NOTES CONCERNING CHARGE SHEET IN

TANZNIA.

BY: DAUDI MWAKAPIMBA (LLB).

CHARGE SHEET.

Charge: This is the written accusation document against the accused

person of an offence which he or she is alleged to have committed.

That is, it specifies and furnishes necessary details in a summary form. It is

very important that a charge must be prepared before the trial commences
as it was stated in the case of Swalehe ally vs Republic criminal
appeal no.119 of 2016, CAT at Iringa at page 4 as it was stated that
“it is settled law that it is the Charge which commences lawful
criminal proceedings against the accused person." Therefore, it is
marvelous that, an accused be tried without a charge being laid down
against him or her.

The magistrate, upon receiving any complaint shall, subject to section 129
, draw up or cause to be drawn up and shall sign a formal charge
containing a statement of offence with which the accused is charged ,
unless the charge has been signed and presented by a police officer. See
section 128(5) of Criminal Procedure Act Cap 20 R: E 2022

Where an accused person arrested without warrant is brought before a

magistrate , a formal charge containing a statement of offence with which
is charged , shall be signed and presented by a public prosecutor preferring
the charge sheet. see section 128(6) of Criminal Procedure Act Cap 20 R:E
2022

Section 228 of the Criminal procedure Act provides guidance after a charge
has been made up.

Whereby section 228(1) of Criminal procedure Act provides that, the

substances of the charge sheet must be stated to the accused person and
he shall be asked whether he admits or denies the truth of the charge. This
shortly means that the charge sheet must be fully read and explained to
the accused person so that the accused to understand the offence alleged
to commit.

In case the accused person admits the truth of the charge , the law is open
that his admission shall be recorded as nearly as possible in the words he
uses and the magistrate shall convict him and pass a sentence upon or
make an order against him, Unless there appears to be sufficient cause to
the contrary. According to section 228(2) of Criminal Procedure Act Cap 20
R:E 2022

Where the accused person refuses to plead, the court shall order plea of
not guilty to be entered. According to section 228(4) of Criminal Procedure
Act Cap 20 R:E 2022

Where the accused person does not admit the truth of the charge , the
court shall proceed to hear the case , whereby at this stage the prosecutor
shall open the case against the accused person and shall call witness to
adduce evidence in the support of the charge sheet. Subject to what was
stated above also the accused person or his advocate may put questions to
each witness produced against him. According to section 228(2) and
section 229(1) & (2) of Criminal Procedure Act Cap 20 R:E 2022

In the case of Damas Mgova vs R, Criminal appeal no.13 of 2022 ,

CAT AT IRINGA at page 7 it was stated that " it is settled law that it is
the duty of prosecution to prove the allegation as laid in the charge."

PURPOSE OF THE CHARGE SHEET

A charge is a result of a decision by a police officer to prosecute. once a

decision has been made , the charge should be drafted in a precise and
detailed form to contain all the ingredients of the offence.

• To inform the accused person about the offence for which he is charged
i.e the charge contains particulars of such accusation. these include , time ,
date , place, names, and the manner in which the offence was committed.

• To enable the accused to prepare for his defense.

• To enable the accused to decide rationally whether or not to plea guilty.

• To enable the court to issue necessary court processes, like summon.

• To avoid taking the accused by surprise.

• For the purpose of record -criminal records are normally kept, thus a
charge is convenient for that purpose.

PARTIES OF THE CHARGE SHEET/INFORMATION.

It is a mandatory requirement of the law that a charge sheet should
contain a , Statement of the specific offence or offences with which the
accused is to face at the trial , so that, he or she can well prepare his or
her defense. The process of framing a charge sheet is governed by section
132 and 135(a) (ii) of Criminal procedure Act Cap 20 R:E 2022

Generally the charge sheet has three main parts

Introductory part.

• Name of the court.

• place

• case number

• parties to the case

• Title of the document.

Body of the charge.

1. statement of the offence

(a) Name of the offence

(b) Specific law and provision under which the offence is created.

(c) Specific law and provision under which the punishment is created.

2. Particulars of the offence.

To the presenter, this is the most challenging part of the charge. It is
where you have to apply your English, your knowledge of law, your
analysis of the provision to find out the ingredients of the offence to be
disclosed in the particulars of the offence. Unless you have the ingredients,
the charge sheet is of course very defective. You need to use English which
is simple and in consonance with the law. And they have devised the
means to simplify the process. Here at (b) you need to inform the accused
of the allegations levelled against him. If the particulars of the offence you
prepare the accused cannot understand, those particulars are defective.
The particulars thus should not only comply with the law, they also should
be informative to the accused. The formula devised is to make the business
simple. When preparing the particular of an offence, we use the 4W
Principles. If it lacks one, it is defective. These are (i) WHO, it refers to the
accused person. Particular of offence should start with the name of the
accused person. (ii) WHEN, it refers to the time at which or within which
the accused committed the offence. If the offence was committed
yesterday, When comes in. There are offences which will require you to
indicate specific time, in addition to the date. For example, you do not
need specific time for rape, but for burglary you need time because it is an
element of the offence. But there are offences in which you cannot indicate
the specific dates in which they were committed. There are offences which
are committed continuously such that when it started and ended you do
not know. Then, you will have to go by interval. A good case is fraud and
forgery. The document could be signed yesterday and but I am forging it
today. So, while the date of commission is today, it might be difficult to
understand the date tomorrow. That is why, we go by intervals sometimes.
You can thus say in diverse dates or between 1st March and 31st March
did commit. The idea is to show the offence was committed therein but the
prosecution was not sure when the crime was actually committed. (iii)
WHERE, this stands for the place at which the accused committed rape.
We need to mention the District and the region the offence was committed
as to ascertain the question of territorial jurisdiction for the court
competent to prosecute the case. (iv) WHAT, this refers to the actual act
or omission which constitutes a crime. The mens rea and actus reus must
be indicated clearly. Any criminal charge with less than 4Ws is out rightly
defective. 1Therefore in short particulars require;

(a) A person who committed an offence.

(b) Time for the commission of an offence.

(c) Place where the offence was committed

(d) The offence which was committed

Conclusion

(a) The date of which the charge was prepared.

(b) Signature of a person who prepared the charge.

Enclosed

(c) Particulars of the accused person.

1
DR.NICKSON FILBERT, CRIMINAL PRACTICE AND PROCEDURE
i) Name of the accused person

ii) Age

iii) Religious

iv) Tribe

v) Occupation.

vi) Residence

JOINDER OF THE COUNTS.

Refers to the number of offences alleged to have committed by accused

person and put into one charge.

According to section 133 of Criminal Procedure Act states that, where it

appears that an accused has committed more than one offence, those
offences may be charged in a single charge provided that, they are
founded on the same facts or form or are a part of a series of offences of
the same or similar character.

JOINDER OF THE ACCUSED PERSON.

Refer to the practice of joining more than one accused person in one
charge and try them together. The categories of a person who can be
joined together have been explained under section 134 (1) of the criminal
procedure Act Cap 20 R:E 2022 as follows;

• Persons accused of the same offence committed in the course of the

same transaction.
• Persons accused of an offence and persons accused of abetting or an
attempt to commit such an offence.

• Persons accused of different offences committed in the course of the

same transaction.

• 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 by any such commit either of
such last-named offences;

• Persons accused of any offence relating to counterfeit coin under chapter

XXXVI of the penal code, and persons accused of any offence under the
said chapter relating to the same coin , or of abetment of or attempting to
commit any such offence; or

• Persons accused of any Economic offence under the Economic and

Organized crime control Act.

DEFECTIVENESS OF THE CHARGE SHEET.

Defective charge Refers to the charge which has been prepared without
observing the requirement of the law. The Charge sheet or information can
be defective in both its content and form.

The following are the factors to determine the defectiveness of charge

sheet.

1. Misquotation of section number.

It is the duty of the prosecutor before signing a charge sheet to make sure
that section number are correctly cited in the statement of the offence.
However, failure to quote a proper section number is not fatal unless it is
shown specifically that, there was a miscarriage of justice.

2. Citing Non-Existent section.

The onus to prepare a charge sheet is for public prosecutors mostly unless
the context requires otherwise, who have legal professional but in some
instances it appears in the charge sheet, that charge sheet are defective
due to citation of non -existed section, this does not mean public
prosecutors are wrong in their field but it may happen wrong . In the
case of Issa s/o Charles (appellants) vs the Republic (respondent)
criminal appeal No.234 of 2016, CAT at Iringa The accused was
charged at the district court of Iringa with Rape contrary to section 130(1)e
and 131 of the penal code , Cap 16 R:E 2002 (now R:E 2022) , he was
convicted as charged and sentenced to 30 years imprisonment.

From the Above case the accused was charged on non-existed section
since In the penal code there is no Section 130 (1)e. Therefore the court of
appeal nullified and set aside the proceedings, conviction, sentence and
order immediate release of accused from custody.

3. Variance between the charge and Evidence.

Variance renders the charge defective unless it is amended and the

amendment causes no injustice to the accused and as so long as the
accused person had notice of amended charge from the face of the original
charge.

But when it appears before the trial court , that, there is variance between
the charge and evidence , that charge will be defective as it was stated in
the case of Lengai Ole Sabaya, Silvester Wenceslaus Nyegu and
Daniel Gabriel Mbura (appellants) Versus The Director of Public
prosecution , Criminal appeal No.129 of 2021 Hc at Arusha.
Whereby the appellants.

appeared before the Resident Magistrate Court of Arusha at Arusha where

they were arraigned for three counts of armed robbery, contrary to section
287A of the Penal Code [Cap. 16, R.E. 2019]. but on appeal to the high
court, the High court found that there was variance between the charge
and Evidence, One of the contradictions in this case is on the 3rd
appellant’s name. While the charge sheet shows that his names are Daniel
Gabriel Mbura, it is gathered from evidence of PW6 and Exhibit P2 that
the 3rd appellant is Daniel Bura and Daniel Laurent Bura respectively.
Such contradiction goes to the root of the case because the 3rd appellant
insisted that he is not Daniel Gabriel Mbura. Even if it is considered that
the 3rd appellant admitted during the preliminary hearing that his names
are Daniel Gabriel Mbura, the prosecution ought to have ensured that
the names Daniel Bura or Daniel Laurent Bura feature in the charge
sheet. As it stands, nothing suggests that Daniel Gabriel Mbura, Daniel
Bura and Daniel Laurent Bura is one and the same person. It is also not
clear whether the said names refer to the 3rd appellant who introduced
himself as Daniel Laurent Mbura.
But also the charge and evidence are at variance on the properties alleged
to have been stolen, the first count shows that Tshs. 2,769,000 was stolen
from PW1’s shop. However, evidence adduced by the prosecution indicates
that coins and EFD Machine were also taken from PW1’s shop. As to the
second count, the property named therein is Tshs. 390,000,while PW6’s
testimony is to the effect that his handkerchief was also taken. On the
other hand, PW4’ testimony is to the effect PW6’s wallet was also taken.
Also, the fact that PW6’s wallet was taken is reflected in his statement
(Exhibit D1).

The learned State Attorneys did not dispute that the coins, EFD and
handkerchief or wallet were not included in the charge. However, they
were of the view that the appellants were not prejudiced. but As indicated
earlier, the settled law provides that failure to amend the charge is an
incurable irregularity. Similar stance was taken in the case of Masota
Jumanne vs R, Criminal Appeal No. 137 of 2016 (unreported). In that
case items such as 4 kg of sugar, 2 bars of soap, 7kg of rice featured in
evidence, while the particulars of offence of armed robbery named a
bicycle and Tshs.15,000/= only. When the matter reached the Court of
Appeal, it was held that:-

“In a nutshell the prosecution evidence was riddled with

contradiction on what actually was stolen from PW1. Such
circumstances do not only imply that there was a variance
between the particulars in the charge and the evidence as
submitted by the learned State Attorney. This also goes to the
weight of evidence which is not in support of the charge.”
In yet another case of Kilian Peter vs R, Criminal Appeal No. 508
of 2016 (unreported), a wallet and a bag containing medicines
featured in the evidence as among the items stolen, but were not
included in the charge sheet. Upon considering that the charge
was not amended, the Court of Appeal held that the accused must
benefit from the omission by prosecution to amend the charge.

Moreover the particulars of offence of the 1st count shows that,

immediately before stealing PW1’s money, the appellants assaulted, among
others, Salim Hassan and Ally Shaban and that they used a gun to threaten
them in order to obtain and retain the said property. Indeed, Mzee Salim
and Ally were named by other witnesses (PW2 and PW4). However, the
trial court was not informed at all as to why the said Salim Hassan and Ally
Shaban were not called as witnesses. Considering that they were victims of
the offence laid against the appellants, the prosecution ought to have
called them as witnesses or account the reason for not calling them. Since
this was not done, an adverse inference is hereby drawn thereby raising
doubt on the prosecution case. Given the above exposition, the court saw
not fit to order a retrial.

4. Duplicity

Duplicity of a charge simply means that the charge is doubled. A charge is

said to be duplex where it contains two distinct offences in a single count.

A simple example will clarify the point. It is alleged that Juma Bushiri broke
into the house of Anna Simon at night and store a radio there from. Your
public prosecutor then brings before you
a charge sheet which reads as follows.

IN THE UNITED REPUBLIC OF TANZANIA

AT TABORA

CRIMINAL CASE NO.12 OF 2021

REPUBLIC

VERSUS

MISSCOLIDO RAPPER............................ACCUSED

CHARGE SHEET

Name of the accused person: Misscolido Rapper

Age: 30 years

Tribe/Nationality: Chagga/ Tanzanian

Religion: Moslem

Address: House No. 234, Majengo, Shinyanga Township

STATEMENT OF OFFENCE
Burglary and stealing: c/s 294(1) and265 of the Penal Code [CAP 16 R.E
[2002]
PARTICULARS OF THE OFFENCE:
Misscolido d/o Rapper On the night of 22nd March 2012 at about 3.00 a.m
at Butwa Village in the District and Region of Tabora did break into the
house of
Anna d/o Simon and stole there from a radio valued at Tshs 1000000/= ,
the property of the said Anna d/o Simon.
It will be noted from both the citation of the offence and the particulars of
the charge, that in that single count the charge is alleging the commission
of two distinct offences namely burglary and stealing. Such a charge is said
to be defective for duplicity. Should you convict on such a charge, the
conviction may well be quashed on appeal if the appellate court should
take the view that the duplicity occasioned a failure of justice.

Therefore you must satisfy yourself that no one count in the charge sheet
charges an accused with having committed two or more offences or in
other word the counts must be separated but should be contained in one
charge sheet.

5. Charge on a repealed section or law

A charge on an repealed section or law is curable provided that

1. The offence is in every essential the same under the old and the
now section or law.

2 .No failure of justice may result from the alteration.

3. The charge and the particulars are clear.

The above conditions is verified through the case of MAGESA s/o

MJUNJA V THE REPUBLIC 1986 TLR 10 as follows:

“…..where the court held that a charge and conviction under a repealed
law is an irregularity which is curable if the repealed section is re-enacted
in identical words in the current statute such that it cannot be said that the
accused has in any way been prejudiced by the irregularity...”

However if the old and new section or law differ and do not repeat in a
similar terms the language of the old section/law the defects can’t be
cured.

This has been explained also in the case of PETER ZAKARIA V R [1969]
HCD NO. 236. In this case the appellant insulted and threatened a court
broker with bloodshed if his car was attached. He was convicted of
unlawfully obstructing a court officer c/s 119, Penal Code. The section had
previously been repealed and replaced by s. 114A.

But the court held that on the facts of the case at hand, it is clear that the
new section, s. 114A, is broader than the old section, s. 119, and does not
repeat in similar terms the language of the old section. Moreover it is
unclear from the particulars which part of the new section the offence
would fall under. Therefore, in the circumstances, the charge cannot be
cured, and the conviction null and void.

6. Non-quotation of section number.

It is important that proper section must be cited in the charge sheet so as

the accused person to receive a fair trial, Where by failure to do so renders
the charge sheet or information to be fatally defective , which defective
cannot be cured since it leads to unfair trial to the accused person.

In the case of Robert s/o Madololyo and Masunga Dudu @ Mlekwa

(appellants) versus Republic (respondent) , Consolidated criminal
appeal No.46 and 428 of 2019 , CAT At Tabora, In this case the
accused persons were arraigned before a district court of bariadi for the
offence of Gang rape contrary to section 131A(1) And ( 2 ) of the penal
code, Cap 16 R:E 2002 (now R:E 2022) And they were convicted as
charged and sentenced to life imprisonment. Being aggrieved by the
decision of the district court , the appellants appealed to the High court
separately unsuccessfully then to the court of appeal at tabora.

The court of appeal held that , the omission to cite any of the provision
under section 130(2) of the penal code which define and create the offence
of rape , That this offence of rape cannot stand on its own under this
provision without citing any of the provision under section 130(1),(2)(a) to
(e) of the penal code which specifically provide for specific offences of
rape. Therefore that omission render the charge to be fatally defective
which defect cannot be cured since leads to unfair trial to the Accused.
Therefore the court nullified both the proceedings and judgments of both
courts , quash the proceedings and set aside sentences and order the
immediate release of appellants from custody.

In the case of Issa s/o Charles (appellants) vs the Republic

(respondent) criminal appeal No.234 of 2016, CAT at Iringa The
accused was charged at the district court of Iringa with Rape contrary to
section 130(1)e and 131 of the penal code , Cap 16 R:E 2002, he was
convicted as charged and sentenced to 30 years imprisonment.

In this case the court of appeal declared the charge to be defective and
incurable since it does not discloses offence in law, as it was according to
the record of proceeding supposed to be read as Section 130(1) and
(2)e and 131 (1) of the penal code as the conviction of rape was of a
girl of 16 years of Age. Therefore the court quash ,all the proceedings and
conviction of the lower courts and set aside the sentence and order the
immediate release of the accused person.

Following that it is a settled law that Non citation of the appropriate

provision of the penal code renders the charge defective and in curable as
was concluded in the case of Swalehe Ally (appellant) vs the
Republic, Criminal appeal No.119 of 2016, CAT at IRINGA as it was
stated that " Being found guilty on a defective charge based on
wrong and/or Non -existent of provision of the law is evident that
the appellant did not receive a fair trial. the wrong and/or Non-
citation of the appropriate provision of the penal code under
which the charge was preferred left the appellant Unaware that
he was facing a severe charge of rape" [Emphasis added]

REMEDIES FOR THE DEFECTIVE CHARGE.

1. AMENDMENT OF THE CHARGE

According to section 234(1) of the criminal procedure Act Cap 20 R:E 2022
When the charge sheet is to defective, the magistrate may do the following
things:
See the case of Abel Masikiti vs Republic, Criminal Appeal No. 24 of
2015 (unreported) As quoted in the case of Lengai Ole Sabaya,
Silvester Wenceslaus Nyegu and Daniel Gabriel Mbura
(appellants) Versus The Director of Public prosecution , Criminal
appeal No.129 of 2021 Hc at Arusha in which the Court of Appeal
emphasized that:-

"If there is any variance or uncertainty in the dates then the charge must
be amended in terms of section 234(1) of the Criminal procedure Act. If
this is not done, the preferred charge will remain unproved and
the accused shall be entitled to an acquittal.”

The magistrate may amend the charge sheet which is defective either in
substance or form provided that the required amendments can be made
without injustice. When the charge is amended or altered formalities must
be strictly followed as follows:

• The court must call upon the accused to plead afresh to the altered
charge.

• The accused person has the right to request that any witnesses be called
to give evidence again or to be cross examined.

• The prosecution may call and examine any witnesses who may have
been examined.

NB:

Failure to follow this procedure will invite the court on appeal to declare
the trial a nullity.
Cases referred

In the case of Omary Salum @Mjusi( appellant) Versus The

Republic , Criminal appeal No.125 of 2020, CAT at Dar es salaam.
According to the record of appeal, on 7th May, 2019, the prosecution was
granted leave to substitute the charge. However, neither was the charge
read over and explained to the appellant nor was he informed of his right
to require the five prosecution witnesses whom had already testified before
substitution, be recalled to give evidence afresh or for cross-examination.
It is important to note that the substituted charge had added another
count of rape while the former charge had a only a single count of grave
sexual abuse. It goes without saying that, the five witnesses had testified
only in respect of the offence of grave sexual abuse. Thus, it was
imperative for the court to inform the appellant his right provided under
the cited provision of the law for him to choose whether or not to exercise
it.

Often, the Court has pronounced that failure to comply with the provisions
of section 234 (1) and (2) of the Criminal Procedure Act, renders the
proceedings a nullity. One of such pronouncements is in the case of
Thuway Akonnay v. R [1987] T.L.R. 92 and Omary Juma Lwambo v.
R, Criminal Appeal No. 59 of 2019 (unreported). For instance, in the latter
case the Court referred to its previous decisions in relation to non-
compliance with the said provision of the law and stated thus:

"The above being the effect o f a failure by a trial

court to comply with s. 234 (1) and (2) o f the

 CPA after substitution or alteration o f a charge,

we similarly find that, in this case, the omission

rendered the proceedings which followed after

the date o f substitution o f the charge, a nullity."

Likewise, in the instant case failure by the trial court to comply with the
provisions of section 234 (1) and (2) of the CPA renders the proceedings
null.

Also in the case of Onesmo Yohana@ Taile (appellant) versus The

Republic (the respondent) criminal appeal No.196 of 2019 CAT at
Tabora , in this case the accused was charge with 448 counts on various
offences but the records shows that the charge was substituted whereby
the trial court called upon the appellant to plea only on the counts which
was added , that is , counts 441 to 448 leaving counts 1 to 440 without the
appellant having pleaded against. Therefore the trial magistrate failed to
comply with section 234(1) of the Criminal Procedure Act Cap 20 R:E 2002
(now R:E 2022) which renders the proceeding null and unfair.

2. Withdraw of a charge and Re-Institution as per section 98 of

the Criminal Procedure Act.

This is done by the Public Prosecutor at any stage of the proceeding before
judgment is pronounced. A Public Prosecutor must obtain the consent of
the court or may be instructed by the Director of Public Prosecutions. The
withdraw can either be generally or in respect of one or more of the
offences with which such person is charged. The withdraw is done where
the charge is defective with a view of instituting a proper charge.

Where the charge is withdrawn before the accused hasn’t defended himself
he may be discharged.

This discharged will not operate as a bar to a subsequent proceedings

against him on account of the same facts.

3. Nole prosequi as per section 91 of Criminal Procedure Act

The accused was charged at the district court of Iringa with Rape contrary
to section 130(1)e and 131 of the penal code , Cap 16 R:E 2002, he was
convicted as charged and sentenced to 30 years imprisonment.

Under this the prosecution stops to prosecute the accused person by the
DPP and the accused person is discharged. This discharge is not a bar to
any subsequent proceedings against him based on the same facts should
need arose. Withdraw of charge under section 91 of the CPA was discussed
in the case of Republic vs Halfan Bwire Hassan, Adam Hassan
Kasekwa@ Adamoo, Mohamed Abdillahi Lingweya and Freeman
Aikael Mbowe , Economic case No.16 of 2021 High court of
Tanzania(Corruption and Economic crimes Division ) at Dar es
salaam. in this case The Director of public prosecution (Dpp) on behalf of
the republic informed the court that he will not further prosecute as per
section 91 (1) of the criminal procedure Act, Cap 20 R:E 2019 (now R:E
2022) Halfan Bwire Hassan, Adam Hassan Kasekwa@ Adamoo,
Mohamed Abdillahi Lingweya and Freeman Aikael Mbowe for the
offence of conspiracy to commit terrorist acts contrary to section
4(1),(2)(b)(i),(3)(a), (i) (ii) and 27 (c), provision of funds to commit
terrorist acts contrary to section 4 (1), (3) (i) (i) and 13 , participating in a
terrorist meeting contrary to section 4(1), (3) (i) (i) and 5 (a) and
possession of

property for commission of terrorist acts contrary to sections 4(1), (2) (b)
(i), 3 (a) and 5(b), all of the prevention of terrorism Act No. 21 of 2002 ,
read together with paragraph 24 of the First Schedule to, and sections 57
(1) and 60 (2) of the Economic and Organized Crime Control Act Cap 200
R:E 2019 , the offences which they stand charged before the High court of
the United Republic of Tanzania.

CURABLE DEFECTIVE CHARGE.

This is a defective charge which can be healed or fixed or

amended.

A charge on an repealed section or law is curable provided that

1. The offence is in every essential the same under the old and the now
section or law.

2 .No failure of justice may result from the alteration.

3. The charge and the particulars are clear.

The above conditions is verified through the case of MAGESA s/o

MJUNJA V THE REPUBLIC 1986 TLR 10 as follows:
“…..where the court held that a charge and conviction under a repealed
law is an irregularity which is curable if the repealed section is re-enacted
in identical words in the current statute such that it cannot be said that the
accused has in any way been prejudiced by the irregularity...”

However if the old and new section or law differ and do not repeat in a
similar terms the language of the old section/law the defects can’t be
cured.

INCURABLE DEFECTIVE CHARGE.

This is a defective charge which cannot be healed or fixed or

amended. Forexample

Following that it is a settled law that Non citation of the appropriate

provision of the penal code renders the charge defective and in curable as
was concluded in the case of Swalehe Ally (appellant) vs the
Republic, Criminal appeal No.119 of 2016, CAT at IRINGA as it was
stated that " Being found guilty on a defective charge based on
wrong and/or Non -existent of provision of the law is evident

that the appellant did not receive a fair trial. the wrong and/or
Non-citation of the appropriate provision of the penal code under
which the charge was preferred left the appellant Unaware that
he was facing a severe charge of rape" [Emphasis added]

CHARGE IN ALTERNATIVE.

Refers to the kind of charge that is framed from the same set of facts.
Alternative charges often have some , but not all , of the same elements as
the main charge, and will usually carry lower penalties. In some cases , the
magistrate , judge or jury may find an accused person not guilty of the
main charge but guilty of the backup.

Forexample, a person may be acquitted of drug supply but found guilty of

drug possession instaead.

Similary , a person may found not guilty of assault occasioning actual

bodily harm but guilty of common assault on the basis that the prosecution
was unable to prove that the defendant caused injuries were sufficiently
serious to constitute actual bodily harm.
SAMPLE OF THE CHARGE SHEET.

IN THE UNITED REPUBLIC OF TANZANIA

THE JUDICIARY

IN THE DISTRICT COURT OF MOROGORO AT MOROGORO.

CRIMINAL CASE NO.36 OF 2022

REPUBLIC

VERSUSMARTIN ABDALLAH NYASI…………………………ACCUSSED.

CHARGE SHEET

STATEMENT OF THE OFFENCE.

Manslaughter: Contrary to section 195 (1) and 198 of the penal code [Cap
16 R:E2022.]
PARTICULARS OF THE OFFENCE
Martin s/o Abdallah Nyasi on the 15 day of september 2022 at Nanenane
village within Morogoro District in the Morogoro Region did unlawfully
attacks Amina by chopping her with sharp objects at her back which led to
excessive bleeding to wit upon getting her treatment Amina ceased from
existing.
Dated at Morogoro this...........day of............2022
...............................................
PUBLIC PROSECUTOR
Enclosed

Particulars of the accused person.

PARTICULARS OF THE ACCUSED.

NAME: MARTIN ABDALLAH NYASI

AGE: 38 yrs

RELIGION: Christian

TRIBE: Sukuma

OCCUPATION: Artist

RESIDENCE: Kihonda Mbuyuni

Dated at Morogoro this..............day of.....................2022

......................................

PUBLIC PROSECUTOR