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CRIMINAL PROCEDURE LAW IN TANZANIA By MWAKISIKI MWAKISIKI
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MOSHI CO-OPERATIVE UNIVERSITY
CRIMINAL PROCEDURE LAW IN TANZANIA
THEORY AND PRACTICES
BY MWAKISIKI, MWAKISIKI, EDWARD
9/4/2017
This work seek to introduce a criminal procedure law student to various procedures in
adjudicating criminal cases both in High court and subordinate court. This work covers essential
criminal procedures ranging from investigation, search, arrest, institution of proceedings, plea
taking to procedures like Preliminary hearing, bail, Hearing, conviction and sentence just to
mention a few.
Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
TOPIC ONE: INTRODUCTION TO CRIMINAL PROCEDURE LAW
▪ Meaning of Criminal Procedure Law
Criminal procedure law entails a frame work of laws and rules that govern the administration of
justice in cases involving individuals accused of committing crimes. The procedure begins with
the initial investigation of the crime and concluded with either unconditional release of the accused
by the virtual of the acquittal or by imposition of s term of punishment pursuant to conviction for
the crime.
▪ Purposes and importance of Criminal Procedures
The importance of criminal procedure was stated in the case of Joseph Masunzu V R1, where
Justice Katiti held that “….We can’t peaceful make our journey through life without the law telling
us the light direction to follow, and sometimes even the time to follow and when to start our
journey and through which route….”
The fundamental purpose of criminal procedure was also stated in the case of Kamundi V R2,
where it was held that the all purpose and intention of criminal procedure is to laid down provisions
and procedures to see that justice is done.
▪ Differences between Civil Procedure and Criminal Procedure
• The burden of proof in criminal procedure is that beyond reasonable doubt, while, the
burden of proof in civil cases is on balance of probabilities.
• A person is said to be prosecuted in criminal cases, while, In Civil cases a person is said to
be sued.
• Criminal cases are instituted by lodging a charge sheet of information before the court of
law as per section 132 of CPA, while, civil cases are instituted by presentation of plaint as
per order 4 rule 1 & section 22 of CPC.
• Criminal procedure entails the frame work of laws that govern the administration of justice
in cases involving an individual who has been accused of a crime, while, Criminal
procedure on the other hand entails the frame work of laws that govern the administration
of justice in cases involving an individual who has been accused of a crime.
1
CRIMINAL APPEAL NO. 3 OF 1991.
2
[1957] EA 540.
2
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
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• Civil procedure is the written set of rules that sets out the process that the court will follow
when hearing cases of civil nature, while, criminal procedure is the written set of rules that
sets out the process that the court will follow when hearing cases of civil nature.
• In civil matters the controversy is between individuals and it is put to one of them to bring
an action against the other, while, criminal procedure is different from civil procedure
because the burdens and results are dramatically different. In criminal matters action is
taken by the state against an individual or organization for violation of law. In case an
accused person has been convicted of crime he can put-on probation or ordered to pay fine
or confined to serve term in jail.
• Criminal Procedures rules on the other hand are designed to give both parties a set of equal
rules to go by, while, the rules of criminal procedure are different from civil procedure
because the results and objectives of the litigation differ. Criminal procedure rules are
generally designed to protect right of the suspect and the accused person.
▪ Differences between Criminal law and Criminal Procedure
Criminal Law Criminal Criminal Procedure
1. Substantive Law 1. Remedial/Procedural Law
2. It declares what acts are punishable 2. It provides how the act is to be punished
3. It defines crimes, treats of their nature 3. It provides for the method by which a
and provides for their punishment person accused of a crime is arrested,
tried or punished.
3
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
▪ Sources of criminal procedure
➢ Constitution
How Constitution is the source of criminal procedure?
• Constitution is the fundamental law of any country, Constitution is said to be the source
of criminal procedure because principally the validity of any written law is determined
against what is contained in the constitution. No law is valid if it is contravenes any of
the provisions of constitution in terms of sprit or procedure or otherwise.
• Article 13 of the Constitution of the United Republic of Tanzania of 1977 provides for
the right to fair hearing. Therefore if there is any law of criminal procedure that is
against what is contain in article 13 then that law would be illegal.
• The constitution contain also the fundamental rules of criminal justice, one of them is
the presumption of innocence that is the person is presumed to be innocent unless
otherwise is proved beyond reasonable doubt as provided under article 13(6) (b) of the
Constitution of the United Republic of Tanzania. Therefore no law of criminal
procedure is valid if it creates the presumption of guilty before the same been proved.
• Again no person is to be punished for an offence which does not exist as per article
13(6) (c) of the Constitution of the United Republic of Tanzania. Therefore they can
never be a criminal procedure which allows a punishment of a person for a non-
existence offence as that rule would be illegal.
➢ Statute
Piece of legislations made by the parliament or any other bodies authorized to do so form a basic
source of criminal procedure in Tanzania. For example the Criminal procedure Act is a basic
source of criminal procedures, For example section 4(1) of the Criminal Procedure Act provides
that all offences under the Penal Code shall be inquired into, tried and otherwise dealt with
according to the provisions of this Act. Section 4(2) provides that all offences under any other law
shall be inquired into, tried and otherwise dealt with according to the provisions of this Act, except
where that other law provides differently for the regulation of the manner or place of investigation
into, trial or dealing in any other way with those offences. What can be observed from section 4 is
that once an offence is committed under the Penal Code procedures to be followed are those
contained in the Criminal Procedure Act.
4
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
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➢ International law
International law entails a total of norms accepted by the international community to regulate
relation between state and also between states and their subjects. The international laws are
applicable in Tanzania subject to the provision of Article 63(3) (e) of the Constitution.
International law is also one of the sources of criminal procedure especially in the areas of human
right promotion and protection. There a number of international convections which have a direct
bearing to the administration of criminal Justice, One of the convection of this nature is the
convention of the right of the child of 1990. This convention protects the child under the age of 18
years against capital punishments or life imprisonment and calls of a separate detention facilities
from adults.
➢ Precedents
It is another important source of law in Tanzania. These are cases arising from the decision of the
High Court and Court of Appeal. They are either reported cases or unreported. Therefore they form
the basic precedents of Tanzanian laws and bind lower courts thereto. Reported cases in Tanzania
can be found in a number of Law Reports. Between 1957and 1977 cases reported from the High
Court of Tanzania and the East African Court of Appeal appeared in East Africa Law
Reports. Precedents or case laws are substantially the basic source of criminal procedure, for
example the case of Mwango s/o Manana vs R 3 , lay down important criminal procedures
regarding conducting identification parade.
▪ The current criminal procedures in Tanzania
❖ Investigation4
Investigation is most important step after a report or of any criminal offence, because it’s the only
thing that will help the prosecution to have the basis for their case in court through accumulation
of evidence. Apprehension can be done at the scene of crime; if not detection work of various
kinds may occur until the police have a suspect.
❖ Arrest5
Police Officer has powers to arrest with or without warrant depending on the certain circumstances
as provided for under S. 14 of the Criminal Procedure Act, which includes when commission of
3
[1936]3 EACA, pg.29.
4
Section 10 of the Criminal Procedure Act [Cap 20 R.E 2002]
5
Section 14 of the Criminal Procedure Act [Cap 20 R.E 2002]
5
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Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
offence is done at his presence. Arrest can be done by private person without warrant when
involving injury to property by the owner of the property or his servants or a person authorized by
the owner of the property and other circumstances provided by s.14 of the Criminal Procedure Act.
Arrest can be done by magistrate as well, when the commission of offence is within the local limits
of his jurisdiction s.17 of the Criminal Procedure Act.
❖ Search6
Search must be carried in accordance with the law and laid procedures, because it interfere ones
privacy, liberty and freedom. Hence you must seek search warrant from appropriate authority. Two
types of search; first is warranty from in charge of a police station s.38 Criminal Procedure Act.
This may be issued to any person including police officers. The second one is search warrants by
the court.
❖ Charge Sheet (Charge)7
Charge is a foundation of institution of criminal proceedings against an accused. This is a
document that states the offences and provisions of the laws that the accused has breached,
together with his personal information. Prosecution will draw charge if the case is triable by
subordinate courts or information if the offences are triable only by High Court. There are certain
offences triable by High Court only such as incest, murder, arson and treason.
❖ Plea Taking8
Here the accused will be required to plead for the charges read to him .The accused will be asked
by the court to give a plea of guilty or not guilty. If the accused plead guilty the plea must be
unequivocal , which means clear plea if the plea is not clear court enters a plea of not guilty. If
plea of not guilty is entered by the court the prosecution will be allowed to proceed to present
their case. If postponed the accused will have a chance to ask for bail, if is bailable offence. If the
plea of guilty is entered then the procedure will skip to Acquit/Convict till the end.
❖ Bail9
Most of time if accused plead guilty and plea is entered bail do not apply. After plea a person is
remanded or bailed. Bail is constitutional right s.13 (6) (b) of United Republic of Tanzania
Constitution, [Cap 2, R.E 2002], presumption of innocence. There are unbailable offences like
6
Section 38 of the Criminal Procedure Act [Cap 20 R.E 2002]
7
Section 132 of the Criminal Procedure Act [Cap 20 R.E 2002]
8
Section 275 and 228 of the Criminal Procedure Act [Cap 20 R.E 2002]
9
Section 148 and 63 Section of the Criminal Procedure Act [Cap 20 R.E 2002]
6
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
Treason, armed robbery, defilement and murder under s.148 (5) of Criminal Procedure Act. Police
bail can be granted before matter set to court; court bail is when the matter is set in court.
❖ Preliminary Hearing (PH)10
This is an important stage where the parties meet to draft a memorandum of agreed fact so as to
expedite the case speed .The parties have to meet decide on what matters are not in dispute and
those matters are not supposed to be brought during trials neither party is required to prove any of
those facts except the facts in dispute only.
❖ Trial Stage
This is when the case is set for hearing or mention and the prosecution have to prove whether they
have case against the accused or not before the court.
❖ Prosecution Case11
This is a stage where the prosecution have to present their case ,where the prosecution will call
upon the witnesses to give their testimonies and present any other evidence that support their case,
for court to decide whether there is a case to answer or not. It is in this stage where the witness
will be examined by prosecution at first (Examination in Chief), then will be examined by defense
(Cross examination) lastly will be reexamined by prosecution (re-examination). Importantly:
Generally the burden of proof lies on Prosecution and the standard of proof is beyond reasonable
doubt.
❖ Case to Answer /No Case to answer12
This is a stage where the court has to decide on whether there is a case to answer or not, basing on
the evidence provided by prosecution. If no case to answer the court will acquit the accused, if
there is a case to answer accused will be having chance to present evidence in his support.
❖ Defense Case13
Basically here the defense team will present their evidence, witness be examined in chief, cross
examined by prosecution and re-examined by the defense.
❖ Final Submission: This is a summary of the whole presentation from each side; defense
will be the first to make their final submission then followed by the prosecution side. Final
submission can be orally or in writing, this have to be with the leave of the court.
10
Section 192 of the Criminal Procedure Act [Cap 20 R.E 2002]
11
Section 288 of the Criminal Procedure Act [Cap 20 R.E 2002]
12
Section 230 and 231 of the Criminal Procedure Act [Cap 20 R.E 2002]
13
Section 294 of the Criminal Procedure Act [Cap 20 R.E 2002]
7
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
❖ Acquit or Convict
This is a stage where by the court will rule depending on the submission by prosecution and
defense if the accused is found guilty or not. Therefore the accused can be found not guilty,
if found not guilty, game over, he will be acquitted and set free, If found guilty the next step will
follow.
❖ Mitigating and Aggravating factors
When the accused is convicted, Defense will be given chance to present factors that tend to
diminish the magnitude of sentence whereas prosecution will be give factors that tend to increase
the magnitude of the sentence.
❖ Sentence14 and Judgment15
This will be second last thing, the court will read the sentence in the judgment and there is a set
rule in the law that it shall be within ninety days under s.311 of the Criminal Procedure Act. The
contents of the judgment are provided by the law under s.312 of CPA.
❖ Right to Appeal Explained
The judge /magistrate must pronounce the right to appeal for any aggrieved party with the decision.
Note: The sixty days rule established under section 225 of CPA require criminal prosecution to be
finalized within 60 days from the day of their commencement subject to certain exceptions like in
serious offences whose investigation is likely to protracted such as treason.
❖ The above identified criminal stages will be well elaborated in the next topics.
TOPIC TWO: COURTS JURISDICTION IN CRIMINAL LAW & PROCEDURE
➢ INTRODUCTION
In criminal matters, it is essential for a legal counsel: whether an advocate or prosecution attorney
to have knowledge of jurisdiction of courts. Indeed the question of jurisdiction lies at the root of
judicial functions. Courts are creatures of statute and can only exercise such powers as conferred
by statute. They may not exercise powers which the law does not, expressly or impliedly, vest in
them.
14
Section 316 of the Criminal Procedure Act [Cap 20 R.E 2002]
15
Section 311 of the Criminal Procedure Act [Cap 20 R.E 2002]
8
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
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Jurisdiction is fundamental; it is not simply a question of form for it prescribes the boundaries of
the authority of a court. If a court tries a case over which it has no jurisdiction the sentence passed
and handed to the accused after such trial cannot stand. For instance it would be illegal for a
Primary court to try and convict an accused person charged with murder.
➢ Meaning of jurisdiction
Simply defined the jurisdiction of a court refers to the extent to which or the limits within which,
courts or magistrates or judges may act in the course of handling a particular type of a case or pass
a particular sentence.
The limits within which a court may exercise its powers may be geographical or pecuniary or may
be prescribed according to the subject matter; that is by categorization of offences which should
be tried or inquired into by a certain court or the sentence which such court may impose.
➢ Categories of Jurisdiction
➢ Original Jurisdiction
Original jurisdiction means the power of a court to hear or try a case as a matter of first instance.
This requires that a particular type of case should only be commenced and tried in the lowest
court in the ladder before moving to the next court in that hierarchy if need be. A court with original
jurisdiction may hear the case; make various findings and orders, pass judgment and sentence the
accused within the limits provided for in the law. According to sections 18, 40 and 41 of the
Magistrates Courts’ Act, Primary Courts, District Courts and Resident Magistrates’ Courts in
Tanzania mainland have original jurisdiction in criminal matters as provided by the First Schedule
(jurisdiction of primary courts) and Second Schedule (jurisdiction of district courts) of the Act and
any other law. The High Court of Tanzania has unlimited original jurisdiction.
Further guidance regarding original jurisdiction of courts is to be found in other laws. The First
Schedule to the Criminal Procedure Act, Cap. 20, for instance, sets out the offences in connection
with which the High Court and district courts may exercise original jurisdiction. Similarly original
jurisdiction in relation to economic crimes lays with the High Court, in accordance with section 3
of the Economic and Organized Crime Control Act, Chapter. 200.
9
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
➢ Territorial Jurisdiction
Territorial jurisdiction means the geographical area within which a court may exercise its powers.
A District Court has jurisdiction within the district in which it is situated, and a court of a resident
magistrate has jurisdiction in the region within which it is situated (See Sections 4 –5 Magistrates’
Courts Act, Cap. 11). On the other hand the High Court has jurisdiction within the territorial limits
of a State (See Article 108 Constitution of the United Republic 1977). Territorial jurisdiction of
the primary court is provided under section 3 of Cap. 11.
The case of Sharma v. R16, sufficiently illustrates the point as to the importance of territorial
jurisdiction. In that case territorial jurisdiction was in issue. The Court of appeal for Eastern Africa
pointed out that proof of place of commission of offence is essential to the prosecution’s case and
that although it is not always capable of exact proof, evidence should be led on which the necessary
inference can be drawn.
➢ Subject Matter Jurisdiction
Jurisdiction by subject matter, also termed jurisdiction by categorization of offences is expressly
conferred by legislation stating which offences are triable by what court. The First Schedule to the
Criminal Procedure Act, for instance, sets out what offences are triable by subordinate courts and
which are triable by the High Court. Similarly the First Schedule to the Magistrates’ Courts Act,
Cap. 11 set out which offences may be tried by primary courts in addition to other subordinate
courts.
The case of R v. Mrisho s/o Seffu17, sufficiently illustrates the issue of subject matter jurisdiction.
In that case the accused was tried and convicted by a district court of the offence of incest by males
contrary to section 158 (1) of the Penal Code. The High Court in revision declared the trial a nullity
as the offence is triable only by the High Court. Consequently the conviction was quashed, the
sentence set aside, and the case was remitted to the subordinate court for committal proceedings
at the option of the Republic.
16
20 EACA 310
17
[1968] HCD 140
10
Compiled Notes on Criminal Procedure and Practice-Moshi Co-operative University-LLB (2016-17)
Prepared by Tsar MWAKISIKI, MWAKISIKI, EDWARD
➢ Pecuniary Jurisdiction
Pecuniary jurisdiction, which usually applies to civil cases, means limitation of the powers of a
court by the value of the subject matter in issue. For the purpose of this paper it is only of passing
interest and need not detain us any further (See the provisions of Written laws miscellaneous
Amendments Act no. 3 of 2016).
➢ Sentencing Jurisdiction
Section 170 (1) of the Criminal Procedure Act, prescribes what sentences subordinate courts may
lawfully pass. That sub-section provides that in cases where such sentences are authorized by law,
