MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE : LLB 2

NATURE OF WORK : GROUP ASSIGNMENT

SUBJECT : LAND LAW

SUBJECT CODE : LAW 220

LECTURER : MS. ITEBA

PARTICIPANTS GROUP NO.03 (D)

01: YUSUPH HAMISI KISWAGA : REG 1236009/T.20

02: RICHARD ALLAN CHABO : REG 1236041/T.20

03: BRUNO MATHIAS NJOGOLO : REG 1236010/T.20

04: REHEMA E MWASONYA : REG 1236239/T.20

05. EUJEN SWEETBERT GAHUNGA : REG 1236044/T.20

06: JANETH A. NKENZI : REG 1236241/T.20

07: MARTHA GODFREY MBOYA : REG 1236244/T.20

08: MAGOOGE CHACHA MARO : REG 1236261/T.20

Question;

Critically discuss the law on admissibility of illegally or unfairly procured evidence in Tanzania
INTRODUCTION

At times the functionaries of the state may indulge in illegal methods for obtaining evidence in
their zeal to bring the culprits to book. The evidence may be reliable, yet [it raises the question of
admissibility because it is tainted with illegality. The Evidence Act1 does not give an answer to
this question, except that section 31 of the Act provides that if anything is discovered in
consequence of information received from a person accused of any offence, in the custody of a
police officer, so much information as relates distinctly to the fact thereby discovered may be
proved. It is obvious that section 31 will apply even though the information may have been
obtained by the police through means not fair. Apart from this statutory countenance of unfair
means in obtaining evidence, should as a matter of policy illegally obtained evidence be allowed
to be admitted in evidence? There are several methods by which evidence may be illegally
obtained, e.g., by eavesdropping, illegal search, violating the body of a person and other methods
which shock the human conscience.2

THE LAW ON EVIDENCE ILLEGALLY OBTAINED AND UNFAIRLY PROCURED

Before to venture in discussing the law on illegally obtained and unfairly procured evidence in
Tanzania, we wish to explore the position under common law to see how the law and practice
has been on the same point of law;

The General Rule

The admissibility of unlawfully obtained evidence was addressed by the Privy Council in the
original leading case of Kuruma v. Republic.3 Kuruma had been searched by Kenyan police
officers and, it was alleged, found to be in unlawful possession of two rounds of ammunition, a
capital offence under the Emergency Regulations then in force. The law provided that only an
officer of or above the rank of assistant inspector could lawfully search persons suspected of
being in possession of ammunition, yet neither officer involved was of such rank. Consequently
the evidence purportedly found on Kuruma had been obtained unlawfully and he appealed
1
[Cap. 6, R.E 2019]
2
Jain, S. N., “Admissibility of Illegally Obtained Evidence.” [1980] 22 (3) Journal of the Indian Law Institute, p.
322
3
[1955] AC 197 PC
against his conviction on the ground that it should not have been admitted. Dismissing the appeal
Lord Goddard CJ said ‘In their Lordships opined the test to be applied in considering
whether evidence is admissible is whether it is relevant to the matters in issue.’ If it is, it is
admissible and the court is not concerned with how the evidence was obtained. 4 There can be no
difference in principle for this purpose between a civil and a criminal case. 5 No doubt in a
criminal case the judge always has a discretion to disallow evidence if the strict rules of
admissibility would operate unfairly against an accused. 6 If, for instance, some admission of
some piece of evidence, e.g. a document, had been obtained from a defendant by a trick, no
doubt the judge might properly rule it out.7

Thus the unlawful search did not justify the exclusion of evidence, reaffirming the principle
asserted by Cromptom in R v. Leatham,8 ‘it matters not how you get it; if you steal it even,
it would be admissible in evidence.’ Yet according to Lord Goddard CJ the ammunition
might have been excluded if it had been obtained by mere trickery. This apparent paradox was
reinforced by subsequent cases where unlawful conduct was held to be insufficient to justify
exclusion, while lawful impropriety which had misled the accused into revealing evidence could
justify its exclusion.9 However in Jeffrey v. Black10 the fact that the accused's lodgings had been
unlawfully searched by the police could not justify the exclusion of cannabis found as a result of
that search at his trial for unlawful possession of that drug. Evidence obtained in consequence of
an unlawful search was admissible and there was no discretion to exclude it, save that Lord
Widgery CJ felt able to recognise the existence of an exclusionary discretion in exceptional
cases where the police have been guilty of trickery or they have misled someone, or they have
been oppressive or they have been unfair, or in other respects they have behaved in a manner
which is morally reprehensible.11

4
Emson, R., Evidence, London: Macmillan Press Ltd, 1999 p. 13
5
Ibid p. 14
6
Keane, A & M, Paul., The Modern Law of Evidence, 9th Edn, Great Clarendon Street, Oxford University Press,
2012, p. 21
7
Ibid p. 22
8
(1861) 8 Cox CC 498 dc p. 501
9
Ashford, P., “The Admissibility of Illegally Obtained Evidence,” [2019] 85 (4) Chartered Institute of Arbitrators,
p. 378
10
[1977] 3 WLR 895 DC
11
Taylor, C., Evidence, 4th edition, London: Pearson, 2017, P. 20
The principles governing the admissibility of illegally-obtained evidence are based on conflicting
policy objectives; (a) the interest of the citizen to be protected from illegal or irregular invasions
of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing
upon the commission of a crime and necessary to enable justice to be done shall not be withheld
from Courts of law on a merely formal or technical ground. 12 The importance of the first of these
objectives was underlined in the classic judgment of Holmes J., a dissent from the majority view
of the United States Supreme Court, which held that the use in evidence of private telephone
conversations obtained by wire tapping did not infringe the fourth and fifth amendments to the
American Constitution.13

Alternative approaches to the conflicting policy objective on admissibilty of illegally

obtained and unfairly procured evidence.

Broadly, three approaches are possible to the problem; (i) if evidence is relevant, it cannot be
excluded on the ground that it was obtained by illegal action, (ii) if evidence is obtained by
illegal action, it is never admissible and (iii) where evidence is procured by illegal action, it is a
matter for the trial judge to decide, in his discretion, whether to admit it or not, subject, in cases
where the evidence is admitted, to review by an appellate court.14

A. Proposition One: If evidence is relevant, it cannotbe excluded on the groundthat it was

obtainedby illegal action.

There is judicial authority in England in support of Proposition One. In a case where a constable
who had no right to search the person of the accused did so, and, finding twenty-five young
salmon in his pocket, summoned him under the Salmon Fishery Acts for illegally having these
in his possession15, Mellor J. said on appeal: “I think it would be a dangerous obstacle to the
administration of justice if we were to hold, because evidence was obtained by illegal means it
could not be used against a party charged with an offence. The justices rightly convicted the
appellant.” The Privy Council, in its opinion given on an appeal from Kenya, asserted: The test
to be applied in considering whether evidence is admissible is whether it is relevant to the

12
Peiris, G.L., “The Admissibility of Evidence Obtained Illegally: A Comparative Analysis” Vol. 13(2) Ottawa
Law Review. P. 309
13
Ibid p. 310
14
Ibid p. 311
15
Ibid p. 312
matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was
obtained.

B. PropositionTwo: If evidence is obtained by illegalaction, it is never admissible.

Proposition Two is exemplified by authority in the United States where the development of the
law has taken place within the framework of fundamental rights enshrined in the Constitution. 16
The fourth amendment to the American Constitution declares; The right of the people to be
secure in their persons. houses, papers and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized. Protection of this right has been thought to necessitate exclusion, in trials before federal
courts, of evidence obtained in a manner repugnant to the Constitution. 17 The reason stated was
that if letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offence, the protection of the Fourth Amendment is of no value and so far
as those thus placed are concerned.18

C. PropositionThree:The trial judge should have discretion whether or not to admit

evidence obtained illegally

This proposition is the product of a compromise between the divergent postulates reflected in
propositions one and two, and is generally reflected in the contemporary law of England and
Scotland. There is, however, a difference in regard to the reasoning adopted by the two
systems.19 In England, relevant evidence is admissible in law whether illegally obtained or not,
but it has been suggested that the exercise of discretion is required in order to decide whether,
even though admissible, it should be excluded in fairness to the accused. In Scotland, it is for the
court to exercise its discretion in each case, untrammelled by a general principle favouring
admissibility.20 State v. Reynolds.21 The availability of discretion to the English courts to

16
Peiris, supra 7 p. 315
17
Ibid p. 315
18
Ibid p. 315
19
Ibid p. 321
20
Peiris supra 7 p. 322
21
(1924) Sup. Ct. 125 A. 636 at 639
exclude technically admissible evidence in the interest of achieving a fair and impartial trial of
the accused, is conceded by a strand of judicial opinion.

Cases involving evidence obtained by unlawful methods can, in principle, be accommodated

within the ambit of this discretion. The English Court of Criminal Appeal has observed; that
there is, of course, ample authority for the proposition that a judge has an overriding discretion to
exclude evidence, even if such evidence is in law admissible. 22 However, a similar view, echoed
by a Divisional Court of the Queen’s Bench Division, is incompatible with the recent rejection of
the discretionary principle, in its application to unlawfully obtained evidence other than
confessions and admissions, by the House of Lords. In Scotland, the principle has been laid
down that an irregularity in the obtaining of evidence does not necessarily make that evidence
inadmissible.23 The clear implication, then, is that there are circumstances in which the exclusion
of relevant evidence unlawfully obtained is warranted. A distinguished Scottish judge has
asserted that, in the absence of any absolute rule, the question is one of degree and that whether
any given irregularity ought to be excused depends upon the nature of the irregularity and the
circumstances under which it was committed.

THE LAW ON ILLEGALLY OBTAINED AND UNFAIRLY PROCURED EVIDENCE IN

TANZANIA.

As pointed out herin above the position at common law, the general rule is that, if the evidence is
admissible, the court is not concerned with how it was obtained. 24 The test to be applied in
considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is,
it is admissible and the court is not concerned with how the evidence was obtained.25

There are three exception to the position at common law, first the rule does not apply with regard
to admissions and confessions. The judge or magistrate has discretion to admit such evidence if
the strict rule of admissiblity will operate unfairly against an accused.26 Second exception is
concerned with evidence obtained by torture. In A v. Secretary of State for Home

22
Peiris, supra 11, p. 322
23
Ibid p. 322
24
Republic v. Leatham (1861) 3 E & E 658
25
Lord Goddard CJ in Kuruma v. Republic [1955] 1 All ELR 236
26
Kuruma Op Cit
Department27 the House of Lords held that any third party statement obatined by torture is
inadmissible whatever the nature of the proceedings because such evidence is unrelable, unfair,
offensive to ordinary standards of humanity and discency and incompatible with principles
which should animate a tribunal seeking to administer justice. 28 The third exception relates to the
party privileged documents. Where to a criminal or civil proceeding uses tricky to obatin
document he or she will not be permitted to adduce the document or copies of them.

In Tanzania, in addition to common law rule on relevance and admissibility of illegally obtained
and unfairly procured evidence, the court has statutory power to refuse to admit evidence
illegally obtained in criminal proceedings.29 Section 169 of the Criminal Procedure Act30
confers statutory power to a trial court to excludeany evidence which has been illegally obtained
in criminal case. The trial court in criminal proceeding has an absolute discretion not to admit
evidence in breach of legal provisions unless the trial court is satisfied on the balance of
probabilities that the admission of such evidence would specifically and substantially benefits the
public interest without unduly prejudicing the rights and freedom of accused person. 31 As it was
held in the Australian case of Republic v. Ireland32 the court stated that the exercise of this
discretion calls for the balance of two interests (i) the public needs to bring conviction those whi
commits criminal offences, (ii) the protection of the individual from the unlawful and unfairly
treatment.

In the case of Nyague v. Republic33 the Court of Appeal observed that, in regard to section 169
of the Criminal Procedure Act, that, there must be a delicate balancing of the interest by the
public and those of the accused. It is not, therefore, correct to take that every apparent
contravention of the provisions of the Criminal Procedure Act automatically leads to the
exclusion of the evidence in question. The decision of the trial court on such matters can only be
faulted if it can be shown, that the admission or rejection of such evidence was objected to and
that it did not properly exercise its judicial discretion, not at all,in rejecting or admitting it.

27
[2005] 3 WLR 1249
28
ITC Film Distributors v. Video Exchange [1982] 1 CH 431
29
Section 169 (1) of the Criminal Procedure Act [Cap. 20, R.E 2019]
30
Ibid
31
Ibid
32
[1970] HCA 21
33
Criminal Appeal No. 67 of 2010, in the Court of Appeal of Tanzania at Arusha, (unreported)
That is to say, the court in the course of balnacing the two objevtives whether to reject or admit
evidence illegally obtained or unfailry procured it must take into account the following factors as
provided under section 169 (2) of the Criminal Procedure Act; (i) the seriousness of the
offence in the course of the investigation, the urgency for and difficulty of detecting the offender,
and the urgency for preserving or the means to preserving or the need to preserve evidence of the
fact. (ii) the nature and seriousness of the contrvention or failure. (iii) the extent to which the
evidence that was obtained in consequence of the failure to comply with provision of any law
might have been lawfully obtained.

Admissibility of a statement relating to police interview

A police officer can question a criminal suspect only afer having informed the suspect he or she
may refuse to answer any questions put to him or her by such a police officer. 34 It is a
requirement of the law that a police interview should not proceed beyond the period available for
interviewng.35 The basic period available for interviewing a person in a police custody is four
hours, commencing at the time when he or she was teken under restraint in respect of the
offence.36 The basic period for interviewing a suspect may be extended upon a reasonable cause
has being shown out of that may render such a statement recorded be inadmissible during the
trial. In the case of komba v.Republic37the first appellant was heldin the custody for four days.
No application was made made to magistrates for extension of period twelve hours under which
the police could hold him in the custody. The fourth appellant was held in police custody for
such long period it is doubtful that the appellants were free agents when they finally made their
statements. The court held that

“the legislature must have had had good reason for limiting the time under which
a suspect could be held under the police custody for investigative purposes and
the police are oblidged to abide by the law like everyone else. The obtaning of the
statements of the appellants while still in custody outside the time provided under
the law for investigative custody, contravened the provision of the law. Section
169 of the Criminal Procedure Act provides for exclusion of evidence illegally

34
Section 52 of the Criminal Procedure Act [Cap. 20, R.E 2019]
35
Ibid section 52(4)
36
Ibid section 50(1) (a)
37
Criminal Appeal No. 95 of 2006, Court of Appeal of Tanzania at Dar es Salaam
 obtained. The prosecution did not show how the admission of the appellants’
statements i the circumstances of this case would ‘specifically and substantially
benefit the public interest without unduly prejudicing the rights and freedom of
any person.’ ”

On the authority of this decision, the Court of Appeal has excluded statements taken in police
custody in violation of the provisions governing police interviews under the Criminal Procedure
Act. Although that was the position of the Court in the case of Komba, since the inception of
2018 amendment to section 169 of the Criminal Procedure Act38 the position to some extent
has changed depending on the case at hand, in Yusuph v. Republic39 the Court of Appeal
dismissed the complaint that the cautioned statement was recorded beyond the statutory period
because the nature of the crime and the complications in the investigations justified the recording
to be done beyond prescribed time. This stance on the law has been endorsed, by the 2018
amedments which direscts the court to exclude evidence illegally obtained only ‘after
considering all the circumstances of the offence, including the circumstances in which the
evidence was obtained’40 and being ‘satisfied that the failure or breach was significant and
substantial and that its exclusion is necessary for the fairness of the proceeding.’41

The law on relevance and admissibility of illegally obtained confession

According to section 27 of The Evidence Act, a confession made before a police officer,
magistrate or justice of peace must be voluntary made by the accused person in a proper,
physical and mental states. The rules relating to the exclusion of confession consits of those rules
which excludes a confession because it has been obtained through torture and those which may
cause the accused to make untrue admission of the guilt. The onus of proving that the confession
was made by an accused person was voluntarily made by him or her lies on the prosecution.

However, under section 29 of the Evidence Act, a confession induced by threat, a promise or
other prejudice is admissible except where it is proved the making of such a confessional
statement were likely to result in an untrue admission of guilt. This was he position of Court of

38
Amendment made via section 11(b) of the Written Laws (Miscellaneous Amendment) (No. 2) Act, Act 7 of 2018
39
Criminal Appeal No. 163 of 2017, in the Court of Appeal of Tanzania at Dar es salaam (unreported)
40
Mirindo, F., Administration of Justice in Mainland Tanzania, 2nd Edn, Nairobi: LawAfrica Publishing Ltd, 2019,
p. 390
41
Ibid p. 390
Appeal in the case of Alphonce (Kasokolo) v. Repubic42the appellant as charged with murder
on the material day he went th great the deceased but found her lying dead outside the door of
her house. He reported the incident to 10-cell leader who advised him to rise alarm, which he did
and the villegers gathered. The villegers turned their suspecion on him and required him to
explain the death of the deceased. He denied any knowledge of how the death of the deceased
occured but they oppressed and made threats. As the result, the appellant confessed to killing the
deceased because she had killed his parents and child through witchcraft. When the police visited
the scene of crime the appellant was taken alone and on the way the appellant again confessed
the killing to the police. Finally, when he was taken to Justice of Peace he again confessed the
killing of the deceased. At the trial for murder the appellant denied the charge, he retracted and
repudiated the confession on the ground that he was induced by the villagers threatening his life,
he never confessed to police all such confession was merely a continuation of the involuntary
confession which was induced by the villagers, and that he denied any confession before the
justice of peace and claimed that the content of extra-judicial statement were copied by the
Justice of the Peace from the writings which were handed to him by the police. The High Court
rejected the appellant’s defence and relying on the confessions, convicted the appellant upon
finding that those confessions could not be but be true. On appeal to the Court of Appeal, the
questio arose on the admissibility of this confessional statements. The Court stated that the true
basis of the section 29 of the Evidence Act, is that the condition pertaining to the making of the
confessional statements were likely to result in an untrue admission of guilt, because the
appellant confessed to his fellow villagers under threats, this element of involuntariness was not
remove when the appellant subsequently confessed to the magistrate. And therefore the appellant
wa forced by the police confess

Therefore, the rule is that the evidence obtained through torture is inadmissible since the
prohibition of torture is now categorised as part of a wider Constitutional principle than as a rule
of evidence.43therefore evidence obtained illegally is not admissible as per rules of evidence in
Tanzania.

42
Criminal Appeal No. 23, 1988, in the Court of Appeal of Tanzania at Mwanza (Unreported)
43
Mirindo, F., supra note 40 p. 409
 REFERENCE

STATUTES

The Evidence Act [Cap. 6, R.E 2019]

Criminal Procedure Act [Cap. 20, R.E 2019]

CASES

A v. Secretary of State for Home Department [2005] 3 WLR 1249

Alphonce (Kasokolo) v. Repubic Criminal Appeal No. 23, 1988, in the Court of Appeal of
Tanzania at Mwanza (Unreported)

ITC Film Distributors v. Video Exchange [1982] 1 CH 431

Jeffrey v. Black [1977] 3 WLR 895 DC

komba v.Republic Criminal Appeal No. 95 of 2006, Court of Appeal of Tanzania at Dar es
Salaam

Kuruma v. Republic [1955] 1 All ELR 236

Nyague v. Republic Criminal Appeal No. 67 of 2010, in the Court of Appeal of Tanzania at
Arusha, (unreported)

Republic v. Ireland [1970] HCA 21

Republic v. Leatham (1861) 3 E & E 658

State v. Reynolds (1924) Sup. Ct. 125 A. 636

Yusuph v. Republic Criminal Appeal No. 163 of 2017, in the Court of Appeal of Tanzania at Dar
es Salaam (unreported)

BOOKS

Emson, R., Evidence, London: Macmillan Press Ltd, 1999

Keane, A & M, Paul., The Modern Law of Evidence, 9th Edition, Great Clarendon Street, Oxford
University Press, 2012

Mirindo, F., Administration of Justice in Mainland Tanzania, 2nd Edition, Nairobi: LawAfrica
Publishing Ltd, 2019

Taylor, C., Evidence, 4th edition, London: Pearson, 2017

JOURNAL ARTICLE

Ashford, P., “The Admissibility of Illegally Obtained Evidence,” [2019] 85 (4) Chartered
Institute of Arbitrators

Jain, S. N., “Admissibility of Illegally Obtained Evidence.” [1980] 22 (3) Journal of the Indian
Law Institute

Peiris, G.L., “The Admissibility of Evidence Obtained Illegally: A Comparative Analysis” Vol.
13(2) Ottawa Law Review.