CRIMINAL PROCEDURAL LAW

TOPIC ONE: INTODUCTION TO CRIMINAL PROCEDURE LAW

I. Conceptual Information

Criminal Procedure: Is a body of procedural law which governs the inquiry as to whether or not
criminal law has been violated OR whether or not a crime has been committed.

It is a body of principles which governs the administration of criminal justice law. It is a

generally a helping hand to criminal law.

It entails the way the state and its law organs are supposed to handle individuals suspected or
accused of committing crimes with a view of establishing their guilty or innocent through
established courts of law or machineries.

Criminal Procedure enhances rule of law as it avoids people taking law on their own hands.

Case Law: JOSEPH MASUNZU V. R, CRIM. APPEAL NO. 3 OF 1991 (HC)(TB): It was
said, ‘we cannot peaceful make our journey through life without law telling us the right direction
to follow and sometimes even the time to follow or when to start our journey and through which
route.’

II. Objectives of Criminal Procedure Law

Case Law: KAMUNDI V. R, (1973) EA 540,545: It was held that ‘the whole purpose and
intention of the criminal procedure code is to lay down provisions and procedures to see that
justice is done.’

Criminal Procedural Law has the following objectives:

i) To safeguard the rights of a suspected person against possible abuses of power.

ii) To provide a mechanism for enforcement of criminal Law i.e. institutions that enforce
criminal law, their powers and roles.

iii) To enhance/ensure that rules of natural justice are complied with in the administration of
criminal justice.

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 III. The Difference between Criminal Procedure Law & Criminal Law

Criminal Procedure falls under Procedural providing ways of how to handle individuals who are
suspected to have violated criminal Law. On the other side, criminal law is substantive law that
creates offences and conducts that violates penal laws.

In simple words: Criminal Procedure answers the question HOW while Criminal Law answers
the question WHAT.

And generally there can be no criminal procedural law without criminal law. As such the two
branches of the law are inseparable. They need one another for their effective implementation.

IV. Sources of Criminal Law

a) The Constitution of the United Republic of Tanzania, 1977

The URT constitution forms the basis/foundation from which all other laws all other laws
emanates.

The principles formulated in criminal procedure law must adhere to the principles established in
the Constitution.

The URT constitution is regarded as a source of Criminal Procedural Law in Tanzania for a
number of reasons:

o It establishes the validity of criminal procedure i.e. for Criminal Procedure to valid it
must comply with the standards established under the Constitution.
o It establishes the High Court and the Court of Appeal which play a great role in
implement both criminal law and criminal procedural law: Article 108 on the
establishment of HC of URT; Article 114 on the HC Zanzibar; Article 117 on the Court
of Appeal
o The constitution establishes various principles that need to adhered to in administering of
justice:
 Article 107A requires the following principles to be adhered by court:
 Impartiality without considering ones social or economic status
 Not to delay dispensation of justice without reasonable ground

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  To dispense justice without being tied up with technicalities that my
hinder dispensation of justice
 To award reasonable compensation to victims of wrong deeds
 Article 12 on the Right to equality as all human beings are equal
 Article 13 on Equality before the law. All persons to be treated without
discrimination Read specifically sub Article 6 – Recognition of rules of natural
justice: fair hearing, right to appeal or other legal remedy such as revision or
review against the decision of the court or other agency; presumption of
innocence; no liability for what is no offence at the time of commission; no
heavier penalty than prescribed by the law; protection in all activities pertaining to
criminal investigation; right against inhuman, degrading punishment/treatment
and right against torture
 Article 15 on right to personal freedom: no person shall be arrested, imprisoned,
confined, detained or deported or otherwise be deprived of his freedom unless
prescribed and in accordance with the law.
 Article 16 on Right to privacy and personal security
 Article 17 on the Right to freedom of movement
b) Statutes
 Principal Legislation & Subsidiary Legislation

i) The Criminal Procedure Act and the rules/regulations made under the Act, Cap 20 of Laws of
Tanzania

This is the major law governing criminal law in mainland Tanzania. It governs all criminal cases
unless if there is another specific law governing procedure.

The CPA applies to the High Court and subordinate courts save for the Primary Court. The Act
does not also apply to the Court of Appeal.

ii) Appellate Jurisdiction Act and the Court of Appeal Rules

These govern proceedings in the Court of Appeal.

iii) Magistrates Courts Act of 1984

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This Act establishes the Subordinate courts: Primary Court, District Court and RMC. It further
provides for the jurisdiction of these courts in criminal matters

Noteworthy, the Act has a number of Schedules. The third schedule (The Primary Court
Criminal Procedure Code) governs criminal cases in the Primary Courts.

iv) Economic and Organised Crime Act, Cap 200.

It deals with economic offences/crimes. It gives the procedure to deal with economic offences.

The Act establishes the Economic Crime Court which is the HC of Tanzania.

v) The Proceeds of Crimes Act, 1986

This provides for procedure to be followed when dealing with a person who has obtained
proceeds of crime. It also provides for procedure to deal with offences under Anti Money
Laundering Act

Other Acts include: The Penal Code, The Immigration Act, The PCCB Act etc

c) Precedents/Case Law

These are judgments or decisions of a court of law cited as authorities for deciding similar sets of
facts because of the legal principles embodied in them.

Types of Precedents:

 Original Precedents – Those which create and apply new rule.

 Declaratory Precedents – These are mere applications of the existing rule of law
 Authoritative Precedents – These are binding and must be followed unless distinguished
or overruled.
 Persuasive Precedents – These need not to be followed, but are worth of consideration
d) International Law: (UN Agreements; Regional and Sub-regional
Agreements: Bilateral or Multilateral Agreements)

Most of them are actually regional with a few exceptions. For instance, in Tanzania through the
Mutual Assistance in Criminal Matters Act No. 24/91, the Government through the Attorney

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General may enter into agreements with foreign countries in order to assist one another in
handling certain kinds of crimes and criminals. Another example is the Extradition Act that came
as a result of various bilateral Extradition treaties.

At the level of UN there are number of conventions that provide some guides to be observed by
law enforcers in handling criminal suspects or even convicted persons: The International
Covenant on the Civil and Political Rights; The Convention against Torture; Convention on the
Rights of the Child just etc.

V. Criminal Procedure and Protection of Individual Rights

Being a suspect does not deny one the quality of being human beings. As such a suspect or an
accused or convicted person has certain rights that need to be protected by those carrying various
functions in the criminal justice system. These rights can be either:

a) Constitutional Rights i.e. guaranteed in the national constitutions ref to

provisions identified above just to cite few.
b) Natural Justice i.e. procedural fairness that need to be adhered to whenever
making decisions or taking actions that may affect one’s interests: rule against
bias and the right to be heard.
c) Human Rights i.e. rights that one is entitled to for the virtue of being a human
being – universal declaration of human rights and all other human rights that
emanated from the above declaration.

Generally, the following are the rights that accused person is entitled to in the
administration of criminal justice:

I. The accused must be informed of the charges against him i.e. one needs to know the
offence being accused of. This is done by serving a copy of the charges to the accused
person – see section 100, 112, 228 of the CPA
II. The trial must be done in the accused presence. See S. 192 & S. 196 that insists on the
presence if the accused person & S. 193 & 197 of the CPA provides for exceptions to this
right.

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 III. If there are health problems so that the accused cannot appear before the court, such
accused person should be excused.
IV. The evidence should be taken in the presence of the accused.
V. The accused should be recorded in the language that the accused understands otherwise, a
translator must be involved.
VI. Right to cross-examine the prosecution witness.
VII. Right to produce evidence in defense.
VIII. Right to be given reasons for the decision reached by the court
IX. Right not to be tried twice for the same offence. The right against double jeopardy.
Doctrine of Autre fois acquit i.e. the accused was found not guilty of the offence and
Autre fois convict i.e. the accused was charged and convicted of the given offence – see
section 137 of the CPA
X. Immediate and quick dispensation of inquiry and trial

All in all the above rights aim at ensuring fair trial in the administration of criminal justice. For a
trial to be fair the following are important that they should exist:

 Equal rights and opportunity to both parties.

 Fair and adequate opportunity to file cases before an umpire body.
 Independent, Impartial and competent judges. This can be enhanced through the
following factors:-
Separation of Judiciary from Executive functions
Court to be open save for few circumstances that might need proceedings to be
held in camera.
Magistrates and judges to avoid being biased.
If need be there should be possibility of transferring cases to secure impartial
trial.
Competent and skilled judges/magistrates in criminal justice process and
practice.
 Need of representation from competent lawyers
 Trial should be conducted in a venue that is easily accessible to both parties especially
the accused person.

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  The accused should presumed innocent till proved guilty basing on the argument adduced
by the prosecution.
TOPIC TWO & THREE: THE COURT SYSTEM & JURISDICTION OF
COURTS IN CRIMINAL MATTERS
I. Introduction

It is important to study the court system in Tanzania as they form a very important part in the
administration of Criminal justice.

The Court system in Tanzania is regulated by number of laws: The URT constitution, The
Magistrates Courts Act (the two are the basic laws). Other laws include; the Ward Tribunals Act,
the National Defence Act; the Law of the Child Act; the Economic and Organised Crimes Act
which establish courts to deal with specific issues in administration of criminal justice.

Classification of Court system in Tanzania

a) Regular Courts established under the Constitution & Magistrates Courts Act
i) Primary Court (PC)

These are established under Section 3 of the Magistrates’ Court Act. They are established in a
given district and exercise jurisdiction in their respective districts.

The Primary Court has jurisdiction to determine criminal matters subject to the First Schedule to
the MCA. The schedule provides for the offences that can be tried in the Primary Court. And the
third schedule to the Act provides for the Primary Courts Criminal Procedure Code.

The powers, practice and procedures of the PC are provided for under Section 19 of the MCA.

Appeals from the Primary Court lie to the District Court – S. 20(a) (b) of the MCA. And every
appeal shall lie to the District Court by way of petition within thirty days after the date of the
decision or order against which the appeal is brought.

Read further: S. 25 on the Appellate and revisional jurisdiction of the High Court in relation
to matters originating from the primary court. Such appeals will lie to high court within 30 days
from the date the decision was given by the District Court. The appeals are by way of petition
that should be filed in the District Court. Afterwards the District Court will have an obligation of

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dispatching the petition to the High Court. Nevertheless the DPP can file the appeal directly to
the HC and should give notice to the District Court.

The Primary Court receives appeals from the ward tribunals see the Ward Tribunals Act (S.20)

Attention: Section 33 of the Magistrates’ Court Act appearance on behalf of parties in primary
courts. No advocate or public prosecutor as such may appear or act for any party in primary
court.

In every proceeding in the Primary Court including finding the court shall sit with not less than
two assessors – Section 7 of the Magistrates’ Court Act.

Read: Part V of the Act on Transfers.

ii) District Court

These are established under Section 4 of the Magistrates’ Court Act. These are to be established
in every district and they have jurisdiction within the district in which they are established.

Part IV of the MCA provides for jurisdiction and powers of the District Court. Section 40 (1)(a)
provides that the District Court has original jurisdiction in all proceedings of criminal nature.

Further the DC is the final appellate court on all matters on points of law originating from the
respective Ward tribunals. Before the appeal the Primary Court has to certify that there is a point
of law that needs to be determined by the District Court.

Appeals from the District Court lie to High Court of the Tanzania

iii) Resident Magistrate’s Court

They are provided for under Section 5 of the Magistrates’ Court Act. They are established by
orders of the Chief Justice. The establishment must be gazette and must specify the court ’s
designation and area of jurisdiction.

The jurisdiction of the RMC is provided for under S. 41 of the MCA read together with the
second schedule to the Act.

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Essentially, the jurisdiction of RMC in criminal matters is limited. The RMC were created with
the main purpose of entertaining cases of civil nature.

S.45 of the MCA provides for the powers of the minister to confer extended appellate
jurisdiction on resident magistrates which otherwise was jurisdiction to be exercised by the HC.

Note: S. 173 of the CPA the original jurisdiction of the RMC may be extended to try
offences/cases that would otherwise be tried in the HC

iv) High Court of Tanzania

The HC is established under Article 108 of the URT constitution. He jurisdiction of the HC is
unlimited as it provided for under S. 2 of the JALA.

Article 2 of the Constitution gives original jurisdiction to try any matter of which neither the
constitution nor any other law says expressly that it should first be heard and determined in
certain court.

The HC has both unlimited original and territorial jurisdiction.

Appeals from the HC lie to the court of Appeal.

Moreover, the HC has appellate & revisionary jurisdiction to determine appeals originating from
the district courts and RMC – S. 359 of CPA, S. 25(1), S. 31 & 43(1) (2) of the MCA

The Court also has supervisory powers over subordinate courts as provided under S. 30 & 44 of
the MCA.

v) Court of Appeal of Tanzania

This court was established in 1979 after the collapse of the EACA.

The court is established under Article 117 of the URT constitution. Generally the court has no
original jurisdiction.

It has appellate jurisdiction over decisions of the HC and courts with extended jurisdiction.

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The court has supervisory and revisionary powers of the subordinate courts – See the Appellate
Jurisdiction Act for these powers.

The court is the highest and final court of appeal in every case except for cases involving Islamic
matters from Kadhi’s courts.

b) Other Criminal Courts and Tribunals

i) Ward Tribunals

These are established by the Ward Tribunals Act

ii) Juvenile Courts under the Law of the Child Act

This is established under the LCA with jurisdiction of dealing with various issues related to
children including those children who come into conflict with the law.

iii) Court Martial & Court Martial Appeals Court

These are military tribunals capable of trying criminal cases committed by military men in the
cause of their duties and assignments as provided in the National Defence Act.

They are normally convened by the president or any other person authorized under the Act.

They have exclusive jurisdiction to deal with service offences as provided for under the Act.

Appeals from the Court Martial lie to the Court martial Appeals Court which is in actual the full
bench of the HC and further appeals lie to the Court of Appeal.

The decisions of these courts can be subjected to judicial review by the HC in order to correct
patent errors on the records.

iv) Economic Crimes Court

This court is established under the EOCCA to deal with offences created under the respective
Act. Essentially the Act designates the HC to be the Economic Crimes Act.

II. Jurisdiction of courts in Criminal Cases

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 a) Meaning of Jurisdiction

This refers to the limit within which a judicial officer can exercise its power. When a court
entertains any matter without jurisdiction, the decision made by such court becomes null (It is as
good as no decision has been made by court with no jurisdiction).

b) Categories/Types of Jurisdiction
i) Original Jurisdiction

This is the power of the court to entertain a matter for the first time (a court of first instance).

Save for the Court of Appeal, all other court have jurisdiction to act as courts of first instance
subject to the nature of offence to be determined.

See Section 40 0f the MCA on the original jurisdiction of the District Court.

ii) Territorial Jurisdiction

This refers to geographical limits within which a court can exercise its jurisdiction. For instance:

 The Primary court has jurisdiction within a district in which it has been established;
(Section 3 of Magistrates’ Court Act)
 the District Court also has jurisdiction within the district within which it is established;
(S.4 of Magistrates’ Court Act)
 The Resident Magistrate Court has jurisdiction within the area specified in the order
establishing the court and; (Section 5 of the Magistrates’ Court Act)
 the High Court of Tanzania has jurisdiction throughout Tanzania Mainland
 The Court of Appeal has jurisdiction over the whole of Tanzania both Mainland &
Zanzibar.

If an offence is committed along the travelling routes, all the courts situated along that route will
have jurisdiction –Section 184 of the Criminal Procedure Act on offences committed on a
journey.

iii) Sentencing Jurisdiction

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This is the power of the court to impose a penalty for a person found guilty.

The High Court has unlimited sentencing jurisdiction – Section166 of the High Court.

The sentencing jurisdiction of the subordinate courts is limited.

 Section 170 of the CPA for sentencing jurisdiction of the DC & RMC: imprisonment not
exceeding 5years; a fine not exceeding 20million Tanzanian shillings & corporal
p.unishment.
 Section 2 of the Primary Courts Criminal Procedure Code under the Third Schedule to
the MCA: imprisonment not exceeding 12months; a fine not exceeding Tshs.500/-;
corporal punishment not exceeding 12 strokes.
iv) Appellate Jurisdiction

This is jurisdiction to receive and determine appeals against decisions of a court below the
appellate court.

For instance the Court of Appeal has only appellate jurisdiction. The court entertains appeals
from the High Court.

The High Court entertains appeals from the District Court and Resident Magistrates Court –
Section 359 of the CPA.

The District Court receives appeals from the Primary court – Section 20(1) (a).

v) Extended Jurisdiction

This is given to a specific Resident Magistrate to determine matters which would otherwise be
dealt with the HC Judge – section 173 of the CPA

This jurisdiction is given by the Minister after consultation with the Chief Justice and Attorney
General.

A resident magistrate with extended jurisdiction is deemed to be the HC Judge and the court he
is sitting in is deemed to be the High Court.

Appeals from a resident magistrate with extended jurisdiction lies to the Court of Appeal.

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You could also look at Section 45 of the MCA on extended appellate jurisdiction on resident
magistrate.

vi) Revisionary Jurisdiction

This is the power of a higher court to call for the records of any criminal proceedings before any
lower court for the purposes of ascertain the regularity, correctness, legality or propriety of
proceedings or findings of the subordinate court.

For instance the District Court has revisionary power over the primary court – Section 22 of the
MCA. The high court has supervisory power over the District Court and Resident Magistrate
Court – Section 30 of MCA.

vii) Concurrent Jurisdiction

This occurs where several courts enjoy similar powers to entertain certain matters.

For example the HC enjoys concurrent jurisdiction with other subordinate courts to try all cases
triable by such other courts – Section 164(2) of the High Court.

viii) Conferred Jurisdiction

Conferred jurisdiction occurs when the Director of Pubic Prosecution gives power to subordinate
courts (RMC & DC) to determine matters which could be dealt with by the HC. See Section 12
(3)(5) of the Economic and Organised Crimes Control Act.

Note that under the EOCC, it is only the Economic court that can determine cases of economic
offences. Conferred Jurisdiction is given by the Director of Public Prosecution through a
certificate order for trial which should be attached to a charge sheet.

ix) Summary Jurisdiction

This applies to cases where the court is allowed to deal with a case without taking evidence
especially if offences involved are petty or small.

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The power can be invoked where the court is convinced that the allegations are true and no
injustices would be occasioned to the parties. See Section 213 of the CPA

x) Jurisdiction for committal Proceedings – Section 178, 243 & 263 of

the CPA

This involves powers of a lower court to undertake preliminary inquiries over a case with a view
of ascertaining whether sufficient materials exist so as to send the case to the higher court for
trial.

Essentially all cases triable by HC and all other cases as directed by the DPP should be initiated
by way of committal proceedings in the District Court.

Committal Proceedings are not trials but mere preparations of the case for the trial court, which
is higher than the committing court.

 Status of a decision Made by a Court that has no Jurisdiction

In principle, no court is allowed to entertain an issue be it criminal or otherwise without powers

to do so. Any decision made by a court with no jurisdiction becomes a nullity. Such decision is
as good as no decision made.

 Transfer of Cases – S. 189 of CPA and SS. 47 & 48 of MCA

This occurs when a case has been instituted in a particular court for one reason or other needs to
move to another court either lower court or higher court.

The transfer of a given case can be done by court in which the case is instituted either voluntarily
or under the order of another court usually higher than the court in which the case has been
instituted – See S.47 on Transfer of cases from the Primary Court & S. 40 0f the MCA on
transfer of cases to Primary court from higher courts where the case is wrongly instituted in the
DC or RMC or HC where ordinarily the PC would have jurisdiction.

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Moreover, see S. 189 of the CPA on the Transfer of cases where offence is committed outside
jurisdiction.

Reasons for Transfer of cases from one court to another:

1. Circumstances or gravity of the proceedings.

2. Possibility of failure of justice if the proceedings are held in the PC.
3. Subject matter of the proceeding arose outside the local jurisdiction of the given court
4. Unsoundness of mind if the case was instituted in the PC.
5. Wishes of the accused that the case be transferred.
6. Where a case is filed in a court with no jurisdiction

 Uncertainty as to Jurisdiction – SS 183 & 185 of CPA

There are circumstances where one might not be sure of court which has jurisdiction to handle a
given case. The uncertainties may be caused by a number of factors:-

 Where offence to be tried occurred in more than one local area

 An offence committed consists of several acts done in different local areas
 Where one is not sure of where exactly an offence was committed.

Under such uncertainties, an offence may be inquired into or tried by a court having jurisdiction
over any such local areas – S.183 of the CPA.

Inquiries can also be made to the HC by a doubting court and the HC can make decision as to
which court the offence can be inquired into or tried – S. 185 of the CPA.

 Jurisdiction and DPP’s consent

There are certain cases which cannot be determined by any court without the consent of the DPP.
Such cases include incest by both male and females under S. 158 & 160 of the Penal Code
respectively; offences under the National Security Act as provided u/s 16 of that Act; and
offences under the Economic & Organised Crimes Control Act as provided u/s 26 of the
EOCCA.

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Consent is a statutory requirement hence the court is bound to satisfy itself that such consent has
been given by the DPP before proceeding with the matter.

TOPIC FOUR: CRIME REPORTING, INVESTIGATION AND DETECTION OF

CRIMES

I. Introduction

Generally, no criminal offence can be dealt by any court or established authorities without there
being information as to the offence committed. Moreover in order for a case to be taken to court
there should be enough evidence to show that there is need for the court to determine the matter
and pass appropriate decision on the matter.

It is on this basis that there is need to spend time to learn about: crime reporting; investigation
and detection of crimes.

III. Crime Reporting

The word report can be used to mean giving a spoken or written account of something that one
has observed, heard, done or investigated.

As such crime reporting entails the act of giving spoke or written account of a crime that has
been committed or that which about to be committed to the relevant authorities as is prescribed
by law.

a) Duty to Report Crimes – See Sections 7, 9 and 10(3) of the CPA

In Tanzania, the duty to report crimes is placed on every individual.

The law requires every person who is or becomes aware: (S. 7(1) of the CPA)

 Of commission or intention to commit any offence; or

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  Of any sudden death or unnatural death or death by violence or any
death under suspicious circumstances or body of any person being
found dead without it being known how that person dies;
 to give such information to the police officer or any person with authority in the
locality. If such information is given to a person rather than a police officer, this
person has a duty to transfer the information to the officer in charge of the nearest
police station.
 NB: The phrase every person can be used to mean: victim of crime, witness, suspect,
accused/offender himself.

Noteworthy, the law protects individuals who in good faith give information related to
commission of crimes from any liability whether civil or criminal for damages resulting from
such information given to police.

The protection from liability is only available if the information was given without any malicious
motive. For instance, if one gives false information knowingly such person becomes liable under
the provisions of Section 106 and Section 102 of the Penal Code:

102.—(1) Any person who, in any judicial proceeding, or for the purpose of instituting
any judicial proceeding, knowingly gives false testimony touching any matter which is material
to any question then depending in that proceeding or intended to be raised in that proceeding, is
guilty of the misdemeanour termed "perjury".

106. Any person who, with intent to mislead any tribunal in any judicial proceeding—
(1) fabricates evidence by any means other than perjury or subornation of perjury; or (2)
knowingly makes use of such fabricated evidence, is guilty of a misdemeanour, and is liable to
imprisonment for seven years.

See the cases of:

Yohana Mujuni vs. Isaya s/o Bakari, (1969) HCD no. 23

The plaintiff sued the defendant for “spoiling his reputation, maliciously imprisoning him and
uprooting his crops”. The parties are neighbours and had numerous disputes over the rights of
each in relation to the land of the other. In the course of one dispute, the defendant made a report

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to the police that the plaintiff had threatened violence to him c/s 89(1) (a), Penal Code. The
plaintiff was arrested, remanded in prison for two days and criminal proceedings were instituted
against him. The police and district officer also uprooted the plaintiff’s crops in the area over
which the dispute had arisen. The criminal proceedings terminated in the plaintiff’s favour, and
he now seeks Shs. 1,000/- for being locked up, Shs. 240/- for loss of work which attending
primary court and Shs. 328/20 for loss of crops are related expenses. The Primary Court found
for the plaintiff but reduced the award for being locked up an resultant loss of reputation to Shs.
500/-. The Primary Court appears to have treated loss of reputation not as defamation, but a part
of the damage from being locked up, that is, false imprisonment. The District Court upheld the
award for uprooted crops but set aside all compensation for loss of work and loss of reputation
on the ground that the defendant had merely made a report to the police, citing Jacob
Tibifumula v. Ntangaku Bebwa and another, (PC) High Court, Civ. App. 208-M-68, and
Emir Kyabashulla vs. John Thana, (PC) High Court, Civ. App. 59-67. In the former case, the
High Court held that an action for false imprisonment would not lay there the plaintiff had been
confined by virtue of a judgment of the Primary Court. In the latter case an action of defamation
was held not to lie by the High Court since the defendant in that case had merely reported an
alleged offence to the police.

Held: (1) The District Court was correct in refusing to allow damages for loss of reputation and
loss of work on the ground that the defendant merely reported to the police an alleged offence,
and then the police took the action which injured the plaintiff. “What the [defendant] had done,
he was perfectly entitled to do so, that is to say, to make a report that the appellant had been
threatening him with violence”. (Note: The Court seems here to hold that there is at least a
qualified privilege, that is, no liability without actual malice for defamatory allegations of crime
when made to police).

Tumaniel vs. Aisa d/o Isai, (1969) HCD 290

The plaintiff claimed damages under Chagga law for defamation based on a false allegation of
theft. The plaintiff succeeded in both counts below.

Held: (1) “That Chagga customary law did provide that anyone who made an allegation of theft
against another and failed to prove it should pay compensation for the damage done to the good

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reputation of that other. What limitations there are on this general proposition are not clear. I
think there should be limitations on this general proposition as otherwise problems will be
caused in this rapidly developing society.”

(2) “Where there is reasonable suspicion that as offence has been committed and good grounds
for thinking that a particular person is responsible it is the duty of every citizen to pass on such
information as he has on the matter to the police to help them to find the offender. If the police
act on such information and arrest anyone then the person who has given the information should
not be liable for damages for defamation unless it is plain that he had no good grounds for
suspecting the person named and that he was acting spitefully.”

(3) “In this way a proper balance can be drawn between the duty of the citizen to help the police
in the detection and punishment of offenders and the right of each person not to be accused of an
offence except on good ground. Since the Criminal Law requires that offences must be proved
beyond reasonable doubt where will be cases in which a Court will acquit because it does not
feel sure enough though the evidence is strong enough to raise a great suspicion. In such cases
the person who made the accusation should not be punished by being made to pay compensation.
Similarly there will be cases where the police take a person into custody for investigations and
the person given an explanation which seems quite reasonable and no steps are taken. Again in
(1969) H.C.D. - 248 – such a case the accuser should not be charged unless it can be shown that
he deliberately made a false report to police.

(4) “There would be other cases in which people might go about the village saying that a
particular villager is a thief. That is a different matter. Once the statement is proved false the
spreading it would have to pay compensation. A distinction must make between that sort of
accusation and a report to the police intended to lead to the investigation of a crime and the
punishment of a suspected offender. There should be no compensation payable in such a case
unless the report is shown to be false and prompted by malice.”

(5) Appeal dismissed.

b) Methods of Reporting Crimes

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The information related to commission of an offence may be presented/ given in two ways to a
police officer or a person in authority in the locality concerned: (Section 9(1) of the CPA)

 Orally (in a word of mouth)

 In writing

NB: A person in authority includes: cell leaders; village chairman and secretaries; ward
and division secretaries; justices of peace and magistrates.

The information given under section 9 may be used in evidence in the prosecution of the offence
reported. See Section 9(4) of the CPA.

Moreover, the information above once received by the police should be recorded. See Section
9(2) read together with Section 10(3) of the CPA.

The following is the manner in which the information received should be recorded:-

a) The statement should be in writing

b) The whole statement, including any question in clarification asked by the police & the
answer to it asked by the police and the answer to it should be recorded in full in
Kiswahili or English or in any other language in which the person is examine.
 The recorded statement should be shown or read over to him or if he does not
understand the language in which it is recorded it shall be interpreted to him in
Language he understands, and
 The informer shall be at liberty to explain or add to his statement.
 The record should be signed by the informer immediately below the last line of
the record of the statement and may call any person in attendance to sign as a
witness to his signature.

III. Investigation of crimes (sections 10-69)

a) Definition

The term to “investigate” is defined to mean “to carry out a detailed examination or inquiry,
especially officially, in order to find out about something or somebody.” Therefore, investigation
of crimes entails a process of examining or inquiring about a crime committed or is about to be

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committed in order to establish it for the purpose of prosecution. Thus, crime investigation is
nothing but investigating violations of criminal law.

b) Basis /Rationale/Importance of Investigation of crimes (section 10)

The rationale or basis or importance of investigating crimes is that:

i. It helps to establish facts or circumstances of the crime which has been committed or
which is about to be committed.
ii. It helps to identify, gather and store evidence which will be used in court to prosecute
the offender.
c) Mode of Conducting Investigation Crimes (sections 10-69)

There are basic steps or modes that are followed by police officers or any investigating authority
in the entire criminal investigation. These steps or modes, basically, do include the following:

The police officer who suspects or has reason to believe that a crime has been committed or is
about to be committed, will start investigation by gathering all preliminary information regarding
such a crime. In doing so, he will call persons he suspects (either to have committed the crime or
persons he believes will help him to carry out his investigation) and obtain their particulars such
as their names and addresses.

A person who is required to provide such particulars to the police officer is obliged under the law
to provide the true particulars of the details requested. Likewise, the police officer is also obliged
under the law, to furnish all necessary particulars concerning him if he is asked by the person he
has requested for his details. Failure on either side furnish true particulars as required by the law
is a criminal offense punishable by six months imprisonment or fine not exceeding 2,000/= Tshs
or to both fine and imprisonment.

This is provided for under sections 46 and 10.-(2) of the CPA.

Then, the police officer will proceed to the locality of the crime—“locus in quo.” He proceeds to
the locality of the crime in order to “to investigate facts and circumstances of the case” and to
take such measures as are necessary for the discovery of facts leading to the commission of the
crime or breach of peace.

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This is provided for under section 10.-(1) of the CPA.

Likewise, the police officer, if he deems fit, he may summon or put under restraint, any person(s)
he suspects or he has reason to believe that such a person(s) has committed an offense or is likely
to provide information leading to the discovery of facts or circumstances establishing the
commission of an offense or the breach of peace.

A person is deemed to be under restraint of the police when that person is in the company of the
police officer for the purposes connected with the investigation of the crime committed so that
the person cannot (of his own will) leave the police if he so wishes. A person will still be
considered to be in the company of the police officer if the person is required by a police officer
to wait him (the police officer) at an agreed place for the purposes connected with the
investigation of the committed crime or breach of peace.

This does not matter whether the person in the company of the police has not committed the
offense suspected or he is under lawful custody for the commission of the alleged crime.

This is provided for under sections 5 and 10.-(1) & (2) of the CPA.

Next, the police officer, having restrained the person, he will examine and reduce the
information provided for by the restrained person if he thinks that such information is connected
to the facts and circumstances of the case under investigation.

In recording such information, the police officer is required to record such information in the
prescribed manner as provided for under section 10.-(3) of the CPA.

It is a criminal offense when a person (whom the police officer has reasonable ground to believe
that he has committed an offense or is likely to have information connected with the facts and
circumstances of the case) who has been summoned by the police officer, fails by neglecting or
willfully refuses to appear or does not produce the document or any other thing as requested by
such police officer. The punishment is three years imprisonment, fine to the tune of 500,000/=
Tshs or both fine and imprisonment.

This is provided for under section 10 of the CPA.

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When the suspected person is under restraint or custody of the police, then, there follows
interview. The basic time for interviewing a person is four hours. At the end of these hours, the
person is to be released. However, if it is found out that it is better for the person under custody
or restraint to be further interviewed, the police officer can extend the time up to eight hours.

However, the police officer is empowered by the law to either, make an application before the
magistrate for the extension of the original time of four hours, or to make an application before
the same magistrate for the further extension of the extended eight hours of interview. The
magistrate will either order or refuse the extension of the time for interview if he is satisfied that
there are reasonable grounds to extend or refuse the extension of time for interview.

Again, the restrained person is empowered by the law, to petition for the damages and
compensation if he can prove before the magistrate that the time for interview was extended
maliciously and frivolously without unjustified reason.

Also, the time for interviewing the restrained person does not include the moment or time in
which the police officer stops to interview the person and engage in another activity or cause that
is connected with the facts or circumstances of the case. Likewise, the time for the interview
does not include the moment or time that the restrained person is allowed to use for other
activities or cause that is connected with the facts or circumstances of the case.

This is provided for under sections 50 and 51 of the CPA.

Next, when interviewing the suspect(s), there are duties and obligations to be observed and
performed by the police officer: One, he is required to inform the suspect that he has a right not
to answer any question which he is asked by the police officer, if the police officer believes that
such a question relates to a serious offense and if answered will expose and implicate the suspect
with the commission of the offense. This procedure is done by the police officer if the offense
believed to have been committed does not justify arrest without warrant under section 14 of the
CPA. A police officer who informs the suspect of this right, he is required to cause the suspect to
sign a certain prescribed form indicating that he was informed of this procedure. Failure by the
police officer to cause the suspect to sign the prescribed form as evidence of being informed, the
court will presume that the suspect was not informed of his right. Also, when the suspect refuses
to answer the question asked as the result of being informed of his right, the police officer is

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empowered to inform him (the suspect) that he (the police officer) has drawn negative inference
about him (the suspect).

This is provided for under section 52 of the CPA.

Second, the police officer is required to inform the suspect of his rights while under restraint by
the police and before being asked anything connected with the case. These rights do include: the
police officer has to tell the suspect his name and rank, the police officer has to inform the
suspect that he is under restraint together with the offense for which he is under restraint/custody
fluently in a language that the suspect can understand in writing and orally if possible, that the
suspect is not obliged to answer any question by the police save to provide his personal
particulars to him, that the suspect has the right to communicate with his lawyer, relative or
friend (subject to this CPA); the only exception to the right to communication is only if the
police officer has reason to believe that to allow such communication would cause or facilitate
the suspect’s escape, or the escape of an accomplice of the person under restraint or such
communication would lead to destruction, loss or fabrication of evidence relating to the
commission of the offense.

Further that the police officer has to ensure that the suspect is treated with humanity, respect for
his dignity; the police officer shall not subject him to cruel, inhuman or degrading treatment and
lastly, that the suspect can request and be assisted with medical treatment relating to his health
condition.

This is provided for under sections 53-55 of the Criminal Procedure Act.

IV. Arrest and Other Forms of Restraint

a) What is Restraint & Arrest

The term “restraint” refers to “something which limits the freedom of someone or something, or
which prevents something from growing or increasing.” Therefore, restraint is a term which in
criminal procedure law is used to refer to a situation or process where a suspect is denied his
personal freedom so that he is under the watch and control of the police officer or a person in
authority for the purposes connected with criminal investigation of a crime committed or is about
to be committed.

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As spoken earlier, a person is deemed to be under restraint of the police officer when that person
is in the company of the police officer for the purposes connected with the investigation of the
crime committed so that the person cannot (of his own will) leave the police if he so wishes. A
person will still be considered to be in the company of the police officer if the person is required
by a police officer to wait him (the police officer) at an agreed place for the purposes connected
with the investigation of a committed crime.

This does not matter whether the person in the company of the police has not committed the
offense suspected or he is under lawful custody for the commission of the alleged crime.

This is provided for under sections 5 and 10.-(1) & (2) of the CPA

The term to “arrest” is defined to mean, “to seize and take somebody into legal custody” or “if
the police arrest someone, they take them away to ask them about the crime which they might
have committed.” Therefore, arrest, is a term employed in criminal procedure law to indicate the
process of taking someone lawfully into the custody in order to question him in relation to the
crime he has committed, that he might have committed, or in order for him to furnish
information to the police which relevant to the case under investigation.

b) Kinds of Arrest
i) Powers to arrest without warrant

The term “warrant” is defined to mean “a document that gives police specific rights or powers
such as the right to search or arrest somebody.” Therefore, warrant is a written permission which
authorizes a police officer arrest someone in connection with criminal investigation. There are
offences upon which a police can arrest someone without having warrant of arrest. Different
officers and people have been given power under the law to arrest without warrant of arrest. This
does include:

 Arrest by police (sections 14-15): police officer has powers to arrest without warrant any
person who commits a breach of peace in his presence, any person who obstructs a police
officer in the lawful discharge of his duties, any person who has escaped or attempts to
escape from the lawful custody, any person who is in possession of a property that is
considered to be stolen, any person who is considered or suspected to have committed an

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 offense with regard to such property, any person found laying or loitering in any high
way, yard or garden or other places during night and who is suspected to have committed
an offense or is about to commit an offense or he has in his possession any offensive
weapon or housebreaking instrument; any person for whom he has reason to believe that
a warrant of arrest has been issued against, any person he believes to have committed an
offense outside Tanzania but which if committed in Tanzania would still be an offense,
any person who does anything calculated to insult the national emblem or national flag
and any person suspected to be a loiterer. However, if a police officer has been
commanded by his superior to arrest someone without warrant, the superior officer is
required to furnish the junior officer with information (an order) mentioning a person to
be arrested and the offense for which he is to be arrested for.
 Arrest by private persons (section 16): any private person has a right to arrest any person
without warrant who in his presence commits any of the offences referred to under
section 14 of the CPA. Likewise, a property owner, servants of the property owner or any
person authorized by the property owner, may arrest anyone who commits an offense
involving injury to the property.
 Arrest by Magistrates (sections 17 & 18): any magistrate at anytime may arrest or order a
warrant of arrest of any person that he reasonably believes to have committed an offence
within the local limits of his jurisdiction. Likewise, the magistrate may arrest or issue an
order of arrest of any person who has committed an offense in his presence within the
local limit of his jurisdiction. He is empowered by the law to commit the offender to
prison subject to the provision of bail and provided for under the CPA.
 Arrest by a justice of peace (section 127): the justice of peace is equally empowered by
the law to arrest the same as does the magistrate.
ii) Powers to arrest with warrant

There are times where arrest is only valid when it is done with warrant. A warrant of arrest can
only be given when the grounds justifying such an arrest exist. Such grounds can include the
presence of reasonable belief that a person has committed an offence and such beliefs are to the
satisfaction of the magistrate, ward secretary or village council secretary.

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In order to apply for to be issued with a warrant of arrest on reasonable ground, any person can
apply before the magistrate, ward secretary, village council secretary, then, such officers as
mentioned may issue summons or a warrant of arrest of that person and for that person to be
brought before the court and to answer the information tabled against him.

In making such information, the informant has to give such it under oath and attached with an
affidavit disclosing such information for which such warrant of arrest is sought. When the
officers mentioned above issue such a warrant of arrest then, they should state in the affidavit the
grounds for which they base their grounds for issuing a warrant of arrest.

Every warrant of arrest takes a specific form: it is issued under the hand of the magistrate or
judge and bears the seal of the court, it shall disclose the offence against which a person to be
arrested with is charged, it shall name and describe such a person, it must have an order
commanding the person to whom it is directed to arrest the person against whom it is issued and
to bring him to court which issued a warrant or any other court having jurisdiction in the case to
answer the charge as mentioned in the warrant. Generally, the warrant of arrest remains in force
until it is executed or until it is cancelled by the Court which issued it.

This is provided for under sections 13, 110 and 112 of the CAP.

c) Methods of Arrest

In arresting a suspect, the person issuing arrest warrant has the duty to state the grounds and their
particulars for which he arrests the person. A person arresting the suspect shall inform the
suspect the offense for which he is arrested. A person is presumed to have informed the suspect
to be arrested of the offense he has committed if he is able to tell suspect the substance of the
offense for which he arrests him. However, this method does not apply in circumstances where a
person to be arrested does understand why he is arrested or where the person to be arrested
makes impractically impossible for him to be arrested.

The police officer or any person making the arrest shall actually touch the body of the person to
be arrested unless the person submits himself to custody. If the suspect refuses, the police officer
“shall employ all necessary means” to arrest the suspect. The nature of restraint used and force
applied shall be that one which is reasonable to stop the suspect to escape from custody or

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injuring the life of another person. Again, where the police officer is detained inside the place
where he has gone to arrest, he is empowered by the law, to break any place in order to facilitate
his escape.

Again, in arresting the suspect, the police officer or any other person so empowered, may request
permission to enter any premises owned by any person where he has reason to believe that the
suspect is inside the said premises. Where the owner of the premises refuses to allow the officer
to enter, the police officer can use reasonable force including breaking by force in order to enter
such premises.

Also, when a private person arrests someone under section 16, the arrest will not be taken to be
unlawful if later on before the court, it is found out that the arrested person actually did not
commit the alleged offense.

This is provided for under sections 11, 12, 13.-(5), 19, 20, 21, 22 and 23 of the CPA.

As a general rule:

when a person arrested is in the custody of the police, and he is there without a warrant for an
offense other than an offense punishable by death, then the appropriate police officer should
bring the arrested person before the court within 24 hours of his being arrested. Where it
appears impracticable to bring the arrested person before the court, the police officer shall
release the arrested person upon his executing a bond for a reasonable amount to appear
before the court a suitable subsequent date mentioned in the bond.

An exception to this rule:

When the arrested person is in the custody of the police and he is there without a warrant
for an offense punishable by death, then he should be brought before the court as soon as it
is practicable. This also applies to a person who has been arrested under a warrant of
arrest. Also a police officer is required by law to dismiss any arrested person from custody
of police when it is reasonably found out that there is no enough evidence to proceed with
the charge.

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 Again, the police officer in charge of a police station is required by the law to report to the
nearest magistrate within 24 hours and as soon as practicable, the cases of all the persons
who have been arrested without arrest warrant in the locality of his station whether those
people have been admitted on bail or not.

This is provided for under sections 32 and 33 of the CPA.

V. Search and Seizure

a) Definition

Search and seizure refers to “a procedure by which police officers who suspect that a crime has
been committed or is likely to be committed search into various premises or person ’s property
and confiscate or seize and relevant evidence connected to the crime.”

Generally search is different from seizure in that to search means that a police officer who
believes that in a certain premises or property he can obtain necessary information, evidence or
any tool connected with criminal investigation goes there whether with warrant or not in order to
search for such information, evidence or tool.

Seizure means “the taking of something by force, or legal appropriation of something which has
been found as the result of search into such premises or property.”

c) Rationale for search and seizure

The rationale for search and seizure is that it helps the police officer to discover and preserve
information or evidence which is connected or is likely to be connected with criminal
investigation. This originates from the presence of a reasonable ground by a police officer that
somewhere there is something in respect of which an offense has been committed, or anything
which can afford evidence as to the commission of the crime, or anything upon which a crime
will be committed with. Therefore, search and seizure guarantees that certain information or
evidence is preserved for the purposes of criminal investigation and prosecution. This is provided
for under section 38.-(1) of the CPA.

A warrant for search and seizure (as it is with the warrant of arrest) can be directed to one or
more than one police officer. It can also be directed to all the police officers found within the

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locality within which the court has jurisdiction. In the absence of police officers and where the
execution is immediate, it can be directed to any authorized officer of the local government or to
any person or persons as they court deems fit. Provided that to any person or persons the warrant
is directed to, shall execute it forthwith. This is provided for under sections 15 and 114 of the
CPA.

d) Modes/kinds of search

There are two kinds of searches. These do include the following:

 Search without a warrant

This is a kind of search where the police officer or criminal investigator searches premises
without official and written permission which authorises him to search.

The police officer is empowered to search a person arrested without warrant in safe custody for
all necessary articles he has save for necessary wearing apparel found upon him. This is provided
for under section 24.-(b) of the CPA.

Likewise, the police officer can stop, detain and search without warrant any vessel, boat, aircraft,
or vehicle in which he has reasonable cause to believe that in them there are any stolen goods,
anything used or intended to be used in the commission of an offence, offensive weapons and
prohibited articles under the law, or the presence of any person who can convey or hold such
articles as mentioned. This is provided for under section 25.-(1) of the CPA.

In cases of emergencies and extreme urgency police officer can enter any premises, vehicle, land
or vessel and search anything or anyone where he has reasonable ground to suspect that a person
might be carrying something connected with an offence, or that in such premises there is situated
anything connected with an offense. This is provided for under section 42 of the CPA.

 Search with warrant

This is a kind of search which must be conducted with warrant.

There are grounds for issuing a search warrant. These grounds include: the presence of a
reasonable belief that in any vessel, building, carriage, box or receptacle, there is in it anything

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with which an offense has been committed, or which will afford evidence as to the commission
of the offence, or it is intended to be used in the commission of an offence and that unless such
measures are taken, then, there is likelihood that information and evidence connected with the
commission of an offence might be destroyed, fabricated or even lost. This is provided for under
section 38.-(1) of the CPA.

When the police officer authorises a warrant of arrest as such, he has to a duty to inform the
magistrate immediately, about the issuance of a warrant of search, the grounds upon which it was
issued and the result of any search made. This is provided for under sections 38.-(2) and 45.-(2)
of the CPA.

A police officer who searches premises vexatiously other than as directed commits an offense
and is liable on conviction to a punishment of a fine of 300,000/= Tshs or to imprisonment for 1
year. However, to sue search a person, one must have a written permission from the Director of
Public Prosecutions (DPP). This is provided for under section 38.-(4) & (5) of the CPA.

Every warrant of search should take this form: it must state shortly the offence with which the
person or premises are searched, shall name and describe the person or thing searched, and it
shall order the person to whom it is directed to search, and it shall order the thing or person for
whom the search is directed against to be brought to court for further proceedings as provided for
under the law. Every warrant of search remains in force until it is executed or cancelled by the
authority which gave it. This is provided for under section 112 of the CPA.

The warrant of search may be directed to all the persons and officers listed under section 114 of
the CPA and as discussed earlier.

A search warrant can be issued and executed on any day including Sunday. It can also be
executed between the hours of sunrise and sunset. However, the court has discretion to allow the
warrant to be executed at any hour. This is provided for under section 40 of the CPA.

A warrant of arrest may be executed by any officer other than the one to whom it was directed to
provided there is endorsement of his name in the warrant. This is provided for under section 116
of the CPA.

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When it comes to jurisdiction, search warrant can be executed anywhere in the United Republic
of Tanzania. However, where search warrant is to be executed outside the local limits of the
jurisdiction of the court issuing it, then the court can opt, instead of giving it to the police officer
within the jurisdiction of the court, to send to another magistrate within whose local limits of his
jurisdiction the search warrant is to be executed. Then such a magistrate will receive and endorse
his name upon it and give it to the police officer within his jurisdiction to execute it. This is
provided for under sections 119 and 120 of the CPA.

Alternatively, where the warrant of search is to be executed outside the area of jurisdiction of the
court which issued it, the police officer to whom the warrant is issued, can take the warrant to the
magistrate who in the local jurisdiction of his court the warrant is to be executed. The magistrate
will endorse it with his name and give it to the police officer for execution. This is provided for
under section 121 of the CPA.

e) Searching Women and premises occupied by women

When searching women, the search shall be made by another woman with strict regard to
decency. This is provided for under section 26 of the Criminal Procedure Act.

Also, when a police officer enters a house or an apartment in which a woman who is not a person
to be arrested lives, and who according to the customs she is not required to appear in public,
then, the police officer before entering the premises to search, he shall give notice to the such a
woman to withdraw respectfully before he enters in. This is provided for under section 19.-(3) of
the CPA.

f) Seizure

Police officer is empowered to seize anything as the result of search if such a thing relates to an
offence, provided that such seizure is made as a result of: pursuance of a warrant of search and
seizure issued under the law, or when he has taken a person to a lawful custody in respect of an
offence under section 24 of the CPA, or upon stopping a person under section 42.-(2) of the CPA
and in pursuance of an order made by the Court. This is provided for under section 41 of the
CPA.

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When the police officer seizes something, he is required to issue a receipt thereof acknowledging
seizure of the thing. The owner or possessor of the premises searched or the thing seized shall
sign on the receipt together with the witness of the owner. This is provided for under section 38.-
(3) of the CPA.

The law allows the police officer at the permission of the magistrate to detain anything seized for
as long as criminal investigation is carried on or for its use as an exhibit in court proceedings.
This is provided for under section 25.-(3) of the CPA.

f) Other investigation actions

 Identification parade

Identification parade is a parade organized by a police officer where he calls the people he
suspects to have committed an offence so that the witness might be able to identify the people he
believes to have committed an offence. The police officer is empowered to do that under section
60 of the CPA.

The police officer normally sends and invites people to participate in the identification parade
and such invited people are prohibited by law from refusing to attend such identification parade.
To refuse unreasonably and without justified cause is a criminal offence punishable with a fine
of 200,000/=Tshs or imprisonment for six months or both.

However, where the witness saw exactly and clearly the faces of the persons suspected to have
committed the alleged offence, then, identification parade is not necessary at all. In the case of
Kichele Mrange v. R [1983] TLR 158, the appellant appealed to the higher court, among other
things, that there was no identification parade conducted in order to identify him correctly.
Mwaikasu J held that the fact the appellant was known by the witness and that he was seen by
the witness when he was arguing with his fellow culprits about what things to steal is enough
identification which does justify the absence of conducting identification parade.

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 TOPIC FIVE: THE PROSECUTING MACHINERY

Introduction & Definition key terms

Prosecution this refers to legal proceedings in which a person accused of a criminal offence is
tried in a court by the government (state) appointed public prosecutor.

Prosecuting Machinery refers to that machinery which is given powers to arrest and prosecute
persons for criminal offences
Prosecuting Machinery in Tanzania:

Generally, any person may bring criminal proceedings before a court of competent jurisdiction.
Nevertheless, in practice most of the cases are initiated by the State through its various
departments, particularly the police.

In Tanzania, the prosecution of criminal cases is vested in the National Prosecution Service
(NSP) as established under Section 4 of the National Prosecutions Services Act of 2008.

The NSP consists of the Director and such other officers appointed to assist the Director. These
personnel have a locus standi in courts of Law. (See Sections 5 & 7 which provides for officers
who may be appointed to discharge various functions in the NSP: State Attorneys & Law
officers)

The National Prosecution Services is headed by the Director of Public Prosecutions as

established under Article 59B of the URT Constitution

“59B.-(1) There shall be a Director of Public Prosecutions who shall be

appointed by the President from amongst persons with qualifications specified in
sub article (2) of Article 59 and has continuously held those qualifications for a
period of not less than ten years. Art.12
(2) The Director of Public Prosecutions shall have powers to institute,
prosecute and supervise all criminal prosecutions in the country.

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 (3) The powers of the Director of Public Prosecutions under sub article (2), may
be exercised by him in person or on his directions, by officers under him, or any
other officers who discharge these duties under his instructions.
(4) In exercising his powers, the Director of Public Prosecutions shall be free,
shall not be interfered with by any person or with any authority and shall have
regard to the following -
(a) The need to dispensing justice;
(b) Prevention of misuse of procedures for dispensing justice;
(c) Public interest.
(5) The Director of Public Prosecutions shall exercise his powers as may be
prescribed by any law enacted or to be enacted by the Parliament. “

Powers, Roles and Functions of the Director of Public Prosecutions (DPP) – Section 9 10 &
11 of the NSPA
The functions of the DPP include to:
i. Decide to prosecute or not to prosecute in relation to an offence
ii. Institute, conduct and control prosecutions for any offence other than a court martial.
This includes institution and conducting of summary proceedings, committal proceedings
or a preliminary hearing under the CPA or any other Law relating to criminal
proceedings.
iii. Take over and continue proceedings of any criminal case instituted by another person or
authority
iv. Discontinue at any stage before judgment is delivered any criminal proceedings brought
to the court by another person or authority
v. Direct the police and other investigative organs to investigate any information of a
criminal nature and to report expeditiously.
vi. Institute, conduct and defend criminal proceedings in courts of law related to appeals,
revisions or applications.
vii. Take over an appeal, revision or application arising from private prosecution, whether as
appellant, applicant or respondent and where such power is exercised the director may
continue or otherwise withdraw the appeal.

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 Where the DPP takes over an appeal from private prosecution and decides to withdraw
the appeal, revision or application, he should give reasons for the decision and inform the
appellant or applicant as the case may be.
viii. Provide assistance in criminal matters to, in accordance with the Extradition Act, the
Mutual Assistance in Criminal Matters Act & the Proceeds of Crimes Act,:
 Take necessary steps to secure extradition of any person required to answer a
charge of an offence.
 Facilitate mutual assistance in criminal matters
 Perform any other function related to facilitation of prosecution or any other
criminal matter

NB: (i) The director is not limited by Section 9 to take over and continue proceedings in the
name of the person or authority that instituted those proceedings. As such he can take over and
continue proceedings that were started by other person or authority.

(ii) The above functions may be exercised by the DPP in person or in his direction, by
officers in the service: State Attorneys or Public Prosecutors. See Article 59B (2) & Section
10(3)

In relation to the roles and functions above, the Director has powers to coordinate criminal
investigations. In exercising these powers the DPP may require any authority mandated with
investigative functions to: (See Section 16 & 24 of the NSPA)

 Investigate any criminal allegations

 Furnish him with a report on the result of the investigations
 Order investigation be conducted by an investigative organ named in the order

In the discharge of these powers, the DPP may order any State Attorney to coordinate an
investigation of a crime and such Attorney should be respected by every investigative officers
involved.

Other Powers of the DPP – Section 22 & 23 of the NSPA

(i) To appoint a person to be a public prosecutor (PP) from:
 other departments of the Government,
 local government authority or
 private practice to prosecute a specified case or cases on his behalf.

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 The above individuals once appointed as PP are required to comply with directives,
instructions and guidelines issued by the Director.

NB: A Public Prosecutor means any person u/s 22(1) of the NSPA and includes the DPP, the
AG, DAG, A Parliamentary Draftsman, a State Attorney and any other person acting in criminal
proceedings under the directions of the DPP – See Section 2 of the Criminal Procedure Act.

(ii) To delegate any powers and functions of the Director to any member of the service or
a public prosecutor. The delegation is to be done by instrument.
Any powers or function exercised by a delegated officer is deemed to have been
exercised or performed by the Director.
(iii) To appoint a team inspectors for inspection of the prosecution services.

STATUTORY CONTROL OF CRIMINAL CASES

NOLLE PROSEQUI & WITHDRAWAL OF CHARGES

As it has been previously noted that the DDP has powers to discontinue at any stage before
judgment is delivered, any criminal proceedings brought to the court by another person or
authority. This can either be done by way of NOLLE PROSEQUI or WITHDRAWAL.

NOLLE PROSEQUI – Section 91(1) & (2) of the CPA

Nolle Prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a

suit or action. OR

Nolle Prosequi: (no-lay pro-say-kwee) is a Latin phrase for "we shall no longer prosecute,"
which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a
civil lawsuit) either before or during trial, meaning the case against the defendant is being
dropped. The statement is an admission that the charges cannot be proved, that evidence has
demonstrated either innocence or a fatal flaw in the prosecution's claim or the district attorney
has become convinced the accused is innocent.1

This is basically entertained on the initiation of the DPP. It is the DPP who moves the court to
stop proceedings of the given case. This can be done at any stage of the proceedings but before
the verdict or judgment is entered.

The DPP can either inform the court orally or in writing that the proceeding shall not continue.
1
http://dictionary.law.com/Default.aspx?selected=1330#ixzz49Tdm0yBM

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The effect of Entering Nolle Prosequi:
The accused should be discharged immediately. And if the accused was committed to prison
then he should be released. And any recognizance to his bail shall be discharged.

NB: Such discharge of an accused person shall not operate as a bar to any subsequent
proceedings against him on account of the same facts. This is due to the fact in order for a case
not to be brought to court again on the same facts the matter must have been determined on
merits and the court to make its final decision on the matter. Note that nolle prosequi is entered
into before verdict is given and it can be entered into any time before verdict or judgment is
given.

After nolle prosequi has been entered into the court shall cause notice of the same to be served to
all those who were involved in the case such as prison officers, witnesses, sureties
WITHDRAWAL OF CRIMINAL PROCEEDINGS in Subordinate Courts – Section 98 of
the Criminal Procedure Act

Unlike nolle prosequi, withdrawal of criminal proceedings may be initiated with the leave of the
court or direction by the DPP in case the prosecutor is not the DPP himself

The withdrawal could either be generally or specifically in respect of one or more of the offences
charged.

The effects of withdrawal will depend on the stage of the proceedings of the case reached:

(i) if it is made before the accused person is called upon to make his defence, he shall be
discharged, but such discharge of an accused person shall not operate as a bar to
subsequent proceedings against him on account of the same facts.

(ii) if it is made after the accused person is called upon to make his defence, he shall be
acquitted.

As it has been noted; in order for withdrawal to take place there should be leave of the court. As
such this is a judicial act as opposed to mere administrative measures by the prosecution side.
The court must be satisfied that there are concrete reasons for such withdrawal and it should be
recorded before granting the request to withdrawal.

1. Nicholous Mamuu v. R, [1996] TLR 158

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While police investigations were still under way, and after he had been charged with murder,
the Accused escaped from custody. About a year later, and on application by the public
prosecutor, the District Court of Rombo withdrew the charge against the Accused in terms of
Section 98(a) of the Criminal Procedure Act.
On revision to this Court, the Court restored the charge of murder against the Accused.

Held:
(i) Section 98 speaks of the withdrawal of charges in respect of `any trial
before a subordinate court'; and given that the crime of murder is triable only
before the High Court, the trial on the charge could only have been properly
brought before the High Court and thus Section 98 could not have been used to
withdraw the charge.
(ii) The withdrawal of the charge in question should have been brought in terms of
Section 91(1). B
(iii) The order of the District Court is quashed and set aside, and the charge of murder
against the Accused is restored.

Private prosecution – Section 99 of the Criminal Procedure Act

2. PETRO S/O SALILO V. R, [1997] TLR 154

The appellant and another person who was the second accused at the trial were on their own
pleas of guilty convicted of being in unlawful possession of Moshi contrary to ss 30 and 34(1),
Act 62 of 1966. I have perused the record and satisfied myself that the pleas were unequivocal.
The problem was with sentencing. The appellant was sentenced to twelve month imprisonment
because he said nothing in mitigation; the second accused, an 18-year-old female, was fined Shs
10,000/= because she told the trial magistrate: `I pray to be fined'. This appeal is against the
sentence. The appellant claims that he is hard of hearing and did not understand what was
transpiring at the sentencing. He also lists mitigating factors which include advanced age, poor
health and a dozen of grandsons and granddaughters'.

The appellant's claim that he has lost the capacity of hearing makes no sense and must be
rejected for a lie because he is challenging the sentence only, not the conviction. The real
problem in the case is indeed whether the disparity in sentencing was justified. For the
information of the trial magistrate, however, even the second accused said nothing amounting to
mitigation of sentence but asked for the sentence she preferred. If sentence is going to proceed
on the wishes of accused persons, very soon they will also be shopping for the prisons they
prefer as is the case in some countries.
For the further information of the trial magistrate even the `mitigated' sentence he imposed on
the second accused was illegal. The offence attracts a maximum fine of Shs 5,000/= but he
ordered her to pay twice over!
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I think the disparity was unjustified. Where two or more persons are jointly convicted of an
offence, a severer sentence on one cannot be justified by his failure to advance mitigating factors
but by aggravating factors on his side.

Failure and even refusal to speak in mitigation is not an aggravating factor for it is within the
accused's lawful discretion. A wrong principle was thus applied in this case and the appeal ought
to succeed.

Learned counsel for the Republic also wondered whether it was proper for the arresting officer to
prosecute the case, but I see no difficulty in this. There is no rule really, against this, and in view
of the prompt and unequivocal pleas in this case, I think there was no failure of justice. This
court has in fact had the occasion to say that there was no bar for a prosecutor to be a witness in
the case he prosecutes: see for example R v Sarwan Singh (1).

The appellant has been in prison since 22 October 1996, a period of six months. I think that
serves the justice of the case. I allow the appeal and reduce the sentence to result in his
immediate release. In revision I also set aside the sentence imposed on the second accused and
substitute a fine of Shs 5,000/=. She should be refunded the extra Shs 5,000/=.

Statutory Control of Prosecution

3. SAUDI JUMA V. R., (1968) HCD 158

Accused was convicted of criminal trespass on the land of complainant, but his conviction was
quashed on appeal to the District Court on the ground that the land did not belong to either party.

Held:

When, in a case of criminal trespass, a dispute arises as to the ownership of the land, the court
should not proceed with the criminal charge and should advise the complainant to bring a civil
action to determine the question of ownership. Parties directed to start a civil action before the
District Court of Kondo to settle the issue of ownership

4. SALUM IBRAHIM V. R. (1971) HCD 481

The appellant and complainant were married for about 8 years but were later divorced. It was
agreed that the household goods all of which had been bought by the appellant should be divided
between them. Sometime afterwards the appellant visited the complainant who, he learned had
been having an affair with another man, and demanded all his property from her. He assaulted

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the complainant and removed a number of articles from the hose. He was charged and convicted
of robbery with violence c/s 285 and 286 of the Penal Code.

Held:

(1) “It doubtful whether the assault on the complainant was used to facilitate the stealing. It
looks like an assault simpliciter and an expression of the appellant’s resentment at the
complainant’s conduct.”

(2) “[The appellant’s] defence was a claim of right to those things which he removed ………. A
claim of right may be unfounded in law, but if it was honestly held and was not manifestly
unreasonable, it can be a good defence to a charge of stealing. The appellant might have though
he was entitled to demand his things back from the complainant in the circumstances.” (3)
Appeal allowed.

TOPIC SIX: INSTITUTING CRIMINAL PROCEEDINGS

Introduction
Complaint defined – Section 2 of the CPA.
Is an allegation that some person known or unknown has committed or is guilty of an offence
OR is a statement of facts surrounding an allegation that a crime has been committed.
A compliant may be made by any person provided that such a person has reasonable and
probable cause to believe that an offence has been committed – Section 128 of the Criminal
Procedure Act.

A complaint must be made before a court with competent jurisdiction. If it happens that the
complaint is made to a court with no competent jurisdiction the magistrate may RETURN the
complaint for presentation to a competent court as per Section 128(3) of the Criminal Procedure
Act or transfer the case to a competent court as per Section 189 of the Criminal Procedure Act.

A complaint must be in writing, if it is made orally it must be reduced in writing by the

magistrate receiving such complaint. Furthermore; the complaint must be signed by complainant
and the magistrate receiving it – See Section 128(4) of the Criminal Procedure Act.

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Once the complaint has been made a formal charge must be drawn by the magistrate unless the
complaint is rejected under Section 129 of the Criminal Procedure Act or the police who
preferred the complaint has already drawn and presented it with the complaint.

Criminal proceedings can also be commenced by bringing the accused before a magistrate after
arrest of a person who has committed an arrestable offence.

Police officer must present a formal charge duly signed by him or another officer and the
accused must be cautioned after a charge is preferred.

The charge may be rejected by the court if it does not disclose the cause of action. In this,
rejection and grounds for such rejection must be recorded.

If all is well the conduct of the case will be duly commenced. Issuance of necessary summons
and/or warrants of arrest to compel the attendance of the accused person may be issued.
Purpose of a Complaint
a) Enables the court to ascertain whether an offence has been committed.
b) Facilitate proper control of the administration of criminal justice particularly in frivolous
cases
c) Enable the court to issue appropriate process that will facilitate the arraignment of the
suspect such as warrant of arrest and summons.

A CHARGE/ A CHARGE SHEET – Section 131 -136 of the CPA

A charge is an accusation or an indictment document. This document is known as

INFORMATION in the High Court. It is generally a legal document for commencing criminal
cases.

A charge is normally made by the Prosecutor; nevertheless Courts can make a charge only where
a complaint is made without a formal charge accompanying it.

Purpose of a Charge:

i) To inform the accused about accusation & law applicable

ii) Avoid taking the accused by surprise

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 iii) Enable the accused prepare his defence
iv) Enable the court to control proceedings and confine evidence and arguments to what
is in dispute
v) Enable the court to determine whether or not it has jurisdiction to determine the
matter in the charge.
vi) To keep records for future use for no person should be charged twice over the same
offence.

Formulation of Charges – Section 135 of the CPA

Essentially, a charge has three major parts:-

Part one consists of particulars of the accused person: name, age, tribe/nationality, occupation,
address etc.

Part two consists of the statement of the offence and citation of the section of the law alleged to
have been contravened.

And the third part contains particulars of the alleged offence i.e. a brief but clear statement of the
acts or omissions alleged to have been done or omitted to be done by the accused person.
Generally, the particulars should contain the date, time and place the alleged offence was
committed, the act/omission complained of, the name of the victim, if any, the property involved,
if applicable, and its value etc.

In sum, a charge may be having the following parts:-

a) Title e.g.
In the District Court of Ilala at Kisutu
Criminal Case No. …….. of 2016

b) Parties Description e.g.

Republic v. John Chengi

c) Name of the Document e.g.

CHARGE SHEET

d) Statement of the Offence

E.g. Murder c/s 196 of the Penal Code, Cap 16 RE 2002 of Laws of Tanzania

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 e) Particulars of the offence i.e.

Brief particulars of the act/omission; date, place, time, name of the victim, property
involved, mental element of the crime etc

f) Description

Name, address and signature of the person lying the charge & date the document was
prepared.

JOINDER OF COUNTS & JOINDER OF ACCUSED PERSONS

Joinder of counts – Section 133 of the CPA.

Counts refer numbers of offences one may have committed and put under one charge. As such a
single charge sheet may contain more than one offence.

In that respect, joinder of counts occurs where a person is accused of two or more offences
founded on the same facts or form part of a series of offences of the same or similar character.

Each count must be numbered and must contain two things:

a) Statement of the offence

b) Particulars of the Offence

Noteworthy, the court, depending on the prevailing circumstances and where it is considered
necessary, may order separation of the joined offences in a charge sheet. This is likely to happen
if the court is of the view that the accused may be embarrassed or prejudiced in his defence by
reason of the being charged with more than one offence in the same charge.

Joinder of accused person – Section 134 & 136 of the CPA

This occurs when two or more persons are charged together in the same/single charge sheet.

The following categories of persons may be joined in the same charge: -

a) Persons accused of the same offence committed in the course of the same transaction
b) Persons accused of an offence and persons accused of abetting or an attempt to commit
such an offence
c) Persons accused of different offences committed in the course of the same transaction
d) Persons accused of any economic offence under the EOCCA
e) Persons accused of any offence under Chapter XXV to XXXI of the penal Code and
persons accused of receiving or retaining property, possession of which is alleged to have
been transferred
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 f) Persons accused of any offence under chapter XXXVI of the PC and persons accused of
any other offence under the said chapter relating to the same coin..

CHARGING IN ALTERNATIVE

An accused person may be charged in alternative. This can only be done if the offences charged
in alternative are cognate offences e.g. rape and attempted rape, murder and manslaughter etc

This usually occurs where the facts of a case appear to show that one of two distinct offences
were committed and the Public prosecutor is not sure as to which one of the two offences he
should prefer a charge on.

COMMON ERRORS/MISTAKES IN CHARGES

There are number of circumstances that may render a charge to be defective making it
challengeable on the fence of the accused person. Such circumstances include:

i) Citation of a wrong/ non existing provision of the Law

The charge will be said to be defective if it found on a wrong provision of law or not existing
law. Such will be said to no charge at all.

ii) Failure to quote the provision of the law (Non –quotation)

iii) A charge on a repealed provision of the law or law
iv) Inadequate particulars of the accused e.g. not mentioning the age of the accused
v) Variance between a charge and particulars of the offence or evidence adduced
vi) Failure to charger offences in alternative
vii) Misjoinder of accused persons
viii) Duplicity (double charging) i.e. to distinct offences charged in the same count or
single count. Duplicity could be fatal depending on whether it has occasioned failure
of justice.
ix) Misjoinder of counts
This arises where two or more counts are wrongly joined. For counts to be joined
there must be connection between the offences otherwise the offences joined will be
wrongly joined. A Misjoinder of counts is not fatal unless it has occasioned failure of
justice

The above defects depending on the impact they result to in the administration of criminal justice
may be curable or incurable.

A defective charge can be dealt with in any of the following are ways depending on the
circumstances of a particular case: -

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 a) Withdrawal of a charge – S. 129 of the CPA & S. 31(1) and Part VI of the 3 rd Schedule,
item 6 of the MCA
b) Amendment and substitution of a charge – substitution can only be done upon leave of
the court – S. 234 of the CPA, DPP to enter Nolle prosequi – S. 91 of the CPA
c) Rejecting of a charge by court – S. 129 of
d) The court to order a retrial – S. 388 of the CPA

Variance between Charge and Evidence under Section 234 of the CPA

This occurs when the evidence given in support of the charge does not reflect the particulars
adduced in a charge i.e. the evidence and charge, are different for instance if the charge is on
theft and then the evidence adduced does not support the offence of theft.

Variance between charge and evidence renders the charge defective unless:

(i) It is amended, and

(ii) The amendments causes no injustices to the accused
(iii) The accused must have notice of the amended charge

Variance between charge and evidence and amendment of charge – Section 234 of the CPA

234.-(1) Where at any stage of a trial, it appears to the court that the charge is
defective, either in substance or form, the court may make such order for
alteration of the charge either by way of amendment of the charge or by
substitution or addition of a new charge as the court thinks necessary to meet the
circumstances of the case unless, having regard to the merits of the case, the
required amendments cannot be made without injustice; and all amendments made
under the provisions of this subsection shall be made upon such terms as to the
court shall seem just.

(2) Subject to subsection (1), where a charge is altered under that subsection–
(a) the court shall thereupon call upon the accused person to plead to the altered
charge;
(b) the accused may demand that the witnesses or any of them be recalled and give
their evidence afresh or be further cross examined by the accused or his advocate
and, in such last mentioned event, the prosecution shall have the right to
reexamine any such witness on matters arising out of such further cross-
examination; and
(c) the court may permit the prosecution to recall and examine, with reference to
any alteration of or addition to the charge that may be allowed, any witness who
may have been examined unless the court for any reason to be recorded in writing
considers that the application is made for the purpose of vexation, delay or for
defeating the ends of justice.

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 (3) Variance between the charge and the evidence adduced in support of it with
respect to the time at which the alleged offence was committed is not material and
the charge need not be amended for such variance if it is proved that the
proceedings were in fact instituted within the time, if any, limited by law for the
institution thereof.

(4) Where an alteration of the charge is made under subsection (1) or there is a
variance between the charge and the evidence as described in subsection (2) the
court shall, if it is of the opinion that the accused has been thereby misled or
deceived, adjourn the trial for such period as may be reasonably necessary.

(5) Where an alteration of the charge is made under subsection (1), the
prosecution may demand that the witnesses or any of them be recalled and give
their evidence afresh or be further examined by the prosecution and the court shall
call such witness or witnesses unless the court, for reasons to be recorded in
writing, considers that the application is made for the purpose of vexation, delay
or defeating the ends of justice.

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