138. The Respondent State argues that the offences enumerated in Section 148
(5) of the CPA are “strictly not bailable” because of their nature and “the
danger it poses to the society, the threat to the national peace and security
as well as the need to protect non-derogable rights guaranteed in the
Constitution and other International Human Rights instrument” to which
Tanzania is a party.
139. Citing the decision of its Court of Appeal in Silvester Hillu Dawi v. Director
of Public Prosecutions, the Respondent State contends that even though
the judiciary has the final say in the administration of justice, it “does not
have unbridled powers.” Rather “the courts must operate within the
parameters of the Constitution.” Furthermore, that if the courts disregard
clear provisions of law, then that would be tantamount to not only anarchy
but also the disdainful disregard of the Respondent State’s Constitution.
140. According to the Respondent State, all offences listed under Section 148(5)
of the CPA have the effect of loss of life or subjecting a person or groups of
persons to continuous suffering or loss of dignity. Furthermore, that “…
these crimes are against humanity and are universally criminalized as
organized crimes.”
141. The Respondent State maintains that Section 148(5) of the CPA is provided
by law, and is justifiable as its aim is to safeguard national security, law and
order and public health. The Respondent State furthermore contends, that
the elements which constitute the offences enumerated under Section
148(5) of the CPA have been clearly defined in the Penal Code and that this
dispenses with the likelihood of abuse.
142. The Respondent State contends that it is best placed to “to justify as to why
the right to bail is restricted”, contrary to the assertion of the Applicants that
all states should apply uniform standards. Relying on the decision in Handy
side v. UK, it argues that it is in a better position than the international judge
to give an opinion on the necessity of a restriction or penalty intended to
accomplish a moral objective.
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