IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MBEYA DISTRICT REGISTRY

AT MBEYA

CRIMINAL APPEAL NO. 156 OF 2020

(Arising from Criminal Case No.132 of 2020 in the Court of the
Resident Magistrate of Mbeya)
1. AMANI S. SHAVUNZA
2. ABRAHAM W. SIWAKWI .................. APPELLANTS
3. ANDINDILILE LUSEKELO
4. ALEXNKWANDE
VERSUS
1. LAMSON SIKAZWE
2. ANDONDILE MWAKANYAMALE
3. ISAACK MPAGAMA
4. NSANGARUFU SHABANI ... RESPONDENTS
5. AMBINDWILE KAMAGE
6. FRANSIS MWAKAJONGA
7. JACKSON MICHAEL BUYANGE
8. THE DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

This is an appeal against the ruling of the trial magistrate (Hon. Zawadi
Laizer-SRM) in Criminal Case No. 132 of 2020 in the Court of the Resident
Magistrate of Mbeya.

I find it apposite to give a background leading to this appeal albeit, briefly

before delving in to the grounds of appeal.

The appellants namely, AMANI S. SHAVUNZA, ABRAHAM W. SIWAKWI,

ANDINDILILE LUSEKELO and ALEX NKWANDE instituted, in the Court

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of the Resident Magistrate of Mbeya, Miscellaneous Criminal Application
No. 12 of 2019 against the respondents namely, LAMSON SIKAZWE,
ANDONDILE MWAKANYAMALE, ISAACK MPAGAMA, NSANGARUFU
SHABANI, AMBINDWILE KAMAGE, FRANSIS MWAKAJONGA and
JACKSON MICHAEL BUYANGE. In the said application, they sought for
and were granted leave by the court (HON. MSAFIRI RM) under section
99(1) and (3) of the Criminal Procedure Act [Cap. 20 R.E. 2019] to privately
prosecute the respondents.

Having obtained leave for private prosecutions, the appellants, instituted in

the Court of the Resident Magistrate of Mbeya, Criminal Case No. 132 of
2020. They filed a charge containing ten (10) counts of Conspiracy to
Commit an offence contrary to section 384 of the Penal Code, Giving False
Information to the officer employed in the public service contrary to section
122 of the Penal Code, False Swearing contrary to section 107 of the Penal
Code, Theft contrary to sections 258(1) and (2) and 265 of the Penal Code
and Conversion contrary to sections 258(1) and (2)(a) and 265 of the Penal
Code.

Hardly had the respondents been arraigned in court when the Director of
Public Prosecutions entered a Nolle Prosequi informing the Court that he
was no longer interested to prosecute the accused persons herein in this
appeal the respondents. The Nolle Prosequi purports to have been signed
by BASILIUS NAMKAMBE (SSA) on the 18th day of June, 2020 and was
duly filed in court on the same date.

Following the filing of a Nolle Prosequi, Mr. Francis Stolla, on behalf of the
appellants, raised a legal issue to the effect that discontinuation of private
criminal proceedings by the DPP infringed or contravened the basic and
constitutional right of the appellants to have their matter prosecuted. He

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implored the trial Resident Magistrate’s Court to find that there is a
constitutional issue involved and therefore refer the matter to the High
Court in terms of Rule 10 (1) and (2) of the Basic Rights and Duties
Enforcement (Practice and Procedure) Rules 2014.

The submissions and prayers by Mr. Francis Stolla, learned advocate, on

behalf of the appellants were strenuously resisted by Basilius Namkambe
SA, on behalf of the Republic. Mr. Namkambe’s thrust of his argument was
that there was no constitutional issue as the DPP’s powers to enter nolle
prosequi were derived from the Constitution and the enactments made by
the Parliament.

In the end, the trial Senior Resident Magistrate (Hon. Zawadi Laizer SRM),
in her ruling dated 09/09/2020, held that the power to enter nolle prosequi
was not in conflict with the right to private prosecution under the
Constitution and for that reason the prayer to withdraw the case was
granted and the same was marked withdrawn. In other words, the trial
magistrate did not see any contravention of the basic rights as contended
by the appellants. The appellants were thus not amused by the ruling of the
trial court.

It is against this backdrop, the appellants have come to this Court to assail
the ruling and order made by the trial court. They filed a petition of appeal
containing eight grounds as follows;

1. That the learned trial Senior Resident Magistrate erred in law and
facts for failure to hold that there is a constitutional issue whereby the
general powers of Director of Public Prosecutions including the
powers to enter a nolle proseque (sic) are not absolute as they are
subjected to limitations which are public interest, justice

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 administration, prevention of abuse of legal procedures and avoiding
to break the constitutional safeguard that the private prosecutors
have.
2. That the learned trial Senior Resident Magistrate erred in law and
facts for failure to hold that there is a constitutional issue whereby the
powers of the Director of Public Prosecutions to enter nolle proseque
(sic) in a privately instituted criminal case are not provided for under
the Constitution of the United Republic of Tanzania of 1977 as
amended.
3. That the learned trial Senior Resident Magistrate erred in law and
facts for failure to hold that there is a constitutional issue whereby the
provisions of section 98 of the Criminal Procedure Act [Cap. 20 R.E.
2019] and section 9(1 )(d) of the National Prosecutions Service Act,
2008 conflict with the provisions of article 26(2) of the Constitution of
the United Republic of Tanzania of 1977, as amended, read together
with the provisions of section 99(1) and (3) of the Criminal Procedure
Act [Cap. 20. R.E. 2019]
4. That the learned trial Senior Resident Magistrate erred in law and
facts for failure to hold that there is a constitutional issue whereby the
provisions of section 98 of the Criminal Procedure Act [Cap. 20 R.E.
2019] and section 9(1 )(d) of the National Prosecutions Service Act,
2008 are in conflict with the valuable constitutional safeguard, that is,
an individual’s right to private prosecution.
5. That the learned trial Senior Resident Magistrate erred in law and
facts for failure to see and hold that there is a constitutional issue
whereby the provisions of section 98 of the Criminal Procedure Act
[Cap. 20 R.E. 2019] and section 9(1 )(d) of the National Prosecutions
Service Act, 2008 offend the principal(sic) of independence of the

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 judiciary under article 4(2) of the Constitution of the United Republic
of Tanzania of 1977, as amended when it comes to the power of the
court and the purpose thereto to give permission to mount private
prosecution.
6. That the learned Senior Resident Magistrate erred in law and fact for
the failure to see and hold that there is a constitutional issue whereby
the provisions of section 9(1 )(d) of the National Prosecutions Service
Act, 2008 providing the powers to enter nolle proseque (sic) to a
privately instituted criminal case offend the Appellants’ constitutional
right to be heard and accessing justice under the provisions of article
13(6)(a) of the Constitution of the United Republic of Tanzania 1977.
7. That the learned trial Senior Resident Magistrate erred in law and fact
to hold that it was wrong to raise the constitutional issues in the trial
subordinate Court and that the said issues ought to have been
channeled to the High Court.
8. That the trial Senior Resident Magistrate erred in law and fact to hold
that it was wrong to raise the constitutional issues in the trial
subordinate Court and that the said issues ought to have been
channeled to the High Court

When the matter came before me for hearing, the appellants were
represented by Mr. Francis Stolla, learned advocate, on the one side. On
the other side, the 1st to 7th respondents had the services of Juliana
Marunda assisted by Jalia Hussein whereas the 8th respondent DPP
enjoyed representation of Zena James, learned state attorney.

At the very outset, Mr. Stolla prayed and was allowed to drop the 8th ground
of appeal on the reason that it was a repetition of the 7th ground. Therefore
Mr. Stolla submitted on the remaining seven grounds of appeal seriatim.

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Submitting in support of the 1st ground of appeal, the appellants’ counsel
said that trial magistrate erred in law when she failed to hold that the DPP’s
powers are not absolute. He said that there are four limitations, three of
which are clearly spelt out under Article 59B of the Constitution namely,
public interest, justice administration and prevention of abuse of legal
procedures. He continued to submit that the fourth limitation has been laid
down by the Court of Appeal of Tanzania in the case of Edmund Mjengwa
and six others vs John Mgaya and four others [2004] TLR 200. Mr.
Stolla told the Court that in this case, the Court of Appeal held that the
individuals’ rights to prosecute remains a valuable constitutional safeguard
against inertia or partiality on the part of authority.

It was therefore his submission that since the Court of Appeal of Tanzania
announced that private prosecution is a constitutional right, it thus forms
part of the four limitation to the DPP’s powers. As such, he was opined that
the DPP must also respect the private prosecution. He insisted that the
DPP should not, in any way, interfere private prosecution. Mr. Stolla
concluded that the failure by the magistrate to appreciate that there was a
constitutional issue resulted into a wrong decision which stands impugned.

In respect of the 2nd ground of appeal, the appellants’ counsel submitted

that the trial magistrate erred in law when she directed herself to the
legality instead of constitutionality of the DPP’s acts. Mr. Stolla referred to
page 6 of the ruling where the trial Court said that the DPP is acting under
the ambit of the law. The counsel contended that the DPP did not act
outside the ambit of law rather their complaint was that what the DPP did
was unconstitutional as it violated the basic right of the appellants. He
therefore faulted the trial magistrate for her failure to appreciate the

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existence of a constitutional issue as raised by the appellants’ counsel,
argue

The appellants’ counsel combined the 3rd and 4th grounds and argued
conjointly. He averred that the trial magistrate erred when she held that
section 98 of the Criminal Procedure Act, section 9(1 )(d) of the National
Prosecutions Service Act were not in conflict with article 26(2) of the
Constitution. It was his submission that the trial magistrate ought to see the
constitutional violation and thereafter refer the matter to the High Court as
per the provisions of Rule 10(1 )(b) of the Basic Rights and Duties (Practice
and Procedure) Rules of 2014.

Regarding the 5th ground of appeal, it was the counsel’s argument that the
trial magistrate erred in law when she failed to see a constitutional issue
worth of determination by the High Court. He said that sections 98 of the
Criminal Procedure Act and 9(1 )(d) of the National Prosecutions Service
Act offend the principle of judicial independence under article 4(2) of the
Constitution. He again reasoned that the magistrate ought to have seen
this issue and refer it to the High Court. Mr. Stolla referred to the case of
Anjelina Ojare vs DPP [TLR] 1999 and told the Court that it was held by
the Court of Appeal that the magistrate ought to have referred the matter to
the High Court after the constitutional issue was raised in the course of
proceedings.

With respect to the 6th ground, the appellants’ counsel was opined that the
DPP’s act of entering a nolle prosequi in private prosecutions denied the
appellants right to be heard which is provided under article 13(6)(a) of the
Constitution. He submitted that it was incumbent upon the magistrate to
find it a constitutional issue.

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As to the 7th ground, Mr. Stella assaulted the finding of the trial magistrate
at page 6 where she held that the advocate ought to institute a
constitutional case instead of raising a constitutional issue in a criminal
case. He submitted that the holding was erroneous for the appellants were
mandated under section 9(1) of Basic Rights and Duties Enforcement Act
and Rule 10(1 )(b) of the Rules to raise the constitutional issue.

The appellants’ counsel prayed the Court to allow the appeal and quash
the ruling of the trial magistrate. He further beseeched the Court to remit
the case file to the trial court with directions to refer the matter to the High
Court as per the law.

In contrast, the learned state attorney Zena James opposed the appeal.
She preferred to argue the appeal generally instead of responding to each
and every ground of appeal separately.

Ms. James submitted that the trial Magistrate was right to arrive at that
decision after she satisfied herself that there was no constitutional issue.
According to Zena James, there was no constitutional issue involved owing
to the following reasons;

First, Zena James conceded that the DPP’s powers have limitations under
article 59B (4). She, however, hastily submitted that in entering nolle
prosequi, the DPP observed the guidelines or limitations. The learned state
attorney distinguished the case of EDMUND MJENDWA (supra) on the
grounds that it was about right to private prosecution but did not provide the
fourth limitation as wrongly put by the appellants’ counsel. She argued that
there was no constitutional issue because the DPP was exercising his
powers which are also constitutional. The state attorney concluded that
there is no conflict between section 91(1) and 98 of the Criminal Procedure

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Act, section 9(1 )(d) of the National Prosecutions Service Act and article
26(2) of the Constitution.

The learned state attorney continued to submit that the DPP did not enter
nolle prosequi simply because it was a private prosecution rather, he was
discharging his ordinary duties. With respect to the case of ANJELINA
OJARE vs DPP (supra) in particular at page 163, Ms. James said that the
appellants’ counsel misapprehended the facts of the case as such, the
case is irrelevant to the instant matter.

In view of the above, she concluded that the decision of trial court was
right. She thus, prayed the Court to dismiss the appeal.

Juliana Malunda for the 1st to 7th respondents, on her side, had no much to
submit. She entirely concurred with the submissions made by Zena James
for the 8th respondent. Juliana submitted that by entering a nolle prosequi
there was no a constitutional issue raised. She said that article 59B of the
Constitution empowers the DPP to exercise his powers. Juliana referred to
article 59B (5) and submitted that it allows the DPP to exercise his powers
in accordance with the laws enacted by Parliament. Thus, according to
Juliana, the DPP was acting according to the law and Constitution. Like the
state attorney, Juliana concluded that there is no any constitutional issue
involved. She consequently prayed the Court to dismiss the appeal and
uphold the decision of the trial court.

Rejoining to the respondents’ arguments, Mr. Francis Stolla submitted that

it is the Constitution which gave the parliament powers to enact laws. He
maintained that article 26(2) of the Constitution was infringed in that the
appellants were granted leave to institute private prosecutions but their
right to prosecute was curtailed by DPP’s act of entering nolle prosequi. He

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was therefore of the views that it is immaterial to say that there was no law
which was being protected because it is the Penal Code which the
appellants sought to protect.

I have keenly gone through the rival submissions by counsels of both sides.
I also had an occasion to navigate through the record of appeal. It is
undisputed that while private prosecutions via criminal case No. 132 of 2020
were pending in the Court of the Resident Magistrate of Mbeya, the 8th
respondent entered a nolle prosequi. The record tells it well that the nolle
prosequi was prepared and filed in court, in terms of section 91(1) of the
Criminal Procedure Act, on 18th June, 2020.

The thrust of the appellants’ argument is that the act of the DPP to enter
nolle prosequi in a criminal case under private prosecution violated the
appellants’ constitutional rights as such, the trial magistrate ought to find it
as a constitutional issue henceforth refer matter to the High Court in terms
of section 9(1) of Basic Rights and Duties Enforcement Act and Rule 10 (1)
and (2) of the Basic Rights and Duties Enforcement (Practice and
Procedure) Rules 2014. The appellants’ counsel therefore is opined that
the trial magistrate erred in law and fact by her failure to find a
constitutional issue in the circumstances of the case.

Upon canvassing the grounds of appeal along with the submissions by the
counsels, the pivotal issue for determination of this appeal is one to wit;
whether the trial magistrate erred in law and fact by not finding a
constitutional issue after the DPP had entered nolle prosequi thereby
declining to refer to matter to the High Court under section 9(1) of Basic
Rights and Duties Enforcement Act and Rule 10 (1) and (2) of the Basic
Rights and Duties Enforcement (Practice and Procedure) Rules 2014

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For sake of determining this appeal, it is important to revisit the provisions
on which the appellants’ counsel predicate his contention that the trial
magistrate was bound to refer the matter to the High Court.

Section 9 of the Basic Rights and Duties Enforcement Act provides as

follows
9.-(1) Where in any proceedings in a subordinate court
any question arises as to the contravention of any of the
provisions of Articles 12 to 29 of the Constitution, the
presiding magistrate shall, unless the parties to the
proceedings agree to the contrary or the magistrate is of the
opinion that the raising of the question is merely frivolous
or vexatious, refer the question to the High Court for
decision; save that if the question arises before a primary
court the magistrate shall refer the question to the court of
a resident magistrate which shall determine whether or not
there exists a matter for reference to the High Court.

Further Rule 10(1) and (2) of the of the Basic Rights and Duties
Enforcement (Practice and Procedure) Rules 2014 is to the following effect;
10.-(1) Where a question in respect of the
contravention of any basic right arises in any proceeding
before a subordinate court, the presiding Magistrate shall-
(a) in case of a Primary Court, within fourteen days
from the date when the question arose, prepare a
statement containing facts, the question raised,
and his opinion in respect of the question and
refer such statement to the Court of a Resident
Magistrate or a District Court;

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(b) in case of a District Court or a Court of Resident
Magistrate, within fourteen days from the date
when the question arose, prepare a statement
containing facts, the question raised, and his
opinion in respect of the question and refer such
statement to the High Court.
(2) The Court of Resident Magistrate or a District
Court shall, within fourteen days from the date of receiving
the statement referred to it under paragraph (a) of sub rule
(1), determinate the matter and may refer the matter to the
High Court if it deems appropriate.

From the foregoing provisions, it is common cause that a reference may be

made where a question in respect of contravention of basic rights is raised
in the proceedings before a subordinate court. The question for
consideration is whether, in law, there were any proceedings before the
Court of the Resident Magistrate when the appellants’ counsel, Mr. Francis
Stolla raised an issue in respect of contravention of the basic rights.

As indicated above the Director of Public Prosecutions entered nolle

prosequi under section 91(1) of the Criminal Procedure Act. The said
provision provides as follows;

91.-(1) In any criminal case and at any stage thereof

before verdict or judgment, as the case may be, the Director
of Public Prosecutions may enter a nolle prosequi, either by
stating in court or by informing the court concerned in
writing on behalf of the Republic that the proceedings shall
not continue; and thereupon the accused shall at once be
discharged in respect of the charge for which the nolle

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prosequi is entered, and if he has been committed to prison
shall be released, or if on bail his recognisances shall be
discharged; but such discharge of an accused person shall
not operate as a bar to any subsequent proceedings against
him on account of the same facts.

The above cited section under which the DPP entered nolle prosequi is
clear that once the DPP has entered nolle prosequi the proceedings are
terminated. The proceedings under section 91(1) of the CPA are
terminated by the DPP without leave of the Court upon filing nolle prosequi
or informing the court orally. Section 91(1) is different from section 98 of the
CPA where the Republic has to seek and obtain the leave of the court
before withdrawing the case. See the case of Republic Vs Onall Gulam
@Abbas Hassan & 3 others, Misc. Criminal Revision No. 3 of 2009
High Court of Tanzania at Tanga.

In view of the above, it is my considered observations that from the

moment nolle prosequi was filed in court, in law, there was no longer
existence of Criminal Case No. 132 of 2020 before the Court of Resident
Magistrate of Mbeya. As such, there were no longer proceedings before a
subordinate to be referred to the High Court in terms of section 9(1) of
Basic Rights and Duties Enforcement Act and Rule 10 (1) and (2) of the
Basic Rights and Duties Enforcement (Practice and Procedure) Rules
2014.Thus, if the appellants were determined to challenge nolle prosequi
entered by DPP, they had to pursue it through other available means but
not by way of reference under section 9(1) of Basic Rights and Duties
Enforcement Act and Rule 10 (1) and (2) of the Basic Rights and Duties
Enforcement (Practice and Procedure) Rules 2014. This is because the

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above cited provisions apply where they are pending proceedings in the
subordinate court.

In the final analysis, I find this appeal devoid of merits on the ground that
after entering nolle prosequi there were no proceedings in court which the
trial court could refer to the High Court. Consequently, I dismiss the appeal.

It is so ordered

The right of appeal is explained

A.A. Mbagwa
Judge
19/11/2021

Judgment has been delivered in the presence of 1st and 4th appellants, on
the one side and Rosemary Mgenyi, learned State Attorney for the 8th
respondent, Jalia Hussein, learned advocate for the 1st to 7th respondents
and 1st, 2nd 4th 5th and 7th respondents, on the other side this 19th day of
November, 2021

A.A. Mbagwa
Judge
19/11/2021

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