally on how the change of
law that is Criminal procedure Act has effects on the right of bail from
individual. But he does not discuss on the shortness of the provision of
the law of bail in primary courts which also grabs the right of bail from
individuals. Also as there are no advocates in primary courts are allowed
people are losing their rights due to ignorance of the law. For example a
husband may lose his right to bail only due to a misconception that his
wife is a woman, so she has no right to be surety of her husband and the
like. Sanze J.W.4 has researched on the individual liberty, the law of bail
and court discretion in Tanzania. His research basis being parliament
enacting laws which takes away the discretion of the court in Bail matters
leaving the accused open to victimization by the state.

He recommends that, bail is a constitutional right. It is guaranteed under

article 13 and 15 of the Constitution of The United Republic of
Tanzania.5 He goes on to argue that in a democratic state, courts are
usually given unfettered power/right to grant or refuse bail and where bail
is refused, adequate reasons must be given by the court and not by the
state. While recommendations are valuable, the role of primary court in

2
See the Report of the Judicial System Review Commission: Dar es salaam, 1977,
Government Printer, Tanzania 191
3
See section 148 (5) (e) of the Criminal Procedure Act, cap. 20 R.E. 2002
4
Sanze, J. W., Individual Liberty, the law of Bail and Court Discretion in
Tanzania: Advanced Coursework paper No.2 Submitted in Partial
Fulfillment of the Degree of Master of Laws, The University of Dar es Salaam,
1991/1992
5
Cap. 2 RE 2002

7
application of the law of bail to ameliorating this problem is
indispensable. In his report, he does not discuss the part played by the
shortness of the provisions of the law governing bail in lower courts
which provide a loop-hole to the magistrates to deny bail to accused the;
and the various amendments which could be made to the very same law
in reducing this problem. Kalemani Medad 6 in his work explores the law
and practice of Bail in Tanzania he argues that bail is two sided. In that
the court in one hand has been given discretion to grant bail to the
accused person with or without conditions, and on the other hand the state
through its apparatuses has also the same power to refuse granting bail to
particular individuals. It should be understood that granting bail is legal
function which should be done by Magistrates and judges and not
otherwise However Kalemani does not discuss the law and practice of
bail in Tanzania as a right of an accused person as provided for in the
constitution.

The court provisions of the law ought to be clear so that this right is not
to be infringed unreasonably. J.M. Itemba7 shows that bail and especially
bail pending trial is a right of an accused person and not a privilege; and
as a right bail should not be refused without sufficient reasons It has been
held in a number of cases that bail pending trial is an accused’s person
right so long as the granting of such bail not be contrary to the interest of
justice.8 Also he explains that, the law governing bail in primary courts
which is Part IV of the Third Schedule to the Magistrates’ Courts Act 9 is

6
Kalemani, M., The Law and Practice of Bail in Tanzania Mainland:
Submitted in Partial Fulfillment of the Requirements for the First Degree of
Laws, At the University of Dar es Salaam. 1996
7
Itemba, J. M., The Law Relating to Bail in Tanzania Dar es salaam, University
Press, 1991
8
See the case of R.V Paulo Kiluwa and Aniteo (1977) LRT n. 21
9
Cap 11 R.E 2002

8
very short and most of the provisions regarding sureties, discharge bail
conditions are omitted. Itemba; is therefore intended in his book to satisfy
two needs; first to systematize the law relating to bail in this country and
second to bring the law to those who might not otherwise have access to
the existing legal literature. However, the book does not state any critical
examination of the law bail on this country; rather it restates the law in
view of some of the decided cases. Therefore, it still provides a gap for
critical examination of the law. Chipeta B.D10 explains that, since the
enactment of the Criminal Procedures Act, which repeated and replaced
the Criminal Procedure Code, and which come into effect in 1985, the
powers of courts on questions of granting bail have been severely
restricted.

Also it has discussed that, the Director of Public Prosecutions is given

very wide power as the law does not require him to state reasons for
certifying the refusal of bail to an accused person. In the wrong hands
those powers could be abused. In his work Chipeta does not however,
discuss the provisions of the law of bail which are applicable in Primary
Courts, as they are different from those under the Criminal Procedure
Act. Also he does not show any critical examination on the law of bail in
Primary Courts which is stipulated under the Third Schedule to the
Magistrates’ Courts Act. Peter11 shows how the right to bail is guaranteed
by the constitution under Articles 13 and 15 where an accused person is
assumed to be innocent unless proved otherwise. Also every person is
guaranteed with the right to be free; but accused are sometimes denied
their right to bail hence their freedom is curtailed mainly by the
provisions of the law and by the adjudicators of the law. Therefore the

10
Chipeta, B.D., Magistrates’ Manual, TMP Book Department, Tabora
11
Peter C.M; Human Rights in Tanzania, Selected cases and Materials, Koppe
Verlag, Koeln, 1997

9
mandatory conditions should be abolished and the adjudicators should be
aware of this right so as to ease bail granting for the people to get their
rights. In his work he has much recommendations of bail as a
constitutional right. However he has no much discussion on the provision
of the law of bail as they are provided for in the Criminal Procedure Act
and in the Third Schedule to the Magistrates Courts Act, for the lower
courts generally and their critics therefore this provides a room to do
more research on this topic.

Neil Corre12 talks on the law of bail in England. 13 He shows that the law
creates the general right to bail which is usually known as presumption in
favour of bail which is sometimes regarded as corollary to the
presumption of innocence although its historical roots are quite different.
He also, among other things, shows exceptions to the right to bail, that
the defendant needs not to be granted bail if the court is satisfied that
there are substantial grounds for believing that if released on bail the
defendant would fail to surrender to custody, commit an offence while on
bail or obstruct the cause of justice whether to himself or other persons.
These are views on bail in England law We have referred to them only to
see what others are doing on bail matters hence to expand
recommendations and literature

3. Objective of the Research

This paper concerns the law of bail and its applicability in primary courts.
The objective of this research is to show how the provisions of the law
limits the accused’s right to bail, also the courts itself especially lower
court’s adjudicators (magistrates) curtail the accused’s right to bail and

12
Corre, N., Bail in Criminal Proceedings, London, 1990
13
Bail Act, 1976 ( England Law)

10
propose the ways and means of improving and controlling the said
problem.

4. Significance of the Study

This study intends to advise and to request law makers and the applicants
of the law of bail to take part and participate well in curbing this problem.
Thus it will awaken the society regarding the problem for those who will
read this work. the study will also add material for the subject. It will as
well help the readers and other researchers who will visits the library to
get materials on the law of bail and its applicability in Tanzania primary
courts.

5. Hypothesis
It is the research presumption that the problem of the legal provisions
governing bail in Tanzania and their applicability especially in primary
courts is due to the weakness and inadequacy of the appropriate laws of
the land which also provide loop-hole to those who are responsible to
provide bail to abuse it.

6. Research Methodology

This research is based mainly on traditional legal research methods which

involve primary and secondary methods:-In primary methods the field
research will be carried out in primary courts in Kisarawe District
generally and granting of bail in particular. The researcher will go to the
field to collect data and information particularly in the problems and
challenges which face magistrates, accused and sureties as far as the
applicability of the law of bail is concerned so as to complement
information to illustrate the magnitude of the problem. Secondary method
will involve library research on sources such as relevant books on the
point case laws, statutes, journals and other legal instruments in order to

11
have a good outcome of the study. With combination of the two research
methods, it is anticipated to go to a long way in producing the final
research, conclusion and recommendations.

7. Scope and Limitations of the Research

The research will be conducted at primary courts in Coast Region as an

area of study. However not all primary courts in that area will be covered
due to financial constraints and time limitation. Only a limited field
research will be carried out in the primary courts at Kisarawe District so
as to complement information to illustrate the magnitude of the problem.

12
 CHAPTER TWO
HISTORICAL DEVELOPMENT OF BAIL IN TANZANIA

2.1 Introduction
Generally cases go to court so that contentious matters can be decided
upon. In this case speed and efficiency both on the part of the parties and
courts are necessary. However, in a majority of cases, accused persons
do not plead quality to their charges, and very often such cases do not
proceed to hearing and final disposal so they have to be adjourned.1 When
a case is adjourned the liberty of the accused person immediately
becomes an issue. The question is whether to remand the accused in
custody or release him temporarily pending the hearing of the case. In
both cases the operational principle is that the accused person is
presumed to be innocent until the contrary is proved.
This presumption is echoed by Article 13 (5) (b) of the Constitution, 2

which provide in broader terms that, “No one charged with a criminal
offence shall be treated like a convict until his guilty is proved” This
translation which is different from what the English version of the
constitution provides, was confirmed in the case of Daudi Pete v. R 3

(Court of appeal Decision) Following what Msumi J. had proposed in R.

v. Peregun Mrope. 4

From this position the presumption is that, in case of adjournment the

accused person should normally be released on bail with expectation that
he will enter appearance on the date fixed for hearing.

1
Chipeta, B.D., A Magistrate’s Manual, T.M.P. Book Department, Tabora.
2
Cap. 2 RE 2002
3
Daudi Pete V.R
4
Miscellaneous Criminal Course No. 43 of 1989 (HC) (DSM)
2.2 Some Conceptual Aspects

The law of bail is part of the law governing procedure in criminal trials
and for Tanzania (mainland) the provisions concerning bail are to be
found in the Criminal Procedure Act5 Primary Court Criminal
Procedure Rules,6 and also in other statutes. These provisions state in
general terms when bail should be given and when it should not and as
customary for legal provisions there are no details on what principles
should govern bail considerations. The duty to expound the principle has
always been under taken by courts with the result that the law relating to
bail is mainly case laws. A reading of decided cases shows that there are
principles which are followed (or which should be followed) when
either granting or refusing bail, such that even when the judge or more
often the magistrate exercises his discretion in either way he is in fact
apply one principle or the other, or breaking them.7 The law of bail in
Tanzania is a vast subject; different people would tend to look at the
subject differently.

Some would choose to question the benefit of bail to a thief while others
would argue that there should be no bail at all in offences involving
violence. All this has much to do with the very law of Criminal Procedure
which has much room for improvement.8

2.2.1 Meaning of Bail

Bail is an agreement between the accused (and his sureties if any) and the
court that the accused will pay are certain sum of money fixed by the

5
Cap. 20 RE 2002
6
Part IV, Third Schedule to the Magistrate’s Courts Act Cap. 11 RE 2002
7
Itemba, J.M., The Law to Bail in Tanzania, Dar es salaam, University Press, Dar es
Salaam, 1991
8
Chipeta B.D., A Magistrate’s Manual. T.M.P Book Department, Tabora.
court, should he fail to appear to attend his trial on a specified date. 9 It
also defined as the freeing or setting at liberty one arrested or
imprisoned, on others becoming sureties by recognizance for his
appearance at a day and place certainly assigned, he also enters into his
own recognizance. The party is delivered (or bailed) in to the hands of
the sureties, and is accounted by law to be in their custody.10

Elsewhere it is said that, bail resulted from the dilemma that exists
between what is appropriate to be done to a man who supposedly
committed a crime, in order to allay the fears of society and the accepted
cardinal principle of law that even a felon is innocent until he is proved
guilty.11 It is said that, it is this conflict, not only of interests but of
principles, that must be correctly resolved if criminal justice is to have the
necessary meaning for and impact on society.12

2.2.2 Purpose of Bail

The purpose of bail is to make sure that the person accused of an offence
appears in court to stand his trial on the day, time and placed stipulated
by the court.13 Observations have been made in some legal systems that
bail does not benefit the defendant alone. The supreme court of the
United States thus stated. ...In criminal cases it is for the interest of the
public as well as the accused that the latter should not be detained in
custody prior to his trial, if the government can be assured of his presence
at that time.14

9
C. Brown on Criminal Procure in Uganda and Kenya, p. 50
10
Mosley and Whiteley’s Law Dictionary, Tenth Ed (1988) Butterworths at P. 43
11
Massawe, A.A.F., The Law of Criminal Procedure; T.M.P. Book Department
Tabora (1980) at P. 67
12
Ibid
13
Massawe, A.A.F., The Law of Criminal Procedure; T.M.P. Book Department
Tabora (1980) at P. 68
14
United States v. Barber 140 U.S. 164 (1891)
It is further submitted that the function of bail is not to prevent the
commission of crimes but rather: The function of bail pending appeal is
similar to that operation before conviction. It insures the presence of the
accused person when summoned to make amends to society by service of
the sentence imposed. It also insures the innocent against the injustice of
any imprisonment in the event of an acquittal of the charge. 15 The object
of bail is seen to be, fundamentally to secure the presence of the accused
person in court to stand trial. Also to insure the innocent against the
injustices of any imprisonment in the event of an acquittal of the charge.16

2.2.3 How to grant Bail

Where it has been decided by the court that an accused person be

released on bail, the accused is usually required to execute a bond, that
is he is ordered to sign a document which states that should be fail to
appear on the date fixed he will forfeit to the court a certain sum fixed
by the court.

In addition to his own bond, the accused is usually required to furnish

sureties, that is, people who execute bonds which state that they will
forfeit certain sum of the court if the accused fails to turn up on the day
fixed.

In addition to provisions for furnishing security by way of entering into

recognizance’s, the court has power to attach conditions to a grant of
bail such conditions may include confining the accused to certain areas
or with in the immediate environs of certain town.17
15
William, F. D., English Origins of the writ of Habeas Corpus: A peculiar Path to Fame
N.Y.U.L. Rev. (1978), quoted by E. Hosea, p. 23.
16
Bahroon, Said A., The Statutory Limitations of the Law of Bail in Tanzania, A
March Towards Totalitarianism: LLM Coursework Paper Faculty of Law, University
of Dar es salaam. 1991/92
17
See Abdullah Nassoro v. R I TLR (R) 289
Besides, where circumstances justify it, it is perfectly proper for a court to
order cash bail, that is, the accused may be required to deposit with the
court such a sum of money as the court may determine. But such sum is
refundable when the case is finally disposed of.

2.2.3 Different forms of Bail

The expression “bail” may sometimes mean the conditions upon which an
accused person is released pending his trial or appeal. In this sense “bail”
takes various forms and the commonest are (a) bond (b) recognizance (c)
deposit of money and (d) deposit of security. Let us now look at each
closely and see how it relates with others.

(a) Bond

This means a written contract which an accused person or his surety

enters with in the court to the effect that in case the accused fails to
appear at a stated date and time, the party to that contract should be
required to fulfill a certain condition (also to be stated in the bond)
usually to forfeit a certain sum of money to the Republic. A standard
bond is in two parts – one part being for an accused person to fill in and
the other for his surety, a surety in such a bond promises in writing to
ensure that the accused shall appear on the day and time he is required
and further that in case of default such surety shall forfeit a certain sum of
money to the Republic.

It will be seen that the bond is an important document in matters of bail

as it is in fact the record of the contract, stipulating clearly the terms of
such contract. Indeed even with regard to other forms of bail e.g. deposit
of money or any other security there will always be a bond executed to
the effect that in case the executor fails to procure the attendance of the
accused as required, such money or security be forfeited 18 It is therefore
important that bonds be correctly and precisely drawn. Where a person is
granted bail upon executing a bond to certain conditions, such bail is
sometimes known as “bail bond”

(b) Recognizance 19

A recognizance (in bail) is a form of a bond only that it differs from the
other by the fact that it is signed by the accused alone or where a surety
is required, by the surety alone. The essence of a recognizance, as was
held in Reg. v. Harrow Justices exp. Morris 20 is that “it is a promise to
pay, an obligation to pay, arising potentially in the future if certain
conditions are not satisfied”. Compared to a bond a recognizance appears
to be softer in its terms and is generally given to accused persons whose
attendances at trial are not doubted by the court. Where a person is
“granted bail in the sum of shillings 500/= in his own recognizance” it
means that such person shall be let free on condition that he promises in
writing that he will attend court as required or else be made or required to
forfeit shillings 500/= to the Republic.21

(b) Deposit of Money

Sometimes a court instead of requiring an accused person to merely

execute a bond, may order him to deposit a sum of money with it, with a

18
See section 124 of the Criminal Procedure Code Cap. 20 [Now Repealed]
19
Sometimes spelt “Recognizance”
20
(1972) 3 W LR 697 at P. 699.
21
Itemba J.M., The Law Relating to Bail in Tanzania, Dar es salaam, University Press,
Dar es salaam 1991
promise that in the event of the accused person failing to appear as
required such money be forfeited.22 It is not necessary, depending on the
court order, that the money be deposited by the accused person himself.
If a relative or friend can deposit the money becomes the accused is
surety. If however, the order of the court is to the effect that the money
be deposited by the accused, then the order must be carried out to the
latter such that it is the accused who deposits the money. This form of
bail is popularly known as “cash bail.”

(c) Security

As an alternative to deposit of money the court may require a person to

deposit with it any property23 as security for his appearance with the
necessary condition that in case of default such security be forfeited.
This alternative was created apparently to enable accused persons who
have no money but have property to avail themselves of the benefits of
bail by depositing what property they have.24

It would follow therefore that the property to be deposited is the property

which the accused has in his possession at the time he is applying for bail
and this necessarily means movable property (chattels) as opposed to
immovable property. Things like jewellery, traveling bags, passports and
other personal belongings are among things that are deposited in court as
security for appearance. It is the practice of courts in petty traffic cases to
require drivers to deposit their driving licences as security for appearing.
Documents of title to land (title deeds) may also be deposited as security
22
See section 126 of the Criminal Procedure Code Cap 20 [Repealed].
23
“Property” include everything animate or inanimate capable of being the subject of
ownership (section 5 of the Penal Code). The court has of course to be realistic when
ordering that a certain kind of property be deposited as security. Regard must be had as
to the nature and value of the property and also the convenience for its storage.
24
Section 126 of Criminal Procedure Act, Cap 20 RE 2002 The provisions are unnecessarily
restrictive to “natives”.
but care must be taken because these might lead to complications in the
event of forfeiture. It is no infrequent that land is subject to mortgage and
if the title to such land is pledged as security for bail, the sufficiency of
such security is itself question able. The practice has been to require the
deposit of property which is not likely to be subject to encumbrances or
to cause problems of storage.

Where a thing is deposited as security it is a safe rule of practice that its

nature and apparent value be recorded in the bond so that in the event of
such a thing getting lost or when it is to be returned, the court should be
in a position to know what exactly the accused deposited.
(d) Combination of Bond and Security

Sometimes an accused person may be given bail on condition that he

executes a bond (with certain conditions) and in addition, that he or his
surety should deposit a certain sum of money or some other security.

This practice, though apparently lawful, is regarded with disfavour in

other jurisdictions.25 It is preferable that the court chooses one form of
bail and not a combination of several.

2.3 History of Bail in Tanzania

The law of bail in Tanzania like every where else on the African
continent goes hand in hand with colonialism. To the colonialists
(German, British and Others ) we attribute the origins of modern
African state hood; an important by product of the furious Berlin
25
In Reg. v. Harrow Justices ex p. Morris (1972) 3 W.L.R. 697 the justices had granted
bail to an accused on his own recognizance of 250 sterling pounds with two sureties of
2,000 sterling pounds “with the condition that they should each deposit 500 sterling
pounds of that sum.” The court of appeal held that the order was illegal. “Having
decided that a surety is adequate to stand bail for the amount involved” the court held,
“there was no authority to go on and require that surety shall put down any specific sum
of money or other security as a condition of bail being granted”
conference of 1884 – 85 in which the African continent was divided
amongst the European imperial powers who came along with their laws
including the law of bail.26

2.3.1 Bail before Colonial Period

Pre colonial societies in Tanzania mainland had their own means of

solving them disputes which was quiet different from that of Europeans.
Dispute in the society were settled either by compromise reconciliation or
compensation. The disputants had to refer the matter to the head of
family or an elder of community for solution based upon the ways of
solving disputes mentioned above27

The procedures which were applicable in dispute settlement were not

clearly partitioned into separate branches of law as we know today. It
must be noted however that African societies featured simple
technologies, subsistence, living without much division of labour. Due
to their low level of economic social and political development, law
relating to bail was not known at all by pre-colonial societies in
Tanganyika.

This can be accounted for by saying that the law of bail as we know it
today involves cumbersome procedures and technicalities namely,
execution of bonds, cognizance’s, sureties, imposition of conditions to
be observed by criminal who has been granted bail etc. Also the trial
offenders was quick and some times summary trial was practised by
chiefs as well as heads of families and elders of the community.28

26
Kalemani, Medad M.C., The Law and Practice of Bail in Tanzania Mainland, LLB
Coursework Paper Faculty of Law, University of Dar es salaam. 1996
27
Elias, T. O., Feature of African Customary Law, 1981 P.8
28
E.K. Mwaipopo, Criminal Proceedings in Tanzania 11.1 Dissertation P.27
2.3.2 Bail during colonial period

The colonial period in Tanganyika is marked with two colonial supreme

powers namely German in 1884 – 1918 and British from 1919 – 1961.
To begin with German – the whole German colonial administration was
characterized by force and therefore it was not easy to as certain which
laws were applicable by them.

However, customary methods of settling disputes continued to operate in

initially districts. Fore example the Haya tribe traditional chiefs
continued with unlimited executive and administrative powers executive
and administrative powers exercised by themselves and through the
counselors.29

After the collapse of the German at the end of first world war, British was
given mandate over Tanganyika. Violent and brutal forces which
character used the German period also performed during brutish rule.
Criminal law was used discriminately contrary so the general principles
of justice aiming at getting cheap labour which was necessary for the
survival of plantation economy. The principles of justice interalia
regarded bail as a right for accused person as it was stated by
Mwalusanya J. in the case of Daudi Pete V.R30 ….Since mainland
Tanzania became a British Colony, in 1920, bail had been regarded as a
right for the accused person that and not privilege.

However in practice, at the time of British colonial rule in Tanzanian

imprisonment was arming to keep the multitude of the population in
order. Prisons were the place of punishment and made the indigenous
people to submit to colonialisms. The medium to enforce the laws were
29
E.K. Mwaipopo, (Criminal Proceedings in Tanzania 11.1 Dissertation P.27
30
(1989) HC Mwanza
the police force and defaulters were send to courts by police where by
suspects who failed to meet bail condition were sent to prison by courts
to provide cheap labour.

The main concern of colonialism was exploitation of natural resources

by using indigenous as source of labour thus, the whole idea was to use
whatever means available to achieve the goal, ignoring the idea of justice
to the rules. It must be pointed out that where the doctrine of separation
of powers does not function fore example where bail is administered by
both courts and police officers, works great injustice to the accused
person for no uniformity that exist in administering the law.31

2.3.3 Bail in Post coronial Period to the present

It has to be understood that, despite the absence of a bill of rights in the

independence constitution32 the judiciary of the independence government
has been even more categorical on the question of bail as a right for an
accused person. The late Biron J. (as he them was) asserted in the case
of Patel v. R 33 that “A man whilst awaiting trial is as of right entered to
bail as there is a presumption of innocence until the contrary is proved”
it would appear that, the judiciary enjoyed discretionary powers to
adjudicate on matters of bail. The law as to Criminal Procedure before
the enactment of CPA in 1985 was governed by the Criminal Procedure
Code.34 whose origin is the Indian Criminal Procedure Code which was
adopted by virtue of the provisions of the Tanganyika Order in Council.35

31
Kalemani, Medad M.C., The Law and Practice of Bail in Tanzania Mainland, LLB
Coursework Paper Faculty of Law, University of Dar es salaam. 1996
32
Tanganyika (constitution) order in council, 1961 No. 2274
33
(1971) HCD 391
34
1920 (Cap 20 of the laws of Tanganyika) [Repealed]
35
1290
Before 1985, the position was that, all offences were bailable provided
that they are before a court of law of competent jurisdiction. 36 Even
murder and treason were bailable this is evidenced in R. v. Lemanda
Obei 37

In that case the High Court of Tanzania admitted to bail an accused

person charged with murder on the exceptional circumstances that he
was seriously sick. The court held that section 123 (1) of The Criminal
Procedure Code empowered the high court to direct a person to be
admitted to bail even though he has been charged with murder or
treason. It is clear, however that in cases of murder, bail was allowed
only in exceptional circumstances. This is indeed as it should be when
one considers the gravity of the offence and the seriousness of the
punishment which may be imposed on a finding of guilty.

This shows that, the courts enjoyed a wide discretion than what is
happening now after the enactment of the Criminal Procedure Act. 38 In
this Act, more of the protection of community interests than individual
interests is evident despite the Bill of Rights. Although the Msekwa
commission submitted its report in 1977 with various recommendations
most of which were accepted and incorporated in the 1985 Criminal
Procedure Act, including the provisions relating to bail.

The commission had this. to say in the bail law….it is beyond

controversy that to deny bail to an accused person who is not yet
convicted of the offence with which he is charged is to deny that
individual his personal liberty. Consequently, a decision to deny bail

36
See section 123 of The Criminal Procedure Code Cap. 20 (which is no longer law). See
also Itemba J.M. The law relating to bail in Tanzania P.5
37
(1970) HCD 85
38
Cap. 20 RE 2002
should only be reached by a court after a most careful consideration of
the facts of the case guided by law.39 The law relating to bail in
Tanzania. Was substantially changed by the enactment of section 148
(4) and (5) of the Criminal Procedure Act. 40 Although it was enacted a
year after the inclusion of the Bill of rights in the constitution, yet this
section is a clear violation of Article 15 of the constitution which
provides for a right to personal freedom and Article 13 (6) (b) which
perfumes that an accused person in innocent until he is proved guilty.
It is a universally accepted constitutional principle that any Act passed
by parliament must be consistent with the constitution in both spirit and
letter. An act which does not pass such a test aught to be declared
unconstitutional.41 Under section 148 (4) and (5), bail is no longer a
right. Under subsection (4) of that section no person can be admitted to
bail if the Director of Public Prosecutions certifies in writing that it is
likely that the safety or interests of the Republic would there by be
prejudiced. Under section 148 (5) the court have been denied discretion
which they once enjoyed when considering bail applications.

39
The report of the Judicial system Review commission, Government printer 1974, P. 212
40
Cap. 20 RE 2002
41
See Nyalali CJ. In his public lecture on “The Bill of Right in Tanzania” delivered in the
5th September 1985 in the faculty of law University of Dar es salaam.
2.4 Conclusion

Much of this study is therefore concerned about the law of bail from pre
– colonial period to post – independence time. It has been seen that bail
can not be disclosed in isolation from other limitations and violations in
every particular time of history, bail took different nature in theory and
in practice with regard to the requirement of the ruling class at the
particular time and place.
 CHAPTER THREE
3. GRANTING OF BAIL IN PRIMARY COURTS: THE LAW AND
PRACTICE

3.1 Introduction

Primary courts have their own Criminal Procedure Code which is

different from the general law of bail. It is known as the Third
Schedule to the Magistrates’ Courts Act.1 and matters concerning bail
are to be found in part IV of that Schedule. This part of the Schedule
unlike the provisions in the Criminal Procedure Code is short as most
of the provisions regarding sureties discharge bail conditions and the like
are omitted.

3.2 Some salient features of provisions of the law on bail.

Remanding a man in custody necessary involves the curtailment of his

personal liberty. In a majority of cases, such a course is considered to
be undesirable, and so courts are empowered, not to set accused persons
free, but to give them temporary release from custody while at the same
time ensuring that the accused person in question will appear to take his
trial on the date to be fixed by the court. 2 As it had shown in the
beginning of this chapter, the provisions of the law governing bail in
primary courts are to be found in part IV of Third Schedule to the
Magistrates’ Courts Act. 3

The main salient features of these provisions of the law governing bail in
Primary courts includes, the granting of bail, forfeiture and to same
extent, bail pending appeal as discussed hare under:

1
Cap. 11 RE. 2002
2
Chipeta, B.D., A Magistrate’s Manual; T.M.P. Book Department, Tabora.
3
Ibid 41
(a) The granting of bail

A primary court has power and discretion to grant or not to grant bail to a
person brought before it pursuant to an arrest or when a person is
attending trial. As provided for in paragraph 14 of part IV of the Third
Schedule to the Magistrates’ Courts Act. In the latter case, the
provision makes it clear that, bail may be granted at any stage of the
trial.

This means that so long as the trial is going on, that is, before the
accused is finally convicted or acquitted he can apply to court for bail.
The power of primary courts to grant or not so grant bail is limited only
to those offences which primary courts have jurisdiction to try –
generally or specifically. Where, therefore, a person is charged in a
primary court with an offence over which the primary court has no
jurisdiction such court cannot entertain an application for bail.

The primary court magistrate may it necessary, remand the accused in

custody pending the transfer of the case but when he does so, it is not
as a result of having refused him bail but in the exercises of his power
as a justice of the peace. The expression “court” in section 8 (1) of
Magistrates’ Courts Act.4 definitely refers to the magistrate with the
effect that the magistrate is by law required to sit with assessors and
when they so sit then “the court” is properly constituted. The expression
“Court” here means the magistrate together with the assessors. It is
therefore, the magistrate and the assessors who grant bail in the primary
court and not the magistrate alone as is the case in higher courts. 5 It also
seems that the assessors will be involved in the fixing of the amount of
4
Section 8 of the magistrates Courts Act, Cap. 11 R. E. 2002
5
Itemba J.M., The Law Relating to Bail in Tanzania Dar es salaam University Press Dar
es salaam 1991
bail which as required by law, must be with regard to the
circumstances to the case and should not be excessive, see paragraph 16
(2) of the law supra.

b. Forfeiture

This is another salient feature of this law. The provisions regarding

forfeiture of bail in primary courts are to be found in paragraph 17 of,
part IV of the schedule. It is there in provided that, the court may
forfeit the bond or deposition of the accused or his surety is the
accused fails to appear in accordance with the bond. It further provides
that the order of forfeiture shall have the same effect as the order of the
court for the payment of the sum specified. In the same paragraph the
court is given power to order partial forfeiture, but the paragraph does
not specify the ways in which the order of forfeiture executed.

It is shown also that, before the court forfeits any body’s bond it must
give that person an opportunity to be head against such order. This
reflect a little observance of naturally justice by this law.

(c) Bail pending appeal

This is another feature, a primary court has power to grant bail to a

convict pending his appeal to the district court. 6 a primary court can
grant bail pending appeal on the same conditions as it would for a person
who applies for bail pending trial.7 It will be recalled that this is in
sharp contrast with bail principles in higher courts where bail after
conviction is governed by considerations different from those which
operate in bail pending trial. This means therefore that it is not open to
6
See Paragraph 14 of the Third Schedule
7
See Paragraph 18 of the Third Schedule
the court to demand that there should be exceptional circumstances or
that the appeal should have overwhelming chances of success as is
there in higher courts. Those are the main salient features of the law on
bail primary courts.

3.3 Application of the law in a theoretical and practical frame work.

As it is shown in the provision of paragraph 14 of the Third schedule,

court is seen to be given powers to grant bail to an accused person or to
remand him in custody.

From this provision it is taken as a practice that granting of bail is a

courts discretion. This means that bail can be granted (or denied) by the
magistrate; However, in doing so he has to be carefully by addressing his
mind to the question whether or not if he grant bail the accused will
appear to take his trial. In this delicate exercise the judicial officer is
duty bound to exercise his discretion judicially. He should not act with
bias against either the accused person or allow himself be influenced by
the contending parties. However in practice to act judicially especially
in primary courts is something difficult or not practiced at all.

The law also provides that the amount of the bail has to be fixed in
accordance of the circumstance of the case but shall not be excessive.
In practice the provision is applied both positively and negatively as
there are no provisions which specify in what circumstance, what is
excessive.

Also the law is talking only on circumstances of the case, but in practice
also geographical circumstances for example in villages and in towns
what amounts to excessive always is quiet different although in the same
circumstances of the case as the means of life differs much. In the same
provision that is paragraph 16 (1) of the Third Schedule the law
require that a person may be released on bail with or without sureties.
But the latter part is mainly impracticable. The practice has shown that
in very rare cases an accused can be released without surety and attend
before the court on the specified date. Obviously once the accused is
released without sureties he never turns to the court until other steps
have been taken to find him back. The law also makes it mandatory for
the primary court to give a surety an opportunity to be head before
executing forfeiture order. Sometime this also in impractical as some of
the sureties can not be found to defend the same. The above explanation
is therefore on the application of the law of bail in primary court in a
theoretical and practical frame work.

3.4 The general overview of the problem.

As the law of bail have been discussed above generally in chapter two
and specifically to primary courts in chapter three; the problem in this
work is restrictions and inadequacy of the legal provisions governing
bail in Tanzania which also provide loop-hole to those who are
responsible to provide bail to abuse it. After the enactment of the
criminal procedure Act 1985, which has been amended and Termed
Criminal Procedure Act.8 The courts have always declined to admit
accused persons on bail if they are charged with any it the offences
falling under section 148 (5) or it the DPP has filed on objection under
section 148 (4) of the criminal procedure Act.9 Other restrictions or
limitations on bail in the provisions above includes previous
convictions, monetary/pecuniary considerations which is practically

8
Cap. 20 RE 2002
9
Ibid
very expensive to be afforded by the accused person, accused own
safety and the lake.

Generally some of conditions which are imposed on the accused person

who is asking to be released on bail become difficult to be observed. As
provided for in section 148 (7) the law supra. It has to be noted that,
Judges and magistrates have often confused that their arms have been tied
up by the law, and there is nothing they can do about it.10

With regard to Primary courts. The provisions of the law governing bail
are different from the general law on bail. They are provided for in part
IV of the Third Schedule to the Magistrates Courts Act.11 This part of
the schedule on bail matters unlike the provisions of the Criminal
Procedure Act12 is very short, only sections 16 and 17 are providing for
bail matters, where as most of the provisions regarding sureties,
discharge bail conditions and the like are omitted. Only it is insisted that
those concerned with the granting of bail in primary courts have to
familiarize themselves with the general principles governing bail, despite
the fact that, there is for primary courts a specific code for criminal
procedure. This is because, the schedule and eve the criminal procedure
code itself are said to be but a summary of principles.

Despite this fact, the procedure in primary courts is different form that in
district court (see the Third Schedule to the Magistrates’ Courts Act).
Part IV of the schedule only concern itself summary with two aspects of

10
Bahroon, S. A., The Statutory Limitations of the Law of Bail in Tanzania, A March
Towards Totalitarianism: LLM Coursework Paper Faculty of Law, University of Dar es
salaam. 1991/92
11
Cap. 11 RE 2002
12
Cap. 20 RE 2002
bail namely the granting of bail and forfeiture and to same extent bail
pending appeal.

As this law which governs bail in lower courts is very short and
sometimes do not so fine the needs, it provides chances for accused to
be refused their right to bail in primary courts by one reason or another
including few people’s interests. It needs to be realized that excessive
bail amounts to no bail at all.

It has to be understood that the existing restrictions and inadequacies

create difficult circumstances in which the magistrates should act
judicially otherwise by using the same consideration either by the
influence of the prosecution or complainant if is lower courts or on his
own interests may act beastly which will be deferment to the accused
person who will be refused his right to bail. This is therefore the general
overview of the problem in this work.

3.5 Conclusion

The above discussion is on granting of bail I primary courts looking on

law and practice, and on the general overview of the problem which
shows on how the inadequacy and restrictions of the provisions of the
law governing bail in Tanzania and especially in primary courts limits or
deny accused persons their right to bail ought rightly. Among them
includes, pressuring severe and prohibitive bail conditions in terms of
cash and bond.

Yet another method used in additional there to is to prescribe further

severe and restrictive conditions such as restricting an accused person to
leave his local area of residence, village or town. And to restrict him not
to associate with certain people. Such is the restrictive nature of the law
as to bail.

To primary courts, the law is even more problematic as the provisions

regarding bail are very few and as the time and society changes the law
do not suffice the requirement in the society, also it provides a loop-
hole which led the accused to be refused their rights to bail
unnecessarily.
 CHAPTER FOUR

4. FINDINGS OF THE RESEARCH

4.1 Introduction

This study is an the law of bail generally as it is there always so let the
accused person be free for a while pending his trial as long as his guilty
has not yet been established beyond reasonable doubts. The law on bail
generally has undergone great changes in the period between 1983 and
1989 when the amendment was made on it1 the totality of them all is the
denial of bail to an accused person, despite guarantees in the constitution
as to one’s personal freedom and liberty. Here in above, this work
proved that, despite the fact that bail has been regarded as a right so an
accused person and not a privilege as it is provided for in the
provisions of matter law of the land that is the Constitution of the
united Republic of Tanzania.2 Still some of the provisions of the laws on
bail including the Criminal Procedure Act,3 the Criminal Procedure
Code which is found in The Third Schedule to the Magistrates Courts
Act4 and the like still provide restrictions and limitations on granting
bail to an accused person. For example as it has been stated that:..
subject to certain statutory restrictions all offences other than murder,
treason and armed robbery are generally bailable. See section 148 (5) (a)
of the Criminal Procedure Act.

4.2 The analysis

The general findings in this study is as it has shown in the introduction

above coming specifically on primary court referring Kisarawe as my

1
The amendment made by Act No. 10 of 1989 upon section 148 (4)
2
Cap. 2 RE 2002
3
Cap. 20 2002
4
Cap. 11 RE 2002
area of study, the condition is not good. Firstly the study has shown that
the magistrates in Primary courts almost do not work on the provisions
of the law, rather they used their experiences and desires to give out
orders.

They are not aware of either amendments or the constitutionality of the

provisions of the existing laws. They do not bother on the changes of the
society, what they had in mind thirty years ago is what they still put in
practice today.

This may be due to their law level of education. This has shown the
truth, when I examined those old magistrates with certificate in law
and those diploma in law Holder’s on how they see the efficiency and
adequacy of the provision on the law of bail in primary courts.

Those certificate holders with many working years funds no problem on

that law. On the other hand those diploma holders argue that, the
provisions of the law on bail matters in primary courts do not meet the
requirement as they are very short and do not cover much matters
compared to the general provisions on bail in criminal procedure Act;
Also they argue that even those provisions in primal procedure but in
reality do not suffice the need on granting of bail in its actual meaning
as it is provided for in the provisions of the constitution to be the right to
an accused person and not a privilege, therefore some amendments are
needed in both laws.
 FIGURE 1
NO HIS/HER STATION NO. OF LEVEL OF HIS/HER
WITHIN THE YEARS HE EDUCATION COMMENT ON
DISTRICT HAS BEEN THE LAW OF
IN WORK BAIL

1 URBAN KISARAWE 5 DIPLOMA IN IT NEEDS

PRIMARY COURT LAW SOME
AMENDIMENTS

2 CHOLE SAMVULA 27 CERTIFICATE THE LAW

PRIMARY COURT IN LAW SUFFICE THE
NEEDS

3 MZENGA PRIMARY 2 DIPLOMA IN THE LAW

COURT LAW NEEDS SOME
AMENDMENTS

4 SUNGWI PRIMARY 30 CERTIFICATE THE LAW

COURT IN LAW SUFFICE THE
NEEDS

5 MANEROMANGO 1 DIPLOMA IN THE LAW

PRIMARY COURT LAW NEEDS SOME
AMENDMENT

6 KISARAWE PRIMARY 15 DIPLOMA IN IT NEEDS

COURT LAW SOME
AMENDMENT

Fig. 1 is on the comment of the primary courts magistrates at Kisarawe

District on whether the law of bail office the needs or whether it needs
some changes.
Looking on the above figure 34% of the magistrates are on the view that
the law is ok. On the other hand 66% are on the view that the law needs
some changes. And if one looks on the given data in detail he will find
the different point of views may be the level of education as it has
shown that the certificate holders have different views from the diploma
holders as it has discussed before drawing this figure, which reflects the
actual findings of the study.

With regard to the members of the public that is the accused their
sureties and the complements themselves, more than 80% eighty percent
not understand whether bail is a right or privilege, what they understand
is that, one can be given bail on the wishes of the magistrates and not
otherwise. However, the remaining percentage which is less than twenty
percent are aware of their right to bail. This problem exists due to the
fact that mainly primary courts deals with lay persons in the village who
do not even have the idea of their rights or the existing law.

Therefore the circumstances and places of these primary courts also

contributes on the problem, and it is difficult even for these problems to
be exposed in other societies because almost every thing ends there no
appeal no complains on the magistrates decisions. However other
different writers gave their findings on bail matters as shown below;

Baxton D. Chipeta1 has found out in his work that, to some public
prosecutors magistrates grant or refuse to grant bail mechanically,
indiscriminately or with resigned in difference as to consequences. That
ought not to be the case, the decision whether or not to remand an
accused in custody is a very serious one because it involves the
personal liberty of a man who, for all that the court knows, may be
1
Chipeta B. D., The Public Prosecutor and the Law of Criminal Procedure, East African
Publications Limited Arusha, 1988
quite innocent. It therefore ought not to be made mechanically. A
person is deemed innocent until found guilty. So any decision to
curtail the freedom of a man either before or during his trial must only
be taken after due and careful consideration of all the circumstances of
the case and those of the accused.

The attitude of some public prosecutors in this matter is perhaps,

understandable. They happen to know something about the case and
some about the accused too. The magistrate on the other hand, knows
little or nothing more than what is contained in the charge sheet and
what the accused looks like.

Apart from human weaknesses, a province outside this book, it is true that
these attitudes are largely based on ignorance of the legal principles
which guide, or ought to guide magistrates and public prosecutors when
dealing with questions of bail.

He recommended that, the test for refusing or granting bail, it has been
held is; “whether the granting of are application will be detrimental to the
interests of justice and good order …. But such detriment must be
satisfactorily substantiated by solid reason and not based on vague, fears
or apprehensions or suspicions. And bail should no be lightly refused as
shown in Nassor’s case supra . He went on to say that; this principle
has been reiterated on a number of occasions but the real difficulty for
public prosecutors and magistrates is to determine what constitutes
“Detriment to justice and good order” and how such detriment must be
satisfactory substantiated”.
Mutunga, W.2 has shown that; in Kenya, the right to bail is a
constitutional right guaranteed under section 72 (5) of the constitution
and an accused upon being charged on court should apply to be
released on bail. However it has shown in this text that although the
right to bail is constitutional it is not an absolute right. This to has
shown in examples.

E.g. Under the provisions of section 71 of the Kenyan Armed forces Act,
it is given that a subordinate court before which an officer or serviceman
who has deserted or is absent without leave is brought cannot admit such
officer or serviceman to bail.

The same provisions apply if the magistrate has issued a warrant of arrest
so the officer or serviceman who is reasonably suspected of being a
deserter or absent without leave. A deserter or absentee who surrenders
to the police and is arrested and brought to a subordinate court also
cannot be admitted to bail. The subordinate court can remand them
straight into custody.

But bail is available for the other offences. However the prosecution
can oppose the application for it on the common grounds given like
this; the accused is likely to abscond if bail is granted and the like,
which all curtails an accused’s right to bail as given by the constitution
supra given by the it is important also to note that, in Kenyan law it is
given that, in certain cases, there may well exist exceptional or special
circumstances personal to the applicant which, when weighted against
the risk of the applicant absconding if released on bail, tilt the balance
in favour of granting bail. The exceptional circumstances will cover
applicants for bail who are women with children at home, or very sick
2
Mutunga W, The Rights Of an Arrested and an Accused Person “Oxford University
Press 1990, Nairobi
people, etc. To same extent this shows that the Kenyan law on bail
matter has gone step forward than Tanzanian law, because in Tanzania
law this exceptional circumstance is not stated clearly by the provisions
of the law as shown in Kenyan law supra.

Hampton, C.3 has shown that, in English law, under the Bail Act, 1976,
the law is enacted on the “presumption” in favour of bail in order to
made courts more ready to grant it. This is supported by the important
requirement that reasons must be given when refusing or limiting bail.

In this law, generally any person who is accused of an offence is entitled

to be released on bail when he appears before the magistrates court or
the crown court or when he applies to court for bail.

However the law went on to provide that. A person who is accused of on

offence which is punishable with imprisonment may be refused bail if
the court is satisfied that

 He would fail to surrender to custody

 He would commit an offence while on bail
 He should be kept in custody for has own protection/if a child
welfare.
 He would interfere with witnesses or otherwise obstruct the course
of justice in relation to himself or some oneself. Also if the
defendant has been convicted and is remanded for inquiries or
reports the court may refuse bail or the additional ground that:

- If it appears to be impracticable to complete the inquiries or

make the report without keeping the defendant in custody.

3
Hampton C, Criminal Procedure; Sweet and Maxwell 3rd Ed 1982 London
The law went on to provide that if the court is considering refusing bail
on grounds above, it must consider any relevant matter especially;

 The nature and seriousness of the offence

 The defendant’s character, antecedents, associations and
community ties.
 The defendant’s records of fulfillment of his obligations under
previous grants of bail

And the court must be “satisfied that there are substantial grounds for
believing that” the accused would fail to surrender to custody and the
like.

If the defendant’s is accused a convicted of on offence which is not

punishable with imprisonment, bail may only be refused if;

 It appears that, he has previous failed to surrender to custody

when granted bail and in view of that failure , the court is
satisfied that, it is probable he will fail to surrender to custody is
granted bail on the present occasion.
 He should be kept in custody for his own protection (or welfare, if
he is a child or young person).

It has to be noted that; if a magistrate refuses to grant or delays in

granting bail when it ought to be granted, he may be guilty of a common
law offence. See R. v. Badger4

4
(1843) 4 QB 468 at p. 472
 If the refusal or delay is malicious and without reasonable and
probable cause he may be liable in a civil action for damages, see
Justices of the Pease Act 1979

To have the decision put right, the proper course is to apply for bail to a
high court Judge. Therefore by looking on this English law, the right to
bail to an accused person is protected and is clearly stated compared to
Tanzanian or Kenya law as shown on the explanation above, for example
as shown that refusing or delaying to grant bail when it out to be granted
is common law offence.

4.3 Conclusion

The above discussion has unveiled on the findings of the study on the law
of bail in general and specifically on primary courts, on whether the law
suffices the needs or it needs same amendments. It has been shown that,
more than 60% suggestion changes while, less than 40% see no
problem of the law as it has shown in the discussion and in the figure 1
above.
 CHAPTER FIVE

5. Conclusions and Recommendations

5.1 Introduction

This paper discussed the question of the law of bail and its applicability
in primary courts in Tanzania. It shows how the provisions of the law
limits the accused right to bail also the courts itself especially lower
court’s adjudicators (magistrates) curtail the accused is right to bail . It
argued that generally the law as stated under the provisions of section 148
of the Criminal Procedure Act 1 is repressive. Also the provisions of the
law which govern bail matters in primary courts as found in part IV of the
Third schedule to the Magistrates’ Courts Act 2
are not adequate and
therefore do not meet the requirement which also limits the accused right
so bail, this also provide a loop-hole to those who are responsible to
provide bail to be bias.

5.2 Conclusion

The concept of bail in this work has been dealt with generally in the
provisions of the Criminal Procedure Act.3 And specifically in the
provisions of part IV of the Third Schedule to the Magistrates Court
Act, which govern bail matters in primary courts, and shows on how
they restricts and limits the accused right to bail. Also these provision
which covers bail matters in primary courts, covers only few matters on
bail mainly it talks on granting bail, as provided for in section 16 of part
IV to the Third Schedule, forfeiture, as provided for in section 17 of the
same law. And in short it talks on bail pending appeal in primary courts

1
Cap. 20 RE 2002
2
Cap. 11 RE 2002
3
Cap. 20 2002
in which the same provisions above are applied as provided for in section
18.

The right to bail in Tanzania is seen to be restricted in two sides; the

provisions of the laws itself are oppressive and inadequate which limits
the right to bail to accused person.

On the other hand the inadequacy of these laws provide or chance of bias
to the magistrates and mainly this is done in lower courts as the law is
short and do not cover the needs.

5.3 Recommendation

This paper has argued that bail is a constitutional right in our country.
This is because the right to liberty and security of a person, and the
presumption of innocence are provided under our constitution.

Therefore all laws which are inconsistent with the constitution on matters
relating to the Bills of rights are to be abolished, thus the provisions of
section 148 of the Criminal Procedure Act are to be abolished as they are
inconsistence with the provisions of the constitution on matters relating to
the bills of rights.

Further more, the provisions of the laws relating to bail in primary courts
are to be amended and to be enacted in such a way that they meet the
requirements. Also the judiciary has to put much consideration on
education of the law adjudicator (magistrates) in primary courts that at
least to be on Diploma level. Also to conduct short courses as much as
they can so that, they will be aware of amendments of the laws, and
changes in the society generally. In doing so justice will not only said to
be done but will seen to be done.
 BIBLIOGRAPHY

(a) Books

Chipeta, B.D A Magistrate’s Manual, TMP Book Department,

Tabora

Corren, N Bail in Criminal Proceedings, Fourmat, London,

1990

Hampton, C Criminal Procedure, Sweet and Maxwell, London

1982

Itemba, J.M The Law Relating to Bail in Tanzania, Dar es

Salaam University Press, Dar es salaam, 1991.

Mchome, S.E Criminal Law and Procedure, 1st Ed, Faculty of

Law, Open University of Tanzania, 1995

Mutunga, W The Right of an Arrested and an Accused Person,

Oxford University Press, Nairobi 1990

Peter, C.M Human Rights in Tanzania: Some Selected Cases

and Materials, Koppe Verlag, Koeln, 1997.

Peter, H.W Criminal Litigation and Sentencing Inns Court

School of Law, London, 1994.

Shivji, IG State Coercion and Freedom in Tanzania, Institute

of Southern African Studies, National University of
Lesotho,

1990.
Soonavala, R.K A Treatise on the Law of Bails, Tripath Hd,
Bombay, 1968

Street, H Freedom, The individual and the Law, 5th Ed,

Penguin Books Ltd, London, 1982.

(b) Journals and Reviews

Bomani, M. The Machinery of Justice, East Africa Law Journal,

16 May, 1996, pp 38 -47

Brink, B and Stone, C., Defendants who do not ask for bail Sweat and
Maxwell, March (1988)

Devlin, L., Judges and Law Makers Modern Law Review (1976)

Quasem, A.M., Bail and Personal Liberty 30 Canadian Bar Review

(1952) P.378.

Quigley, J. Cases on Preventive Detention East African Law Review,

Vol.11 – 14. (1978 – 1981).

(c) Dissertation /Thesis

Bahroon Said A, The Statutory Limitations of the Law Bail in

Tanzania, A March Towards Totalitarianism: LLM
Coursework Paper Faculty of Law, University of Dar es salaam.
1991/92

Kalemani Medad M.C, The Law and Practice of Bail in Tanzania

Mainland, LLB Coursework Paper Faculty of Law, University
of Dar es salaam, 1996
Mtana I.G, Bail Law and Practice in Tanzania, LLM Coursework
Paper, Faculty of Law, University of Dar es salaam, 1988/89

Sanze, JW, Individual Liberty, The Law of Bail and Court Discretion
in Tanzania, LLM Coursework paper, Faculty of Law,
University of Dar es salaam. 1991/92
QUESTIONNAIRE FOR COURT USERS MEMBERS OF PUBLIC

The information sought is just for academic purposes and will handled
without disclosing the name of the correspondent. It will enable the
researcher to write and submit a compulsory research paper in partial
fulfillment of the requirements for a degree of Bachelor of Laws (LLB) of
the Open University of Tanzania. A researcher is a student at the faculty
of law in Open University of Tanzania. Please feel free to use a separate
sheet in case the space provided is not enough.

Part I

Name (Optional)…………………………………………………………

Designation (Title)…………………………………………………………

Part II

1. What is bail?

…………………………………………………………………………

…………………………………………………………………………

2. Is bail a right or privilege to an accused person?

…………………………………………………………………………

…………………………………………………………………………

3. Do you ever have any criminal case in which you applied for bail?

…………………………………………………………………………

…………………………………………………………………………
4. Did you face any problem in getting bail once you have made your
application?

(a) Yes

(b) No

If the answer is yes give reasons briefly

5. Once refused bail does the court give you satisfactory reasons for
reasons for refusing it?

………………………………………………………………………

…………………………………………………………………………

6. Do you have any comments/suggestions on the difficulties you get

if any when you are applying for bail in Primary courts?

…………………………………………………………………………

…………………………………………………………………………
 QUESTIONNAIRE FOR MAGISTRATES

The information sought is just for academic purpose and will be handled
without disclosing the name of the correspondent. It will enable the
researcher to write and submit a compulsory research paper in partial
fulfillment of the requirement for the Degree of Bachelor of Laws (LLB)
of the Open University of Tanzania. Researcher is a student at the Faculty
of Law in the Open University of Tanzania. Please feel free to use a
separate sheet incase a space provided is not enough.

Part I

Name (Optional)…………………………………………………

Designation (Title)………………………………………………

Part II

1. For how long have you worked as a magistrate of the primary court?

……………………………………………………………………..

……………………………………………………………………..

2. For how long have been you in Kisarawe District?

…………………………………………………………………….

…………………………………………………………………….
3. Does the law of bail generally and particularly that of primary court
suffice the needs

……………………………………………………………………………
……………………………………………………………………………

(a) Yes

(b) No

If the answer in question 3 is No give reasons briefly

4. Do you face any problem in practice on bail matters?

(a) Yes

(b) No

If yes what are those problems in short?

5. Do you have any case pending in court which has difficulties in bail?

(a) Yes

(b) No

If yes how do you solve them?

6. What has been the attitude/reaction of the accused when refused bail in
one reason or another as stated by the law?

……………………………………………………………………………

……………………………………………………………………………
7. What is your assessment of the performance of this law of bail in the
present time?

……………………………………………………………………………

……………………………………………………………………………

8. What are your views generally toward the problems you face in
practice on the law governing bail in Tanzania especially in primary
courts?

……………………………………………………………………………

……………………………………………………………………………

9. Do you have any comments/suggestion concerning the solution on the

problems you face as stated above?

……………………………………………………………………………

……………………………………………………………………………