THE Court of Appeal has dismissed the appeal by suspected drug dealer, Joseph Gwaza, who was challenging the High Court’s refusal to grant him bail pending his economic trial involving trafficking in 536.7 grammes of cocaine, which are narcotic drugs.
Justices Augustine Mwarija, Barke Sahel and Patricia Fikirini ruled against Gwaza, the appellant, after holding, “We are certain that this appeal has been brought without sufficient reasons.
It is thus hereby dismissed.” During hearing of the appeal, the appellant had contended that his application ought to have been granted because he moved the High Court under section 148 (1) and (3) of the Criminal Procedure Act (CPA), which empowered the court to grant him bail pending his trial.
In the judgment, however, the justices agreed with the prosecution that the appellant’s contention was based on misconception because although it is true that the said provisions give the right of bail, granting of that right is subject to the provisions of sub-section (5) (a) (i) – (iii) of that section.
“Since therefore, the offence which the appellant stands charged falls under items (ii) and (iii) of section 148 (5) (a) of the CPA, the High Court Judge rightly refused the appellant’s application for bail because, by virtue of the stated provisions of section 148 (5) of the CPA, the offence is not bailable,” they said.
According to them, the High Court Judge could not have ignored those provisions merely because the applicant had cited section 148 (1) and (3) of the CPA as an enabling provisions for his application.
They stressed that it was a trite principle in construing a section of law, the statute must be read as a whole. The appellant had also complained that by refusing to grant him bail, the High Court Judge breached articles 13 (6), 107 A (1) and 107 B of the Constitution. In their decision, however, the justices held that as observed by the High Court, the application was determined on the basis of what is provided by section 148 (5) (a) (i) and (iii) of the CPA.
“In our considered view, by resorting to the articles of the Constitution, the appellant was in effect, challenging the constitutionality of those provisions of the CPA. That was not, however, an appropriate forum for that purpose because the High Court was not hearing any petition to that effect,” they said.
The appellant was charged at Kisutu Resident Magistrate’s Court in Dar es Salaam with the offence of trafficking in narcotic drugs contrary to section 16 (1) (b) (i) of the Drugs and Prevention of Illicit Traffic in Drugs Act.
It was alleged that on September 14, 2009 at Mwalimu Julius Nyerere International Airport within Ilala District in Dar es Salaam City, the appellant was found trafficking 536.7 grams of cocaine valued at 13,419,000/-.
He was later on May 6, 2015 committed for trial by the High Court. Because of the nature of the offence and the section of the law under which the appellant was charged, he could not be released on bail.
He had all along been remanded in custody pending his trial. Dissatisfied with his continued stay in prison, on December 10, 2018, the appellant filed an application in the High Court seeking to be granted bail pending his trial. He moved the High Court by way of a chamber summons under section 148 (1) and (3) of the CPA.
Source link : https://allafrica.com/stories/202110040077.html
Author : Daily News
Publish date : 2021-10-04 06:23:02