The Extradition Procedures in Tanzania as Explained by Act no.

15 of 1965 [Cap 368 R: E 2002]

By Asherry Magalla

1
 Copyright Statement

No part of this publication may be reproduced or transmitted in any

form or by any means, electronic or mechanical, including photocopying,
recording, or any information storage and retrieval system, without
permission in writing from the publisher. Details on how to seek
permission, further information about the Publisher’s permissions and
other arrangements can be obtained through his email,
asherryb.p.magalla@gmail.com.
This paper and the individual contributions contained in it are protected
under copyright by the Publisher (other than as may be noted herein).
Copyright © 2018 Asherry Magalla. All rights reserved

i
 Dedication

To My Son, Ryan Asherry Magalla

Daddy Loves You

ii
 Acknowledgement

I acknowledge G.O.D. because I wouldn’t have everything and every

person surrounds me without HIM.

iii
 Table of Contents

Copyright Statement ........................................................................... i

Dedication ......................................................................................... ii

Acknowledgement.............................................................................. iii

Table of Contents ..............................................................................iv

The Extradition Procedures in Tanzania as Explained by Act no. 15 of

1965 [Cap 368 R: E 2002] .................................................................. 1

1.0 Introduction ................................................................................. 1

1.1 Extradition ................................................................................... 2

Hingorani C. R (1969) ........................................................................ 2

Kim, D. (2008) ................................................................................... 3

Kuper, A (2004) ................................................................................. 3

Kapferer S, (2003) ............................................................................. 3

Author’s meaning ............................................................................... 4

1.1.1 Origin of Extradition .................................................................. 4

1.2 Arrest .......................................................................................... 5

1.2.1 Arrest with Warrant ................................................................... 5

1.2.2 Arrest without a Warrant ........................................................... 6

1.3 Fugitive Criminal and Warrant ....................................................... 7

1.4 Accused ....................................................................................... 7

iv
1.5 Extradition Concepts .................................................................... 8

1.5.1 Deportation............................................................................... 8

1.5.2 Rendition .................................................................................. 8

1.5.3 Repatriation .............................................................................. 9

1.5.4 Dual Criminality ....................................................................... 10

1.5.5 The Rule of Specialty ............................................................... 10

1.5.6 Political Offence ...................................................................... 10

1.5.7 Nationality Exception Principle .................................................. 11

1.5.7 Provisional Arrest .................................................................... 11

1.5.8 Double Jeopardy ..................................................................... 12

1.5.9 The Principle of Reciprocity ...................................................... 12

1.6 The Extradition Act No. 15 of 1965 [Cap 368 R: E 2002] .............. 13

1.6.1 The Application of the Act ........................................................ 13

1.6.2 Surrender of Fugitive Criminals ................................................ 13

1.6.3 Requisition for the Surrender ................................................... 14

1.6.4 Issue of Warrant ..................................................................... 14

1.6.5 Provisional Warrant ................................................................. 16

1.6.6 Discharge of Fugitive Criminal .................................................. 16

1.6.7 Return of Prisoner ................................................................... 17

1.6.8 Hearing of the Case and Evidence ............................................ 18

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1.7 Restriction on Surrender or Return .............................................. 18

1.7.1 Political Offence ...................................................................... 18

1.7.2 Offences Triable By A Court or Undergoing Sentence in Tanzania 19

1.7.3 Bad Faith of the Application or Unjust Processes ....................... 19

1.7.4 Extradition Agreement ............................................................. 20

1.7.5 Expiration of Time ................................................................... 20

1.8 Conclusion ................................................................................. 20

BIBLIOGRAPHY................................................................................ 22

Text Books ...................................................................................... 22

Articles and Journals ........................................................................ 23

Statutes .......................................................................................... 24

Cases .............................................................................................. 24

Internet Sources .............................................................................. 24

Dissertation ..................................................................................... 25

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 The Extradition Procedures in Tanzania as Explained by
Act no. 15 of 1965 [Cap 368 R: E 2002]

By Digitally signed by Asherry Magalla

DN: cn=Asherry Magalla

Asherry Magalla  Asherry gn=Asherry Magalla c=Tanzania,

United Republic Of l=TZ
o=Independent Researcher
ou=Independent Researcher

Magalla e=magallajr@gmail.com
Reason: I am the author of this
document

1.0 Introduction Location: Dar Es Salaam-Tanzania

Date: 2018-04-20 14:20+03:00

“The Partner States agree to enhance co-operation in the handling of

cross border crime, provision of mutual assistance in criminal matters
including the arrest and repatriation of fugitive offenders and the
exchange of information on national mechanisms for combating criminal
activities;”1

This short paper is all about the Extradition Act No. 15 of 1965 [Cap 368
R: E 2002] on the procedures on how the accused person who commit
an offence inside the country and escape to other country (vice versa)
from the processes of arresting up to hearing of cases and evidence.

Tanzania can extradite its own nationals. In correlation with the

bombing of the US Embassy in Tanzania in 1998, a Tanzanian citizen
was extradited to the United States. Also in 2017 the Court approved the
extradition of a leader of a global drug trafficking ring to the United
States of America.
In Republic V Wilfred Onyango Nganyi & Another2 involving
extradition of suspected robbers connected to a robbery that occurred in
Arusha, Tanzania, extradition proceedings were followed to the letter


LL.B and LL.M-ICT at the University of Iringa. Independent Researcher, Author and book
writer at Lambert Academic Publishing Company in German and DL2A–Buluu Publishing
Company in France. Contact details, magallajr@gmail.com.
1
Article 124 (5) of the EAC Treaty
2
2008 eKLR Available at Kenya Law Report

1
and the accused were handed over to the Tanzania authorities after the
High Court on appeal, granted extradition orders.

This means such person can be returned to our country (or foreign
country) where crime has been committed in order to give the chance
for the particular court proceedings to prevail. This act is normal known
as Extradition, and the power given to the parties to an agreement on
mutual assistance on extradition processes is known as Extradition
Authority. The most important thing in Extradition is jurisdiction, which
is mainly given after the mutual agreement between the said countries
on extradition assistance. Territorial jurisdiction simply means the
geographical area within which a court of law can exercise its powers
(Sharma v R, 20 E.A.C.A 310).

For instance, if any fugitive criminal or other person is arrested in

pursuance of the provisions of this Act and brought before a magistrate
shall have power to order, who has no power to exercise
jurisdiction under this Act, that magistrate person to be brought
before some magistrate having that jurisdiction, and to remand or admit
that person to bail, and effect shall be given to that order.

1.1 Extradition

Extradition is governed by international treaties, bilateral or multilateral,

enshrining the legality principle, "nulla extraditio sine lege" means "no
extradition without a law"] a version of "nullum crimine nulla pena sine
lege” means "no crime and no penalty without a law".

2
Hingorani C. R (1969)

Extradition has been defined as the surrender of an accused person or

return of a fugitive or a convict by the territorial State where he is
found, to the requesting State where, he is alleged to have committed
or to have been convicted of a crime.3

Kim, D. (2008)

Extradition is based on an assumption that the interests of the

requesting country were affected by the individual found in the
requested country's territory, and the requesting country is unable to
extend its jurisdiction extraterritorially.4

Kuper, A (2004)

Extradition is characterized by the legal phenomenon that courts in one

State consider whether to enable the prosecution of an individual before
courts of another State.5

Kapferer S, (2003)

Kapferer argued extradition as a legal principal where due process of

law and human rights principles must be observed. Regularly,
jurisprudence has had a significant impact on the legal framework for
extradition and as a result, internationally extradition is no longer

3
Hingorani C. R (1969) The Indian Extradition Law, Asia Publishing House 1969 pg 5,
4
Kim, D. (2008) "Perfectly properly triable" in the United States: Is extradition a real and
significant threat to foreign antitrust offenders?” Symposium on the globalization of the
legal profession Comment, Northwestern Journal of International Law and Business cited as
28 Nw. J. Int'l L. & Bus. 583 p 590
5
Kuper, A (2004), Democracy Beyond Boarders Justice and Representation in Global
Institution, OxfordUniversity Press pg 404

3
viewed as a matter of State practice based on political will but a concept
of law.6

Author’s meaning

Extradition is a device of intercontinental legal assistance, by virtue of

which through an official demand, one nation receive from another
nation on the release of a person charged or criminalized for a regular
transgression in order to determine such crime in a court and to carry
out the obligatory punishment as stipulated by the demanded nation
laws. Or
It is the legal process whereby a person can be returned to our country
(or foreign country) where crime has been committed in order to give
the chance for the particular court proceedings to prevail.

1.1.1 Origin of Extradition

The concept of extradition was known even in the times of Pharaonic

Egypt. The first known extradition treaty was in a peace treaty in 1270
B.C. This was during the reign of Ramses II, when an extradition clause
was included in a peace treaty between Ramses, as Pharaoh of Egypt,
and Hattusili, Prince of the Hittites xxv. During that period treaties were
so important that Ramses had this particular one carved into the walls of
the Karnac Temple at Luxor.7
This treaty was purely based on the exchange of prisoners of war Since
then there seems to be little record of extradition in the subsequent

6
Kapferer S, (2003) Legal and protection policy research services, the interface between
extradition and asylum. United Nations High Commission for Refugees.pg 1

7
Bassiouni C. M (1990) “ Major Contemporary Issues In Extradition Law” 84Am. Soc’y Int’l
L. Proc 389, American Society of International Law pg. 389

4
centuries. However, it appears that until the 1700s Nations sought
individuals for political and religious offenses only. From the mid1800s
until after the Second World War, extradition shifted its focus from
extraditing political and religious offenders to the apprehension and
rendition of common criminals.8
In the late nineteenth century, bilateral extradition treaties became
more common as countries wanted to regularize extradition of
individuals. It was at the end of the nineteenth century that the primary
form and rationale for current extradition procedures was formulated.9
In East Africa the cooperation in preventing and prosecuting criminals
dated back in 1967 when the East Africa Community was established
between Uganda, Kenya and the United Republic of Tanzania. But it is
believed that one among the earliest bilateral Extradition Agreement
used in Tanzania (Tanganyika by then) was Treaty Series 849 which was
originally signed with the United Kingdom December 22, 1931, and
come into force in June 24, 1935. In this Treaty, the territory of His
Britannic Majesty was deemed to be Great Britain in which Tanzania
(Tanganyika by then) was under British Mandate.

1.2 Arrest

An arrest is using legal authority to deprive a person of his or her

freedom of movement.10Arrest is generally made with an arrest warrant.
An arrest may be made without a warrant if probable cause and exigent
circumstances are presented at the time of the arrest. The suspect

8
Powers, A. (2002) “Justice denied? The adjudication of extradition applications” Texas
International
Law Journal Cite as: 37 Tex. Int'l L.J. 277 p281
9
Powers, A. (2002) “Justice denied? The adjudication of extradition applications, ibid
10
www.law.cornell.edu/wex/arrest on 12th Dec 2017 at 2:15

5
arrested without a warrant is entitled prompt judicial determination
generally made in 48 hours.11

The following are the kinds of arrest, which are; arrest with warrant,
arrest without warrant and arrest with a private person.

1.2.1 Arrest with Warrant

Arrest with warrant in Tanzania is provided under sect 13 (1) (a) and (b)
of the Criminal Procedure Act12 which state that, where the information
under oath is laid before a magistrate, ward secretary or a secretary of a
village council, alleging that there are reasonable grounds for believing
that a person has committed an offence, the magistrate, the ward
secretary of the village council, as the case may be, if a person is not
then under restrain, but subject to subsection,(3) may issue a warrant of
arrest of a person and for bringing him before the court specified in the
warrant to answer to the information and to the further dealt with
according to law, or the magistrate, ward secretary or a secretary of a
village council, as the case may be, may issue a summon requiring a
person to appear before the court to answer to the information.

1.2.2 Arrest without a Warrant

Sometime arrest can be done without a warrant as provided under

section 14 (a)-(h) of the Criminal Procedure Act13 which provide that, a
police officer may without a warrant arrest any person who commits a
breach of the peace in his presence, any person who wilfully obstructs a
police officer while in the execution of his duty, or who has escaped or

11
www.law.cornell.edu/wex/arrest on 12th Dec 2017 at 2:45
12
[Cap 20 RE 2002]
13
[Cap 20 RE 2002]

6
attempts to escape from lawful custody, any person in whose
possession anything is found which may reasonably be suspected to be
stolen property, or who may reasonably be suspected of having
committed an offence with reference to such things; a person whom he
finds lying or loitering in any highway, yard or garden or other place
during the night and whom he suspects upon reasonable grounds of
having committed or being about to commit an offence or who has in his
possession without lawful excuse any offensive weapon or house
breaking implement; any person whom he has reasonable cause to
believe a warrant of arrest has been issued; any person who he suspect
upon reasonable grounds of having been concerned in any act
committed at any place out of Tanzania which, if committed in Tanzania,
would have been punishable as an offence and for which he is under the
extradition act or otherwise, liable to be apprehended and detained in
Tanzania; any person who does any act which is calculated to insult the
national emblem or the national flag; any person whom he suspects of
being loitered.

1.3 Fugitive Criminal and Warrant

"fugitive criminal" means any person accused or convicted of an

extradition crime committed within the jurisdiction of any other country
who is in or is suspected of being in Tanzania, and a reference to a
fugitive criminal of a country is a reference to a fugitive criminal accused
or convicted of an extradition crime committed within the jurisdiction of
that country.14

14
Section 2 of the Extradition Act No. 15 of 1965 [Cap 368 R: E 2002]

7
“Warrant" in the case of any other country, includes any judicial
document authorizing the arrest of a person accused or convicted of a
crime.15

1.4 Accused

Accused means to charge someone with crime.16 It is important to

remember that an accusation comes when someone thinks another
person has done something wrong or committed a crime. It does mean,
however, that the person is guilty. There needs to be proved. Or a
person to whom a formal information containing an allegation of a
criminal offence has been delivered, or a person arrested for a criminal
offence.17 Also in the case of R v Kempel,18 “To accuse means, to charge
with crime or fault, this may be done by laying information against a
person.”

1.5 Extradition Concepts

1.5.1 Deportation

Deportation can be referred to as the formal removal of an alien from a

State where the alien has been found removable for violating
immigration laws of the State process used by the immigration
department and is aimed at reducing and controlling the number of
illegal immigrants.19

15
Extradition Act No. 15 of 1965 [Cap 368 R: E 2002]
16
www.vocabulary.com/dictionery/accusation,11th Dec 2017
17
http://www.dohamine.org/legaldictionary/A/accused.aspx on 12th Dec 2017 at 2:15
18
(1900)High Court of Justice,Ontario,3 C:C:C:
19
Encyclopedia of everyday law http://www.enotes.com/everyday-law-
encyclopedia/deportation accessed
on 8th April 2011

8
1.5.2 Rendition

Is the forceful transfer or surrender of a suspected fugitive person

across national boundaries of one State. Incidences of rendition normally
occur when States lack extradition relations with a requesting State, or
when they seek to avoid the legal constraints of formal extradition. The
concept of rendition is a continuing developing phenomenon with no
fixed meaning in international law despite many States resorting to it.20
Rendition may take or be in the form of abduction or expulsion. In such
instances, the rendering State may either provide procedural protections
which may include, for example, an administrative hearing prior to being
surrendered or in the alternative its officials may summarily surrender
the individual. This often involves violation of domestic or international
legal obligations.21
In 2010 Kenyan agents, again, abducted Zuhura Suleiman and
Mohammed Hamid Suleiman on allegations of being terror suspects.
They were then forcefully rendered to the Uganda Government without
due regard of the law.22

1.5.3 Repatriation

Repatriation is derived from Latin word repatriare used to refer to the

process of returning a person back to one's place of origin or citizenship.
It involves the voluntary return of persons especially refugees to their
countries. This exercise is unique as it normally involves cooperation
20
Kanstroom, D. (2007) “Post-deportation human rights law: aspiration, oxymoron, or
necessity?”Stanford Journal of Civil Rights & Civil Liberties *195 p 200
21
Fitzpatrick J. (2003) “Rendition and Transfer in the War against Terrorism: Guantánamo
and Beyond” Loy. L.A. Int’l & Comp. L. Rev. [Vol. 25:457] p 457
22
Odula T, Africa on msnbc.com Grouped Kenya suspects secretly taken to Uganda
http://www.msnbc.msn.com/id/39347487/ns/world_news-africa/ retrieved on 4
April 2018

9
from the refugee or person to be returned, the country of asylum, the
country of origin, certain international organizations such as the United
Nation High Commission on Refugee and intergovernmental
organizations.23
It was largely manifested after the First World War as a response to the
prisoners of war who had been widely displaced during the war wanting
to return home.24

1.5.4 Dual Criminality

Double Criminality or dual criminality refers to the substantive

requirement of the extradition law that the offence for which the person
is being extradited must be considered criminal under the laws of both
the requested country and the requesting country.25

1.5.5 The Rule of Specialty

The rule of specialty is the principle which limits the number of charges
upon which an extradited suspect may be charged and tried.26 It
prevents the requesting State from prosecuting the suspects for crimes
23
Beyani C. & College W. (1993) “Round table consultation on Voluntary Repatriation
(Theme IV) The Content Scope and Duration of Returnee Protection” United Nations High
Commissioner for Refugees
Division of International Protection Oxford University Geneva p3
24
Long, K. (2008) Working paper series No. 48 State, Nation, Citizen: Rethinking
repatriation. Paper based on material prepared during a visiting fellowship held at the
Refugee Study Center from October toDecember 2007 Oxford Department of International
Development University of Oxford p 10
25
Kim, D. (2008) "Perfectly properly triable" in the United States: Is extradition a real and
significant threat to foreign antitrust offenders?” Symposium on the globalization of the
legal profession Comment, Northwestern Journal of International Law and Business cited as
28 Nw. J. Int'l L. & Bus. 583p 593
26
Snow T. G (2002) “Investigation and prosecution of white collar crime: International
challenges and the legal tools available to address them” William and Mary Bill of Rights
Journal Symposium: Prosecuting White-Collar Crime Cite as: 11 Wm. & Mary Bill Rts. J. 209
p 218

10
not included in the extradition request and or warrant of extradition,
even if evidence for those other crimes is available.27

1.5.6 Political Offence

Political Offence is a standard defence found in extradition treaties. This

rule was fully embraced in the nineteenth century when the
governments of the new liberal democracies refused to return political
rebels to the governments they had rebelled against or to the
authoritarian States that requested for them.28 This is simply because; a
person who commits political offences should not be extradited to be
tried by the victims of those offences.29
Also that States should not interfere or intervene in the internal political
conflicts of other States by assisting in extraditing of political opponents
of the government.30

1.5.7 Nationality Exception Principle

The nationality exception refers to a country's practice of refusing to

extradite its own nationals to other countries.31 This acts as a common
impediment to extradition and is extremely common in countries with

27
Fitzpatrick J. (2003) “Rendition and Transfer in the War against Terrorism: Guantánamo
and Beyond” Loy. L.A. Int’l & Comp. L. Rev. [Vol. 25:457] p 469 also see Dugard J, (2010)
International Law a South African Perspective, Juta & Co, Ltd, p 215
28
Dugard J, (2010) International Law a South African Perspective, Juta & Co, Ltd, p 218
29
Bassiouni C. M (1990) “ Major Contemporary Issues In Extradition Law” 84Am. Soc’y Int’l
L. Proc 389, American Society of International Law p 397
30
Snow T. G (2002) “Investigation and prosecution of white collar crime: International
challenges and the legal tools available to address them” William and Mary Bill of Rights
Journal Symposium: Prosecuting White-Collar Crime Cite as: 11 Wm. & Mary Bill Rts. J. 209
p 218
31
Kim, D. (2008) "Perfectly properly triable" in the United States: Is extradition a real and
significant threat to foreign antitrust offenders?” Symposium on the globalization of the
legal profession Comment, Northwestern Journal of International Law and Business cited as
28 Nw. J. Int'l L. & Bus. 583 p 599

11
civil law tradition. These jurisdictions regard the non-extradition of
citizens as an important legal principle as they exercise personal
jurisdiction for offences committed by their nationals outside their
territorial boundaries.32

1.5.7 Provisional Arrest

Provisional Arrest is an important principle in an extradition treaty which

enables the requested State to make a temporary arrest prior to and in
contemplation of an extradition request. This provision is aimed at
securing the fugitive and ensuring that he does not further escape the
jurisdiction of the requested State while the requesting State continues
to gather and transmit the necessary documents for the formal
extradition.33

1.5.8 Double Jeopardy

Double jeopardy principle seeks to avoid duplication of punishments. It

is aimed at protecting a person who has already been acquitted or
pardoned of the offence, or has undergone the punishment for the
offence from being extradited. There is no uniformity in the application
of this principle. Some States apply a very broad construction whereas
some apply a very narrow one. On the other hand others have created
broad exceptions to the principle which allow for trial twice for the same
34
conduct in certain circumstances.

32
Dugard J, (2010) International Law a South African Perspective, Juta & Co, Ltd, p 21
33
Russo M. A (2000) “The development of foreign extradition takes a wrong turn in light of
the fugitive disentitlement doctrine: Ninth circuit vacates the requirement of probable cause
for a provisional arrest inparretti v. united states” cited as 49 DePaul L. Rev. 1041 p 1053
34
Cherotich, R.R (2011) An Analysis of Extradition Laws and Practices of Kenya And
Tanzania Vis A Vis International Human Rights Norms, LL.M. Dissertation University of Dar
es Salaam

12
1.5.9 The Principle of Reciprocity

The principle of reciprocity is one of the fundamental bases on which

extradition is viable. It is a principle based on the notion that a
requested State will surrender fugitives to the requesting State for as
long as its own requests for fugitives will be honored by the requesting
State.35

1.6 The Extradition Act No. 15 of 1965 [Cap 368 R: E 2002]

The Act was enacted to provide for the law relating to the extradition of
criminals and for related matters.

1.6.1 The Application of the Act

Application, is the act of putting something to a special use or purpose,36

the application is provided under section 3(1)-(3) of the Law of
Extradition Act37 which provide that, where an agreement has been
made with the foreign country with respect to surrender to that country
of any fugitive criminal, the minister may, by order published in the
gazette, declare that this part of this act shall apply in the case of
that country subject to that condition, exceptions and qualifications as
may be specified in the order, and this part shall apply accordingly. An
order made under this section shall recite or embody the terms of the
agreement and shall not remain in force for any longer period than the
agreement. Every order under this section shall be laid before the
national assembly.

35
Muther, F. T Jr, (1995) “The extradition of international criminals: A changing perspective”
Denver Journal of International Law and Policy. Cite as: 24 Denv. J. Int'l L. & Pol'y 221p224
36
Random House Kernerman, www.thefreedictationery.com/-
/dict.aspx?rd=1&word=application
37
No 15 of 1965 [Cap 368 R: E 2002]

13
1.6.2 Surrender of Fugitive Criminals

Also the other process is the surrender of fugitive criminals, as provided

under section 4 of the Law of Extradition Act38 which provide that,
subject to the provision of section 16, where this party of this Act
applies in the case of any country, every fugitive criminal of that country
who is in or suspected of being in Tanzania, shall be liable to be
arrested, detained and surrendered in the manner provided by this
part of this Act, whether the crime in respect of which the surrender is
sought was committed before or after commencement of this act or the
application of this part of this Act that and whether there is or is not any
concurrent jurisdiction in a court in Tanzania over that crime.

1.6.3 Requisition for the Surrender

Another procedure is requisition for the surrender, as provided under

section 5(1)-(2) of the Law of Extradition Act39 which provide that, a
requisition for the surrender of a fugitive criminal of any country who is
in or suspected of being in Tanzania shall be made to the Minister by a
diplomatic representative or consular officer of that country and,
upon receipt of such requisition, the Minister may, by order under his
hand, signify to a magistrate that a requisition has been made
and require the magistrate to issue his warrant for the arrest and
detention of the fugitive criminal, if the Minister is of the opinion
that the offence is one of a political character he may refuse to
make an order and may also at any time order a fugitive criminal
accused or convicted of such offence to be discharged from custody.

38
No 15 of 1965 [Cap 368 R: E 2002]
39
No.15 of 1965 [Cap 368 R: E 2002]

14
1.6.4 Issue of Warrant

Another procedure is the issue of warrant as provided under section 6-

(1)-(5) which state that, the warrant for the arrest of a fugitive criminal,
whether accused or convicted of a crime, who is in or suspected of
being in Tanzania, may be issued by a magistrate; on the receipt of the
order of the Minister and on such evidence as would, in the opinion of
the magistrate, justify the issue of the warrant if the crime had been
committed or the criminal convicted in that part of Tanzania in which he
exercises jurisdiction; or on such information or complaint and
such evidence or after such proceedings as would, in the opinion of
the magistrate, justify the issue of a warrant if the crime had been
committed or the criminal convicted in that part of Tanzania in which he
exercises jurisdiction ,a magistrate issuing a warrant under this section
without an order from the Minister shall forthwith send a report of
the fact of the issue, together with the evidence and information or
complaint or certified copies thereof, to the Minister who may order the
warrant to be cancelled and the person who has been arrested and
detained on the warrant to be discharged, a fugitive criminal when
arrested on a warrant under this section shall be brought before a
magistrate as soon as practicable, a fugitive criminal arrested and
detained on a warrant issued without the order of the Minister shall be
discharged by the magistrate unless the magistrate, within such
reasonable time as, with reference to the circumstances of the case, he
may fix, receives from the Minister an order signifying that a requisition
has been made for the surrender of the criminal, the warrant of a
magistrate issued in pursuance of this Part of this Act may be executed
in any part of Tanzania in the same manner as if it had been originally

15
issued or subsequently endorsed by a magistrate having jurisdiction in
the place where it is executed.

In the KweSi Armah extradition case the House of Lords held that
the magistrate must weigh all the evidence put before him and decide
whether he considers it probable, (said not merely possible) that the
accused had committed the Offence disclosed in the warrant.40

1.6.5 Provisional Warrant

Another procedure is the provision of the warrant as provided under

section 13-(1)-(2) of The Law of the Extradition Act41, (1)which state
that notwithstanding that a warrant for the arrest of any person issued
in a country to which this part of this Act applies may not yet have been
endorsed in pursuance of this Act a magistrate may issue a provisional
warrant, for arrest of such person on such information and under such
circumstances as would, in his opinion, justify the issue of a
warrant if the offence of which that person is accused were an offence
punishable by the law of that part of Tanzania in which he exercises
jurisdiction and had been committed within his jurisdiction and such
warrant, may be endorsed in the manner provided in the criminal
procedure code, and may be exercised accordingly, where a person is
arrested under such a proving warrant. no order maybe made under
section 14 for his return to the country in which the original warrant was
issued unless the, original warrant is produced and endorsed in
accordance whit this part of this Act and he shall be discharged unless

40
Shaid L.P ASYLUM and exTRADITIQN: Law and Practice in Tanzania
41
No.15 of 1965 [Cap 368 R: E 2002]

16
the original warrant is produced and endorsed within such time as the
magistrate think reasonable in the circumstance.

1.6.6 Discharge of Fugitive Criminal

Another procedure is the discharge of fugitive criminal as provided under

section 10(a)-(b) of The Law of Extradition Act42 which provide that;
whenever a fugitive criminal who has been committed to prison is not
surrendered and conveyed out of Tanzania within two months after the
committal, or if directions in the nature of habeas corpus are criminal
issued, after the decision of the court upon the return to the directions,
any Judge of the High Court or of the High Court of Zanzibar may- upon
application made to him by or on behalf of the criminal; and upon proof
that reasonable notice of the intention to make the application has been
given to the Minister, order the criminal to be discharged out of custody
unless sufficient cause is shown to the contrary.

1.6.7 Return of Prisoner

Another procedure is the return of prisoner, as provided under section

14 (1)-(4) of the Law of Extradition Act43which provide that, subject to
the provisions of section 16, where a person arrested under a warrant
endorsed in accordance with section 12 or a provisional warrant issued
under section 13 is brought before a magistrate and, in the case of a
person arrested under a provisional warrant, the original warrant has
been produced and endorsed, the Magistrate may, if he is satisfied, that
the warrant is duly authenticated as directed by this Act and was issued
by a person having lawful authority to issue the same; and by evidence

42
No.15 of 1965 [Cap 368 R: E 2002]
43
No.15 of 1965 [Cap 368 R: E 2002]

17
on oath, that the prisoner is the person named or otherwise described in
the warrant, order the prisoner to be returned to the country in which
the original warrant was issued, and for that purpose to be delivered
into the custody of the persons to whom the warrant is directed or any
one or more of them and to be held in custody and conveyed into that
country person to whom the warrant is directed and the person so
authorized may receive, hold in custody and convey into the jurisdiction
of that country the prisoner mentioned in the warrant, a magistrate
shall, so far as is requisite for the exercise of the powers of this section,
have the same power, including the power to remand and admit to bail
a prisoner, as he has in the case of a person arrested under a warrant
issued by him, in proceedings under this section, the magistrate shall
receive any evidence which may be tendered to show that the case is
one to which the relevant provisions of section 16 apply.

1.6.8 Hearing of the Case and Evidence

After all the process the other one is the hearing of the case and
evidence as provided under section 7(1)-(2) of the Law of Extradition
Act44 which state that, subject to the provisions of section 17, when a
fugitive criminal is brought before a magistrate, the magistrate shall
hear the case in the same manner and have the same
jurisdiction and powers, as nearly as may be, as in a preliminary
inquiry the magistrate shall receive any evidence which may be
tendered to show that the case is one to which the relevant provisions
of section 16 apply or that the crime of which the prisoner is accused is
not an extradition crime.

44
No.15 of 1965 [Cap 368 R: E 2002]

18
After that all the procedures of conviction in Tanzania are conduced as
the law required and the sentences follow.

1.7 Restriction on Surrender or Return

This is the situation whereby the extradition process may be not carried
out due to a number of reasons as follows

1.7.1 Political Offence

If the offence in respect of which his surrender is required or the offence

specified in the warrant, as the case may be, is one of a political
character or if it appears that the requisition for the surrender, or the
application for endorsement of a warrant and the return of the person
named in it, has in fact been made with a view to try or to punish him
for an offence of a political character.45Then, there will be no extradition
processes.

1.7.2 Offences Triable By A Court or Undergoing Sentence in

Tanzania

If the fugitive criminal or the person arrested is accused of some offence

triable by a court in Tanzania or is undergoing sentence under any
conviction in Tanzania, until after he has been discharged, whether by
acquittal or on the expiration of his sentence or otherwise.46

1.7.3 Bad Faith of the Application or Unjust Processes

Where the return of a prisoner is sought or arranged under Part III of

this Act, and it appears to the magistrate that by reason of the trivial
nature of the case, or by reason of the application for the return of the

45
Section 16 (1) (a) of Extradition Act No.15 of 1965 [Cap 368 R: E 2002]
46
Section 16 (1) (b) of Extradition Act No.15 of 1965 [Cap 368 R: E 2002]

19
prisoner not being made in good faith in the interests of justice, or
otherwise, it would, having regard to the distance, to the facilities of
communication and to all the circumstances of the case, be unjust or
oppressive or to a severe punishment to return the prisoner either at all
or until the expiration of a certain period, the magistrate may discharge
the prisoner either absolutely or on bail or order that he shall not be
returned until after the expiration of the period named in the order or
may make any other order in the matter which the magistrate thinks
proper.47

1.7.4 Extradition Agreement

Subject to the provisions of section 28, a fugitive criminal shall not be

surrendered under Part II of this Act; unless provision is made by the
law of the country to which he is to be surrendered, or by agreement,
that the fugitive criminal shall not, unless he has been restored or had
an opportunity of returning to Tanzania, be detained or tried in that
country for any offence committed prior to his surrender other than an
extradition crime proved by the facts on which the surrender is
grounded.48

1.7.5 Expiration of Time

Subject to the provisions of section 28, a fugitive criminal shall not be

surrendered under Part II of this Act; until the expiration of fifteen
days from the date of his being committed to prison to await his
surrender.49

47
Section 16 (3) of Extradition Act No.15 of 1965 [Cap 368 R: E 2002]
48
Section 16 (2) (a) of Extradition Act No.15 of 1965 [Cap 368 R: E 2002]
49
Section 16 (2) (b) of Extradition Act No.15 of 1965 [Cap 368 R: E 2002]

20
1.8 Conclusion

As I said once, it is just a brief on how extraction processes are done in

Tanzania on the procedure to follow in order to return the accused
person who escapes from Tanzania to another country. The question of
jurisdiction in Extradition lies at the root of judicial functions, being the
creatures of statutes, court of law cannot exercise any powers other
than those conferred on them by statute. They may not exercise powers
which the law does not expressly or impliedly permit or
prohibits.50Hence the question of jurisdiction is not of form, it is
fundamental since it prescribes the boundaries of the authority of every
court.51 Also in John v R.52 that court without jurisdiction had no
powers to make any decision. The jurisdiction spoken here also include
the mutual agreement agreed between the two nations upon helping
each other in regarding to extradition and related matters, because it is
from the agreement signed by both parties which creates the law and
assent the sending or receiving of fugitive criminals when needed and
deemed to do so.

50
B.D. Chipeta(2002), A Magistrate’s Manual at Pg 3
51
Sindiko v Kaaya [1977] LRT No. 18 where it was held that a court tries or inquiries into
any case in which it has no jurisdiction so to do, such proceedings are nullity.
52
(1951)18 EACA 218

21
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25