CRIMINAL LAW

Law is an instrument of the ruling class to maintains order.

Law is a body of rules made by the state or upper class so as to regulate social behaviors of
the inferior class and imposing punishments incase of any disobedience.-(1)every law is
made by the state article 4 of the constitution it provides that the laws are normally made
by the parliament meaning the legislature.(2)-law is a binding instrument, I means that laws
are bounded to the inferior class it means that once the law has been made everybody is
bound to obey law usually takes a form of a command-3 law imposes sanctions meaning
punishment whenever it is disobeyed.

Law contains prescriptions and directions for purposes of maintaining a particular order in a
particular community. The study of law is the study of sociology, of economics, study of
history in other words law transcends and cuts across different discipline meaning that la is
the way of life which also means that Law is life itself because it gives directions on how to
live in different ways, example not to steal or kill. Law is there to maintain peace and
tranquility, harmony and provide a minimum standard of behavior as opposed to anarchy.
Examples directions in roads such as road signs and other road rules.
Types of law This depends on the capacity; every human being has two capacities
private capacity(individual)

PRIVATE CAPACITY OR INDIVIDUAL; there are relations between individual in

their private capacity. Example there is a man called husband and a woman who is called a
wife. Those laws are called civil laws are laws that regulate relationships between
individuals in the community in their private capacity. They may be called civil laws or
private laws.

PUBLIC LAWS: on the other hand an individual has a public character he is a member
of a community and this big community in the policy of law is the state, and the state exists
to moderate relationships between individuals in their public capacity it is their to maintain
a minimum level of behavior , it is there to ensure that there is no anarchy in the
community. The public character of an individual is reflected with his relationship with the
state.

All laws are made by the state, these public laws are mainly prescriptive and contains
prohibitions or directions and relates to commissions and omissions, it relates to the does
and to the don’ts. This means that a state will require a particular behavior form this
individual. The basic law in this category is the constitution, it is the law which contains the
social contract between the state and the individuals.

CRIMINAL LAW
Criminal law or the law of crimes is the law which enacts prohibitions on certain conduct by
an individual or which demands from an individual a particular conduct at the threat of
punishment, it is not moral doesn’t contain morality. Therefore, we can say criminal law is
the punitive branch of the law it is a law which is intended to maintain a particular level of
conduct between members of a community at the threat of punishment. The first penal
code as we know it today was the code of The Hammurabi’s code (KING OF BABILON) it
relayed more on morality then on. Penal code is the secular code of punishment. There is
moral codes and secular codes.

TYPES OF CRIMINAL LAWS

There are two types of criminal law, the major type of criminal law is the penal code, it is
the basic law of crime, the penal code of tz cap 16 was established on the 28 th of
September 1945 our legal system came in to be on the 22nd of July 1920, it established the
high court

But because the magistrate council had the power to magistrate law several penal codes
were enacted on 1945. The law of Tanzania was declared it was what we called codification,
this means is the creature of the industrial revolution. There is one English philosopher who
was known as Jeremy Bentham he advocated that law has to apply to everybody in the
community and it had to be certain so to be certain it also had to be written, that was the
beginning of the concept of written law. The title to the penal code says that the penal code
was an act to establish the code of criminal law in Tanganyika
CATEGORY OF LAW

Public law: these re laws that normally regulate the relationship between the citizens and
the state , in public law the citizens are required to obey the demands of the state a good
example of public law is the constitution, also the penal code chap.16

Civil laws: are laws regulating the relationship among the members of the society it imposes
obligations between the citizens in the society example we have the law of contract Act,

CRIMINAL LAW
It falls under the category of public law it can simply be defined as the law of crime and
punishment, meaning that it is the law which declares crimes and prescribes punishment for
each of them, it tells you what is a crime and it also tells you the punishment of the crime.
a
A crime: means doing something which has been prohibited by the law, it also means not
doing what is required by the law we can therefore define criminal law as the law which
contains prohibitions and obligations which if not complied with will result to the
punishment of an individual example killing, stealing, robbery , sexual intercourse with a
lady without her consent .
DIMENTION OF CRIMINAL LAW
There are 2 dimensions of criminal law which are obligation and prohibition meaning the
“DO” and the DO NOT”.
Once you do something that is prohibited you do a commission on the other hand if you do
not do what you are required to do in terms of obligations it requires to an omission.

PURPOSE OF CRIMINAL LAW

Criminal law is actually intended to regulate the behavior of all members of the society by
imposing a minimum standard of behavior there is a minimum standard of behavior which
everybody must aby and therefore although a human being is a moral free agent he is
bound to live within the limit that has been established by the law that means you are a free
agent you can do what ever you want to do but there are limitations and restrictions which
are imposed by the laws it is important to avoid “chaos”. This is very important for public
safety and national security example treason it involves national security.

SOURCES OF CRIMINAL LAW

Where does criminal law come from?
The constitution: of the united republic of Tanzania of 1977 as amended several times, this
is the mother law of the land or basic, all laws must obtain their validity from the
constitution and any law which does not involve the constitution shall be declared to the
null and hold this is provided under article 64(5) it says that every law must confirm with the
constitution, This means that such law shall not be valid because it is contradicting the
constitution. This includes criminal law all our criminal laws are supposed to obtain their
validity from the constitution,
there are 2 school of thoughts
- there are people who say that the constitution is not a source of criminal law and the
reason is that the constitution does not create any offence you do not found a single
offence which has been declared by the constitution it means that within the constitutions
there is no offence which has been declared, the constitution does not impose any
punishment

there are people who say that you will find no crime or punishment in the constitution it
remains to be a source of criminal law because within the constitution there are
fundamental principals that are intended to regulate the administration of criminal justice it
means that in the course of administering criminal justice we must be careful to apply the
principals which have been stated under the constitution, this means that the
administration with criminal justice goes hand in hand .
principals provided by the constitution for regulating the administration of criminal justice;
under article 13(6) paragraph b

how criminal laws go together with the constitution

presumption of innocence: this states that everybody is innocent until proven guilty, this
means that there should never be a criminal law which will treat a person as guilty while his
No law, No crime Article 13(6) paragraph c,
According to this a person should not be punished for a nonexistent offence meaning that in
order for you to punish somebody, the offence should first of all be existing in the law.
where the law does not provide for an offence nobody has the right to be punished,
therefore every offence must be provided or created by the law. Adultery is not declared to
be a crime under the law but a sin against law

International laws : these are laws of nations, we mean international convection and
treaties and protocols’ , this international instrument they involve some principals which
regulate the administration of criminal justice to all nations which has state parties there to,
we have the international convection on civil and political rights it has some principals
relating to presumption of innocence it also provides for the right to be heard, it also
provides fir the requirement of due process etc.
-This involves the International criminal court (ICC) which is an international judicial organ
that prosecute international crimes like violations of human rights. Such money laundry and
terrorism.

Precedent or case law or judge made laws : these are principals that have been made by the
judges of the high court and justices of appeal and they are normally binding an applicable
to subordinate courts when they are treating a case of similar instant and the same
circumstance, this means that the principals created by the high court and court of appeal
are normally binding to all the subordinate courts, when a subordinate court is handling a
case which has similar material facts to a case which was handled by the high court the
subordinate court is supposed to adopt the decision made by the high court and apply it in
its own cases. Example the decisions of the court pf appeal are binding the high court and
all other lower courts.

Penal Code; cap 16. this is the major source of the criminal law in other words it is the main
criminal law and actually through out this course we shall be dealing with the penal code
because it is the statues of general application meaning that it is applicable in the whole
Tanzania main land, all our criminal laws have been enacted in the penal code, it provides
for crimes and it also provides for punishment for those crimes. Why do we call it a code,
this is because it assembles a number of principals or laws in a single instrument codification
means putting down law in to writing this is a terminology which was created in the 19th
century by a philosopher known Jeremy Benthom, codification is very important because of
the following?

-codification presupposes certain, meaning that when the laws have been put into writings
they become certain there is no confusion as to what is what because everything has been
made clear, criminal laws are supposed to be certain.
-codification presupposes uniformity, meaning that when the laws have been put into
writing their applicability becomes uniform if someone has been charged for rape in the
`high court of Dodoma the punishment will be the same for someone who rapes in Dar Es
salaam.
-codification presuppose predictability meaning that you may be able to predict what your
punishment will look like according to the crime you have committed because it written
down.

Why do we call it PENAL?

The code is defined as penal because penal refers to punishment it has been called from the
word penalty and therefore the major purpose of the penal code is to punish meaning it’s a
code of punishment, meaning that without punishment there is no criminal law meaning
that without punishment there is no criminal law. However although the penal code is the
major source of criminal law it does not claim exhaustiveness meaning that it is not
exhaustive meaning that it does not provide for all situation under which a person may be
punished for a crime. Therefore the Penal code is the major source of criminal but it is not
the only source of criminal law this is found under section 3(1) paragraph (a) of the penal
code, under this section the penal code recognizes that it is not the only source of
punishment, a person can be punished for an offence committed against common law or
any other written laws and therefore common law is also a
source of criminal law. What are those other written law

Quasl criminal laws, quasl means half so this means a half criminal law, these are laws that
have been enacted for special purposes and in order to fulfil those purposes they need to be
some kind of punishment example we have the income tax act, the law of marriage act, the
road traffic act, we have the companies act. There is a big difference. section 3(1)b it says
that the court of law also has the power to impose punishment in the exercise of the
ordinary duties the court of law have inherit criminal jurisdiction to impose punishment for
breaches that have been committed in its presence. In section 114 it provides of
punishment incase if a person misbehaves in the court.
The president also has power section 3(1) paragraph d ,
This is known as the prerogative powers of the president due to this the president may
pardon criminals and may also reduce sentence or adjust punishment accordingly,
these powers have been mentioned in article 45 of the constitution. The president has an
influence towards the administration of criminal law and these powers are Unfitted,
meaning they can not be challenged.

Received law ;contains common laws, Doctrine of Equity and statutes of general
application.
-Common law includes principals and rues that have originated from England and which
were imported in Tanzania through the reception date of 22 nd July 1920 which allowed the
application of laws, principals and case laws that were enforced in England up to or before
but not later then 22nd July,1920. In article 17 sub(2) known as reception laws.

-Doctrine of Equity, in here they found out that common law was rigid and they could not
get justice in the common law courts by applying the common law principals so they
decided to approach the king for remedy because the king was considered to be the
fountain of justice, the king would solve those cases not by using common law but by using
principals of fairness. As more and more people approached the king, the King was over
burdened by the disputes and decided to establish a court under him known as a Chance
court which was supervised by the chancellor. The court so established was also using
principals of fairness, which were later on consolidated and formed a body of law known as
doctrine of equity, some of which were , no right without remedy, no one should benefit
from his own wrongs, he who comes to equity must come with clean hands.
-Statutes of General Application : these are statutes that were enforced in England up to
the reception date which were imported in to Tanganyika and into other colonies that were
under Britain. These laws were applied in the situations where there were no local law
example, the marine insurance Act of 1905, the Uganda law of contracts of 1865 etc.

Pre-existing laws: in article 24 of the Tanganyika order in council 1924, Islamic law and
customary laws were allowed to apply in Tanganyika however for them to be enforceable
they were supposed not to be repugnant to justice N.B these laws were only applicable to
personal matters or issues like marriages, divorces, subsection or inheritances etc. they are
not applicable in criminal case or in constitutional cases. Those roles are found in the form
of statutes or in government notices example The Islamic restatement Act etc.

RULE AGAINST DOUBLE JEOPARDY

These rules have been provided under the interpretation of laws Act 1 page 70 and 71,
according to this rule a person is not supposed to be punished twice for a single act. Do not
subject somebody into a double punishment for a single act. This is when a person has
committed a single action but that action amounts to two different crimes under two
different laws. you should punish him under one 1 law but not 2. Also been provided in
section 3(2) of the penal code if you do that you will violating article 13(6) paragraph (d) also
provided in the case of U.S.A V. Irwin Halper.

APPLICABILITY OF THE PENAL CODE

Section 6 provides categorical answers under this section of the penal code we are looking
at the application of the penal code in 3 different dimensions.
The penal code is only applicable in Tanzania main land, meaning that you can not apply the
penal code in Zanzibar, it is applicable only in Tanzania main land, the application of the
penal code has been legally restricted only to Tanzania main land, in Zanzibar they have
their own Penal Decree that is cap.5 in the laws of Zanzibar, therefore it is very restricted to
all who are under the soil to Tanzania main land whether you are a citizen or a non citizen if
you are in Tanzania the penal code will be applicable to you.
The penal code shall be applicable against any person who commits a crime in an ocean
moving vessel or an air craft which has been registered under Tanzania, if there is any
aircraft registered in `Tanzania it is committed that it is a part of our territory so the penal
code will punish you.
It shall also be applicable against all Tanzanians citizens who breach our penal code abroad,
people who commit crimes abroad you will be punished under the Tanzanian courts.
Therefore .

RULES OF DEFENSES IN CRIMINAL LAW

Generally, everyone must be responsible for his actions meaning that when you commit a
crime you must be punished for the crime that you have committed, everyone must take
responsibility for his actions, however there are certain situations where a person may not
be punished for a wrongful act, this is where the person has a defense in criminal law
therefore we have defenses which can exonerate the person out of liability.
There is a general rule under section 8 of the penal code it states that ignorance of the law
is not a defense.

IGNORANCE OF A LAW IS NOT A DEFENSE

; this is a general rule on criminal liability, it is actually the foundation f criminal justice that
a person is not allowed to plead ignorance of the law so as to escape punishment. You cant
say that you did not know the law and therefore you should not be punished for your
actions, lack of knowledge of the law is not an excuse therefore section 8 of the penal code
prevents a person from escaping liability by simply saying that he did not know the law, this
is what we call the presumption of knowledge that everybody is assumed to be aware of
the law the principal I that whenever the law has been published everybody is assumed to
be aware of it although the reality is not true many people don’t know.
-The purpose of this principal is to avoid dishonesty in the administration of criminal justice
because even if somebody new the law he will never accept that he knew it every accused
person will tell us that he did not know the law and if we accept such excuse we shall never
convict somebody for a crime and therefore this is necessary to act as a positive elimination
of a defense because without that principal the administration of criminal justice will be
difficult this was discussed in the case of BILBIE V. LUMLEY case of 1802 this case is the
foundation of the rule that ignorance of the law is not a defense it was decided by Lord Ellen
Borough. In this case Lord Ellen Borough said “every man must be taken to be cognizant of
the law” otherwise there is no knowing the extent to which the excuse of ignorance might
be carried it will be argued in almost every case. Therefore he said that we should apply a
general assumption that everybody knows the law because if we don’t do that everyone will
say that they don’t know the law, therefore this principal is the foundation of criminal
justice that everybody knows the law, it was also discussed in the case of Maulid V. Republic
1970 HCD 346, in this case Maulid was an owner of a bar and employed some bar maids to
work for him but he did not prepare any contract of employment for his employee and
secondly he paid his employees below the minimum wages, the minimum wages according
to law was 170 shilling but he paid 60 shillings therefore he was taken to court for
conducting his business contrary to the law, during the trial Mr Maulid said that he did not
know that he had to prepare a contract for his employee and the law had established the
law for minimum wages that defense was rejected by the court and the court held as
follows
“apart from the founding that the appellant did not know the law, I am inclined to view that
, these offenses are absolute and no mensrea is required even so, there is no such a
presumption that every body is presumed to know the law. In fact, I very much doubt if such
a presumption would hold good or even those who administer the law. The principal is that
ignorance of the law is not an excuse of which a magistrate will appreciate. If you read
section 8 carefully you will discover that there is a slight exception that “unless knowledge
of the law by the offender is expressly declared to be an element of the offense” ignorance
of the law can be a defense only where knowledge of the law is declared to be an element
of a particular offense. It means that if there is an offense which requires you to have
knowledge of it before being liable ignorance of that law can be a defense meaning
ignorance of the law can be a defense only where knowledge of the law is an ingredient of
the offense meaning that you shall not be punished of that offense unless it is proved that
you knew about it. In Tanzania we don not have any offense under the penal code which
requires knowledge as an ingredient, therefore these provision under section 8 provides a
possibility of having a defense of ignorance of law in the future but today there is no such
offense. This principal originates from a latin maxims Ignorantia Juris-non excusant.
But we have IGNORANCE OF FACT this is represented by the latin Maxim Ignorantia Factie
Excusant, meaning that unlike ignorance of the law but ignorance of facts can be an excuse,
in other words it can be a defense or is a defense, Ignorance of fact means it means that a
person has committed a wrongful act only because he was not aware of a certain fact he
has found himself in a crime because he was not aware about a particular fact, this person
knows the law but the ignorance of fact has lead him to a crime, meaning that if he knew
the fact he would npot enter into the crime example in the case of HARNAM SINGH V.
REPUBLIC, the accused person was charged for receiving a stolen property during the trial
he argued that he received the property without knowing that it was stolen he knew the law
that receiving a stolen is a crime but was not aware of the fact that the property was a
stolen one therefore Harnam Singh was ignorant of the fact and his ignorant of the fact gave
him a defense and the court of law among other things help as follows “ in order fr a person
to be convicted of receiving a stolen property the accused person must know or have reason
to believe that the property was in fact stolen
MISTAKE OF FACT : this is a defense provided under section 11 of the penal code according
to this section a person is not going to be liable for a criminal act or omission which was
committed while he was under an honest and reasonable impression although mistaken of
the fact , meaning that the actions of the accuse was honest and reasonable but he found
himself in a wrongful act due to mistake of fact he confused 2 things without knowing he
mistaken one thing to be the other, his brain was operating under a mistake or a
miscalculation but his actions were honest and reasonable and because of that he can be
give a defense of `mistake of fact a good example is the case Republic V. SULTAN MAGINGA
1969 HCD #33. The accused person went to shamba to drive away wild pigs from his crops
and that was in Rufiji, while in shamba the accused person discovered some grasses shaking
and he tried to put on his torch to see well but very sadly the battery of the torch finished
therefore it was not possible to see , so he started to ask loud if someone was there because
there was no reply he concluded that the object behind the grass is a pig so he immediately
took a spear and he discovered that he had killed a man who was having sex. When charged
for the offense of murdered the accused person pleaded mistake of fact that he did not
know that he was killing a man, so two things became clear during the trial
It was clear that the accused person did not know that he was throwing the spear at a man
so he was operating under an honest believe that he was killing a pig had he known that it
was a man he would not release his spear.
The accused person took necessary precautions by calling out three times to verify whether
the object was a an or a pig therefore he was not negligent, in other words the actions of
the accused person was reasonably founded, that he acted reasonably so he was excused
from liability. The court held as follows “the evidence supported the view that the accused
person did not know that he was throwing the spear at a man, therefore the charge of
murder could not be sustained” the judge finally concluded that the killing was an accident.
A similar case of SELEMAN HASSAN V. REPUBLIC in this case the material facts are almost
similar to the previous case. This man went to his shamba to protect his plantations but
before going he passed through his neighbor and when he reached there he was informed
that the neighbor already left now while in shamba selelman saw a dark object he was not
sure whether it was a man or a pig Selemani immediately released a short and targeted the
dark object thinking that he is killing a pig while he was killing his neighbor a man, the
pleading was not accepted because he did not take any precautions or verification. The
defense was objected because Seleman Hasan did not act reasonably so he was given a
small punishment because the deceased was his brother in law . (N.B) In order for a person
to given the defense of fact you must prove that your actions were honest and reasonable.

BONAFIDE CLAIM OF RIGHT

This is another defense under the penal code under section 9 Bonafide means honest,
meaning honest claim of right, this is the situation where a person has committed an act
while he was under an honest claim of right, having an honest claim of right does not
necessary mean that the property is your own it is possible to have an honest claim of right
over another person’s property. This defense is normally applicable towards property
offenses example stealing, theft etc. under section 9 of the penal code a person shall not be
criminally reliable for accident which he committed against the property when the accused
had honest belief that the property belongs to him or that he was entitled to deal with it the
way he dealt with. In other words, he was entitled to handle it the way he did good example
is in the case of Republic V. WADE originated in England, an artisan repaired someone’s
umbrella and after that the owner of the umbrella came and took it but without paying the
money for the repairs, the artisan decided to go to the home of the owner and collected
back the umbrella when charged for theft he raised the defense of BONIFIDE CLAIM OF
RIGHT and he argued that he had repaired the umbrella without being paid. He is entitled to
payment before he gives the umbrella to the owner, he said that he has an economic
interest over the umbrella because he repaired it and if it is not paid he shall not resist it.
This defense is applicable when the accused person has no intentions to defraud, he does
not intend to maliciously deprive the owner from his property. The court held as follows
“where an artisan repairs somebody’s property he is entitled to take it or hold it if he
remains unpaid”. There is another case of MOHAMED HASSAN V. REPUBLIC. He was
employed by a boss and dismissed from his job without being paid a 3 months salary, he
discovered that the boss was not going to pay him so he went to his boss’s house and took
some stuff when he was accused for theft he raised the Bonafide claim of right he did not
want to steal but he wanted his salary, he took the property as a replacement of his salary.
Another case of GEOFERY BOYOMBE. V REPUBLIC, the accused person was a cashier in a
company and he had not been paid 8 months salary but he was still working one day he said
enough is enough he decided to pay himself his salary, when he was taken to court he
raised Bonafide crime of right, but it was rejected because he was still employed unless if he
was dismissed. The court said that an employee is not allowed to pay salary without the
authorization of his employer.

SELF DEFENSE AND DEFENSE OF PROPERTY

Constitutional everybody is entitled to his life and to his property meaning that under the
constitution of the united republic of Tanzania you have the right to life and the right to life
has been granted under (article 14) of the constitution, you have the right to property it has
been mentioned under article 24 of the constitution, therefore the right to life and the right
to property has been guaranteed under the constitution and this right goes hand in hand
with the right to protect your life and to protect your property this is what gives rise to the
defense of self defense and the defense of property it has been provided in section 18 of
the penal code, in that section a person will not be criminally liable for actions that were
committed while he was in the process of protecting himself and his property because the
right to protect your property and to protect your life has been given in the constitution.
This defense extends to the right to protect the life of another and the property of another
it therefore means that you shall not be criminally responsible if you were protecting the life
and property of another person, however not withstanding the existence of a defense there
are principals which have been established by the law for the purpose of monitoring the
application of the defense and those principals have been coined from common law and
therefore the defense of self defense and the defense of property that we have today
obtained their origin from common law principals, those prinicipals are liberal and they have
been summarized in the case of R V. Sultan Habeeb , 1968 H.. 89, this is the case which tells
us that we apply the defense of self defense and property according to common law and
those principals were explained as the court as follows “ responsibility for the use of force
in defense of person or property is becoming according to the principals of English laws. the
party who’s person or property is attacked is not obliged to retreat as in other cases of self
defense but he may even pursue the assalilant until he finds himself or his property out of
danger. But he must not strike blows except in self defense. The amount of resistance may
be no more then his reasonable considering the surrounding circumstance. “ according to
this case there are common law principals on how we shall apply self defense and the
defense of property and the first principal is that when a person Is being attacked he is not
obliged to retreat he is required to stand his grounds therefore you are not excepted to run
away from an attack criminal law does not encourage people to be cowards meaning that
do not run away when someone is attacking you, you have to fight back and defend yourself
and you may use force in defending yourself but not sure that you do not use force unless
force is used against you and -the force used must be reasonable force meaning it should be
equal to the force of your opponent, it must not be excessive force to defend yourself and
defend your property it was discussed in the case of R V. Giliba Jamo 1970 H… 138. The
accused was sleeping in his room during the night suddenly he heard noise outside there
was a thief who was trying to steal his cattle, when he went out he found the thief sleeping
in the cattle Boma ,he went in and collected a huge stick and hit him three times and killed
him when he was charged for murder he raised the defense of self defense and defense of
property he argued that he was defending his property what was clear is that the forced
used by the accused person was excessive force because in this circumstance the thief did
not have any weapon and the thief did not do ay reaction he was merely sleeping in the
cattle boma, the accused person was not right to take a stick and kill him. The court held “
he would naturally think that his cattle were in danger and he was entitled to use such
reasonable force to expel lohay or arrest him in a tress pass such as this he would justifiy
beating Lohay to cause him to desist from taking the cattle as Lohay was in the cattle Boma
but to kill him would be man slaughter” in another case R V. Mohammed Ndoye 1970
h…211 , in this case there was a general rule that no one is entitled to kill a thief but only
use reasonable force for the purpose of arresting the thief, therefore the killing of thiefs was
strongly discouraged in the case of Mohammed Ndoye, you may use force when the thief is
using force against you and in some circumstances where the use of reasonable force will
make it necessary for the thief to be killed and therefore there are certain instances which
will require you to apply force to the extent of killing example if the thief comes with a gun
while trying to arrest him you may use force to the extent of killing, therefore the general
rule is that it must be force to force.
What is reasonable force?
In an actual sense we do not have statutory standards of reasonable force and therefore
there is no universal standards of what amounts to a reasonable force each case is support
to be treated according to its own material facts for example a person like mike Tyson
coming to fight you you should not go hand in hand with him because your strength is not
equivalent to Tyson so you may use a weapon. Therefore it is the duty of the court to look
at the material fact and the prevailing circumstances and to determine whether at a
particular point of time the application of force was reasonable or excessive. In section 18
of the penal code provides for a general defense of self defense and defense of property but
section 18 capital A provides self defense and defense of property as your right, section 18
capital B allows to use force to defend yourself and it says that such force must be a
reasonable force. And under the same section a person shall be criminally liable if he applies
excessive force and if you use excessive force or unreasonable force and you kill somebody
as a result of such excessive force you are going to be guilty for man slaughter, section 18
capital C has provided for circumstances in which a person is allowed to defend himself to
the extent of killing example somebody who is being raped or armed robber. This means
that killing is not automatically a crime.

DIFFERENT TYPES OF HOMICIDE

Homicide means killing of human beings . There are three types of homicide.

1. Culpable Homicide: this means unlawful killing it is a killing which amounts to a

crime. example murder and man slaughter. Murder is when you killing somebody
with malice afore thought. Malice means you have a legal intention in 196 of penal
code. Man slaughter is when you kill somebody as a result of excessive force during
self defense but there is negligence. Which is under section 195 of the penal code.

2. Excusable homicide: this is the killing of a human being which is excusable under the
law for example if somebody dies in the boxing ring you will not be liable you will be
excusable. Another example is when a doctor or a nurse accidentally causes the
death of a patient during operation this is excusable.

3. Justifiable homicide: this is the killing which Is legally justified meaning that the law
allows you to kill for example if you kill somebody during self defense where you
applied reasonable force it is justifiable, again when you kill somebody during war,
example when soldiers killing their opponents it is justifiable. Another example is
when you kill in obedience to a lawful order. Read the case of R V. sultan Habeeb.
 ELEMENTS OF AN OFFENCE
A criminal offense is composed of two elements those elements must be proved together
in order for somebody to be convicted for an offence in the absence of 1 element there
might be no offense
External element
Internal element
These elements are necessary to constitute an offence
External element: the external element is known as the ACTUS REUS.
The Internal element: this is known as the MENSREA

-These two elements must exist in order for a crime to be established

ACTUS REUS + MESREA = CRIME
ACTUS REUS – MESREA= NO CRIME

ACTUS REUS: this is an act which is forbidden by the law, this is the first element to be
proved and this the external element, when charging someone for a crime the first thing
which they must show is the ACTUS REUS, meaning showing what he did. This can take the
form of commission (OVERT ACT) or omission, a commission means you have done
something which is prohibited by the law and omission (COVERT ACT) is when you have not
done what you are required to do by the law. Was discussed in the case of R VS. EAGLETON
(1955) this was the case which that established that the ACTUS REUS is the first thing to
establish before accusing or convict somebody of a crime the court said that “the mare
intention to commit a misdemeanor is not criminal some act is required”.

HOW DO YOU KNOW THE ACTU REUS OF AN OFFENSE

Each offense has got its own ACTUS REUS there is no uniform ACTUS REUS for all offenses in
order for you to know the ACTUS REUS of a particular offense you must go to the section
creating the offense for example if you want to know the ACTUS REUS of Murder go to
section 196 on the penal code “causes the death by unlawful act or omission”. If you want
to know the ACTUS REUS of Theft section 258 of the penal code” takes anything capable of
being stolen”. A crime with only the ACTUS REUS is not a crime until there are both
elements

INTERNAL ELEMENT (MESREA): this talks about the mind and that is why it is represented
as MENSREA. This was discussed in the case of HAUTON vs SMITH (1962) this is the case
which established that the act is not sufficient for somebody to be guilty we must also look
at the mind of the accused to verify whether there was an evil intention accompanying the
act and the court observed “the act in itself does not make a person guilty unless his mind
be also guilty” it introduces us to the requirements of MENSREA. MENSREA is not only
intention to commit the act it is more then intention actually it is an evil intention and this
was discussed in the case of SHIRAZ vs DERUTZEN that MENSREA is evil intention or
knowledge of the wrongfulness of the act. It therefore means that before you punish
somebody for an action we must also prove that he had malicious intention of doing it,
meaning that he knew that the action was wrong and he proceeded doing it we call this the
guilty mind, this is provided under section 10 of the penal code, a person shall not be
criminally liable for actions which were done without intention, therefore the penal code
has established the requirement of MENSREA under section 10. That a person shall not be
criminally punished for actions which he did independent from the exercise of his will. It is
directly connected with the will and voluntariness. The audacity of your actions makes you
criminally liable, discussed in the case of BRATTY VS AG OF NORTHEN IRELAND, in this case
Lord DEN NING emphasized the requirement of voluntariness of the act, he said “ that it
should be a voluntary act is essential not only in a murder case but also in every criminal
case. No act is punishable if it was done involuntarily”. An action must be committed
voluntarily meaning that you can not punish somebody for an action which he did not
intend to do so. Read the case of HILL VS BAXTER, R VS CHARLSON, HAUGHTEN vs SMITH

HOW CAN YOU READ SOMEONE’S MIND TO KNOW WHETHER THERE IS INTENTION OR
NOT?

You can discover somebody’s mind by looking at the surroundings and the way he was
behaving before the crime, meaning that we read the internal element by looking at the
surrounding circumstanced surrounding the act or action.
-Criminal law does not consider motive, the motive of the accused is irrelevant meaning that
whether you had a good motive or a bad motive it is immaterial, there I no good motive for
committing a crime in the same way you shall be guilty even when there is a transferred
Malice meaning you set your trap intending to kill someone else and unfortunately the trap
killed someone else that you did not intend to, you shall be guilty for the same murder. It is
not all offenses that require MENSREA such as STRICT LIABLITY OFFENSES do not require
MENSREA and also NEGLEGENCE. Example Manslaughter or Traffic offences.

HOW TO ASNWER QUESTIONS

how to answers criminal law questions: in law questions there is no format but you
should provide authorities which is the most important things meaning clear and
exposing it by underlining or bold or caps. Types of authorities’ theoretical authority
which is found in the statues provisions, practical authorities decided cases related to
the question.
-how do u apply authorities once you know the provision you may go straight to the
authorities once you know what the questions want “example my advice to mister kulwa is
….. you according to provision of section 123… that provides that. Example LIABILITY OF MR
JJ: under a particular section mr jj was reliable for murder
• should connect the sections with facts.
• Critical element of criminal law is punishment

TYPES OF OFFENSES

➢ -Attempted offences: Attempted murder, attempted theft, attempted suicide,

attempted rape, attempted robbery.
➢ -Conspiracy: there is conspiracy to rape, conspiracy to murder, conspiracy to fraud.
➢ -offences against morality: rape, abortion and kidnapping.
➢ -Property offences: theft, stealing, house braking, burglary
➢ -Selected offences: murder, manslaughter, rape treason,

ROBBERY CASES:
GATHURU NJUGUNA V. REPUBLIC

2nd SEMESTER
 CRIMINAL LAW AND PROCEDURE:
CATEGORIES OF LAW

SUBSTANTIVE LAW: this is the law which declares the rights and liabilities of an individual, it
tells you what are your rights and can also define your liability. It does not tell you how to
obtain your rights and therefore the main concern of substantive law is the declaration of
rights, declaration of obligation and declaration of liability.

Examples of substantive law

➢ THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA,

➢ LAW CONTRACT ACT,
➢ LAW OF MARRIAGE ACT,
➢ CHILD ACT
➢ THE PENAL CODE.

ADJECTIVAL LAW: this is also known as procedural law where by this law does not provides
for rights and liabilities it only gives you the procedure on how to obtain your rights that
have been given by the substantive law. Therefore, it provides for the process or the steps
which a person should follow in order to get his rights. Therefore, adjectival law is a
compliment of substantive law the two have to work together in the sense that substantive
law declares the right and adjectival law provides the process to get it. Therefore,
substantive law will be useless in the absence of adjectival law.

Examples of adjectival law:

CIVIL PROCEDURE CODE CAP 33; this provides for the procedures on how to get all your
rights that have been declared on civil law.

MATRIMONIAL PROCEEDING RULE: used when there is a manage dispute, assists on how to
get your matrimonial rights

CRIMINAL PROCEDURE ACT CAP 20: this provides for the procedures of handling offences
under the penal code

The penal code is the substantive law which provides for crimes and punishments but it
does not give us the procedure on how to impose punishment. That is the duty the duty of
criminal procedure example

CRIMINAL PROCEDURE; it can be defined as the law which provides the steps or the manner
on how to handle criminal offenders. In other words, it is the law that gives us the
procedures on how to deal with criminal suspects from the time of the commission of the
crime till the last stage of sentencing.
In other words, it can better be defined as the process which must be observed by the state
and its law enforcing organs on how to handle a criminal offender with the view of
establishing his guilt or innocence through our established courts of law.

Therefore, criminal procedure is intended to protect an accused person or a criminal

offender from being handled brutally that is why there are procedures that have being laid
down by the law.

When a person is said or reported to have committed a crime he is a criminal suspect

(suspect) means not sure.

the moment he is taken to court he graduates into becoming an accused person.

The moment the court of law declares him to be guilty and convicts him he is no longer an
accused he is called a convict meaning that you re a criminal pasee

When the person is not satisfied with the convictions and he appeals to the higher court
from that moment he is called an appellant.

RATIONAL FOR HAVING A CRIMINAL PROCEDURE OR WHY DO WE HAVE IT

The major reason is to observe the rule of law where by it is has been enshrined under
article 13 of the constitution which says that no body is above the low and therefore
everybody is under the low including the state and the law enforcing organs. Therefore,
they must follow the law when handling a criminal offender, this means that the President
himself is bound to adhere to the laid down procedures when dealing with a criminal.

Why is a person still innocent despite the fact that he has been caught at the very act? In
flagrante delicto
meaning the very act of committing a crime.

The need to need to adhere to due process it has been provided under article 13 (6) (a) of
the constitution. Everybody must be handled according to the law although he is a criminal
offender; he has the right to be heard.

DUE PROCESS: this is the way which must be observed as laid down by the law in treating a
criminal offender and everybody must follow due process as it was stated in the case of
JOSEPH MASUNZU V. REPUBLIC 1991. JUSTICE KATITI observed that we can not peacefully
make our way through life without law giving us the right directions to follow and
sometimes the time to follow when to start our journey and through which route although
he was talking about life but he was actually referring to criminal procedure that when
handling a criminal offender, we must be directed by the law and on the time to follow and
when to start the journey and through which route to follow. This is the process of due
process under a democratic state.

Identify and explain the sources of criminal procedures in Tanzania?

SOURCES OF CRIMINAL PROCEDURE:

➢ CONSTITUTION: the constitution of 1977 has established the foundation of criminal

procedure and that foundation is found under article 13 (6) (b) , according to that
provision everyone is innocent until proven guilty.

WHY IS IT A FOUNDATION OF CP

Because the provision has established 2 different extremes in one extreme you have
innocence, the extreme of guilt. In the middle of innocence and guilt there is proof,
therefore for a person to be guilty there must be proof. Meaning there is a process to
remove someone from innocence to guilt and that process Is the application of criminal
procedure.

The criminal procedure Act of 1985 Cap 20 , this is the major source of criminal procedure.
In section 4 (1) and (2) of the CPA it provides that all offences under the penal code shall be
investigated tried or otherwise dealt with according to the provisions of this Act. The CPA Is
the main source of criminal procedure and it provides the modules operandi on how to
conduct criminal investigation, on how to arrest criminal offenders, on how to charge
criminal offenders, on how to bail criminal offenders, on how to trial, convict , on how they
can appeal etc. therefore the criminal procedure Act it has provided all the process such as
investigation, charge, appeal

CONCEPT OF JURISDICTION
All criminal offenders are normally tried in established court of law, a criminal court in the
court which has the power to try criminal cases, the fact that you are a court, does not
mean that you are entitled to trial all criminal cases, every criminal court has got its power
and limitations and this is what we call jurisdiction, jurisdiction is the power of the court and
its limitations to determine certain criminal cases, therefore not all courts have the freedom
to trial any criminal case eg. The primary court does not have jurisdiction to trial a murder
cases murder cases can only be trialed by the High court. Every court is established by the
law, the courts does not exist by themselves, they have been created by the law in other
words our courts have been bound by the law, that is why we call them court of law
because they have been established by the law example The primary court has been created
under the Magistrate court Act of 1984 under section 3 (1) , similarly the district court has
been created under section 4 of the Magistrate court Act and the High Court also has been
created under article 108 of the Constitution of the United Republic of Tanzania therefore
because the court has been created by the law it must obtain its powers from the same law
it must obtain its jurisdiction from the law because it has been created by the law this was
discussed in the case of R V. Salleh Huruna case of 1974 LRT . in this case Judge Biron
observed that a court which has been established by the law must obtain its power from the
law it self .
HELD: judge Biron held that “The District Court is a creature of the statute it has no inherent
powers its powers must be expressly conferred to it by the law” therefore the whole
concept of jurisdiction is about the powers which are give to the court by the law and we
have many types of jurisdiction

TYPES OF JURISDICTION

1) ORIGINAL JURISDICTION: as the word suggests it is the power of the court to try
original cases that is cases that are coming for the first time, a case which which
have ever been trialed by any other court in the world, the court with the power to
try these cases is said to have original jurisdiction. Therefore, we can say that it is the
power of the court to try a case at first instant. The court which has original
jurisdiction is normally called the court of 1st instance and it is enjoying with a lot of
powers, it has the power to arrest, to issue summons, to conduct preliminary
inquires and the power. Always a court with original jurisdiction must be the lowest
court in the judicial hierarchy (ladder) so as to give an opportunity for appeal
meaning the primary court.

JURISDICTION OF THE PRIMARY COURT:

Primary Court has been established under section 3 of the Magistrate Court Act which
provides that there shall be established a primary court in each District. The jurisdiction of
the primary court has been provided under section 18 of the Magistrate Court Act. But that
section has provided the primary court jurisdiction on cases that are civil in nature and
therefore the jurisdiction under section 18 relates to civil cases and those cases include
Customary cases, Cases based on Islamic law, Recovery of civil debts, Recovery of rent and
Recovery of debts due to the Republic. As far as the criminal jurisdiction of the primary
court is concerned we must be guided by the provision of section 19 (1) of the Magistrate
Court Act this section has provided the jurisdiction of the primary court over criminal cases
and according to that section whenever the primary court is determining criminal
proceedings it must be directed by the primary court procedure code therefore the primary
court is bound to apply the primary court procedure code when trying criminal cases. PCPC
is an instrument which has laid down procedures and rules to be used by the primary court
when conducting criminal trials or cases and this PCPC is found in the 3rd schedule of the
Magistrate Court Act. This means that the primary court is not allowed to apply the criminal
procedure Act it should only apply the PCPC , the procedures under the criminal procedure
Act were not intended to be used by the primary court, it is too complicated to be
understood by a primary court magistrate and that is why we have established a simplified
version of the criminal procedure Act which is the PCPC therefore the criminal procedure
Act is intended to be applied b the High court, residence magistrate court and District court.
The primary court has been original jurisdiction over criminal cases which have been listed
in the 1st schedule of the magistrate court Act and these offences include contempt of
courts (mis behaving or dis respect) it is punishable under section 114 of the penal code ,
also the offence of destroying evidence contrary to section 109 of the penal code, these are
offences which the primary court is allowed to deal with.

DISTRICT COURT
Has been established under section 4 of the magistrate court Act which provides that there
shall be a district court in every district the jurisdiction of the district court is provided under
section 40 of the Magistrate Court Act
RESIDENCE MAGISTRATE COURT

The jurisdiction of residence magistrate court has been provided under section 5 of the
Magistrate Court Act, it is not a direct creature of the statute it is normally existing on the
declaration of the Chief Justice meaning created by him.
The jurisdiction the Residence Magistrate Court is similar to that of the District Court.

HIGH COURT

It has been established under article 108 of the constitution it has been created under
section 2 (2) of the JALA and therefore when you talk of the establishment of the high court
you should refer to these two instruments.

JURISDICTION OF HIGH COURT

The high court has unlimited jurisdiction that is according to section 2(2) of the JALA,
meaning that the powers of the high court are not limited. It has freedom to try any criminal
case which has been committed anywhere within the united republic therefore all criminal
offences under the penal code can be trialed by the High Court, that signifies that the High
Court has original jurisdiction over all criminal offences although the High court can try all
criminal offences the rules of procedure requires that cases should begin with the lowest
courts in order to afford chance for appeal. This rule of procedure does not apply when it
comes to technical cases therefore complicated cases like murder, treason and
constitutional cases are normally trialed only by the high court. These cases must begin at
the high court straight forward without starting from the lowest court. Therefor the high
court has original jurisdiction over those 3 case. Furthermore we can say that the high court
has exclusive jurisdiction over these cases. Exclusive jurisdiction is the power of the court to
determine certain nature of proceedings in exclusion to all other court. READ THE

REMAIING TYPE OF JURISDICTION

➢ CONCURENT JURISDICTION:
➢ APPEALAT JURISDICTION:
➢ EXCLUSIVE JURISDICTION:
➢ SUMMARY JURISDICTION:
➢ TERITORIAL JURISDICTION:
➢ SUPERVISORY JURISDICTION:
➢ MONITARY JURISDICTION:
➢ REVISIONARY JURISDICTION:
CRIMINAL INVESTIGATION:

This is the first stage in criminal procedure when a crime is reported to have been
committed the first thing to conduct is criminal investigation. Criminal investigation has
been covered under Part 2 of the CPA and it provides for the methods that must be
employed or done while conducting investigation of criminal cases. It covers the issue of
arrest, search, escape recapture and the detention of criminal offenders. The person who is
responsible to conduct criminal investigation is under section 6 of CPA tells the duty to
conduct criminal investigation belongs to the police organ. They are vested with
investigatory powers and no other organ has such power. The duty to investigate offenses
goes hand in hand with the power to receive information, because you can not do any
investigation without information. The purpose is to discover the truth of a particular
information. Therefore, the police have been given the power to receive information about
committed crimes, intended crimes and unnatural death this is provided under section 7 of
the criminal procedure Act according to that section when a person becomes aware of any
committed crime or intended crime or mysterious death he has the duty to report
information to the police. Intended crimes are crimes which are about to be committed
meaning they have not been committed yet, meaning you can also inform the police about
crime which are about to be committed. This is because under section 47 of the CPA it says
that every police officer may intervene for the purpose of preventing and shall to the best of
his ability prevent the breach of peace or the commission of any arrest able offense. The
police are responsible to prevent the commission of a crime. In section 7 of the CPA says
information should be given to the police concerning crimes but that section does not tell us
how to convey the information and therefore it must be read together with section 9 of CPA
which provides that information may be given to the police either orally or in writing and
therefore section 9 tells us how to present information to the police officers. When the
police receive information the law requires them to physically go to the scene of the crime
that is according to section 10 of the CPA , requires that every police officer with
information to go to the scene of the crime and he is expected to do 3 major things

Investigate the facts and circumstances of the case: he must conduct necessary inquiries
such as asking questions.
He is expected to take measures that are necessary for discovery:

MEASURES TAKEN BY THE POLICE

In section 19 of the CPA the police office has the power to break into any house or to enter
any premises when he believes or has every reason to believe that a person to be arrested is
hidden inside. However before entering into a particular premise the police officer must
obtain the consent or permission of the owner. But the law does not give the owner an
option to refuse or to accept, the owner is bound to permit the police to enter his premises
and he is required to assist the police or to cooperate with the police in conducting the
search in his house or premises, under section 20 of the CPA, the police also has the power
to break out of any premises for the purpose of liberating himself where he has been
detained. In section 6(2) of CPA says that the police officer shall not be liable under civil or
criminal for any action done during investigation.

He is expected to arrest the criminal offender where the offense is arrest able without
warrant in section 14 of the CPA says the list of offenses which are arrest able without
warrant.

HOW TO ARREST:

The criminal procedure Act has provided rules on how arrest should be conducted.

Under section 23 of CPA this is the first rule which provides for rules that are found on the
principals of natural justice according to this section before conducting any arrest the
arresting officer is required to inform the offender about the grounds and the offense in
respect of which he is being arrested. This means that before being arrested the offender
must know the reason for why he is arrested. During arrest a police officer may touch the
body of the offender and if necessary he may confine the offender, however this may only
be done when the offender has rejected to be peacefully arrested, as a general rule every
arrest must be peacefully conducted without any application of force. Force can only be
applied when the offender when the offender is not willing to surrender to the police this is
provided under section 11 (2) of CPA being together with section 12 of the same Act. The
police should apply reasonable force which is able to prevent him from escaping. In section
21 of the CPA it has provided for 2 major reasons as to why force may be applied during
arrest, the first is that force should be applied to make the arrest possible and applying
force to prevent the offender from escaping. After the person has be arrested and he is
under the police restraint the police has the power under section 24 of the CPA to conduct
search for the purpose of discovering any materials or any tools which must be ceased that
section must be read together with section 41 which stipulate how search can be conducted
and the things that are subject to search. This includes

ARES WHICH ARE SUBJECT TO SEARCH

They may search the body of the offender

Police may touch the clothing of the offender
They may search the property which are under the immediate control of the offenders. Only
the property of the offender

Under Section 26 show how a woman must be searched

It says that a criminal lady can be search by a fellow woman and must be done with strict
regards to decency.
Furthermore the police officers have been empowered under sect 25 of the CPA to stop,
detain and search any boat, vehicle, aircraft or any other vessel when they have reasons to
believe or they suspect that it might be (a) carrying stolen goods or properties (b) properties
unlawfully held (c) articles used in committing an offense (d) articles intended to be used to
commit an offense (e) property which the law prohibits their possession. After conducting
the search the discovered tools or property have to be ceased and placed in safe custody
such as courts or police stations.

When a person is under police restraint the police have the right to ask him questions for
further discovery according to section 48 of the CPA. The asking of the questions must
adhere to the rules that have been provided under the criminal procedure Act, it has
provided the manner in which questions and answers should be administered it has also
provided for the conditions which must be met prior to the asking of questions, it has also
provided the manner in which a person under restraint may be treated.

Read section 50-58

The police do these things so as to write a police report related to the crime.

IDENTIFICATION PARADE: it is conducted for the purpose of identifying the criminal

suspect, when there is confusion for who actually might be the criminal suspect. if the
offender runs away the police may arrest many people and call the victim so as to identify
who the real offender is provided under section 60 and 62 of the CPA. When a person is
under police restraint at the police station the law requires him to be charged and taken to
court within 24 hours

HOW TO INSTITUTE CRIMINAL PROCEEDINGS?

It is a requirement of the law that a criminal suspect should be taken to court within 24
hours after being arrested by the police, and therefore a criminal offender is not supposed
to be under police restraint for a period exceeding 24 hours, this means that the police
officers are expected to finalize all the criminal investigation processes then the criminal
offender should be admitted to court.
METHODS OF INSTITUTING A CRIMINAL CASE (how to initiate criminal proceedings)

Under the criminal procedure Act the law has provided 2 major methods by which an
offender may be taken to court or on how to institute criminal proceedings

Criminal proceedings may be instituted by laying a complaint provided under section 128 of
the CPA. This section allows any person to lay a complaint before the magistrate against any
person who has committed a crime in section 128 (2) of the CPA provides that anybody
who wants reasonable and probable cause to believe that a person has committed a crime
he may lay a complaint before the magistrate. In section 128 (4) of the same act provides
that the complaint may be laid orally or in writing, however section 128 (5) requires the
magistrate who receives an oral complaint to reduce it into writing and therefore finally
every complaint must appear in a written form. This is for 2 major reasons

Complaints must be in written form for record purposes and

for evidence purposes
although it is find under the law it is not mostly applicable

Criminal proceedings may be instituted by a formal charge, this is the most applicable
method of instituting criminal proceedings provided under section 131 – 133 of the CPA.
Through this method charges against a criminal offender are officially and legally put into
writing and submitted before the court.

Why do we say officially put into writing?

This is because the law has provided a specific office which is responsible to prepare formal
charges and that office is the office of the Attorney General chamber which is comprised by
the director for public prosecution with public prosecutors and state attorney assisting him,
these are the people found of the Attorney General Chamber and they are responsible to
drafted and formulate formal charges. Only the public prosecutors should draft formal
charges.

Why do we say legally?

Because it is usually drafted according to the requirements of the law, therefore the law has
provided the format and the content of any formal charge, therefore the law tells us how a
formal charge is supposed to appear, therefore the public prosecutors are supposed to be
conversant with the requirement of the law as far as the drafting of formal charges are
concerned. Judge Chipeta says that no public prosecutor shall be forgiven for his ignorance
in drafting formal charges. Formal charges are normally laid down in a charge sheet, where
by this is a document in which charges against a criminal offender are written down and
through the charge sheet the criminal offender shall be taken to court. This means that a
person can not be taken to court in absence of a charge sheet. He must be taken to court
along with the charge sheet.

WHAT ARE THE CONTENTS OF A CHARGE SHEET

A charge sheet must be able to provide 2 major answers or information’s

 ➢ Who has done it?
➢ What has he done?

WHO HAS DONE IT: the charge sheet is required to provide the import information about
the offender, it must give out the particulars of the offender, that includes the name of the
offender, the age, the sex, the tribe, the Nationality , the occupation and nay other
important particular. The age will assist to the kind of punishment to be given.

WHAT HAS HE DONE: the charge sheet should also provide information about the crime
that has been committed by the accused, this particular information can be divided into 2
section

Statement of the offense: this provides 3 things

➢ the name of the offence
➢ the section which provides the offense
➢ the law which prohibits the offense

EXAMPLE :

House braking contrary to section 294 (1) of the penal code.

Particulars of the offense: in this section we need a brief explanation on how the offense
was committed. The following should be provided
➢ Name of the offender
➢ Actus reus of the offense
➢ Mensres of the offense
➢ Place of the commission of the offense
➢ The date of the commission of the offense
➢ The time of the commission of the offense
➢ The victim of the offense
➢ Properties that have been stolen or damage in the cause of the offense
➢ Tools or weapons that were used in the commission of the offense

Alibi: this is a defense where by the accused person says that on the day and date that the
offense was committed I was somewhere else

NGUZAVIKI V. REPUBLIC (BABU SEAH) read the judgment issued by the high court and the
court of appeal (senior state attorney) JUSTUS MLOKOZI (REPRSENTATIVE OF THE REPUBLIC)

In section 132 of the CPA has provided that each charge sheet must contain statement of
the offense and particulars of the offense
There are situations where an accused person has committed more than one offense,
therefore he may be charged for 2 or more offenses in the same charge sheet, however
those offenses must have been committed in the same transactions or series of transaction
in order for them to appear in a single charge sheet. They must be offense arising from the
same character or scenario this is according to section 133 of the CPA. Meaning that a
person who broke in a house also stole some items and then when running away and he
kills the owner so there are 3 offenses in the same transaction. When several offenses are
appearing in a single charge sheet they must appear or e written separately, this means that
for each offense you must provide its statement of the offense and its particulars of the
offense. They are normally known as counts. This means that each offense will have a
separate count. If offenses which have been committed in the same transaction are not
joined in the same charge sheet it is non as non joinder, if you join offenses which were not
supposed to be put in the same charge sheet that is joined as a misjoinder. Also when more
than one person are charged for committing an offense section 134 of the CPA has
provided for situations in which you can charge 2 or more person in the same charge sheet.

FORMAT OF A CHARGE SHEET ( this is provided under section 135 of CPA)

DEFECTIVE CHARGE: this is a charge which is defective in nature in the sense that it
has a problem, there is something wrong in the charge, it may be defective in form and also
in substance. Defective In form ( this is when the structural arrangement are not okay)
defective in substance ( when information in the charge are not clear or not true)

SIATUATION WHERE A CHARGE CAN BE INFECTIVE

Example:

- when there is a contradiction between the offense and the section

When you have cited a non existing law

When you have made a wrong citation of the law or section.
A contradiction between the statement of the offense and particulars of the offense
When the charge is duplex or it is bad for duplicity, this occurs where within a single count
you have explained 2 offenses. When a charge is bad for duplicity it will not be safe for a
conviction to be based on it. Explained in the case of Odda torres and Chere S/o Bukuri V. R

REMEDIES FOR A DEFFECTIVE CHARGE / WHAT SHOULD BE DONE WHEN A

CHARGE IS DEFFECTIVE

May be rejected by the court this is in 129 of CPA

Amendment (it may be amended) in order to correct the defect according to section 234 of
the CPA
Reinstitution

WHAT FOLLOWS AFTER THE CHARGE SHEET HAS BEEN PRESENTED IN COURT
When a charge sheet has been presented in court against an accused person the person
must be immediately summoned to appear before the court so as to answer the charges
that have been laid against him. The first thing that the court will do is to conduct a plea
takin.

PLEA TAKING: this is a procedure where by the charge sheet is going to be read to the
accused person and he shall be called upon to say something regarding the truthfulness of
the charge this is provided under section 228 of the criminal procedure Act. This procedure
is based on the principal of natural justice which is the right to be heard therefore before
we under take any proceedings against the accused we must read the charges to him and
give him an opportunity to say something, the reply of the accused person or whatever the
accused person says shall be considered as a plea and we have various types of Plea under
the CPA

TYPES OF PLEA

THE PLEA OF GUILTY: this plea is entered when the accused person admits that the charges
against him are true in other words the accused person is accepting the fact that he has
committed the offence in question, whenever a person pleas guilty the court shall convict
him on his own plea of guilty according to section 228 (2) of the CPA , therefore there will
not be any witness or evidence. However, it is not as straight as it is provided in the statute
normally when a person pleas guilty the court is required to warn itself, in other words the
court must take the necessary precautions to ensure that the person who pleas guilty
actually knows what he is doing and he has pleaded guilty voluntarily. Therefore the court
shall not immediately convict a person who pleas guilty, it must first of all make sure that
the plea of guilty has been voluntarily given out in warning itself the court is going to do the
following

PRECAUTIONS THAT THE COURT TAKES ONCE SOMEONE PLEAS GUILTY:

Shall require the charges to be read again to the accused with the summary of the facts and
evidence.
Explain to the accused person the consequences of pleading guilty those consequences are

CONCIQUENCES OF PLEADING

Conviction without trial, this means that no witness or evidence shall be brought before the
court.

When pleading guilty you will not have the right to appeal against the conviction of the
court according to section 360 of the CPA anyone who pleads guilty automatically looses the
right to appeal against the conviction but may appeal against sentence.

Conviction: is a declaration that someone is guilty and he is liable to punishment

Sentence: is the imposition of the punishment upon an accused person.

The court shall require the accused to pleas for the second time and if he continues to plead
guilty that is when he shall be convicted.

The plea of guilty must be clear and straight forward, it must not be ambiguous, that is why
we say that the plea of guilty must be “UNEQUYVOCAL” meaning unambiguous. This means
that there should not be any defensive statements, you should not use statement that are
defensive in nature words like “BUT”, “BECAUSE” , “HOWEVER” it means that when a
person is pleading guilty we must ensure that he is admitting all the elements of the
offense. It was stated in the case of YONASANI EGALU V. R (1965) EAST AFTRICAN COURT OF
APPEAL. In the case it was observed that when a person is pleading guilty he must clearly
admit all the elements of the offence “UNQUYVOCALLY”.

PLEA OF NOT GUILTY: this plea is usually entered when the accused person denies the
allegations in the charge, he says that the charges laid against him are not true, he is not
responsible for the crime which his been accused of, when a person pleas not not guilty the
implication is that he is calling upon the state to prove his guilt. This plea is under section
228 (3) of the CPA. This plea shall also be entered for an accused person if he presents a
plea of guilty with ambiguity.

THE PLEA OF AUTRE FOIS ACQUIT: AUTRE FOIS is a French word which means second time,
therefore in this plea an accused person is saying that the charges against him are coming
for the second time he was already once charged in respect of the same offence and he was
trialed for the offence and acquitted after the trial and therefore he can not be charged
again for an offence which he was already acquitted, it is a rule of law that no body should
be charged twice for a single offense Autre Fois convict is the same like Autre fois Acquit the
only difference is that in autre fois convict the accused person was convicted in respect of
the offence and sentenced accordingly and he has successfully serve his full term of
imprisonment therefore in that regard he can not be charged again for an offence which he
has been already trialed, convicted and sentenced. A person can not be punished once for a
single offence and in double jeopardy a person can not be punished twice for a single act.
That is according to section 228 (5) of the CPA. When ever a person pleas autre fois either
acquit of convict he must present the evidence of the judgment.

THE PLEA OF PARDON: here an accuse person says that he was convicted for the offence
and sentenced and he has received the pardon of the President in respect of the offence,
this is similar to autre fois convict.

THE PLEA OF STANDING MUTE: this is a situation where the accused person refuses to
plead anything, the charges have been read to him, he has been called upon to say
something but he remained silent he does not say anything. When a person stands mute
there are 2 reasons
 REASONS WHY A PERSON STANDS MUTE

It may be a manifestation of malice (bad intentions) or arrogance (disrespectful) , when a

person is silent he is giving a message, that person is actually talking. By remaining silence
he is saying that he is against everyone in court once he stays silence we shall record
straight away not guilty but can also remain silence because of the visitation of God (A
MUTE ) this is under section 228 (4) of the CPA.

The procedure of plea taking is a mandatory procedure. We have 2 types of procedures in

our criminal administration

TYPES OF PROCEDURES IN OUR CRIMINAL ADMINISTARTION:

MANDATORY PROCEDURES: these are procedures which must be conducted by the court,
the court is not allowed to avoid or to skip the undertaking of those procedures therefore it
is bound to observe those procedures whether it wants or not, and there are consequences
if the court will fail to undertake those procedures those consequence is that the whole
proceedings are going to be nullified and therefore failure to conduct a mandatory
procedure all the procedures will be nullified. Therefore, it is fatal to ignore a mandatory
procedure. They are usually represented by the word “Shall”.

DISCRETIONARY PROCEDURES: these are procedures which are not mandatory the court
may or may not conduct them, the court has the liberty to skip or it has the discretion to
skip them when it is right to do so. therefore the court may avoid these procedures where
such avoidance is necessary or it will not occasion any miscarriage of justice ( failure to
justice to follow) they are represented by the word “ May”.

IMPLICATION OF PLEADING NOT GUILTY:

Whenever a person pleas not guilty it means that he is calling the other party to prove his
guilt, not guilty is another way of saying prove that I am guilty. This is because Article 13 (6)
(b) of the constitution provide that everyone is innocent until proven guilty. Therefore,
there is responsibility of proving the guilt of an accused who denies the allegations of a
charge. The burden to proof the guilt of an accused person lies upon the state, this is
because a person is being charged by the state through the public prosecutors and the
police organ and therefore the burden of proof of guilt of an accused person lies upon the
prosecution or the State. The standards of proof are beyond reasonable doubts according to
section 3 (2) (b) of the Tanzanian Evidence Act Cap 6. This burden does not shift at any stage
beyond reasonable doubts means that the state or the prosecution must prove the guilt of
an accused person in such a way that all doubts are cleared. In order for the state to prove
that the accused is guilty they must be a hearing in other words a trial, it is within the
hearing that the state may be able to call upon their witnesses and bring forth their
evidences to prove that the accused person committed the offence therefore the state can
prove the guilt of an accused person when there is a hearing. Before conducting any hearing
or trial the court is required to first conduct a preliminary hearing.

PRELIMINARY HEARING: this is provided under section 192 of the CPA This is a stage which
is usually undertaken when there is a plea of not guilty. The purpose of the preliminary
hearing is to prepare for the hearing. It is normally conducted in an open court in the
presence of the accused himself and his advocate if he has any and the public prosecutors.
The main task at the preliminary hearing is to identify the facts which the accused person
does not dispute in other words to identify the facts which the accused person agrees, we
normally call them “MATTERS WHICH ARE NOT IN DISPUTE” because when somebody pleas
not guilty he does not necessarily deny all the fact when you say not guilty does not men
that you are refusing or rejecting everything it only means barely denying the guilt but not
all the fact. At the end of the preliminary hearing The court will prepare a memorandum of
agreed fact, the memorandum shall be signed by the accused the public prosecutor and the
judge whatever is contained in the memorandum shall be considered as proved at the main
hearing and therefore they shall not be subjected under any requirement of proof or
evidence. Preliminary hearing is one of the mandatory procedure and after this we will now
proceed with the man hearing. Preliminary hearing is not the hearing itself just a
preparation for the main one that is why in preliminary hearing you do not call witnesses to
testify but here the parties are required to identify the number of witnesses which they
shall call at the main hearing and they are also going to identify the evidences which they
shall submit at the main hearing.

THE MAIN HEARING(TRIAL): A criminal hearing is a process that usually happens in court in
the determination of a dispute between two parties and in such a hearing the state is
usually the complainer while an individual person is the troublemaker. The state is the
accuser while the individual Is an accused, the state is usually represented by public
prosecutors or state Attorneys while the accused may be represented by a private advocate,
the side of the state is normally known as the prosecution side while the side of the accused
is known as the defense side. The question that arises between these 2 sides who is going to
begin the process? , according to section 229 of the CPA it is a responsibility of the state to
open the case, therefore the prosecution side shall be called upon to bring their witnesses
and to bring their evidences to prove that the accused person is guilty. The prosecution side
shall bring forth their witnesses one after another who will give testimony against the
accused person and they are usually called by the name of (PW) Prosecution Witness, the
first prosecution witness is normally marked as (pw1), P2. After the prosecution witness
have given their testimony or after each prosecution witness giving his testimony he must
be cross examined by the opponent by the opponent side, the opening side shall be
required to ask him some question. They are also going to bring their evidences to support
the statement of their witnesses. When the prosecution side finishes to present its case, it is
now the duty of the court to make an assessment whether the prosecution has established
a (PRIMA FACIE) case is a strong case against the accused person of which if he does not
defend himself the court will be prepared to convict in in other words it is a case which has
fully convinced the court that the accused may be guilty and if he does not defend himself
he shall be convicted. The court will make an assessment to determine whether the
prosecution side has established a (PRIMA FACIE) case. If the court is of an opinion that the
prosecution has not underscored a PRIMA FACIE case the court is going to dismiss the
charges or case and the accused person shall be taken to liberty because it has not been
properly convinced that the accused person may be guilty and therefore the court will not
call the defense side to present their case if it believes that there is no strong case requiring
a defense. According to section 230 of the CPA. On the other hand if the court has been
fully convinced that the prosecution has established a PRIMA FACIE case which requires the
accused person to answer or to defend himself then according to section 231 of the CPA
the court shall call upon the defense side to present their defense by calling their witnesses
and bringing their evidences in order to dis prove what has been established by the
prosecution side. The responsibility of the defense side is not to establish that the accused is
innocent in other words the accused person does not have the duty to establish his
innocence because his innocence had already been provided by the Virtue law article 13 (6)
(b) says that you are innocent. The main duty of the defense side is to destroy the PRIMA
FACIE case which was built by the prosecution and therefore inject a reasonable doubt in
the mind of a court. If the defense side succeeds to inject a reasonable doubt in the mind of
the court the accused person is going to be acquitted. After both sides have been heard the
court is now going to pronounce a judgment to state whether the accused person is guilty
or not guilty convicted or acquitted. When the accused person has been convicted what
follows is sentencing but before we pronounce any sentence we are going to look at 2
factors

FACTORS BEFORE PRONOUNCING SENTENCE

LITIGATING FACTORS: Are intended to convince the court to issue a lesser punishment for
example a pregnant woman would not be given a death penalty instead a life imprisonment.
Or health of the accused, and age. TABU FIKWA V R. (read case)

AGRIVIATING FACTORS: these are factors which are intended to convince the court to issue
a severe punishment

(read this) CONTENTS OF A GOOD CRIMINAL JUDGMENT:

PROSECUTION MACHINERY

We discuss that criminal law is a public law, in the sense that it goverens the relationship
between an individual and the state and therefore when a person violates criminal law he is
guilty for violating the law of the state in other words he has committed a crime against the
republic or the (state), that is why in all criminal procedure or proceedings the complainant
is usually the state example (R V. ASHA) the republic is not represented by the whole nation
and also the republic is not represented by the president in criminal proceedings although
the president is the head of state. In ordinary circumstances one could think that the
president of the united republic should prosecute criminal cases because he is the head of
state, but that is not the case the president has a constitutional privilege of not to appear in
court and therefore instead of the president appearing in person he rather appoints a
representative who will appear in court on his behalf and on behalf of the republic for the
purpose of prosecuting criminal offenders. There is a presidential appointee who has been
the task to direct prosecution of criminal cases on behalf of the state and that is the
DIRECTOR FOR PUBLC PROSECUTIONS (DPP). The DPP is the one who is usually in charge or
responsible to control the duty of charging criminal offenders to control the duty of
prosecuting criminal offenders and he also has several powers attached towards that duty.
He is appointed under Article 59 capital B of the Constitution y the president. The DPP is
found in the office of the Attorney General Chamber and since there are many criminal
cases all over the nation and in fact criminal cases are the most leading cases all over the
country followed by land law cases therefore the DPP can not operate alone he has been
granted assistants who will work together with him in the prosecution of criminal offenders
and those assistants include the State Attorneys, Public Prosecutors etc. the state attorneys
and public prosecutors have the duty to charge and prosecute criminal offenders under the
direction of the director. He is the one who assigns them what to do, they do it as assisting
as the director himself and they are many. The Director together with his assistants they are
all together called THE OFFICE OF THE DIRECTOR FOR PUBLIC PRESECUTION. Therefore,
there is a specific peace of legislation or statute which has been enacted by the parliament
for the purpose of creating the office of the director for public prosecution to define their
composition and to lay down their duties and functions and that statute is called THE
NATIONAL SERVICE PROSECUTIONS ACT, 2008. (make sure to have this) the composition is
found in section 4 and section 6 shows their duties which those duties are also laid by the
constitution, section 9 shows the function of that office.

This a way a DPP may discharge case NOLLE PROSEQUI: means do not pursue.

FUNCTIONS OF THE DPP

Charging criminal offenders.

Prosecuting criminal offenders.
Discharging cases.