Table of Contents

Question 1.................................................................................................................. 2
Explain two determining factors for a persons competency to testify.......................2
General rue................................................................................................................ 2
Explanation............................................................................................................. 2
Principle................................................................................................................... 2
General requirements for competency:...................................................................2
Oath or Affirmation............................................................................................... 3
Knowledge............................................................................................................ 3
Types of witnesses...................................................................................................... 3
Mentally Disabled.................................................................................................... 3
Extreme Old Age..................................................................................................... 4
Children................................................................................................................... 4

Question 1
Explain two determining factors for a persons
competency to testify.
General rue
All persons shall be competent to testify unless the court considers that they are
prevented from understanding questions put to them, or from giving rational
answers to those questions, by tender age, extreme old age, disease, whether of
body mind, or any other cause of the same kind. 1
The Evidence Act2 Tanzania Mainland states inter alia as follows;
Section 127.-(1) Every person shall be competent to testify unless the court
considers that he is incapable of understanding the questions put to him or of giving
rational answers to those questions by reason of tender age, 9extreme old age,
disease (whether of body or mind) or any other similar cause.
The Zanzibar Evidence Decree3 articulate as follows on the same
Section 118.-(1) All persons shall be competent to testify unless the court considers
that they are prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme old age,
disease, whether body or mind, or any other cause of the same kind.

Explanation
A lunatic, child, elderly etc. are not incompetent to testify, unless he is prevented
by his prevented by his lunacy from understanding the questions put to him and
giving rational answers.

Principle
Section 118(1) of the Zanzibar Decree and 128 (1) of Tanzania Evidence Act start
saying prima facie, every person I competent to give evidence. There is not person
who is incompetent to give evidence, provided he satisfies the test of being able to
understand the question put to him and is able to give rational answers to those
questions. Any person who satisfies this test shall be competent to testify under
section 118 and 127 (supra).
1 Dr. V.KRISHNAMACHARI LAW OF EVIDENCE(1998) S.GOGIA & COMPANY
PUBLISHERS 3RD edition, India
2 Chapter 6 of
3 Chapter 5 of

General requirements for competency:

Oath or Affirmation - In many courts every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation administered in a form
calculated to awaken the witness' conscience and impress the witness' mind with
the duty to do so. If the individual does not understand the oath or affirmation, then
they may be incompetent to testify.
Knowledge - A witness is only competent to testify if they have personal
knowledge of the facts to which they will testify.
Competency to testify merely acts as a gatekeeper function keeping certain
unreliable witness out of court. That is to say, a competent witness is not
automatically reliable or material. A trier of fact (judge or jury) may still discount the
testimony as weightless.
In R v B4, on the subject of competency, it was said:
'... the competency test is not failed because the forensic techniques of the
advocate (in particular in relation to cross-examination) or the processes of the
court (for example, in relation to the patient expenditure of time) have to be
adapted to enable the witness to give the best evidence of which he or she is
capable.'

Types of witnesses
Mentally Disabled
If there is a question of mental disability, it is the duty of the opposing counsel to raise the issue of the
competency of the adult. If one party raises the question of a witness's competency to testify, the court
may order a hearing. So there is a VOIR DIRE usually held (this stands for the competence of both
children and mentally ill), during which:

The witness must answer questions as to their ability to tell the truth.
The witness is asked whether he or she understands what an oath or affirmation is.
The witness is examined to determine whether he or she understands the duty to speak the truth
in terms of everyday social conduct.

At the end of the hearing, the judge will determine whether the witness is competent to testify. Since this
is a question of law rather than a question of fact, the judge, rather than the jury, will decide it. This is
usually a discretionary decision for trial judges as they can see all aspects of the testimony. The burden of
proof is on the opposing party to prove incompetence. 5

4 [2010] EWCA Crim 4

In R. v. Hill6
a patient at a lunatic asylum gave evidence at a trial for manslaughter as it was proved that only with
respect to his delusions, he was a lunatic and otherwise, he was a person capable of giving rational
answers.
CAMPBELL, C.J. " If there be a delusion in the mind of a party tendered as a witness, it is for the Judge
to see whether the party tendered has a sense of religion and understands the nature and sanction of an
oath; and then if the Judge admits him as a witness, it is for the jury to say what degree of credit is to be
given to his testimony. Various old authorities have been brought forward to show that a person non
compos mentis is not a competent witness; but the question is in what sense the expression non compos
mentis is used. If by that term is meant one who does not understand the sanction of an oath, of course he
ought not to be admitted as a witness; but he may be non compos in another sense, and yet understand the
sanction of an oath and be capable of giving material testimony.
He had a clear apprehension of the obligation of an oath, and was capable of giving a trustworthy account
of any transaction which took place before his eyes, and he was perfectly rational upon all subjects except
with respect to his particular delusion."

Extreme Old Age

Persons of advanced years often become senile. They talk incoherently; they have very poor memory.
They give irrelevant answers. Their answers have nothing to do with questions put to them. The question
is whether such person is competent or not.

Children
The rules for children are similar to those for the mentally disabled. In most jurisdictions, children under a
particular age are presumed to be incompetent to testify. For instance, in Canada(Tanzania?) a child is
presumed to be incompetent if they are under the age of 14.
In some jurisdictions, when the child is presumed incompetent, the party offering the witness must
announce to the court that this child is under the age of competence and a similar VOIR DIRE as the one
for mentally disabled is held.
If a child is presumed to be incompetent under local evidence law, the lawyer may still attempt to prove
competency by overcoming:

The concern that children are easily influenced.

The presumption that a child cannot understand the moral obligation to tell the truth.

It is also possible to argue that the goal is to ensure the evidence meets the minimum threshold of being
receivable rather than to decide whether the evidence is credible. Even if the evidence is admissible, the
trier of fact does not have to give the evidence much weight.
5 http://defensewiki.ibj.org/index.php/Competency_to_Testify
6 (1851) 20 LJMC 222