ST.

AUGUSTINE UNIVERSITY OF TANZANIA

School of Law

The Limitation of Evidence by Confession in the Administration of Criminal

Justice in Tanzania: A Case Study of Tabora Municipal

A Dissertation in Partial Fulfillment of the Requirements for the Award of Degree of

Master of Laws of St. Augustine University of Tanzania

Peter Alphonce

November, 2014

1
 CERTIFICATION

The undersigned certifies that, she has read and hereby recommends for acceptance by St.

Augustine University of Tanzania, the dissertation titled; The Limitation of Evidence by

Confession in the Administration of Criminal Justice of Tanzania: A case study of Tabora

municipal, in partial fulfillment of the requirements for the award of the Degree of Master of

Laws (LL.M) in Economic Law of St. Augustine University of Tanzania.

Prof: Christabel Joseph (Supervisor): Signature___________________ Date_______________

i
 DECLARATION

I, Peter Alphonce, do hereby declare that this dissertation is my own work and has not been

presented and is not currently being submitted for a similar degree in any other University.

Signature__________________________ Date _________________________

ii
 COPYRIGHT

This dissertation is a copyright material protected under the Berne Convention, the Copyright

and Neighboring Act 1999 and other international and national laws. It may not be reproduced

by any means in full or in part, except for short extracts under fair use, for scholarly work only,

without the written permission of the Deputy Vice Chancellor of Academic Affairs of St.

Augustine University, on behalf of both the author and the university.

© Copyright 2014

PETER ALPHONCE

iii
 ACKNOWLEDGEMENT

Many people assisted me in writing this dissertation. A word of thanks goes to all, I cannot

mention all of them but few of them are;

I would like to convey my special thanks to my parents Peter Thomas Kubaja and Marry Kiemi

for their good upbringing, nothing I can pay them but my almighty God will pay for me.

Special thanks to my supervisor Prof. Christabel Joseph for her directions and instructions she

offered me when I was struggling to complete this dissertation.

I wish to express my thanks to Mr. Issa Magori a Senior Resident Magistrate In-Charge Tabora

Resident Magistrate Court and Advocate K.K Kayaga of KK Kayaga Advocate of Tabora.

However, I acknowledge all respondents who willful responded to my applications of collecting

data from their offices, specifically to Assistant Inspector Phanuel Samson, a Police Officer at

Tabora Central Police for their valuable cooperation during my practical training.

Humbly, I would like to thank my beloved brother Kubaja, my young brothers Shabo and

Ntangala and my sisters Bula and Gwile for their prayers and their tireless advice, let our

almighty God be with them in every point in their life.

May the almighty God blessings and grace be with all of them.

iv
 DEDICATION

This work is dedicated to my beloved parents Peter T Kubaja and Marry Kiemi. Let the public

know that, what I have achieve is the result of their great efforts from the first day of my life to

the point I am today.

More thanks and respect to my parents.

v
 LIST OF CASES

Asia Iddi V. R, [1989] TLR 174 (HC)

Deokinanan V. R, [1969] CA 20

Gervas Kilongozi V. R, [1994] TLR 39 (CA)

Hamis Athman and Two others V. R, [1993] Cr.App.No.14, C.A, Dar es Salaam (Unreported)

Hassan Juma Kanenyera and Others V. R, [1992] TLR 100 (CA)

Josephat Somisha Maziku V. R, [1992] TLR 227, HC

Kinyori s/o Karuditu V. Reginam (1956) 23, E.A.C.A 480

Miranda V. Arizona, 384 U.S. 436 (1966)

Njuguna and Others V. R, [1952] 2 EACA 311

Pakala Narayan Swani V. Empiror, AIR [1939] Pc, 47

Queen Empiror V. Babu Lal, ILR 6 ALL 509

Queen Empiror B. Jagrup, ILR 7 AL 646

Rashid and Another V. R, (1968) Cr.App.No.91, CA, Dar es Salaam (Unreported)

R V. Ikojot, [1917] 2 ULR 260

Shihobe Seni and Another V. R, (1992) TLR 330, CA

Sohar Sign V. State of Bihar AIR 1966

Tuwamoi V. Uganda, [1967] EA 84

vi
 LIST OF STATUTES

The Constitution of United Republic of Tanzania, 1977 as amended from time to time

The Criminal Procedure Act [Cap. 20. R.E 2002]

The Evidence Act Cap. 6 of 1909 (Uganda)

The Evidence Act Cap. 80 of 1963 (Kenya)

The law of Evidence Act, [Cap. 6. RE 2002]

The Penal Code [Cap. 16. R.E 2002]

The Police and Criminal Evidence Act 1984 (England)

The Police Force and Auxiliary Service Act [Cap. 322 R.E. 2002]

The Prevention and Combating of Corruption Act, 2007

vii
 LIST OF ABBREVIATIONS

AC …………….………. Appeal Cases

AIR …………………... All Indian Report

All ER ………………… All England Reports

Cap ……………..……... Chapter of Laws

CA …………….………. Court of Appeal

Cr. App ………………... Criminal Appeal

EA ……………………... East Africa Law Report

EACA …………………. East Africa Court of Appeal

HC …………………….. High Court

HCD …………………… High Court Digest

HL ……………………... House of Lords

JA ……………………… Justice of Appeal

KB ……………………… King‘s Bench

LHRC ………………….. Legal and Human Right Centre

LJ ……………………… Lord Justice

LL. B …………………... Legum Baccalaures

L.R.T……………………. Law Reports of Tanzania

Op.cit …………………... opere citato (in the work mentioned)

p ……………………..…. page

QB ……………………… Queen‘s Bench

R ………………………… Republic

viii
R.E………………………. Revised Edition (of the Laws of Tanzania)

RM………………………. Resident Magistrate

s………………………….. Section

TAWLA…………………. Tanzania Woman Law Association

TEA……………………… Tanzania Evidence Act

TLR…………..………….. Tanzania Law Reports

TLS………………………. Tanzania Law Society

UK……………………….. United Kingdom

URT……………….…….. United Republic of Tanzania

US……………………….. United States of America (also USA)

v……………………….... versus (against)

ix
 TABLE OF CONTENTS

Certification………………………..…………………………………………………..……….. i

Declaration…………………………………………..………………….……………….……… ii

Copyright………………………..……………………….….………................………………. iii

Acknowledgements…………………………………………..…………...……………………. iv

Dedication………………………………..………………………...………………...…………. v

List of Cases …………………………………………………………...………….…………… vi

List of Statutes….......………….…..…….……………..………………………….………..... vii

List of Abbreviations...………………….……………...………………..…….…………….... viii

Table of Content…………………………………………….……………...…………………… x

Abstract………………………………………………..……………….……….………..….… xv

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction……………………………………………………………………………………1

1.2 Background to the Study..…………………………….………………………………........... 3

1.3 Statement of the Problem…………………………...………....………….............….…...... 6

1.4 Objectives of the Study…………...……………...…….…………..…………….………….. 7

1.4.1 General Objectives…………..……….……………..……………………………… 7

1.4.2 Specific Objectives…………………………..……….……………………………. 7

1.5 Hypothesis………………………………………………….......………….……….………. 8

x
1.6 Scope of the Study……………………………………....………………….….…………….. 8

1.7 Significance of the Study……………………………….…………………..….............…… 8

1.8 Methodology………………………………………..……………….…….…....………..…... 9

1.9 Literature Review……………………………………………………..…………………..… 11

1.10 Conclusion….………………..…………………………………..……………………..…. 15

CHAPTER TWO

THE CONCEPTUAL AND THEORETICAL FRAMEWORK OF CONFESSION

ADMINISTERED IN CRIMINAL JUSTICE

2.1 General Overview on Confession………….…………………………..……………....…… 16

2.2 Background to the Legal Regulation of Confession………………………..…………….... 17

2.3 Admissibility of Confession……………………………………………………….………. 22

2.3.1 Police Officer……………….………………………………………………….… 22

2.3.2 Person in Authority…………….………..……………………………………….. 23

2.3.3 Judicial Confession………………….………………...…………………………. 24

2.3.4 Co-Accused Confession…………………...……………………………….…….. 25

2.3.5 Retracted Confession……………………………..…………………………..….. 27

2.3.6 Repudiated Confession…………………………………..………………………. 28

xi
2.4 Elements of Admissibility of Confession as Evidence………………….…………………. 30

2.4.1 Confession must be freely and voluntary made…………………....…..………… 30

2.4.2 Genuine or Truthful Confession………………...……………………….………. 32

2.5 Other Issues Relating to Confession……………..……………...……………………...….. 34

2.5.1 The Need to Conduct Trial Within A Trial in Criminal Proceedings.………….... 34

2.5.2 The Purposes of Conducting a Trial Within A Trial ………….………………... 34

2.5.3 An Inquiry………………………………………..………………………………. 35

2.6 Similar Terms Used In Confession…………………………..………………………… 36

2.6.1 Admission……………………………………………………..…………………. 36

2.6.2 Admissibility……………………………………………………………...……... 38

2.7 Confession in Other Jurisdiction…………………………………………………...….. 39

2.7.1 Administration of Confession in Uganda……………………..……………….. 39

2.7.2 Administration of Confession in Kenya…………………………….…………. 43

2.8 Conclusion………………………………………………………………………..……. 44

xii
 CHAPTER THREE

MINOR FINDINGS AND OBSERVATIONS

3.1 The Law and Practice of Confession…………………………………………….…………. 45

3.2 Views on the Laws of Confession………………………………………………………….. 46

3.3 Ignorance of the Law……………………………………………………………………….. 48

3.4 Extent of Abiding to the Rules of Confession by Police Officers………………………….. 49

3.5 The Reason behind Repudiation and Retraction of Confession…………..…………….….. 50

3.6 The Role Confession Play in Evidence…………………………………………………….. 54

3.7 The Extent of The Evidence Act in effecting Confession.………………………….………. 57

3.8 Conclusion………………………………………………………………………………….. 59

CHAPTER FOUR

MAJOR FINDINGS AND OBSERVATIONS

4.1 The Evidentiary Value of Retracted and Repudiated Confessions…………………….....… 60

4.2 The Procedure to be followed when Admissibility of Alleged Confession is Disputed by the

Defense …………………………………………………………………………………… 65

4.3 Criteria basically observed by the Court on Admitting Confession in Evidence………...… 67

xiii
4.4 Weight of Confession…………………………………………………………….……..….. 70

4.5 Weight of a Co-Accused Confession…………………………….……………………….… 71

4.6 Impacts of the Retracted and Repudiated Confession……………..……………………..… 73

4.7 Fairness of the Court to Admit Confession Obtained under the Ambit of section 29 of The

Evidence Act………………………………………………………..………………………. 76

4.8 Challenges Existing under the Provisions of The Evidence Act Governing Admissibility of

Confession in Tanzania……………………………………………………………………... 78

4.8.1 The Law allows the use of Unjustified methods to get Confession………..….…....... 78

4.8.2 Conflict of Provisions Governing Confession…………………………….….………. 79

4.9 Conclusion………………………………………………………………………….………. 82

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion……………………………………………………………………….……..….. 83

5.2 Recommendations…………………..……………………………………………………… 84

xiv
 ABSTRACT

The present research paper reports a study of the law of evidence in relation to confession in

Tanzania, confession has had its own history before and after colonialism, formally confession

was extracted through various means including coercion, but later on the colonial regime

imposed their law to regulate matters regarding confession and its admissibility.

Despite of embodies some principles which guide confession and its admissibility, The law of

Evidence Act [Cap. 6 R.E 2002] has contravened the administration of justice in a certain way

such as in terms of taking confession and its admissibility since that it is the courts‘ duty to

examine and evaluate the potentiality of confession. Hence, many institutes of law have

underlined various principles governing confession and its admissibility for the sake of

dispensing justice to the community at large. So the researcher has jotted down the rules of

confession as provided.

The aim of this research paper therefore is to retrieve the effectiveness of the law of Evidence

Act [Cap. 6 R.E 2002] in relation to confession in Tanzania, and the study was carried out in the

Tabora region which has one of the highest rates of criminal case.

The style and language which has been used by the author is very attractive, hence it is simple

for the readers to understand. It is my expectations that for any person who will constructively

read this publication will sensitize his or her understanding over the matter particularly on the

effectiveness of the law in relation to confession in Tanzania.

xv
 CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

The research title of this study is ―The Limitation of Evidence by Confession in the

Administration of Criminal Justice in Tanzania: A Case Study of Tabora Municipal‖. Since

confession in twentieth century were taken in a coerced manner which is unacceptable today. For

this reason confession is often subject to close scrutiny. For some time courts have taken a rather

dim view of confession as evidence where they develop exclusionary rule and they continue to

develop complex and strict rules pertaining to the admission of confession in evidence.

Such development done by the courts come after the observation that among other things which

can be used in trial as an evidence to prove or disprove the involvements of the accused person

with the crime is confession. On the eyes of the courts in many jurisdiction confession has been

found as the best evidence which can associate or disassociate directly the accused person with

the crime hence treated as the first and the best evidence against the accused person if

administered properly by either person in authority or police officer.

Generally the term Criminal Justice is a broad term, as it is a system in which crimes and

criminals are detected, detained, tried and punished. Most often associated with law enforcement

alone. Despite of the term criminal justice being involved on how crimes and criminals are

detected, detained, tried and punished, this research only focus on detection particularly

1
interrogation of the suspects by the police officers, and lastly focus on trial specifically court

admission of statements made before police officers during interrogation as confession.

The reason of conducting research in this title is to know which criteria are basically observed by

court on admitting confession as part of evidence in relation to two conflicting provisions of The

Law of Evidence Act.1As section 27 (3) which are to the effect of admissibility of confessions to

police officers, the section reads as follows:

―A confession shall be held to be involuntary if the court believes that it was induced by
any threat, promise or other prejudice held out by the police officer to whom it was made
or by any member of the Police Force or by any other person in authority‖.

Hence, confession administered after the imposition of inducement by any threat, promise or

other prejudice held out by the police officer to whom it was made are involuntary confession

and are against the rules governing confession only if court is aware of such extent of

inducement. While section 29 reads as follows:

“No confession which is tendered in evidence shall be rejected on the ground that a
promise or a threat has been held out to the person confessing unless the court is of the
opinion that the inducement was made in such circumstances and was of such a nature as
was likely to cause an untrue admission of guilt to be made‖.

Despite the fact that, The Evidence Act2 is the hub for the administration of justice in Tanzania,

but still The Evidence Act, does not clearly provide a margin on how the exact confession can be

obtained. This is due to the fact that, The Evidence Act gives much discretion to the court to

evaluate and determine the weight of the confession. Then the issue is about how the court can

1
Sect. 27 and 29 of [Cap. 6 R.e. 2002]
2
[Cap. 6 R.E 2002]

2
obtain and admit an exact confession? Therefore, the admissibility of confession is solely based

on the court discretion whereby the court has to examine the means in which the confession was

made. The notion that a confession obtained after inducement is admissible as per the section 29

of The Evidence Act3 and as provided in the case of Joseph Somisha Maziku V. R4 that, such

inducement did not affect the truth of confession is not fair in the light of administration of

justice and it contravenes the general rules of confession since that it incriminates the accused

person. Since that the law does not provide a specific margin on how to extract an exact

confession; it may sometimes cause the court to rely and admit confession which has been

obtained improperly.

The objective of the study is to state the fundamental requirements for a confession to be usable

as evidence, this requirement is that confession must be freely and voluntary given, that a person

making the confession must have been in a position to exercise complete mental freedom at the

time confession was made. From the rules of confession as revealed by the law the researcher

will focus on which criteria the court used to admit confession as piece of evidence against the

accused person in the criminal justice process.

1.2 Background of the Study

The use of confession as a tool to convict persons of crimes dates far back into human history.

Hence the term confession is not a legal product as history reveals that confession was first

developed in the Roman Catholic Church under the sacrament of penance, where the confession

of a sin is considered to be enough to absolve oneself. This aspect concerning moral guilt has

3
[Cap. 6. R.e. 2002]
4
[1992] TLR, 227,HC

3
been carried on in various legislation codes in which a criminal is considered worse if he does

not confess for his crime.

The term confession has no permanent definition but courts in India has tried to define it and at

last it succeeded to define, as at first the court in the case of Queen- Empires V. Babu

Lal5Mohmood J, confession was treated as an admission made at any time by a person charge

with crime stating or suggesting the inference that he committed the crime. Straight, J however

disagreed with this view in Queen- Empires V. Jagrup,6 the view of Straight J, was followed in a

majority of letter decisions and it was approved by the Privy Council in Pakala Narayan Swami

V. Emperor7where it would be seen from the observation of their Lordships of the Privy Council

that the language used in the definition given by the Mohmood, J is too wide and it includes non-

plenary confession also as confession. The Privy Council found out that if the statement by itself

is sufficient to prove the guilt of the maker, it is a confession.

History also revealed that, in United State, many confessions used to obtain convictions were

coerced through various forms of tortures such as the rack and screw of the application of red-hot

iron to bare flesh.8 Many of these confessions were false, since a person suffering excruciating

pain will say anything just to get immediate relief. As the use coerced confession as evidence fell

into disfavor, so in the twentieth century the Supreme Court of the United State provide that the

admissibility of confession was entirely depended upon meeting the requirement that the

confession be freely and voluntary given.

5
ILR 6 ALL 509
6
ILR 7 AL 646
7
AIR [1939] PC, 47 pg. 52
8
NORMAN M Garland (2006), Criminal Evidence, fifth edition, Calfonia, Phillip A. p. 224.

4
Evidence law in East Africa is closely linked with its colonial history. Tanganyika was firstly

colonized by Germany in 1880s whereas during that time German rules of evidence were

introduced and used. After the First World War9 British took Tanzania then Tanganyika.

Under the English system the parliament of Britain had, under the Foreign Jurisdiction Act10

authority to legislate for its colonies. The Tanganyika Order in Council of 192011 allowed the use

of the Indian Evidence Act of 1872; this imported law was used up to 1967. After independence

the Parliament of Tanzania passed the local legislation which was called The Evidence Act.12The

evidence Act, No.6 of 1967 has been amended from time to time but the last amendment was The

Evidence Act13 amended interpretation section especially on the term police officer as formerly

covered member of the Police Force of or above the rank of corporal, but after the amendment

the term police officer include even police constable.14

The current Act15 provides that, the voluntariness of the confession is the key component in the

admission of any confession. A confession is not voluntary if it was induced by any threat,

promise or other prejudice held by the police or any other person in authority.16 A confession

made voluntarily is the first from the two criteria‘s imposed by the law for the admissibility of

confession as the best evidence.

9
(1914- 1918)
10
(1843 – 1890)
11
Section 17(2)
12
[Act No. 6] of 1967
13
[CAP 6 RE 2002]
14
The Written Laws (Miscellaneous Amendments) Act, 2011
15
[Cap 6, RE 2002]
16
Section 27(3) [Cap. 6 RE 2002]

5
After the prosecution side to prove the voluntariness of the confession as per the Act17 the second

criteria will be genuineness of such confession made voluntarily and if court proves it is genuine

then it will admit as evidence against such accused person.

1.3 Statement of the Problem

It is the requirement of the law that, in order for confession to be admissible as a piece of

evidence it must adhere to the rules of confession, that, the suspect must confess free and

voluntary as per the Evidence Act.18 However, the law require that, the statement made by the

suspect to be genuine so as it can be used as evidence.

If the court believes that the statement is not genuine or the suspect was induced by any threat,

promise or other prejudice held out by the police officer or member of the police force or by any

person in authority such confession will be inadmissible as evidence against suspects.

Regarding to the rules of confession, numbers of confession taken by the person in authority are

accepted by the suspect once are taken as evidence in the court of law. But most of those which

are taken before the police officer have been rebutted or retracted by the suspects when brought

before the court, and in various situations the court do tends to admit them as evidence, due to

this the public treats confession taken before the police officer as the miscarriage of justice

which could rise a question as, despite of the clarity of the law by so insuring that confession

must rely on its rules of confession, so to what extent police officer(s) do observes the rules of

17
Section 27(2) [Cap. 6 RE 2002]
18
Section 28 [Cap. 6 RE 2002]

6
confession? And where is the legality of admissibility of confession which has been obtained by

the use of threat?

1.4 Objective of the Research

This research study has two objectives which are general objective and specific objective,

whereas the:

1.4.1 General Objectives

i. To state the fundamental requirements for a confession to be usable as evidence.

ii. To show the admissibility of confession as piece of evidence.

1.4.2 Specific Objectives of the Study

i. To explore on whether police officer adhere to the rules of confession.

ii. To investigate the reasons behind repudiation and retraction of the confession taken by

police officer.

iii. To look on the impacts of repudiated and retracted confession in the administration of

criminal justice.

iv. To reveal the evidential value of confession.

7
1.5 Hypothesis

Generally the laws governing rules of confession is good, but the problem is specifically

identified on the rules governing the admissibility of confession as a piece of evidence which

gives a question;

Which criteria are basically observed on admitting confession as part of evidence?

1.6 Scope of the Study

The research study will be directed on how police officers do observe the rules of confession

when interrogate the accused person, and which confession can be administered as evidence by

court. The research will be conducted in Tabora Municipal through visiting police stations and

court sessions, within the period of September, 2013 to December 2013.

The reasons for conducting research in Tabora Municipal is the availability of library in which

the researcher can access materials, also been one of high rated crime region, and the presence of

central police station and courts in a closest area may simplify collection of data easily.

1.7 Significance of the Study

This research have great significant not only to the researcher but also to whole community at

large as follows:

 It will sharpen the researcher‘s thinking and expand his knowledge through perusing

different materials relating to laws of evidence particularly rules of confession.

8
  This work at the end will enlighten the public especially police officers on how to take

confession statements.

1.8 Methodology/ Research Design

This is a framework through which the research will be carried out. In the research, the

researcher used various methods as will be seen below:

1.8.1 Types of Research

This is a qualitative research in which the researcher involves direct in the field and record data.

Since it is qualitative in nature, researcher carried it out at Tabora municipal as a case study by

visiting different police stations and Courts within the Tabora Municipal.

1.8.2 Sampling Design

Sampling is the method used by the researcher to gather people, place or thing to study. In this

area the researcher used the purposive sampling and to some extent random sampling because

only those people who can be reliable in this research are the one who were dealt with. This

enabled the researcher to get reliable information quickly as the ways were required. Hence

questions were asked in form of normal conversations and the answers were given depending on

the available knowledge and experience. In sampling type and study populations, this study

surveyed police station and judiciary.

1.8.3 Data Collection

The research methods that were used to enable researcher in data collection are;

9
1.8.3.1 Primary Data

The researcher collects primary data from the field or original source through interview. This is

one to one conversation where the researcher asked the question and the respondent respond to

the questions and gave out ideas of what he/she knows or thinks about the topic at hand.

1.8.3.2 Secondary Source

This research also read or extracted information through various documented reports. Also

various text and guidelines were consulted.

1.8.3.3 Field Research

This include mainly observations and personal Interview of the Persons engaged with

administration of confession in the Criminal Justice in Tanzania.

1.8.3.4 Library Research

Data Collection from libraries include Constitution of the United Republic of Tanzania 1977,

Statutes, Case Laws Reported and Unreported, Textbooks and various articles.

1.8.4 Data Analysis

Bulky data from the interviews, documented reports and texts and researcher‘s diary were

reduced, summarized and presented in this report. In the process of summarizing data, great care

was taken to ensure that its accuracy reflects the original meaning of statement made.

10
1.9 Literature Review

In his book, Professor Ian Dennis 19 provides that confession have a crucial function in the

criminal justice process, since it can be used as evidence against the suspect. Confession is

therefore potent instruments for securing two fundamental goals of the criminal justice system

namely the conviction of guilty and the protection of victims. It‘s only a proper administered

confession which can attain the mentioned goals in the criminal justice process, as in the first

goal which is to the effect of conviction of guilty this is only focus to proper administered

confession where the accused person will be able to confess freely and voluntary. While as, the

second goal of confession to protect victims is found under the rules of confession, that, neither a

person in authority nor a police officer neglects the rules of confession such statements made

during interrogation cannot be treated as confession. By so prohibiting the use of force by either

torture, inducement, threat or promise is what brings the protection of the victims. Also

confession must be made freely and voluntarily by the suspect.

Professor Ian Dennis in his book20 also identify in most cases confession administered by the

police officers have been subject to repudiation and retraction by the suspect when tendered

before the court of law. Whereas will be not used as evidence. Despite of not be used as evidence

before the court of law the said statements are treated as an off record statements and at last the

accused person will have to make new statements before the magistrate which can be treated as

confession.

19
Prof, IAN Dennis,(2007), The Law of Evidence, 3rd Ed, London, Sweet & Maxmell, Thomson, p.211.
20
Op. cit.

11
This position is not different to that of the following writers; in His book Professor Norman M.

Garland21 provide that there are many technical rules that limit the admissibility in evidence of

incriminating statements. Nonetheless, such statements remain critical weapons in law

enforcement‘s arsenal in the war on crime. In fact confession remains a proper element in law

enforcement, and confessions continue to play a major role in law enforcement.

There are many crimes committed where even after the most clever, intelligent, and scientific

investigation is conducted, practically no evidence is discovered to aid in determining the

identity of the perpetrator. Even when police investigation develops sufficient probable cause to

arrest, it is frequently difficult to develop evidence sufficient to attain a conviction under the

beyond a reasonable doubt standard. This happen when the crime has been committed on the

presence of only the suspect or on the presence of only suspect and the deceased, so to identify

the suspect can be only through interrogations of the persons connected to the victim/deceased as

well as possible witnesses, that evidence sufficient to convict can be developed. But most of the

statement has been obtained after the use of physical force, inducement and other sort of threat

by the police officer, which bring injustice to the suspect hence the inadmissibility of such

confession.

Professor Norman M. Garland in his writing identify confession as the last resort evidence

especially where criminals has been committed only before the presence of accused person and

the victim but the victim is not under the state to say how things where moving at the scene of

event. Hence, his opinion provide that, under certain circumstances there could be no possibility

21
NORMAN M Garland (2006), Criminal Evidence, 5th Ed., Calfonia, Phillip A, Butche.

12
of having investigation and have any evidence as a result of such investigation and therefore the

only answer to that event will be the statement of accused person. Currently it is simple to have

statements from the accused person due to the use of force during interrogation but the use of

force observed to be injustice hence there is a need of adherence to the rules of confession.

Also, in His book Reymond Emson22 succeeded to discuss issues pertaining to confession by

providing criteria‘s for a statement to be termed as confession. To him confession is the first tool

to establish the guiltiness of the suspects by the prosecution side before the court of laws,

however, he has shown the ways confession can be made, as by oral, written or by legal

representative of the suspects. On his discussion has much reflect on the issue of reliability of the

confession under part 7.1.2 by stating that:

―a truthful confession may be the best evidence for the prosecution, and in some cases the
only evidence against the accused person‖23

That is the benefit of the confession he revealed when is genuine, to him confession is a supper

evidence against the accused person since that it is the accused person knows the reality of the

commission of the crime and therefore it is not simple under the complete freedom and peaceful

supervision to incriminate himself while he know the impact of incriminating himself. Also in

certain circumstances there could be no possibility of having other evidence to collaborate such

confession but, if the court believes that the said confession is genuine it can be used as the only

evidence against the accused person.

22
REYMOND, Emson, (2004), Evidence Law, second edition, Marise Cremona, London, p. 209 – 210.
23
Loc, cit.

13
To him, genuine confession resulted from adherence of the rules of confession is a benefit to the

criminal justice system since such confession can be used as evidence against the suspect. But,

Reymond Emsonalso recognize the existence of having false confession, and he has much

discuss the reasons for accused person to make false statement by saying that:

―it is true to say that people rarely make false confession in ordinary circumstances: but
most confession are made in the face of questioning by agents of the state in an alien and
potentially hostile environment. In the context of a formal interrogation a suspect may
indeed falsely incriminate himself for a variety of possible reasons, and it is only when
those possibilities have been sufficiently reduced or eliminated that a confession should
be left to the jury‖24

Despite of having the rules of confession, it is not something which is surprising to hear someone

has made false confession, a suspect may falsely confess to an offence he did not commit or

overstate his involvement in an offence for a number of reasons. Among other reasons he

recognized, is oppression and the use of force by the police officer or the person in authority.

Also in a rare situation a person may make false confession due to his mind weakness that once

he confess he could be forgiven or given police bail, but that under the law all such kind of

statements are treated as false confession.

He has much discussed the reasons of having false confession and the ways of minimizing

possibility of having false confession by stating that the law must therefore ensure that a

confession should not be made in circumstances which might cast doubt on their reliability as

truthful assertions of fact. Despite of being aware of the issue of having false confession (author)

has fail to state the issue of admission of false confession by court as evidence against suspect(s).

24
Loc. Cit.

14
1.10 Conclusion

All authors addressed the matter by introducing the problem of repudiation and retraction of the

confession administered by police officer as an endless challenge. Substantially both authors in

their writings have succeeded to cover what has been provided under section 27 of the Tanzania

Evidence Act25 but, none of them in his writings has discussed the existence of the requirement

imposed under section 29 of the Tanzania Evidence Act which today seems to be the source of

retracted and repudiated confession which is the miscarriage of criminal justice. So this research

covers why such problem still persisting in Tanzania, and why admissibility of confession

obtained under the ambit of section 29 of the Evidence Act.26

25
[Cap. 6 R.e 2002]
26
Ibid.

15
 CHAPER TWO

THE CONCEPTUAL AND THEORETICAL FRAMEWORK OF CONFESSION

ADMINISTERED IN CRIMINAL JUSTICE

2.1 General Overview of Confession

As already defined before ahead, confession means; ―acknowledgment of facts and guilt by an

accused person‖.27 The historical basis of confession is linked to the human history, and it was

formerly coerced from people by variety means before the 20th Century when the strict rules

pertaining to admissibility of confession were developed. The rules are known as ―rules of free

and voluntary‖ hence no any coerced confession can be admissible in evidence unless if such

confession does not affect the truth of such confession. This position was also discussed in the

case of Josephat Somisha Maziku v. R.28

A voluntary confession is that one which is not made under inducement, threat or promise, it

could be used to corroborate the prosecution evidence against the accused person, but such

voluntary confession made by a maker may be proved against that person as per The Evidence

Act.29 The reason of voluntary confession to be proved against the maker is to make sure such

voluntary confession is true and connect the accused person with the crime. In some situation

there might be a voluntary confession but not true hence, section 27(1) of the Evidence Act come

to make sure no admissibility of voluntary confession which is untrue admission of guilt.

27
The Evidence Act [Cap. 6 R.E 2002]
28
Supra
29
Loc. Cit.

16
Among other elements which may cause someone to be found gilt of an offence is the confession

which has been set into consideration with all the facts proved in the case and put into the scale

and weighed with other evidence. Confession can be used by court of law as evidence if satisfied

on it, but this does not mean that such satisfactory confession itself is enough to prove

commission of an offence by the accused person in issue, clearly there must be other

corroborated evidence. The clear corroborated evidences are those which support the said

confession on the reality of the commission of the offence, and the offence to have been

committed by such accused person.

It is the matter of law that a man of sound mind and full age, who makes a statement in ordinary

simple language and has not been a victim of threat or inducement in making such statement

must be bound by his statement and by its ordinary plain meaning and the act spoken must be

given its legal consequences.

2.2 Background to the Legal Regulation of Confession

The concept of confession in Tanzania traces its essence from the colonial rule whereby through

received clauses, rules of evidence were brought to Tanganyika by then, and currently known as

Tanzania mainland. For the first time Tanganyika was annexed by the German‘s in 1880‘s.

During their reign German rules of evidence were introduced and used in the country. After the

First World War 30 Tanganyika became British trustee-territory, hence the German rules and

practice in Tanganyika were stopped.

30
(1914- 1918)

17
In England and Wales a confession may be relied on as sufficient proof of guilt even if it is

unsupported by any other evidence, 31 this was a natural consequence of the traditional

justification for the admissibility of confessions, as it was held in the case of R V. Warickshall32

―A free and voluntary confession is deserving of the highest credit, because it is

presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of
the crime to which it refers'‖.

More recent decision which turned down the position given under R V. Warickshall,33was that

given in Western V. DPP34 Butterfield J said (at p. 481):

―This exception [to the hearsay rule] is based on the assumption that what a person says
against his or her own interests is likely to be true, although the reliability of this
assumption has long been doubted‖

Therefore, by the decision of Butterfield J in the case of Western 35 a free and voluntary

confession can be proved against by the suspect. Hence a free and voluntary confession can be a

reliable piece of evidence for being admitted by court of law if the prosecution side proves its

voluntariness and the suspect not to dispute such confession.

Under the English system the Britain parliament had power under the Foreign Jurisdiction Act36

to legislate for its colonies. The Tanganyika Order in Council vide section 17(2) allowed the use

of the Indian Evidence Act37 the law which inter alia provided for the rules of confession and its

admissibility in evidence. This received law was applied in the country until 1967 when a local

31
REYMOND, Emson, (2004), Evidence Law, second edition.,Marise Cremona, London, p 206.
32
(1783) 1 Leach 263 (CCC) at p. 263)
33
Supra
34
[1997] 1 Cr App R 474 (DC)
35
Supra
36
Supra
37
1880‘s

18
legislation, The Evidence Act,38was passed by the parliament. The new legislation of 1967 is

generally in pari-materia to the Indian Evidence Act.

Despite the fact that many years have passed since when the law was imported in Tanzania (then

Tanganyika), various amendments have taken place but the position of confession almost

remained the same as to that in the Indian Evidence Act. The Evidence Act, 39 provides for

confession and its rules for admissibility, these include; free and voluntary confession.

Therefore; there are no significant differences between the current perspective on the law of

evidence relating to confession and the historical perspective.

The Evidence Act,40 in governing confession works together with other legislations which lay

down how the evidence can be recoded; few of such legislations are The Police Force and

Auxiliary Service Act,41Prevention and Combating of Corruption Act, 2007, Wildlife Act, and

The Criminal Procedure Act.42

Out of other legislations lay down how evidence can be recorded The Criminal Procedure

Act 43 provide what can be done at the time of taking accused statements. According to the

procedure law in Tanzania 44 gives the guideline for the interrogation of the suspects. These

guiding‘s of what to consider during recording of interview emanates from the rules of

38
No. 6 of 1967
39
[Cap. 6 R.E 2002]
40
Op. cit.
41
Cap. 322 [R.E. 2002]
42
[Cap. 20 R.e. 2002]
43
[Cap. 20.R.e 2002]
44
Section 7, 9, 10, 53, 57 and 58 of the Criminal Procedure Act, [Cap. 20 R.E 2002].

19
confession, but for the purpose of this research only relevant parties of section of the law will be

recorded and these are as follows;

Section 10 (3) Any police officer making an investigation may, subject to the other provisions of
this Part, examine orally any person supposed to be acquainted with the facts and
circumstances of the case and shall reduce into writing any statement made by the
person so examined. The whole of the statement, including any question in
clarification asked by the police officer and the answer to it, shall be recorded in
full in Kiswahili or in English or in any other language in which the person is
examined, and the record shall be shown or read over to him or if he does not
understand the language in which it is written it shall be interpreted to him in a
language he understands and he shall be at liberty to explain or add to his
statement. He shall then sign that statement immediately below the last line of the
record of that statement and may call upon any person in attendance to sign as a
witness to his signature. The police officer recording the statement shall append
below each statement recorded by him the following certificate:
"I.............., hereby declare that I have faithfully and accurately recorded the
statement of the above-named.................".

(4) It shall be the duty of a police officer before examining a person to inform him that he is
bound to answer truly all questions relating to the case put to that person by him and that he
may not decline to answer any question on the grounds only that the question has a tendency
to expose him to a criminal charge, penalty or forfeiture.

(5) A police officer or person in authority shall not offer or make or cause to be offered or made
any inducement, threat or promise to any person charged with an offence to induce him to
make any statement with reference to the charge against him. But no police officer or person
in authority shall prevent or discourage by any caution or in any other way any person from
making, in the course of any investigation, any statement which he may be disposed to make
of his own free will.

Section 53Where a person is under restraint, a police officer shall not ask him any questions, or
ask him to do anything, for a purpose connected with the investigation of an offence,
unless–
(b) the person has been informed by a police officer, in a language in which he is
fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of
the offence in respect of which he is under restraint; and

20
 (c) the person has been cautioned by a police officer in the following manner,
namely, by informing him, or causing him to be informed, in a language in which he
is fluent, in writing in accordance with the prescribed form and, if practicable, orally–
(i) that he is not obliged to answer any question asked of him by a
police officer, other than a question seeking particulars of his name and address; and
(ii) that, subject to this Act, he may communicate with a lawyer,
relative or friend.

Section 57 ―A police officer who interviews a person for the purpose of ascertaining whether the
person has committed an offence shall, unless it is in all circumstances impracticable
to do so, cause the interview to be recorded.
(2) Where a person who is being interviewed by a police officer for the purpose of
ascertaining whether he has committed an offence makes, during the interview,
either orally or in writing, a confession relating to an offence, the police officer
shall make, or cause to be made, while the interview is being held or soon as
practicable after the interview is completed, a record in writing , setting out-

(b) particulars of any statement made by the person orally during the interview
otherwise than in answer to a question ;

(c) whether the person wrote out any statement during the interview and, if so, the
times when he commenced to write out the statement ;

(d) whether a caution was given to the person before he made the confession and if so
the terms in which the caution was given, the time when it was given and any
response made by the person to the caution;

(e) the times when the interview was commenced and completed

By observing the reqirements mentioned above when recording confession, it can be termed as

the duties of the police office or person in authority and on the other side of suspects be rights at

the time of interrogation.

21
2.3 Admissibility of Confession

The current position of confession in Tanzania applies the same under section 3(1) 45of the law

which defines it to mean the acknowledgement of guilt by an accused. This position has been

also shown by the Court of Appeal in R. V. Kisinyila46 whereby Ramadhani J.A.; Msoffe, J.A.;

and Kaji, J.A. perceived that;

―a confession should be direct acknowledgement of guilt by an accused‖

However, they provide that, the rules concerning admissibility of confession depends on the

circumstances in which it was made and to whom it was made.

Therefore, the theory of admissibility of confession depends on circumstances in which it was

made; that means a confession must be free and voluntarily made. On the other hand it is

important to ensure that a confession should be made on supported circumstances and to a

relevant person or authority as they are mentioned below:

2.3.1 Police Officer

Is any member of the Police Force as per The Evidence Act.47However, in his book Ratanlal &

Dhirajlal 48 provides that, the term Police Officer applied to every Police Officer and is not

restricted to officers in regular police force.

45
The Evidence Act, Cap 6. R.e. 2002
46
[2002] Criminal Appeal No.129
47
Section 3(1)d [CAP 6 RE 2002]
48
RATANLAL & DHIRAJLAL, (2007), The Law of Evidence, 21 Ed., Wadhwa & Company, India, Reprint, p. 180.

22
Formally the position in Tanzania was different, as the term police office was referred to any

member of the police force of or above the rank of corporal as the case of Gervas Kilongozi V.

R49 provides. But latter The Evidence Act50 amended interpretation section especially on the term

police officer as formerly covered member of the Police Force of or above the rank of corporal,

but after the amendment the term police offer include even police constable.51

Hence, the decision made under the case of Gervas Kilongozi52 is no more used as authority soon

after the amendment effected in 2011.

2.3.2 Person in Authority

There is no statutory definition on what it means by ―person in authority‖ but various scholars

have tried to define the term. As Ratanlal &Dhirajlal53in their book define person in authority as:

―does not mean a person having control over the prosecution of the accused person…. he
might be a person engaged in the apprehension, detention or prosecution of the accused,
or who is empowered to examine the accused person and any concerning or interest in it
would be sufficient to give him authority‖.

Also, case law has defined the term ―person in authority‖, as in the case of Deokinanan V. R54 it

was said:

―person in authority means, generally speaking, anyone who has authority or control over
the accused or over the proceedings or prosecution against him….that the authority that
the accused knows such persons to passes may well be supposed in the majority of
instances both to animate his hopes of favour on the one hand and on the other to inspire
him with awe…‖

49
[1994] TLR 39 (CA)
50
[Cap. 6 RE 2002]
51
The Written Laws (Miscellaneous Amendments) Act, 2011
52
Supra
53
Loc.cit, p 172
54
[1969], CA 20

23
Also in the case of Shihobe Seni and another V. R55 where the issue was whether a village

chairman is the person in authority -section 27(3) Evidence Act? It was found that a village

chairman is also a person in authority. In that sense it does not matter that the said person is the

government officer, private officer or a normal citizen.

Therefore, a person in authority is a person engaged in the apprehension, detention or

prosecution of the accused, or who is empowered to examine the accused person for the sole

purpose of taking records whether oral or written for further uses in court of laws as evidence

2.3.3 Judicial Confession

A judicial confession means a confession made before a magistrate and recorded by him; look

again at Ratanlal and Dhirajlal56

―A judicial confession is that which is made immediate in the presence of the magistrate
while the accused person is before the court of law whereas the recording is in the
manner provided by the law‖.

Normally judicial confessions take place after the first confession which is either retracted or

rebutted by the accused person and the court to satisfy on the ground alleged by the accused

person as provided in the case of Josephat Somisha Maziku V. R57 where Katiti J (then was)

shows how judicial confession can be, where he provided that after the first confession to be

removed by reason of torture, inducement or threat the subsequent confession which has no such

element of inducement before the court of law is legally accepted.

55
1992 TLR 330 (CA)
56
RATANLAL & DHIRAJLAL, (2007), The Law of Evidence, 21 Ed., Wadhwa& Company, India, Reprint, p 168.
57
Supra

24
Ratanlal & Dhirajlal58 in their book revealed that, the reliability of Extra- Judicial Confession

depends on the reliability of the witness who comes forward to give evidence of it. By that, it

found that, even though it has been recorded before the court, extra- judicial confession on itself

is not sufficient to convict a suspect unless corroborated by other evidence. Corroboration is

important aspect for the court to consider since that, an accused person may decide to confess

before the court voluntary but the event might be not true. For some time, the event might be true

but doesn‘t connect the accused. Hence to identify the truth and connectivity of the accused

person with the event court has to look on other evidence.

2.3.4 Co-Accused Confession

This happen when two or more person are been tried jointly for the same offence arising from

the same transaction59 and one of those people confessed and other has not, then the court may

take such confession into consideration against those other, however in some situation the

accused person in the cause of confessing may exclude him and incriminate others, this is what

called ―Exculpatory Statement‖. The Evidence Act60 provides co-accused confession as;

―When two or more persons are being tried jointly for the same offence or for different
offences arising out of the same transaction, and a confession of the offence or offences
charged made by one of those persons affecting himself and some other of those persons
is proved, the court may take that confession into consideration against that other
person‖.

58
Op. cit.
59
The situation in which the said accuses committees the same or different offence under the same circumstances.
60
Section 33(1) [CAP 6 RE 2002]

25
This position was also supported in the case of Swai and Others V. R61 where the court shows

that ―the court may convict a co-accused solely on the confession made by either of the accused

person‖ note that, this is after the court to satisfy that such confession is true regarding to the

nature of the circumstances in which the offence has been committed. This position is not

commonly applied to each case since in other cases confession of the co-accused person cannot

be treated as substantive evidence, cannot be acted upon in itself so it depends on the eyes of the

court as The Evidence Ac62provides;

Notwithstanding subsection (1), a conviction of an accused person shall not be based

solely on a confession by a co-accused.

This position also exposed in the case of Asia Iddi V. R63 where The High Court held that;

―conviction cannot be based solely on a confession by a co-accused person, there must

be, in addition, other independent testimony to corroborate it‖.

This imply means that confession of the co-accused person are not evidence but if there is other

evidence on which conviction can be based, they can be referred to as lending some assurance to

the verdict, look again at Ratanlal &Dhirajlal.64 This position also revealed the same by Prof.

Dennis65 that;

―A confession made by an accused is admissible against him. These words confirm the
common law rule that a confession is admissible only against its maker and not against
anyone else such as co-accused who may be named in it.‖

61
[1973] Cr 270
62
Section 33 (1) of [Cap 6 R.e. 2002]
63
[1989] TLR 174 (HC)
64
Loc. cit, p 234
65
Loc. cit p.214

26
In his book Prof. Ian Dennis66 has well succeeded to show the rationale behind inadmissibility of

co-accused confession as follows;

―The rationale of this rule is based partly on fairness to the co-accused, who had no
opportunity to challenge a confession by another made out of court in his absence, and
partly on reliability‖.

2.3.5 Retracted Confession

This happen when the accused person swallows the words he has stated. A retracted confession

arises when an accused admits that he made a statement recorded but declares that he was forced

to or induced to make the statement and that is sought to be produced in court is not what he

said. In this situation the court will conduct a ―trial within a trial‖ to determine its voluntariness

or admissibility. If the trial is with assessors they must not be present during the ―trial within the

trial‖. They should be recalled later and informed of the court‘s decision on the statement. This

position was supported in the case of Kinyori s/o Karuditu V. Reginam67 where the East Africa

Court of Appeal provides that the assessors must be retired to allow trial within a trial to be done.

A retracted confession if proved to be voluntarily made can be acted upon along with the other

evidence in the case, and there is no rule of law that a retracted confession must be supported by

independent reliable evidence corroborating it in material particulars, look again at Ratanlal

&Dhirajlal.68 The use of such confession is the matter of prudence rather than of law to that

sense the retracted confession does not cancel the confession but it puts the court of law into

66
Loc. cit
67
[1956], 23 EACA 480
68
Loc. cit, p. 234

27
making inquiry as to its value whether its voluntary and the probability of its been true as

provided in the case of Tuwamoi V. Uganda69 that;

― … a trial court should accept any confession which is retracted or repudiated… with
caution, and must, before founding a conviction on such confession, be fully satisfied that
in the circumstances of the case that the confession is true…. corroboration is not
necessary in law and the court may act on a confession alone if it fully satisfied, after
considering all the material points and surrounding circumstances, that the confession
cannot but be true‖.

Thus the rules regarding a confession, which is subsequently retracted are: that, a confession is

not to be regarded as involuntary merely because it is retracted; as against the maker of the

confession the retracted confession may form the basis of a conviction if it is believed to be true

and voluntary made; as against the co-accused, both prudence and caution require the Court not

to rely on a retracted confession without independent corroborative evidence, as it was stated by

the Supreme Court in the case of State of U.P. V. Boota Singh70 that;

―the corroboration should not only confirm the general story of the alleged crime, but
must also connect the accused with it‖

2.3.6 Repudiated Confession

A repudiated confession is a confession that an accused person contends that he never made any

statement. In this type of confession the accused person will be denied what has been tendered in

court is not his statement refer the case of Shishobe Seni and another V. R71 where the appellants

repudiated confession when the case was at defense stage at the High Court on the ground that

the person used to record confession was not a person in authority. Once an accused person has

69
[1967] EA 84
70
AIR 1978 SC 1770 at p. 177: (1942) 1 SCC 31
71
Supra

28
repudiated confession the court will not throw out such confession but it will make inquiry on

such confession and if found such confession to be genuine to the case at issue it may apply it,

refer the case of Hamisi Athumani and Two Others V. R,72 in this case The Court of Appeal of

Tanzania held that;

―although the appellants in their defenses at the trial repudiated or retracted their
confession once the Trial Court found those confession to be true it was entitled to base
conviction on them‖.

The decision of the Court of Appeal of Tanzania is essentially correct due to the fact that, a court

cannot effect its decision of the law, hence that decision gets its validity from The Evidence

Act73which provides as follows;

―No confession which is tendered in evidence shall be rejected on the ground that a
promise or a threat has been held out to the person confessing unless the court is of the
opinion that the inducement was made in such circumstances and was of such a nature as
was likely to cause an untrue admission of guilt to be made‖.

The position of the Court of Appeal of Tanzania in the regard of repudiated confession is one

side good since that, not every repudiated confession cannot be used as evidence against the

maker especially if it is genuine. But in another side the position might be not good since that the

truth of the confession is one thing and the circumstances in which confession has been obtained

is another thing which complement each other to bring criminal justice. There numbers of

confessions which are true on their nature but they have been obtained in such manner which is

contrary to the law like after the use of threat or promise.

72
[1993] TLR 110 (CA)
73
Section 29 [Cap. 6 R.E 2002]

29
2.4 Elements of Admissibility of Confession as Evidence

Confession would include an admission of criminating circumstances, as it was held in the case

of Sohar Sigin V. State of Bilhar74 that the statement cannot be said to be a confession because

he does not acknowledge his own gilt. Therefore under confession the accused person must give

the statement which put him liable on the offence at issue, this can be treated as best evidence

since it is believed that no person can harm himself.

Statements made by the accused person after the commission of an offence when interrogated by

either police officer or person in authority are not all qualified to be termed as valid confession

unless they follow under the following criteria as revealed under the law;

2.4.1 Confession must be freely and voluntary made

A free and voluntary confession is that one which has being made at the time when the accused

person is able to exercise a complete freedom and in a suitable situation. This is what known as

―rules of free and voluntary‖ hence no any coerced confession can be admissible in evidence

unless if such confession does not affect the truth of such confession.75 This is also revealed

under the Evidence Act76 that;

―a confession is not voluntary if it was induced by any threat, promise or other prejudice
held by the police or any other person in authority‖.

74
Ibid fn 4
75
NORMAN M Garland (2006).,Criminal Evidence, 5th Ed., Calfonia, Phillip A, Butche.
76
Section 27(3) [Cap. 6 RE 2002]

30
This position is also supported by Katiti J, in the case of Josephat Somisha Maziku77 in which it

was held:

―confession would only be inadmissible for the reason of threats or undue influence or by
a reason of torture‖.

Despite of the fact that, the law requires confession to be made freely and voluntarily still the

application of question in the cause of interrogation can be done. An important question is; can a

confession be said to be voluntary if it is elicited by means of questions put by a person in

authority?

It has been considered that statements made after arrest in answer to repeated questions by police

whom the accused might feel bound to reply could hardly be considered to be voluntarily, this

position was provided under the case of R V. Ikojot.78 To a reasonable extent the accused, while

making confession, may be asked occasional question to keep narrative clear. The accused

should, however, not be asked leading questions or cross-examined on what he is saying.

On the importance of voluntariness of a confession the court in Njuguna and Others V. R79 said

that it was incumbent upon the prosecution to prove that the confession was voluntarily made

and was not obtained by improper or unlawful questioning or other methods.

To make sure that, a confession made by the accused person is free and voluntary; the law

imposes duty to prosecution side to prove such confession was free and voluntary made. Hence,

when confession is taken as evidence before the court, it is not treated as conclusive since that it

77
Supra
78
[1917] 2 ULR 260
79
[1952] 2 EACA 311

31
is open to the accused to prove against. This position is revealed in The Evidence Act 80 of

Tanzania, as the law reads as follows:

―(1) A confession voluntarily made to a police officer by a person accused of an offence

may be proved as against that person‖.
―(2) The onus of proving that any confession made by an accused person was voluntarily
made by him shall lie on the prosecution.‖

Again in his book Prof. Ian Dennis81 discuss the same position as follows;
―The court shall not allow the confession to be given in evidence against him except in so
far as the prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid‖

By that, it is the matter of law that the burden of proving voluntariness of confession made by the

accused person is posed or vested to prosecution side. However, a voluntary and freely

confession made by the accused person is a rebuttable or can be proved against the maker of

such confession on the grounds it has not adhered to the rules of confession.

2.4.2 Genuine or Truthful Confession

The true admission is that one which confirms the general story of the alleged crime and

connects the accused with it. Hence, the event or crime must be committed and the one who is

responsible must be the alleged accused person. After the prosecution side to prove the

voluntariness of the confession as per the Act82 the second criteria to prove will be the genuine or

80
Section 27(1) and (2)
81
Op. cit.
82
Section 27(2) [Cap. 6 RE 2002]

32
truth of such confession made voluntarily and if court proves it is genuine then it will admit as

evidence against such accused person, as provided under The Evidence Act;83

―No confession which is tendered in evidence shall be rejected on the ground that a
promise or a threat has been held out to the person confessing unless the court is of the
opinion that the inducement was made in such circumstances and was of such a nature as
was likely to cause an untrue admission of guilt to be made‖.

By that, The Evidence Act84proves on its way that, true or genuine information given by the

accused person is more important and therefore the police officer or the person in authority may

use any method wishes just to get true or genuine confession.

The question may rise from section 29 of The Evidence Act85 that, what will be the duty of the

prosecution side in case the accused person claimed before the court that he has confess due to

threat or use of force against him?

On this question the prosecution should prove the true or genuineness of the confession in order

to connect the accused person with the contents of the confession. By proving the truth or

genuineness of the confession then the court will admit such confession since that the law accept

genuine confession even if it has been obtained through the application of force or threats.

The above two elements are the key elements which must both appear at once and thereby non

presence of either would render confession to be invalid and become useless. Hence, the court of

laws would always consider the fulfillment of the above elements so that for the confession to be

83
Section 29 [Cap. 6 RE 2002]
84
Supra
85
Supra

33
admissible, and if the accused person shows before the court of laws that the above elements do

not exist as a results of either repudiating or retraction then the court will conduct ―trial within

trial‖ in case of High Court while in the Subordinate Court will conduct ―An Inquiry‖.

2.5 Other Issue Relating to Confession

In the cause of administering confession in the court of laws there great likely hood of ―trial

within a trial‖ or ―an inquiry‖ to happen for the sake of criminal justice against both part; that,

the accused person as well as the victim;

2.5.1 The Need to Conduct Trial Within A Trial in Criminal Proceedings

Where there is repudiation or retraction by the accused person in the High Court then, a need for

trial within a trial arises. Here in repudiation the accused states at the court of law that he did not

confess anything. While in retraction the accused denied part of the statement recorded by the

police officer or person in authority or he show that he had confessed to the police officer by

force (intimidation, coercion). If intimidation was not used, then he could have not confessed.

2.5.2 The Purposes of Conducting a Trial Within A Trial are;

i. To find out the truth

ii. If the statement can be admitted as evidence

As a matter of practice that, in case there new claim within the original claim the accused person

claiming to have being intimidated by the prosecution side in order to confess, the court has to

stop the original claim and open a new minor claim for the purpose of making inquiry on what

34
has been alleged by the accused person which at last is the sources of either repudiation or

retraction of the confession. From the new trial the truth can be revealed on whether there was

intimidation or not, also the court will determine if the statement can be admitted as evidence or

not.

If the trial is with assessors they must not be present during the ―trial within a trial‖. They should

be recalled later and informed of the court‘s decision on the statement. This position was

supported in the case of Kinyori s/o Karuditu V. Reginam 86 where the East Africa Court of

Appeal provides that the assessors must be retired to allow trial within a trial to be done. The

purpose of sending assessors out is due to the fact that determining the truth of confession and if

the statement can be admitted as evidence is the matter of law and not customs or religion which

assessors they have power to hear and give their opinion.

2.5.3 An Inquiry

An inquiry work similar to trial within a trial, as it happen when there is either repudiation or

retraction of the statement by the accused person. What make an inquiry to be different from trial

within a trial is only that it takes place in the Subordinate Courts. Hence, once the accused

repudiates or retracts when has taken before the Subordinate Courts, the court will conduct ―an

inquiry‖ for the purpose to find out the truth or to ascertain if the statement can be admitted as

evidence against such accused person.

86
[1956], 23 EACA 480

35
You should remember that, neither ―trial within a trial‖ nor ―an inquiry‖ is not a statutory

requirement in subordinate court and even High Court of Tanzania when exercising its original

jurisdiction. And therefore, it is a matter of practice which has been in existence for decades,

from the decisions of the defunct East Africa Court of Appeal to the present Court of Appeal of

Tanzania.

2.6 Similar Terms Used In Confession

In the cause of dealing with the topic at hand it has found that the terms which bring some

difficulty to understand, differentiate and sometime to know at what time to use one term out of

another, hence this part intents to put clear the demarcation between the term ―admission‖ and

―admissibility‖ in the administration of criminal justice process.

2.6.1 Admission

According to The Evidence Act87 the term admission was defined as follows;

―An admission is a statement, oral or documentary, which suggests any inference as to a

fact in issue or relevant fact and which is made by any of the persons and in the
circumstances hereinafter mentioned‖.

The above definition is not different to that given by Ratanlal &Dhirajlal 88 in which they provide

that;

“An admission is a statement of fact which waives or dispenses with the production of
evidence by conceding that the fact asserted by the opponent is true”.

87
Section 19 of [Cap. 6 R.e. 2002]
88
RATANLAL & DHIRAJLAL, (2007), The Law of Evidence, 21 Ed., Wadhwa & Company, India, Reprint, p. 140.

36
By that, an admission is the plain statement of the suspects suggested to have committed a crime

and therefore under the law they have little weight since that depends on court satisfaction. Read

again Ratanlal &Dhirajlal 89 where they provide

―admissions are very weak evidence and the court may reject them if it is satisfied from
other circumstances that they are untrue‖

For the purpose of admission to be used as evidence before the court of law it must be examined

as a whole and not parts, as it is settled by the law that an admission of any party has to be read

in its entirety and no statement out of context can constitute admission of any fact.

It is also possible for an admission to be made on the accuser‘s behalf by his agent; 90 this

position is also revealed the same under The Evidence Act. 91 So long as the agent was duly

authorised by the accused to speak on his behalf and the admission was made within the scope of

that authority it will be prima facie admissible against the accused as a confession. Thus in R V.

Turner92 the accused, S, was bound by the incriminating comments, his barrister had made when

speaking on his behalf during a speech in mitigation in earlier proceedings.

89
Loc. Cit.
90
REYMOND, Emson, (2004), Evidence Law, second edition., Marise Cremona, London , p 209.
91
Section 20 of [Cap. 6 R.e. 2002]
92
(1975) 61 Cr App R 67 (CA)

37
2.6.2 Admissibility

The admissibility of evidence is solely based on principles determining whether or not particular

items of evidence may be received by the court. The central principle of admissibility is

relevance. It is also provided that all evidence which is sufficient relevant is admissible.93

However, in certain circumstances the relevant evidence can be inadmissible only if it falls

within the scope of exclusionary rules of evidence, such as if it is against the rule of free and

voluntary confession. Therefore, the admissibility of confession depends on circumstances in

which the confession was made, the law of evidence in Tanzania provides under section 27 as

follows on the admissibility of confession;94

(a) A confession made to a police officer by a person accused of an offence may be

proved against him. This provision indicates that a confession is only admissible

against its maker and not against anyone else such as a co-accused who may be

named in it. Under this circumstance the onus to prove that the confession was

made voluntarily lies on to the prosecution, and it shall be held involuntary if the

court believes that it was induced by threat, promises or other prejudiced held out

by police officer to whom it was made or by any member of the Police Force.

(b) A confession made to a person in authority is also admissible. A person in

authority means; generally speaking anyone who has authority or control over the

93
Oxford, DICTIONARY OF LAW, Indian 6th edition, edited by ELIZABETH A. MARTIN and JONATHAN
LAW.
94
Op. ct

38
 accused or over the proceeding or prosecution against him. In the case of Shihobe

Seni and another V. R,95 The appellants were alleged that they confessed to the

village chairman thereafter repudiated the confessed statement. The court held;

―a village chairman is a person in authority under section 27(3) of the Evidence

Act (Cap. 6 R.E 2002) and so a confession made to him is voluntary if the court
believes that it was not induced by any threat, promise or other prejudice‖

(c) A confession voluntary made by a person accused of an offence before a

magistrate or justice of peace may be proved against its maker. Therefore, the law

requires only voluntary confession made to proper authority is admissible.

2.7 Confession in Other Jurisdiction

The tendency of taking confession as among of the instruments used to convict criminals has

been included in various legislations in number of jurisdictions. For the purpose of understanding

how confession administered in other jurisdiction, this part provide a comparative study of

administration of confession in Tanzania with other jurisdiction especially Uganda and Kenya as

the neighbor country of Tanzania.

2.7.1 Administration of Confession in Uganda

The law governing confession in Uganda is the Evidence Act.96The administration of confession

in Uganda seems to be somehow different from that of Tanzania even Kenya though the

difference does not affect the meaning of confession at large. Despite of the differences existing

95
[1992] TLR, 330, CA
96
Cap. 6 of 1909

39
in the Uganda Evidence Act97 still there are similarities which bring the same position as of that

of administration of confession in Tanzania and Kenya.

The Uganda Evidence Act 98 put some conditions for those who has power to interview and

record confession when the accused person is under the custody of police officer, whereas only a

police officer of or above the rank of Assistant Inspector or Magistrate are entitled as it provided

as follows;

No confession made by any person while he or she is in the

custody of a police officer shall be proved against any such person unless it
is made in the immediate presence of—
a police officer of or above the rank of assistant inspector; or
a magistrate, but no person shall be convicted of an offence solely on the basis of
a confession made under paragraph (b), unless the confession is corroborated by
other material evidence in support of the confession implicating that person

The section gives different position as that of Tanzania, as in Tanzania a police officer of any

rank is entitled to interview and record confession, however the Uganda Evidence Act by

providing conditions bring similarity as to section 29 (a) of the Kenya Evidence Act99where not

all police officer are eligible to take confession.

The same section, section 23(1) of the Uganda Evidence Act100bring similar position as to that of

Tanzania and Kenya, as the Act prohibit a person to be convicted solely on basis of confession

he made unless the confession is collaborated.

97
ibid
98
Section 23 (1)
99
Cap. 80 of 1963
100
Loc. cit

40
Far more, section 23 (2) of the Uganda Evidence Act 101 empower the Minister after the

consultation of Chief Justice to make rules which will govern the conduct and procedure in

which police officer will have to abide when interview suspects:

The Minister may, after consultation with the Chief Justice, make
rules prescribing generally the conduct of and procedure to be followed by
police officers when interviewing any person and when recording a statement
from any person, in the course of any investigation

This subsection bring different position as to Tanzania and Kenya where minister has not granted

power to make rules which provides for procedures on what police officer can do when

interviewing a person, therefore, police officer will have only to abide with the laws enacted by

the Parliament.

However under section 24 of the Uganda Evidence Act102 bring the same position as to Tanzania

and Kenya. As the section prohibit admissibility of confession obtained as a result of application

of intimidation, but the section goes beyond to that of Tanzania Evidence Act as it add the state

of mind of a person confessing to be one of the ground which the court has to consider before

admitting such confession as evidence against the maker;

―A confession made by an accused person is irrelevant if the making of the

confession appears to the court, having regard to the state of mind of the accused
person and to all the circumstances, to have been caused by any violence, force,
threat, inducement or promise calculated in the opinion of the court to cause an
untrue confession to be made‖

101
Ibid
102
Loc. cit

41
Section 25 of the Uganda Evidence Act103is similar to that of given under the Tanzania Evidence

Act as well as that given by the Kenya Evidence Act, as it provide;

―If such confession as is referred to in s24 is made after the impression caused by
any such violence, force, threat, inducement or promise has, in the opinion of the
court, been fully removed, it is relevant‖

Section 26 of the Uganda Evidence Act 104 is totally different to the position given by the

Tanzania Evidence Act, as it allow an admission of confession which has been obtained when

the accused has not cautioned or warned the impact of the statement he made;

"If such a confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or …, or because he or she was
not warned that he or she was not bound to make the confession, and that
evidence of it might be given against him or her‖

Section 27 of the Uganda Evidence Act is to the effect of the weight of co-accused person and the

position seemed to be the same as to that given by the Tanzania Evidence Act and the Kenya

Evidence Act;

―When more persons than one are being tried jointly for the same offence, and a
confession made by one of those persons affecting himself or herself and some
other of those persons is proved, the court may take into consideration such
confession as against that other person as well as against the person who makes
the confession‖

As far as the administration of confession in Uganda is concerned, the Uganda Evidence Act has

well discussed the issues pertaining confession in detail but the Act has fail to show who has the

duty to prove the facts thereby discovered as a result confession;

103
Ibid.
104
Loc. cit

42
 ―Notwithstanding s 23 and 24, when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence, so
much of that information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved‖

2.7.2 Administration of Confession in Kenya

Confession in Kenya is regulated by the Evidence Act.105 The position given under the Kenya

Evidence Act to some extent is equivalent to that given under the Tanzania Evidence Act and

Uganda Evidence Act as discussed above.

Section 25 A of the Kenya Evidence Act106 reveal the same position as to that of Tanzania and

Uganda, where the section insists on the fact that confession taken out of court to be inadmissible

unless proved.

However, section 26 of the Kenya Evidence Act107 provide for the inadmissible confession to be

inducement, threat, torture or promise, the grounds revealed under Kenya Evidence Act on which

confession can be inadmissible before the court are also revealed under the Tanzania Evidence

Act and Uganda Evidence Act.

Section 30 of the Kenya Evidence Act108 allows admissiblity of confession obtained as a result of

intimidation or even if the maker has not warned or cautioned his rights at the time of confessing.

This position is similer to that given in Uganda Evidence Act but different to the position of

105
Cap. 80 of 1963
106
ibid
107
ibid
108
Loc. cit

43
Tanzania Evidence Act which insists on the police officer to caution or to warn the maker of the

statement on his rights and the effect of the statement he is going to make before he start to

record the accused statement.

2.8 Conclusion

Generally, the admissibility of confession is entirely laid upon the principle of relevance.

Although it is required that a confession should made voluntarily, confession which is obtained

after inducement is not totally inadmissible but it can be only rejected if such inducement has

affected the truth of the confession. In the case of Joseph Somisha Maziku V. R109 the court held

that; ―while it is a trite principle of law that the conditions precedent for the admissibility of

confession is its voluntariness; a confession is not automatically inadmissible only if the

inducement or threat was of such nature as was not likely to cause untrue admission of guilt‖.

Therefore, a free and voluntary confession and true admission of the fact once corroborated with

other evidence are what made confession to be admissible by the court as evidence against the

accused person. Note that, improper administered confession especially that one which has been

obtained after imposition of intimidation doesn‘t affect only administration of criminal justice of

suspect and victim but, it extend to the health of the suspect especially when intimidation led to

body disability.

109
Supra

44
 CHAPTER THREE

MINOR FINDINGS AND OBSERVATIONS

3.1 The Law and Practice of Confession

Chapter Three and Four are the centre of this research since that, discusses the findings and

experiences drawn from the field. In this research or study; data collection was based on direct

interview to the relevant authorities and their responses have contributed much to the

development of this research.

During the field study various findings concerning the knowledge of people on the laws

governing confession especially the rules of confession, the reasons behind repudiation and

retraction of confession, fairness of admissibility of confession obtained under the ambit of

section 29 of The Evidence Act110 and the impacts of retracted and repudiated confession were

observed.

This chapter of the dissertation presents the important findings and observations of the topic or

study. It presents the findings, analyses them and discusses them. The findings in this research

were gathered basing on the field observation and library research. In the field, the interview was

conducted towards the courts‘ officials such as; Magistrates, Public Prosecutors and Advocates,

and the following hypothetical questions were put forward for the response by the said officials;

110
[Cap. 6, R.E. 2002]

45
3.2 Views on the Laws of Confession

In the field research different views were expressed in regard to the laws governing confession

(rules of confession), One of the respondents said they know about the existence of the rules of

confession but they do not peruse it while others replied that they don‘t have any knowledge on

the existence of the laws and rules of confession. The following are the findings with regard to

the question,

3.2.1 Is there any Law Governing Confession?

This question was posed to police officers. In answering the question the following were

observed,

That, among the police officers who were interviewed had two positions of understanding about

the existence of the rules of confession. Most of them pleaded of knowing the existence of the

rules of confession but they have not completely viewed the law, while as two police officers

replied that they are ignorant of the law and that they perform their duties through experience.

The two police officers who don‘t know whether there are laws governing confession they were

in the opinion that, there is no need for them to know such law since that, in the cause of

fulfilling their duties in any circumstances they can interrogate accused person and record his

confession accordingly.

Out of the two police officers who plead to be ignorant on the rules governing confession, the

group of police officers who pleaded to have known the existence of the rules of confession,

46
three of them provide that they had copies of The Laws of Evidence Act111at their homes but they

were not understanding the nature of the provisions of the law due to the interpretation problem

on the provision of the law which require legal knowledge.

One imposed question to those police officers who had copies of The Law of Evidence
Act Cap. 6, R.E 2002 was, whether they understand what is provided by the law?

One of the respondent112 said that ―hii ni sheria kwahiyo tuwaachie wanasheria wenyawe‖ which

means this is law so let us leave it to lawyers themselves. Another police officer113 replied that

―hii sheria kwakweli haieleweki kabisa‖ that she complain the law is totally difficult to

understand. The last police officer114 among of the three said that ―inaeleweka kidogo‖ that to

some extent is understandable.

However, the remaining police officers who acknowledge the existence of the rules of confession

provide that they knew the rules of confession due to the instruction from their fellow police

officers and warning from the court of law.

From this fact therefore, it is obvious that apart from the large number of the Tanzanian police

officers to recognize the existence of the rules of confession, the situation is worse and this is

revealed by large number of them through not perusing legislations that regulate confession

issues even to those who have perused it to be not understanding the particular piece of

111
[Cap. 6, R.E 2002]
112
Name undisclosed, interviewed on 13th December, 2013.
113
Name undisclosed, interviewed on 13th December, 2013.
114
Name undisclosed, interviewed on 13th December, 2013.

47
legislation hence they work through experience and teaching from their fellows police officer.

This conclusion comes after the question was posed to one of the police officer as,

Do police officers and person in authority know the law to what extent?

This question was directed to one of the respondent115 who serves at the Tabora Central police

Station, where he states that in his experience more than 95% of the police officers are not

familiar with the laws governing confession because their system does not allows them to peruse

laws rather to use force and any other cohesive modes which could facilitate them to get

confession. On the other hand, most person in authority are layman person in the field of law so

no justice can be done by them when interrogating a person accused.

3.3 Ignorance of the Law

From the researcher‘s findings ignorance of the law seems to be a dominant factor for the

ineffectiveness of the law governing confession. Not only that few people have access to the law

and rules of confession but also those few who have such access have not succeeded to

understand them. This is because it‘s too difficult for them to understand the legal language used,

also by the reason of not understanding the foreign language used (English language) this is

because most of the citizen understand to read, write and speak Swahili language.

Ignorance of the law does not only covers matters of confession but also other laws. In the field

research about 75% of the respondent indicated to be unaware of the laws in general. For this

reason even those who express themselves that they know the law without passing over it they

115
Assistant Inspector Phanuel Samson, interviewed on 13th December, 2013.

48
are ignorant because they are incompetent compared to those who have received certain teaching

on laws of confession, also under the legal profession a person is required to read various laws so

as to strengthen himself and not listen from others.

Essentially, ignorance of the law has become a threat in the accessibility of the criminal and civil

justice despite the fact that, people being not aware of the implications of ignorant of the law.

The issue here is if ignorance of the law does not afford an excuse? 116 Then what will be the

ultimate toward accessing the justice? The answer is that people will continue losing their rights

and finally the sense of justice will be disrupted as those few who know they will continue using

it at the expense of others.

3.4 Extent of Abiding to the Rules of Confession by Police Officers

The Senior Resident Magistrate In-charge of Tabora Resident Magistrate Court117 revealed that,

generally judicial officers adheres to the rules of confession since the court is the place where

nothing is done out of regulations or laws and therefore it is a place of justice in which every

body run to seek for justice.

But, things are different out of court as it revealed that, few numbers of police officers do adhere

to the rules of confession but majority of them do not adhere them. One police officer 118 argued

that, few of the police officers do observes the rules of confession whereas most of those few

116
In latin maxim been, ignorantia juris non excusat.
117
Issa Hussein Magori, interviewed on 16th December, 2013.
118
Assistant Inspector Phanuel Samson, interviewed on 13 th December, 2013.

49
police officers are either having legal knowledge either through attending colleges or various

training on laws of evidence matters.

He added that, the remaining large portion of police officers do not adhere to the rules of

confession due to the reason that they are taking confession by the virtue of their title and not by

virtual of their knowledge on evidence law whereas most of these officers do apply forces like

fire, sticks and different type of torture to the accused person to get confession.

Through reflecting the reality during the field research it is exactly true that most of the police

officers do not adhere to the rules of confession because they are not familiar with the laws

governing confession also they have not received enough training on these rules. However, the

use of force by the police officers as their policy that, in a police custody only order prevail and

failure to observe order will render application of force as a key way of most of the police

officers to effect something.

3.5 The Reason behind Repudiation and Retraction of Confession

Confession taken before the police officers as well as those taken before the person in authority

faces various challenges including repudiation and retraction. This is due to the requirement of

the law that the accused shall have a chance before a Magistrate in the court of law either to

accept or retract or repudiate the confession taken to him. One of the respondent119 provide the

following to be the reasons behind repudiation and retraction as follows;

119
Name undisclosed, interviewed on 12nd December, 2013

50
  Most of the police officers do not adhere the rules of confession; due to ignorance of the

law especially on the laws governing confession as well as due to the use of forces and

violence brings a chances to the accused person to repudiate or retract their confession

when are taken before the court of law. The awareness of the accused person on

retraction or rebating confession would come after the court of law to provide chance to

accused person to comment on whether their confession was voluntarily made. This

reason of not adhere the rules of confession by most of the police officers has been

supported by all police officers who have interviewed.

 Another reason for retraction and repudiation is that, after the accused person to confess

before the police officer later on the accused person do get teachers who told them that

they are stupid for their act of confessing but they are not ending there on wandering as to

why such accused person has confessed but they go on by giving them ideal support by

showing that still they have chances to deny such confession either by repudiating or

retracting the said confession. Due to this point a question imposed to him as,

Are you sure that accused person received some teaching concerning their confession?

He replied that ―hakika nakuambia huko maabusu na majumbani kuna wanasheria mchwara‖ that

exactly I say in jail and at home there are bush lawyers. He continues to show that this teaching

has become a greatest barrier to number of confessions taken even for confessions which have

been taken in accordance with the requirement of law. Due to that narrative statement which

shows that external teaching is the problem which brings a chance to raise another question,

What measure do they take to fight with those who confess legally but after external
teaching they retract or repudiate their confession?

51
His reply shows that they have alternative for such problem though it is weak since that it

depends on the working hours where magistrates could be found in the office (court). That after

recording confession a police officer owes a duty to bring such accused person and his

confession without unnecessary delay before the magistrate so that he can legalize such

confession. The only potential challenge to this alternative is that, if the accused person had

confessed out of working hours or at the weekend days or public days. To take the accused

person and his confession before the magistrate at the material time and day does not make such

confession to be legally acceptable and admissible but will decrease chance of accused person to

deny it due to the external teaching.

 Another reason behind repudiation and retraction is, sometime technically police officers

may cause the suspects to confess either by promising him/her on matters of grant or

refuse police bail; that sometime police bail is a common factor in which police officers

use to convince accused person to confess so as they can be granted police bail. That bail

has become one of the reasons of obtaining an illegal confession; if an accused person

reject to confess then right to bail while he is in police custody will be denied also.

Number of police officers have created an idea that no confession no bail so due to this it

brings much freedom to police officer not to make inquiry on laws regulating confession

and therefore shift the burden to the accused person as to confess so as to be granted bail

or not to confess and be denied bail, generally this brings denial of suspects right of due

process. Whereas during the trial confession obtained in this way are commonly retracted

or rebutted by the accused person.

52
  Another reason is the failure of the police officers to caution the suspects; there are

number of police officers who fail to caution suspects on their rights while they are under

the supervision of the police officer. Failure to address a suspect on his rights of caution

either to remain silent or to be attention because whatever he speak will be used as

evidence during trial is a good reason to a suspect either to retract or rebut such

confession, this is because confession is only recorded after the accused person have

been cautioned on what he speak will be used during trial against him.

In the case of Miranda V. Arizona120where the Supreme Court of United State held that

―a waiver of the right to remain silent and to counsel during police interrogation, any

statement obtained by the police cannot be used in trial, even the statement is not

coerced‖ So failure to caution the accused person will lead the confession to be retracted

or rebutted once an accused person become aware that he was having such a right of

been cautioned before he has confessed he may retract or repudiate it.

 Failure to advice on the right of legal advice is another reason behind repudiation and

retraction of confession; it‘s the duty of the police officers to advice the suspect to have a

legal advice before making confession. This will help the maker of the confession to

know the legal effect of the confession this is because confession will not only help the

prosecution side on proving guiltiness of the accused person but also confession helps

the suspect to have a good arrangement of his evidence when there is adduce of other

collaborated evidence to support such confession.

120
384 U.S. 436 (1966)

53
 Hence, police officers owes duty of informing suspects that they have a right of legal

advice either from lawyers or any person but due to dictatorship found in police custody

you will find that there is unjustified refusal access of legal assistance/ advice. This may

lead to retraction or repudiation when accused person knows that he has a right to have

legal advice but such right has been waived.

The same question was posed to Senior Resident Magistrate In- Charge of Tabora Resident

Magistrates Court121 where he replied that, most of the accused person repudiate or retract their

statement made before either police officer or person in authority because such statement tends

to incriminate them. To him, if the statement does not incriminate the accused person at issue

then he could not repudiate or retract and therefore he was on the view that magistrates and

judges has to pay much attention with such repudiated statements at the time of trial within a trial

or at an inquiry so as to ascertain the validity of such statement(s).

3.6 The Role Confession Play in Evidence

One of the respondent122 argued that, confession is an equivocal statements in which a person

made it may deny at any time and therefore the court of law use it as an estoppel. Once an

accused person made the statement freely and voluntarily and he/ she has accepted it before the

court that the said statements are his then he would not be having a chance to deny them at any

stage of the suit and therefore the court will use such confession to reach its final judgment.

121
Issa Hussein Magori, interviewed on 16th December, 2013.
122
Issa Magori, Resident Magistrate In- Charge of Tabora, interviewed on 16th December, 2013.

54
By that say it reveals that, confession bar/ block a person confessing to reproduce another

statements which conflicts with the previous statements, as it is provided under section 164

(1)(c) of The Evidence Act;123

(1) The credit of a witness may be impeached in the following ways by the
adverse party or, with the consent of the court, by the party who calls him–

(d) by proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted;

The learned trial magistrate124 Hon, Lugakingira Leticia, started by defining the term confession

that;

―it is a statement containing affirmative declaration in which incriminating facts are

admitted from which, when taken alone or in conjunction with the other facts proved,
an inference may reasonably be drawn that the person making the statement has
committed an offence‖

Therefore, confession is normally restricted to acknowledgement of guilt by an accused person.

The learned trial magistrate125 went on further stating that ―confession‖ plays an important role

in evidence since that it helps the court of law to appreciate on the criminality of the accused

person, and thus enables the guilty party face the wrath of the law instead of an innocent person.

For example; in the case of James Kazungu and 2 others V. R (Unreported),126in this case the

accused persons were charged for robbery contrary to s 285 of The Penal Code.127 It was alleged

that the accused persons hijacked motor vehicles within Kimisi Forest National Reserve in

123
[Cap. 6 R.E 2002]
124
Principal District Court Magistrate, Karagwe District Court.
125
Ibid
126
Cc, 2008
127
[Cap. 16 R.E 2002]

55
Karagwe District in Kagera region, after being arrested by police, the accused persons confessed

for such an offence, but in the course of trial the accused persons retracted the confession.

In the course of conducting an inquiry; Hon, Majeni, the learned Primary Court Magistrate128

testified to prove that the confession was voluntarily and freely obtained, after going through the

evidence and other corroborative circumstances the court found that the confession statement

given by the accused persons before the justice of peace was admitted as per s 28 of The

Evidence Act.129

Therefore, the court went on to admit the confession statement made by accused persons. In his

obiter dictum, the learned trial magistrate, Hon, Lugakingira Leticia130 insisted on the role of

confession that;

―when a person is arrested for criminal allegations he or she must bear into minds
that anything that he or she articulates as an acknowledgement of guilt shall also
be applied with due consideration in trying the case, henceforth, when a
confession has been made, cannot simply be inadmissible.‖

However, the court normally applies the ―water tight principle‖ which was stated in Hassan Juma

Kanenyera v. R, (Unreported)131 provides that,

―if the contradiction is not fatal as it does not take the judiciary away from the
fundamental story, then the court may pass a conviction basing on such retracted
confession‖

128
Kayanga Primary Court (In Karagwe District)
129
[Cap. 6 R.E 2011].
130
Op. cit
131
Resident Magistrate Court of Tabora [1992]

56
Therefore, it is recommended that the court should be attentive in evaluating the weight of

confession in order to avoid the admission of a confession obtained unfairly, as per case of

Director of General Border Security Force V. Vijendar PrakashGantam132 it was held that;

―a confession made under pressure is inadmissible. In case there are

circumstances which afford a well-grounded conjecture that the confession was
not voluntarily, it is not more than sufficient to exclude a confession.‖

Hence, it does not require positive proof of the fact that there was any inducement, threat or

promise, but only circumstances would justify the court in rejecting the confession, however,

mere possibility is insufficient but the probability would suffice.

3.7 The extent of The Evidence Act133 in effecting Confession

According to Issa Hussen Magori134; it is stated that the effectiveness of the law (The Evidence

Act [Cap 6 R.E 2002] is obviously based on its provisions. The Evidence Act clearly stipulates

the relevant authority whereby a confession can be made, as well as grounds for its admissibility.

The Evidence Act135 provides for categories of persons to whom a confession statement can be

made, such as; police officer. The law provides under section 27(1) that; ―A confession

voluntarily made to a police officer by a person accused of an offence may be proved as against

that person.‖136 Therefore, it is the requirement by the law that a confession made to the police

officer should be free and voluntary without any kind of inducement, threat or promise.

132
Supra, AIR
133
[Cap 6 R.E 2002]
134
Resident Magistrate In- Charge of Tabora ,interviewed on 16th December, 2013
135
[Cap 6 R.E 2002]
136
ibid

57
The rationale behind the rule of ―free and voluntariness‖ is that; no one should be convicted on

the basis of untrue confession, and the learned Judge137 recited a trite principle that ―where a

confession is by reason of threat and involuntarily made, therefore, such confession is

inadmissible….‖ This position was observed in the case of John Lazaro and Evarister Lazaro and

Another V. R (Unreported).138

Voluntariness of confession is a key component in the admissibility of confession. A confession

is not voluntary if it was induced by any threat, promise or other prejudice held by police or any

other person in authority as per section 27(3).139 Here an important question; can a confession be

said to be voluntary if it is elicited by means of questions put by person in authority?

According to Mapunda B.T.140 it has been considered that statements made after arrest in answer

to repeated questions by police whom the accused might feel bound to reply could hardly be

considered to be voluntary. This position was shown in the case of R V. Ikojot141whereby it was

stated inter-alia that;

―to a reasonable extent the accused, while making a confession, may be asked
occasional question to keep the narrative clear. The accused should, however, not
be asked leading questions or cross-examined on what he is saying‖

However, on the importance of a confession the court in Njuguna and Others V. R142said that it

was incumbent upon the prosecution to prove that the confession was voluntarily made and was

137
Mjemmas J, High Court of Tanzania.
138
[2004] CC, 84, HC.
139
Ibid
140
MAPUNDA, B.T (2004), OLW 202 Evidence Part One, Relevancy of Facts, University of Dar es salaam, p. 10.
141
[1917] 2 ULR. 261.
142
Supra

58
not obtained by improper or unlawful questioning or other methods. It added that it was the duty

of the court to examine with close care and attention all circumstances in which a confession was

obtained. The onus of proving that a confession is voluntary is on the prosecution. This is also

according to section 27(2)143 of the Tanzanian Evidence Act.144

Also the law provides that a confession which is freely and voluntarily made by a person accused

of an offence in the immediate presence of a magistrate as provided under section 59 of the

Magistrates' Courts Act,145 or a Justice of Peace under that Act, may be proved as against that

person. Henceforth, the Tanzania Evidence Act146 has clearly stipulated the categories of persons

to whom a confession should be made.

3.8 Conclusion

Despite of the fact that, confession is not a product of a legal process, still the existing

legislations which contain the provisions lay down how confession can be administered are the

one which create the relevancy of confession capable of being used as evidence against the

maker of such confession. However, in case of court admissibility of such confession the

Evidence Act147 is the sole legislation in which court has to focus on whether it has to admit or

not. By that say, the relevancy of the confession depends on the amount of meeting the criteria or

conditions imposed by the law hence, confession must adhere to the rules of confession so as to

be use as a piece of evidence against the maker.

143
Op. cit fn 36, p 16
144
[Cap. 6 R.E 2002]
145
[Cap. 11 R.E 2002]
146
ibid
147
Loc. Cit

59
 CHAPTER FOUR

MAJOR FINDINGS AND OBSERVATION

This chapter is the continuation of Chapter Three, the Chapter generally discuss the evidentiary

value of retracted and repudiated confessions, criteria which are basically observed by the court

on admitting confession in evidence, the weight of confession and lastly the impacts of the

retracted and repudiated confession. However, data have being obtained via observation and

direct question to the judicial officers and police officers.

4.1 The Evidentiary Value of Retracted and Repudiated Confessions

One of the respondents148 provides that, basing on the law and experience once the statement has

being repudiated or retracted by the maker of the statement has two impacts, and these impacts

are as follows:

 If the court satisfies that, repudiation or retraction is a result of intimidation imposed to

accused person then such repudiated or retracted confession will be struck out by the

court and become useless and inadmissible. He added that, when the prosecution side has

no further evidence which support their case then the court may set free such accused

person by relying that the prosecution side has no relevant facts to prove guilty of the

accused person out of repudiated or retracted confession.

148
Ibid

60
  Another impact is that, if the court satisfies that the repudiated or retracted confession

collaborates with other evidence then such repudiated or retracted confession will be used

as evidence against such accused person.

Hence forth, retracted or repudiated confession they can be useless if proved to have obtained as

a result of imposed intimidation, however they can be used as evidence against the maker of the

statement if collaborated with other piece of evidence. And by that, one cannot argue that

retracted or repudiated confession are useless in the criminal justice since that they can be used

by the court to ascertain the validity of the allegation and at last the verdict.

However, the position given by the respondent149 on the impact of the repudiated or retracted

confession does not conflict with the position given by learned trial court magistrate of Kayanga

Primary Court (In Karagwe District)150 that;

―The issue of evidentiary value of retracted confession has posed some of the
most controversial question in Tanzanian legal system in recent time. The
evidentiary value of retracted confession has taken a position of central
importance. As already defined above ―confession‖

Therefore, due to the fact that confession is a species of being a kind of admission, court remain

the only organ to decide whether to admit or not basing on the nature and circumstances of the

repudiated or retracted confession. Hence, repudiated or retracted confession can be used or not

used based on the corroboration with other piece of evidence given by the prosecution side, or

connection of such retracted or repudiated confession with the accused person.

149
Issa Hussein Magori, interviewed on 16th December, 2013.
150
Hon, Lugakingira Leticia

61
Also, it is argued that the voluntary nature of confession is one of the essential requirements of a

confession to make it a relevant fact. It is also true that an element of volition is ingrained in the

concept of confession.

Retracted confession is simply confession which has been challenged by the defence or the

maker at any point subsequent to making it in the course of criminal proceeding.

According to Mapunda B.T. 151 a retracted confession arises when an accused admits that he

made a statement recorded but declares that he was forced to or induced to make the statement or

that what he sought to be produced in court is not what he said. What, again, is repudiated

confession? A repudiated confession is a confession that an accused contends that he never made

any statement. There has, however, been a debate whether such distinction is substantive. In

Tuwamoi V. Uganda152Duffus AG.V.P; questioned the validity of the basis of the distinction

between retracted and repudiated confessions and argued that the distinction was first made in

the case of R. V. Lobasha.153 In both case the general principle is that except where the court is

fully satisfied that in the circumstance of the case the confession is nothing but the truth a

retracted or repudiated confession cannot support a conviction unless corroborated. In Tuwamoi

V. Uganda154 the court said;

―…a trial court should accept any confession which retracted or repudiated…with
caution, and must, before founding a conviction on such confession, be fully
satisfied that in the circumstances of the case that the confession is
true…corroboration is not necessary in law and the court may act on a confession

151
B.T Mapunda (2004), Relevancy of Facts, OLW 202 Evidence Part One, Faculty of Law, University of Dar es
Salaam.
152
[1967] EA 84
153
[1936] 3 EACA 48
154
Supra

62
 alone if it is fully satisfied, after considering all the material points and
surrounding circumstances, that the confession cannot but be true.‖

The question is normally what kind of evidentiary value should be attributed to such retracted

confession? Clearly it cannot have the same force of a normal confession neither it can be

completely vitiated as having no evidentiary value.

In terms of retracted confession; it is very difficult to ascertain the evidentiary value of it since

that it is confronted with conflict of interest. At one hand the element of volition in a confession

which cannot be neglected and on the other hand the greater social interest of expediency of

court proceedings needs to be balanced.

One proposition regarding law at this point is that; when a confession is retracted it casts further

shadow of doubt on reliability. It is also stated that any kind of admission is widely considered to

be weak piece of evidence unless if it is established that the confession was voluntarily made,

such confession will be relied.

Thus, it is the matter of appreciation of the nature of confession; henceforth, if the court deserves

that it is important to look for corroboration of the confession which has been retracted; it is a

decision specific to the circumstance of the particular case necessary for the proper appreciation

of the confessional evidence.

63
In the case of Hemed Abdallah V. R 155 the court discussed the danger of acting on an

uncorroborated retracted confession and what is required to be done was examined. In this case

the High Court convicted the appellant of murder on the basis of his retracted confession. Before

convicting the court warned itself on the danger of basing the conviction on an uncorroborated

confession. On appeal the appellant argued that the trial court‘s conviction should be faulted

because the learned Trial Judge did not give reasons why he relied on uncorroborated confession.

Reacting on these issues the court of Court of Appeal of Tanzania held;

(i) generally it is dangerous to react upon a repudiated or retracted confession unless it is

corroborated in material particulars or unless the court, after full consideration of the
circumstances of the case it is satisfied that the confession must be true;

(ii) once the trial court warns itself of the danger of basing a conviction on
uncorroborated retracted confession and having regard to all the circumstances of the
case it is satisfied that the confession is true, it may convict on such evidence without
any further ado; and

(iii) that, it is not a requirement of the law that the reasons have to be given for the trial
court‘s finding that there is no danger in accepting a retracted confession.

The above position was also shown in the case of Mukani Wankyo V. R.156 as stated above

where the prosecution seeks to rely on a confession the burden of proving that the confession

was voluntarily lies on them, and this point was discussed in the case of Ezekia V. R.157 The

position given under the case of Ezekiel158is well discussed under the case of John Lazaro and

Evarister Lazaro and another V R 159 whereby both of the accused persons retracted the

confession which had been made before the primary court magistrate and such confession

155
[1995] TLR, 172 (CA)
156
[1990] TLR 46
157157
[1972] HCD, 240
158
Supra
159
Supra

64
statements were recorded by the Justice of Peace, after conducting a trial within a trial the court

appreciated the circumstance in which the confession was made the and nature of the confession;

admitted it as per section 29160 of the Law of Evidence Act.

Therefore, when the trial court finds the retracted confession to be true it is then entitled to base

conviction on it. This position was shown in the case of Hamis Athumani and Two others V.

R,161 in this case the appellants were jointly charged with and convicted of murder and were each

sentenced to death. They appealed against conviction and sentence complaining, inter-alia, that

the trial court admitted in evidence and convicted the appellants on the basis of the alleged

confession of the appellants which had been retracted.

The court held that; ―although the appellants in their defenses at the trial retracted or repudiated

the confessions once the trial court found those confessions to be true it was entitled to base

conviction on them.‖ Therefore, retracted or repudiated confession cannot be destroyed by the

court for the fact of being retracted or repudiated but only if they are untrue admission.

4.2 The Procedure to be followed when Admissibility of Alleged Confession is Disputed by

the Defence

According to one respondent,162 it is stated that; there is no specific provision of law under the

Tanzania Evidence Act163 which provides for the procedure to be followed when admissibility of

160
[Cap. 6 R.E 2002]
161
[1993] Cr, App. No.14, Court of Appeal of Tanzania, Dar es Salaam
162
Name undisclosed, interviewed on 13th December, 2013.
163
[Cap. 6 R.E 2002]

65
alleged confession disputed by defence, but in practice and through case laws there are two

procedures to be followed in case the admissibility of alleged confession is disputed by defence.

The procedures vary from High Court to subordinate courts, in such event the High Court is

required to conduct a ―trial within a trial‖, that means the court diverges from the principal case

and then holds a trial of its own kind in order to ascertain the truths of the retracted confession.

The practice for conducting a ―trial within a trial‖ requires the assessors to retire for a while so

that to enable the court to deal with matters of law as per case of Kinyori s/o Karuditu V.

Reginam 164 the prosecution side is normally required to prove that the said confession is

admissible as per Evidence Act and the prosecution should call its witness and then for the

accused to give evidence or make a statement from the dock and call his witnesses, if any; as it

was held in the case of Rashid and Another V. R,165 the appellant were convicted of murder upon

which included confession to a justice of peace.

At the trial the defence challenged these confessions while the Justice of Peace (Majeni, the

primary court magistrate)166 was testifying about them, upon conducting a ―trial within a trial‖

the judge ruled inter-alia that;

(i) The onus is always on the prosecution to prove the admissibility of any
statement of an accused person; such onus never shift to the accused;

(ii) The correct procedure when a statement is challenged is for the

prosecution to call its witnesses and then for the accused to give evidence
or make a statement from the dock and call his witnesses, if any.

164
[1956], 23 EACA. 480
165
[1968]Cr. App, No.91, CA, Dar es Salaam
166
Op. cit fn 31, p 15

66
Therefore, when the trial court finds those confessions to be true it is then entitled to base

conviction on them. Also, the procedure in subordinate courts requires an ―inquiry‖ to be

conducted by the court in order to ascertain the facts, or truth upon the dispute. When the dispute

is resolved, then the court resumes in trying the principal case.

However, since that this procedure is not the requirement of law, where, inadvertently the trial

court has omitted to conduct ‗trial within a trial‘ the appellate court normally considers whether

the irregularity had, in fact, prejudiced the accused as per case of Lumambutu Makalya167

4.3 Criteria basically observed by the Court on Admitting Confession in Evidence

According to Issa Magori168 when asked by the researcher on the question that, which criteria are

observed by the court on admitting confession as the piece of evidence against the maker? He

had this to say;

―Only confession which is in compliance of the law 169 can be admitted by the
court as evidence against the maker of the statement. The court is an organ which
moves its operation accordance to the requirement of laws, rules, regulation,
decided cases and International Instruments which agreed by the member state,
hence confession to be admitted as evidence it has to comply with the laws
enacted to regulate it.‖

Hence, from the above position given by Issa Magiri it is quite clear that, the criteria for the

admissibility of the confession as evidence are found under the legislation which regulates

confession. Essential there are number of legislations which lay down how confession can be

167
[1958] EA. 706
168
Resident Magistrate In- charge of Tabora Magistrate Court, interviewed on 16 th December, 2013.
169
The Evidence Act [Cap. 6. R.E 2002]

67
taken but on the stage of admissibility of such confession only the Evidence Act170 can be used

since it is the sole statute which is a foundation to other provisions found under other statutes or

empower its officials to take confession.

Substantially, ―admissibility of evidence‖ refers to the principles determining whether or not

particular items of evidence may be received by the court. According to the Oxford Dictionary of

Law;171 the central principle of admissibility is relevance. It is also provided that all evidence

which is sufficient relevant is admissible.

However, in certain circumstances relevant evidence can be inadmissible only if it falls within

the scope of exclusionary rules of evidence. Therefore, the admissibility of confession depends

on circumstances in which the confession was made. The Evidence Act172 provide as follows on

the admissibility of confession;

• A confession made to a police officer by a person accused of an offence may be proved

against him. This provision indicates that a confession is only admissible against its

maker and not against anyone else such as a co-accused who may be named in it.

The rationale of this rule is based partly on fairness to the co-accused who had no opportunity to

challenge a confession by another made out of court in his absence, and partly on reliability.

170
Ibid
171
Op. cit fn 7 p. 3
172
[Cap. 6 R..E 2002]

68
Under this circumstance the onus to prove that the confession was made voluntarily lies on to

the prosecution, and it shall be held involuntary if the court believes that it was induced by

threat, promises or other prejudiced held out by police officer to whom it was made or by any

member of the Police Force.

• A confession made to a person in authority is also admissible. A person in authority

means; generally speaking anyone who has authority or control over the accused or over

the proceeding or prosecution against him.

In the case of Shihobe Seni and another V. R173the appellants were convicted of murder and

sentenced to suffer death by hanging. They appealed against both conviction and sentence

attacking the basis of evidence on which they were convicted.

The appellants were alleged that they made a confession to the village chairman thereafter

repudiated the confession statement. The court was on a view that a village chairman is a person

in authority under section 27(3) of The Evidence Act henceforth a confession made to him is

voluntary if the court believes that it was not induced by any threat, promise or other prejudice.

• A confession voluntary made by a person accused of an offence before a magistrate or

Justice of Peace may be proved against its maker. Therefore, the law requires voluntary

confession made to proper authority so that it becomes admissible.

173
Supra

69
Generally, the admissibility of confession is entirely laid upon the principle of relevance.

Although it is required that a confession should be made voluntarily, confession which is

obtained after inducement is not totally inadmissible but it can be only rejected if such

inducement has affected the truth of the confession. Refer the case of Josephat Somisha V.

Maziku V. R174 where the court held that;

―while it is a trite principle of law that the conditions precedent for the
admissibility of confession is its voluntariness; a confession is not automatically
inadmissible only if the inducement or threat was of such nature as to was not
likely to cause untrue admission of guilt‖.

Henceforth, it is still uncertain to determine as to what extent the inducement affected the truth

of the confession, and it is only upon the courts‘ discretion to evaluate the weight of such

confession, therefore, it may cause miscarriage of justice by the court as there is no clear

provision of law as what extent the inducement may affect the truth of confession.

4.4 Weight of Confession

From the historical view, confession has been revealed to be the best evidence against the

suspect himself, as it seems that confession is the tool to convict person of crime. Various

jurisdiction treats confession as a tool of convicting a person confessed due to the reality that the

best witness is the person committing crime, by this sense confession given voluntarily by a

maker used as a tool to convict himself though it need to be corroborated by other piece of

evidence.

174
Supra

70
In many cases confession had great gravity for a suspect to be found guilty or not. Where there is

independent evidence of the commission of an alleged criminal act, statement of the defendant

who interviewed may be essential to establish mens rea, in his book, Professor Ian Dennis175

discuss this point. As one of the essential to establish means rea courts of law treat confession as

one of the important evidence in which the prosecution must prove and show other corroborated

piece of evidence.

Therefore, confession is potential instrument for securing two fundamental goals of the criminal

justice; it is used for the conviction of the guilty also it is used for the protection of the victims.

Confession after been proved by the court of law it is where the court will declare conviction of

guilt and the accused person will be said that he has the case to answer, this shows that

confession has a virtual chance to the administration of justice since that confession is one of the

key evidence to make the accused person liable or not liable.

4.5 Weight of a Co-Accused Confession

In interviewing the State Attorney176 he asserted that; confessional statement alone can form the

basis of conviction against its maker and, in appropriate cases; it lends assurance to the other

substantive evidence as against other co-accused tried jointly for the same offence as per section

33177 of the Evidence Act that;

1) When two or more persons are being tried jointly for the same offence or for different
offences arising out of the same transaction, and a confession of the offence or offences
charged made by one of those persons affecting himself and some other of those persons
is proved, the court may take that confession into consideration against that other person.
175
The Law of Evidence , Third Edition, Thomson Sweet & Maxwell Publisher, p. 208 .
176
Seth Mkemwa, State Attorney In-charge of Shinyanga, interviewed on 3rd February, 2014.
177
[Cap. 6 R.E 2002]

71
 2) Notwithstanding subsection (1), a conviction of an accused person shall not be based
solely on a confession by a co-accused.

3) In this section, "offence" includes the abetment of, or attempt to commit, the offence
charged and any other offences which are minor and cognate to the offence charged
which are disclosed in the confession and admitted by the accused.

In the case of Asia Iddi V. R178 the appellant was convicted on the strength of a co-accused‘s

confession together with independent testimony of witnesses who were in one way or another

involved in the transaction. On appeal the High Court held that the conviction cannot be based

solely on a confession by a co-accused. There must be, in addition, other independent testimony

to corroborate it. The court further stated that evidence of a person who has an interest to serve

also needs corroboration and, as such, cannot be used to corroborate other evidence as it was

shown in the case of Mwidini V. R179

It is therefore, of great importance that the trying Magistrates and Judges, whenever they deal

with the co-accused confession must apply their judicial mind with analytical insight and it is

their duty to evaluate the confessional statement in accordance with the established norms of

appreciation of the confessional statement, both judicial and extra judicial to base upon it in a

particular case.

The conditions of admissibility of the confession for the co-accused are same as for the

prosecution. A co-accused, like the prosecution, will not be able to adduce evidence of an

178
[1989] TLR 174 (HC)
179
[1967] HCD, 386

72
accused‘s confession, if the confession was obtained by oppression or anything likely to render

such a confession unreliable.

To sum up the discussion of the weight of the co-accused confession, one respondent 180

concluded that the admissibility of the co-accused confession remains under the court discretion

rather than the law, as section 33 (1) the Evidence Act provide that; the court may take that

confession into consideration against that other person if such persons are being tried jointly for

the same offence or for different offences arising out of the same transaction.

4.6 Impacts of the Retracted and Repudiated Confession

It is obviously that the repudiated and retracted confession are the effect of not adhering to the

rules of confession, significantly repudiated and retracted confession have various impact in the

administration of justice as follows;

 The retracted or repudiated confession can be used as evidence, that, if proved by the

prosecution side, and the court has satisfy that no intimidation has been imposed to the

accused person to such nature then, such retracted or repudiated confession will be used

as evidence against the maker.

The prove of the retracted or repudiated confession is only through revealing the genuine

of the statement and this can be either by showing the connectivity of the suspect with the

event or by providing other collaborated evidence which will support the statement he

has made.

180
Name undisclosed, interviewed on 12th December, 2013.

73
Here is an illustration which shows how the prosecution side may connect the accused person

with the event;

―A‖ has repudiated his statement made before the police officer soon after the
commission of the crime but when taken before the court ―A‖ repudiate his
admission he made before the police officer. During trial with a trial the police
officer revealed that, the accused person involved in the house breaking and theft
contrary to section 294 of the Penal Code181 and when interrogated he confessed
to have involved and that ―A‖ in the cause of confessing he mentioned some of
the properties he take at the broken house, however he revealed the place where
the properties he has taken. Through the direction of ―A‖ of where the properties
were kept the police office has succeeded to recover some of them. By recovery
of the properties through the directions given by the accused person it‘s when the
police officer succeeded to connect the accused person with the event.

 Loss of case by prosecution side; if the prosecution side apply any of the efforts which

would cause confession to be inadmissible might lead accused person to be set free if the

prosecution side has no any evidence to prove their case other than confession, such

methods are like the use of force, torture, inducement, promise or any kind of unwanted

effort which may cause a suspect to confess.

If the court satisfied that there illegal effort employed by the police officer to get

confession can set accused free, refer the case of Gervance Kilongozi V. R182where the

court set free the accused person after he has repudiated his confession on the reason that

police officer used to record his confession has not indicate his rank on evidence sheet.

 Delay of cases; once the accused person has repudiated or retracted his confession will

force the court to take another time to look on such repudiation or retraction, in law this is
181
[Cap. 16.R.E 2002]
182
Supra

74
 what called ―trial within a trial‖ or‖ an inquiry‖. Here the court will set another free time

specifically for the accused person to prove as whether his retraction or repudiation was

for the merit of the case and justice, under this stage the accused person will state on

which ground he has repudiate or retract his admission.

The time used by the court to determine the validity of repudiation or retraction by the

accused person will automatically extend time frame of ending the case as a result delay

of case. It is very crucial for the court to use another time to interrogate again such

accused person this is because of the importance of confession as best evidence.

However, it has to be noted that, delay of cases is equivalent to denial of justice to either accused

or victim of a particular case.According to judge Oputa stated that, a term ―justice‖ is more

easily recognizable than definable. The judge described as follows;

“Justice should be pure and visibly. It should be fair, equitable and impartial.
Justice should not be commercialized, nor should it be bought and sold. Justice
should be quickly, for delay is certain denial (Justice delayed is justice denied)”183

Therefore, the act of police officer or person in authority notto adhere rules of confession has

lead the accused person to repudiate or retract his admission, as a result for the court to call for

trial within a trial or an inquiry would lead to delay of case which amount todenial of justice on

the side of accused person. Also if the accused person repudiate or retract his statement

purposively with no justifiable grounds, would also lead delay of case which is also denial of

justice on the prosecution side or victim of the case at issue.

183
Oputa C. J. (1981) The Law and the Twin Pillars of Justice, Oweri: Government Printer, at pg.71.

75
4.7 Fairness of the Court to Admit Confession Obtained under the Ambit of section 29 of

The Evidence Act184

The task of admitting or not to admit confession is of the court of law but always the court

performs its duties basing on what the law provides. One of the respondents185 was on the view

that it is fair since that the section left or leave a door to the court to look on whether to admit or

not. The respondent provide that, what the law provide is fair hence once the court admit

confession obtained under the ambit of section 29 is fair since that is what law provide. Due to

the answer given by him lead the researcher to ask him another question that;

Is it true that every law is fair?

The question was not answered by the respondent but he put question to the researcher as does

the law ever being fair?

At last the respondent answered that, always the law is fair to one side and not fair to another

side to the same parties conflicting each other. This means that, the law seems to be fair only on

a part that it favor and not fair to the adverse part.

Actual what the respondent provide is what the law provide, but what the law provide and he

argued is what bring problem today that why does the law leave discretion to the court to decide

and why not for the law to provide position of which confession can be admitted or not admitted.

184
[Cap. 6 R.E 2002]
185
Issa Hussein Magori, interviewed on 16th December, 2013.

76
One respondent186 was on the view that, it is fair. The respondent provide that, no accused person

who freely and voluntarily may incriminate while he know that what he provide will be having

negative impact to him. By that tendency of most of the accused person not to accept what they

have done the only way is to apply force or threat because by force and threat they cannot hide

what they have engaged. The position given by the respondent rise a lot of question, but, the

most important question is;

Whether a person cannot be convicted and punished by the court if he has not confessed?

Affirmatively the answer is, no. Hence a person can be convicted and punished even if he has not

made confession since confession is not only an instrument to prove guilty of the suspect. By

that, there is no necessity of a person to be tortured to the point he can confess.

One State Attorney187 was of the view that is not fair because already the statement is not free at

all. Free made confession need to be totally out of that features revealed under section 29 of The

Evidence Act.188To him, to admit such confession is not fair because threat, force or promise

makes its contents be questionable, possible its contents due to those influence.

186
Name undisclosed, interviewed on 13th December, 2013
187
Seth Mkemwa, Senior State Attorney and the State Attorney In- charge of Shinyanga, interviewed on 3th
January, 2014.
188
Ibid

77
 189
4.8 Challenges Existing under the Provisions of The Evidence Act Governing

Admissibility of Confession in Tanzania

The law of The Evidence Act190 especially the provisions relating to admissibility of confession

seems to keep the problem of retraction and repudiation to be an endless since they contain

loophole in which the prosecution side or the accused person may enjoy the weakness of the law.

It has also seen that to large extent the law governing confession contains provisions (section)

which are unfair as they abrogate human rights. The follow are the challenges which make

progress of retraction and repudiation confession in Tanzania;

4.8.1 The Law allows the use of Unjustified methods to get Confession

The law particularly The Evidence Act191 provide the criteria of which confession can be admitted

by the court as evidence against the accused person or maker, the section provides as follows;

―No confession which is tendered in evidence shall be rejected on the ground that
a promise or a threat has been held out to the person confessing unless the court is
of the opinion that the inducement was made in such circumstances and was of
such a nature as was likely to cause an untrue admission of guilt to be made‖

The section revealed certainly that confession can be taken even by the use of threat or torture

but what is important is the truth of such confession. The question may rise from that weakness

of the law that what will be the duty of the prosecution side in case the accused person claimed

before the court that he has confessed due to threat or use of force against him?

189
Loc. cit
190
Loc. cit
191
Section 29 of 1967, Cap 6

78
On this question the prosecution should prove the genuineness or correctness of the confession in

order to connect the accused person with the contents of the confession. By proving the

genuineness of the confession then the court will admit such confession since that the law accept

genuine confession even if it has been obtained through the application of force or threats.

This section is unfair at general since it encourage the use of force which at the end abrogate

human rights, that accused person tortured to the point that they became disable as a results of

parts of their body being destroyed by either fire or any instruments which can be applied to

human body and excruciating pain so as he can confess. Also other accused loose their life as a

result of this pain or torture.

Acceptance of the confession obtained by the use of force is against the Constitution of United

Republic of Tanzania, 1977 as well as international instruments. As the Constitution of United

Republic of Tanzania 1977 192 and United Nations Universal Declaration of Human Rights

1948193 prohibit the situation of any person to be subjected into torture or inhuman or degrading

punishment or treatment.

4.8.2 Conflict of Provisions Governing Confession

The provisions under The Evidence Act194 are seems directly to conflict each other which also

became a problem in the administration of criminal justice in Tanzania. This is by the sections

not to connect with each other hence brings difficultness of which section is superior as opposed

192
Article 13(d) and (e)
193
Article 5
194
Ibid

79
to another. The conflicting sections are those of The Evidence Act,195 particularly section 27 and

section 29 of the Act.

The Evidence Act196 provide the criteria for admissibility of confession that confession in order to

be admissible it has to be freely and voluntarily given by the accused person, also under

subsection 2 of the section left the onus of proving voluntariness of the confession to the

prosecution side. The Act197 also revealed that ―confession shall be held to be involuntary if the

court believes that it was induced by any threat, promise or other prejudice held out by a person

taking it, as the section provides;

(1) A confession voluntarily made to a police officer by a person accused of an

offence may be proved as against that person.

(2) The onus of proving that any confession made by an accused person was
voluntarily made by him shall lie on the prosecution.

(3) A confession shall be held to be involuntary if the court believes that it was
induced by any threat, promise or other prejudice held out by the police officer
to whom it was made or by any member of the Police Force or by any other
person in authority.

This brings a sense that the incriminating statements of the accused person cannot qualify to be

confession unless they have been made freely and voluntarily by the accused person himself

hence cannot be admissible before the court of law as evidence as also stated by the High Court

of Tanzania in the case of Josephat Somisha Maziku V. R198 in which it was held: confession

would only be inadmissible for the reason of threats or undue influence or by a reason of torture.

195
Ibid
196
Section 27
197
Section 27(3)
198
[1992] TLR 227 (HC)

80
At the same time The Evidence Act199 allows admissibility of confession obtained by threat or the

use of force regarding that such confession contained genuine or truth admission. The section

reads as follows;

―No confession which is tendered in evidence shall be rejected on the ground that
a promise or a threat has been held out to the person confessing unless the court is
of the opinion that the inducement was made in such circumstances and was of
such a nature as was likely to cause an untrue admission of guilt to be made‖

Section 29 of The Evidence Act200 provides on its way that, what is important for a confession to

be admitted as evidence against the maker is truth of the information given by the accused

person, and therefore the police officer or the person in authority may use any method under the

condition that such method will cause accused person to give correct or genuine confession.

The two sections are conflicting to each other at large as revealed above, where section 27

emphasize on the accused person to confess freely and voluntarily while section 29 provide that

whatever methods is used to get confession such confession can be admissible by the court as

evidence regarding that the information (confession) is true and genuine.

This confusion of the law also bring confusion to the body of interpreting the law (court) which

position of the provision of the law is to be observe in case of conflict of the law, also the police

officer(s) and the person in authority they are left in a dilemma of which position is legally

accepted whether the accused person to have voluntary confession as per section 27 of the Act or

to use force or threat just to get only correct or genuine information as per section 29 of the Act.

199
Section 29
200
1967

81
However the general public at large is affected by the conflict of these sections on which is

needed in the administration of justice.

4.9 Conclusion

Confession as a crucial instrument in the administration of criminal justice need to be

administered in a proper way as to such extent it does not lead to repudiation or retraction by the

accused person, where at the end bring a lot of negative impacts in the administration of criminal

justice as mentioned above. Despite of repudiated and retracted confession to have negative

impact in the criminal justice however, if confession is administered improperly by either police

officer or person in authority it creates negative image to the general public as they lose hope and

trust in the institutions capable of taking confession.

82
 CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

This chapter concludes the whole research and reviews the various recommendations regarding

confession, and in light of the current protections offered by the law, make recommendations as

to what steps should be taken by those charged with the enforcement of the law to prevent

miscarriage of justice.

5.1 Conclusion

Throughout the study it has been found that the judiciaries have a wide scope in examining and

evaluating the weight of confession, hence, through regarding the rules of free and voluntariness

of confession the court is capable of admitting or rejecting a particular confession.

Therefore, this brings about contravention on the rules guiding confession which requires that

any confession must be made free and voluntarily by the maker, but in practice and through case

law it is argued that; a confession is not inadmissible even if it was obtained through coercion

and inducement only if such coercion and inducement did not affect the truth of confession, this

position was held in the case of Josephat Somisha Maziku V. R (Supra) hence, it is not easy for

the courts of law to determine the extent to which such coercion or inducement had caused an

accused to make untrue admission of guilt.

83
Confessions play a key role in the administration of justice especially criminal justice. On this

ground great care need to be taken to avoid using confessions that have been improperly made to

get convictions. This would help to see to it that only the guilty parties face the wrath of the law

but not the innocent.

5.2 Recommendations

In this study the recommendations are given out in relation to confession and its admissibility as

evidence in Tanzania as follows;-

The law should be designed clearly to state on how a clear confession can be obtained,

specifically by considering the rules of free and voluntariness unlike the current position under

section 29 of the Tanzania Evidence Act which provides inter-alia that " no confession which is

tendered in evidence shall be rejected on the ground that a promise or threat has been held out to

the person confessing unless the court is of the opinion that the inducement was made in such

circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be

made".

The current position regarding confession in Tanzania gives discretion to the court to rule upon

the admissibility of a confession obtained on the ground of promise and threat, hence, it vitiates

the ruling principles of free and voluntariness, and judges and magistrates are also likely to be

affected by the political pressure or dictated by interest hence admit such confession which may

lead to gross injustice.

84
5.2 Reforms to be effected in The Evidence Act, 1967

When a confession is made it forms part of facts and upon its admission by the court a

confession becomes evidence per se, it is important to reform the law of evidence specifically on

provisions regulating confession which tends to abrogate human rights, this will insure

administration of criminal justice in Tanzania. The following measures should be taken into

consideration by the Executive, Courts of law, the legislature as well as the society in general to

ensure that human rights are observed as the key element in proper administration of criminal

justice in Tanzania.

5.2.1 To the Legislature

The legislature being the Organ with exclusive power as a law making body in the country,

should observe the human rights of the people they lead. They should not diverge from the

human rights enshrined in The Constitution of the United Republic of Tanzania neither enact any

provision which contravene with the constitution. They should bear in mind that the Tanzania we

have today is not that of the past 50years, it is the modern one which need to have equitable laws

to regulate their conducts in a manners prescribed by The Constitution of The United Republic of

Tanzania, specifically on the issue of not being subjected to torture or any form of inducement

notwithstanding the nature of the offence and its gravity. By that the Legislature has to do the

followings reforms;

85
5.2.1.1 To Remove Section 29 of the Law of Evidence Act which Tends to Abrogate Human

Rights

The section has revealed not to respect human rights as it allows the use of force, threats,

inducements or coercion. The section considers the outcome or the result of the use of the unfair

methods that if the admission is true then it will be admissible as evidence, this section

encourage unfair treatment to the suspects which is not the intention of law to cause harm to

people it serve.

In a country governed by a rule of law like Tanzania, provisions of law which abrogate human

rights are not expected to be seen and therefore s 29 of the Tanzania Evidence Act has to be

removed. This section also stimulate retraction and repudiation to take place since that accused

person if they receive any form of unfair treatment are given chance to retract or repudiate what

they have made.

5.2.1.2 Settlement of Confusion Among Sections of The Evidence Act

The two conflicting section (s 27 and 29 of the Act) has to be settled clearly so that they cannot

conflict each other. It‘s the characteristic of the good law that it has to be clear/ certain on the

manner it expressed the way human conduct can be regulated. S 27 and 29 of the Act separately

convey clear position but together are not matching each other, and therefore a good law is that

one which does not provide double standings on the same issue or matte it address. It‘s a

suggestion that section 29 of the Act to be removed or amended to the extent that it cannot

conflict with the position given by section 27 of the Act.

86
There is high demand of settlement of confusion between the sections since that the two sections

are both used by the court of law when consider whether to admit or not to admit confession as

the piece of evidence against the maker of the statement.

Hence, the amendment needed under s 29 of the Tanzania Evidence Act, is to remove words

which encourage unfair treatment, words like promise and threat as the mechanism of having

confession, however the section has to centre its position that no admissibility of a true

admission can be done just because it has obtained as a result of intimidation.

Farther more, the section (s 29) has to be amended and remove discretion imposed to the court to

determine admissibility of confession, hence admissibility of confession must base only on

criteria lay down under the law which is, must be made freely and voluntarily.

5.2.1.3 The Law should be developed

Also, the law should be reformed in order to accommodate procedures for confession from

special groups like juvenile and people with temporal mental disorder, these special groups need

be treated in their specific way rather than general ones. Therefore, procedures for extracting a

confession from a juvenile must be done by an officer who is learned on how to deal with

juvenile matters same as to those who have temporal mental disorder.

87
5.2.2 To Courts of Laws

The judiciary being vested with exclusive power to interpret laws and making decision in the

country, they are encouraged to perform their judicial work in manner prescribed by the laws.

This is because while they are required to determine public interests in one place at the same

time they should not forget or taking for granted individuals rights and interest. Thenceforth they

should always observe the human rights of any individual whether suspect or not. However, the

judiciary has to pay attention on those who disobey the laws while are dealing with confession

issues as follow;

5.2.2.1 The Need for the Law to Provide Disciplinary Action

That, once the court proves that certain confession has been ether obtained after the application

of force, inducement, promise or threat or the said officer had not adhere the rules of confession,

then the court has to take such police officer into disciplinary action. Since rules of confession

are part of the laws of the country. By that, a person who willfully contravenes with the rules of

confession is guilty of an offence (disobedience of statutory duty) and is liable to imprisonment

for two years contrary to s 123 of the Penal Code [Cap 16 R.E 2002].

Obey the laws of country is one of the obligation of all citizen and non-citizen of Tanzania living

within the country as provided under Article 26 of The Constitution of United Republic of

Tanzania. If disciplinary action will be taken for those who disobey the laws for sure confession

taken by the police officers and person in authority will no longer be useless for reason of none

adhere to the rules of confession.

88
5.2.3 To the Executive

The executive organ has been vested with power to enforce the laws in the country through its

organs that are police and prosecutions in regulating individual‘s conduct and ensuring that those

who violate the laws are held responsible and punished. Thus they are encouraged to dig deep in

securing evidence to support the allegations of the accused person. They should not be controlled

by their personal motives, not by the group of persons in their services. They have to base on the

laws of the land and they should observe fair procedure and human rights.

5.2.4 To the Public

Despite the fact that, most members of the public in Tanzania does not know how to read and

write in English language hence incapable to understand their laws, they should not be reluctant

on matters pertaining to their rights, especially that require fair trial and equality before the law.

They should be encouraged to have the habit of making follow up and questioning on matters

affecting their rights to the respective organs as well as other legal professionals. They should

not hesitate.

Moreover, members of the public must participate fully to various legal seminars and training

issued by lawyers or any institutions intended to provide legal aid and training, they must

participate fully to various ceremony like Law Day in which legal aid is provided. However they

must attend to Public Days in which legal aid is given like Saba Saba Day where business

exhibition done by business entities and private person, under this business exhibition even legal

departments are involved and they provide legal aid and training where necessary.

89
 BIBLIOGRAPHY

Books

CD, Field‘s (2003), Law on Admissions and Confession, 2nd Ed., Delhi law House.

DENNIS, Ian (2007), The Law of Evidence, 3rd Ed., Thomson, Sweet & Maxmell,
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EMSON R (2004), Evidence, 2nd Ed., London, Palgrave Macmillan.

JENNY Mc Ewan (2003), Evidence and the Adversarial Process: The Modern Law, 2nd

Ed., Hart Publisher.

NORMAN M, Garland (2006), Criminal Evidence, 5th Ed., Calfonia, Phillip A. Butche.

RATANLAL &DHIRAJLAL(2007), The Law of Evidence, 21st Ed., Wadhwa&

Company, India, reprint.

WILLIAM, Twinning (2006), Rethinking Evidence, Exploring Essay, London,

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GISLi H. Gudjonsson (2003), The Psychology of Interrogations and Confession

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of Dar es Salaam

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OPUTA C. J. (1981) The Law and the Twin Pillars of Justice, Oweri: Government
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