Dar es Salaam: DPP’s powers opposed in court

Written by FAUSTINA KAPAMA.

THE constitutional case that challenges the powers of the Director of Public Prosecutions (DPP) to drop cases by entering “nolle prosequi” at any stage of proceedings is at stake following the High Court’s failure to deliver the judgment almost six years now.

Court records show that three petitioners, including the outspoken politician, Rev. Christopher Mtikila, Douglas Salu and Anna Nkumbwa, lodged their case before the High Court in Dar es Salaam, Main Registry, in 2006 and the Attorney General filed his reply in February 2007.

The records further show that the parties were directed to dispose of the matter by addressing the court composed of Judges Amir Manento, William Mandia and Geofrey Shaidi by way of written submissions. The parties complied with the schedule and completed the fillings by August 11, 2007.

“Since then, the court has not provided its judgment,” advocate for the petitioners, Audax Vedasto, told the ‘Daily News’ over the weekend. He added, “We have reminded the court by writing to the Registrar several times of the possible early date for delivery of the judgment, but we have received nothing.”

In one of the reminder letters dated March 15, 2013, sent to the High Court’s Registrar, the advocate said, “We are writing to you again to remind you of the same thing, now almost six years having passed since hearing of the matter was completed.

“We are obedient to inform you that our clients are pressing us for a quick judgment. We have no way to assist them except by once again praying to you for them, as we hereby do, for a nearest possible judgment date.” Chief Courts Registrar Ignas Kitusi could not be reached for comment on the matter.

In the case, the petitioners are alleging that Section 90 (1) © of the Criminal Procedure Act (CPA), Cap 20 Revised Edition 2002, empowering the DPP to discontinue any criminal proceedings instituted by him or any other person in court at any stage without giving any reason for that decision, is unconstitutional.

Such provision, they said, “contravenes Article 13 (1), 26 (2) and 27 (1) (2) of the Constitution of the United Republic of Tanzania of 1977 as it gives the (DPP) discretionary powers which may be used to prevent any person to access justice before court of law.”

The petitioners claim that Article 13 provides for equality before the law, while Article 26 gives duty to abide by the law of the land, whereas Article 27 offers duty to safeguard public property. Such basic rights of equity and duty are prevented by the DPP’s abuse of powers shelved under public interest.

They are, therefore, requesting the court to declare that the Section 90 (1) © of the CPA, which provides to the DPP powers in any case to discontinue any such criminal proceedings instituted by him or other authority or person is null and void for contravening the constitution.

The three petitioners claim to have been aggrieved as they would wish to institute criminal proceedings privately against Executive Director of Quality Group Yusuf Manji, the Director General of and Board of Directors of the National Social Security Fund (NSSF) and Public Service Pension Fund (PSPF).

Such criminal proceedings, according to the petition, relate to alleged misappropriation and misuse of 83.5bn/- being the property of the employees and general public at large. “The petitioners would wish to do that with a view to protect the natural resources of United Republic and to take legal action to ensure the protection of the Constitution and the law of the land.

But the petitioners have not been successful due to powers given to the (DPP) under the CPA, “they stated in the petition. In his response to the petition, however, the AG vehemently denies the claims by the trio stating that the powers conferred upon the DPP are subjected to regulations, not excessive and never misused and do not breach the constitution.

Otherwise, he stated, the petitioners are put to strictly proof thereof. “The powers of the Director of Public Prosecutions can never in anyway prevent equality before the law. The powers of the Director of Public Prosecutions are statutory and the same can never prohibit equality before the law.

“Otherwise the petitioners are put strict proof thereof,” the AG stated. In the recent debate for new constitution, several commentators expressed their concern on excessive powers granted by the law to the DPP in respect of handling criminal cases. They said according to the law, even the President cannot question decision reached by the DPP when dropping cases in a court.

Source: Daily News (16/04/2013): http://dailynews.co.tz/index.php/local-news/16470-dpp-s-powers-opposed-in-court