HE RIGHT TO BE PRESUMED INNOCENT: A CRITICAL ANALYSIS OF THE LAW AND PRACTICE IN TANZANIA
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Keywords:
Criminal Procedure, TANZANIA, Criminal JusticeAbstract
The right to a fair trial in general and the right to be presumed innocent, in particular, has so far been recognised at both the national and international levels as an important aspect of the rule of the law. The enshrinement of the right in various international, continental and regional human rights instruments is proof of its importance within the context of a fair trial. In appreciation of its importance, Tanzania has become a party to continental and regional human rights instruments that recognise the right. However, the practices reveal a violation of the right to be presumed innocent more specifically by unbailable offences within the legal framework. This work makes a critical analysis of the law and practice on the right to be presumed innocent in Tanzania by examining the extent of its enjoyment. The work concludes on the premise that the minimum acceptable standards of the right to be presumed innocent are not guaranteed and realised in Tanzania. To realise the right, the work recommends respect of international obligations by reforming the legal framework in order to align itself to the regional, continental, and international best practices.
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References
i See Articles 10 and 11 of the Universal Declaration of Human Rights, Article 14 of the Universal Declaration
of Human Rights, the International Covenant on Civil and Political Rights,(ICCPR) Article 6(d) read together
with Article 7(2) of the Treaty for Establishment of the East African Community, Articles 7 of the African
Charter on Human and Peoples’ Rights, Article 6 of the Council of Europe Convention for the Protection of
Human Rights and Fundamental Freedoms and Article 8 of the American Convention on Human Rights
ii KOMI, Tuulia, the Consequences of the Lack of Definition of the Presumption of Innocence in Finnish Law,
Undergraduate Thesis, Tallinn University of Technology, (2017), Page 1.
iii SMITH, Rhona, Textbook on International Human Rights, Oxford University Press, Oxford, (2014),Page 277.
iv STUMER, Andrew, the Presumption of Innocence – Evidential and Human Rights Perspectives, Hart
Publishing, Oxford, (2010) Page 1.
v SASSOON, John, Ancient Laws and Modern Problems: The Balance between the Justice and a Legal System,
Third Millennium, London, (2005) Page 42.
vi This work is a compilation and selection of earlier Roman law and its oldest parts originated from the year 100
BC.
vii Justinian Code, Book IV, Title 19, Clauses 23 and 25. George W. Hopper Law Library, College of Law,
University of Wyoming. www.uwyo.edu/lawlib/blume-justinian/ajc-edition-1/book-4.html. Accessed on
January 24, 2019
viii Justinian Code Ibid.
ix SASSOON, John, (2005), Ibid.
x PENNINGTON, Kenneth,), Innocent Until Proven Guilty: The Origins of a Legal Maxim, The Catholic
University of America, Columbus School of Law. (2003 Page 107.UDHR. Op. Cit.
xi See Article 2 & 6 of the Convention.
xii Article 14 (2).
xiii Article 7(b). Also see the Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights, 1998
xiv Article 6(d)
xv PENNINGTON, Kenneth, (2003), Innocent Until Proven Guilty: The Origins of a Legal Maxim, The Catholic
University of America, Columbus School of Law. Page 107.
xvi Criminal Appeal No. 15 of 2013, High Court DSM, (Unreported).
xvii DE Jong, F. and Van Lent, L., the Presumption of Innocence as a Counterfactual Principle, Utrecht Law
Review, 12(1). (2016), Page 34.
xviii ASHWORTH, Andrew and ZEDNER, Lucia, Defending the Criminal Law: Reflections on the Changing
Character of Crime, Procedure, and Sanctions, Criminal Law and Philosophy, Vol. 2, (2008), P 346.
xix ASHWORTH, Andrew and ZEDNER, Lucia, (2008), Ibid. Page 357.
xx DE Jong, F., and VAN, Lent, L., (2016), Ibid. Page 35.
xxi DE Jong, F., and VAN, Lent, L., (2016), Ibid.
xxii Ibid. Article 13(6)(b).
xxiii PETER, Chris. M., Ibid. See also Article 13 of the Constitution of the United Republic of Tanzania, 1977.
(1997)
xxiv SHIVJI Issa G., et al,(2004), Ibid.
xxv See Article 13(6)(b) of the Constitution of the United Republic of Tanzania. It provides clearly as to the right
to be presumed innocent until the contrary is proved before a competent court.
xxvi Article 30(1) of the Constitution of Tanzania provides that the right and freedom that are provided in the
Constitution shall be exercised in a manner that does not cause interference or curtailment of rights of other
persons.
xxvii See Article 31(1) of the Constitution of Tanzania.
xxviii See Article 23(1), Ibid.
xxix See Article 30(2) of the Constitution of Tanzania
xxx The Attorney General v Lesinoi s/o Ndeinai & Others [1980] T.L.R. 214.
xxxi See for example section 148 of the CPA that limits the right to bail in contravention to the right of
presumption of innocence.
xxxii Section 148 (5) (b)-(e) of the CPA where offences that are unbailable are listed. These offences are murder,
treason, armed robbery, and illicit trafficking of drugs. Also, section 19 of the Written Laws (Miscellaneous
Amendments) Act, 2007, Act No. 15 of 2007 amended section 148 of the CPA to include Money Laundering as
a non bailable offence
xxxiii The Economic and Organised Crimes Control Act was amended where various offences were added to the
list of economic offence. Bail in such offences is cumbersome to secure.
xxxiv Cap 6 [R.E 2002].
xxxv John Magula Ndongo vs Republic. (Supra)
xxxvi Samwel Mkika vs Republic, Criminal Appeal No. 47 of 2001, CAT, (Unreported).
xxxvii Criminal Appeal No. 51 of 2014 [2014] UGCA 49.
xxxviii [2005] EWCA Crim 2866.
xxxix Ibid.
xl [Cap 6 R.E 2002]
xli Section 3(2)(a) of the Evidence Act.
xlii Section 110 of the Evidence Act
xliii LANGBEIN John, H., (1994), The Historical Origins of The Privilege Against Self-incrimination At
Common Law in Michigan Law Review, Vol. 92.
xliv Nguza Viking @Babu Seya & others vs The Republic, Criminal Appeal No. 56 of 2005 (Unreported
xlv [Cap 20 R.E 2002].
xlvi See Section 4(1) of the CPA
xlvii See for example, the Economic Organised Crimes Act, [Cap 200 R.E 2002].
xlviii [Cap 20 R.E 2002]. Ibid.
xlix The Legal and Human Rights Center, (2018), Tanzania Human Rights Report 2017. The same thing is
repeated in the Legal and Human Rights Center, (2019), Tanzania Human Rights Report 2018.
l The Criminal Procedure Act, Op Cit. Section 21 (1).
li Ibid, Section 53.
lii Ibid.
liii Section 53 of the CPA contains details of the caution that should be administered to the suspect before
recording his statement. For instance, under section 53(c ), the Police must notify the suspect that he is not
obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his
name and address; and, that, subject to this Act, he may communicate with a lawyer, relative or friend.
liv Bureau of Democracy, Human Rights and Labour (2004) Tanzania Country Report on Human Rights
Practices, 2003.
lv See Sections 279, 280 & 282 of the CPA.
lvi 1968] HCD 56.
lvii See the Court of Appeal of Tanzania in the case of Nguza Viking @Babu Seya & others vs The Republic,
Criminal Appeal No. 56 of 2005 (Unreported).
lviii Section 2 of the CPA.
lix Section 244 of the Criminal Procedure Act, [Cap. 20, R. E 2002].
lxi.e Murder Case, Treason etc.
lxi Misc. Criminal Applications No. 22 and 23 of 2006, High Court DSM, (Unreported).
lxii Misc. Criminal Application No. 34 of 2008, High Court DSM, (Unreported).
lxiii Other cases include; R vs Selemani Mussa (1973) LRT 47; R vs Edward Mongo (2003) TLR 45; Bhatt vs R
(1957) EA 332 and R vs Kafengele (1968) HCD n. 43.
lxiv Crim. Rev. Nos. 1 & 2 of 2008, CAT, (Unreported).
lxv RUGAZIA, Aloys, (2017). Op. Cit. Page 24.
lxvi See Mwita Ikoh and others Vs the Republic, Criminal Appeal No. 60 of 2018, Court of Appeal, (Unreported)
lxvii See DPP Vs Anneth John Makame, Criminal Appeal No. 127 of 2018, Court of Appeal of Tanzania
(Unreported)
lxviii See Suleiman Masoud Suleiman and another Vs the Republic, Misc. Criminal Application No. 10 of 2020,
High Court, Shinyanga Registry, (Unreported)
lxix See section 29(4) of the Economic and Organised Crimes Control Act, [Cap 200 R.E 2002].
lxx PETER, Chris, M., , Human Rights in Tanzania: Selected Cases and Materials, Koppe, Koln, (1997).
lxxi PETER, Chris, M., (1997), Ibid.
lxxii PETER, Chris, M., (1997), Ibid.
lxxiii DUPUY, P., A General Stocktaking of the Connections between the Multilateral Dimension of obligations
and Codification of the Law of Responsibility, the European Journal of International Law, (2002), Vol. 13 No. 5,
1053–1081
lxxiv General Comment No 32 para 4.
lxxv ROWLAND, J., V., C, Ibid. This principle is provided under Article 26 of the Vienna Convention on the
Law of Treaties, 1969, (2010).
lxxviTito Douglas Lyimo vs R (1979) LRT no. 55.
lxxviiIbid.
lxxviii [1993] TLR 22.
lxxix[1995] TLR 31. Page 58.
lxxx Dickson Paulo Sanga Vs The Attorney General, Miscellaneous Civil Cause No. 29 of 2019, High Court of
Tanzania, Main Registry, (Unreported). In this case, the Court on May 18, 2020 gave the Government 18
months to amend section 148 of the CPA to give room for the Court to exercise the discretion in granting bail.
However, the Respondent filed a notice of appeal on the same day. The position will clear perhaps after hearing
of the said appeal.
lxxxi The International Covenant on Civil and Political Rights, the Treaty for Establishment of the East African
Community, the African Charter on Human and Peoples’ Rights.
lxxxii Constitution of Zanzibar, 2010, Article 12 (6) (b).
lxxxiii Criminal Procedure Act of Zanzibar, 2018, section 2.
lxxxiv Ibid. Section 2.
lxxxv Ibid. Section 151 (1).
lxxxvi At the time of this research, the High Court of Zanzibar in the case of Hassan Korney Kijogoo vs the
Attorney General of the Revolutionary Government of Zanzibar and Others, Constitutional Petition No. 1 of2019, Unreported), declared these provisions as unconstitutional and ordered the necessary amendment to allow
all Judges of the High Court to grant Bail.
lxxxvii The Magistrates Court Act, Cap 16.
lxxxviii The Trial on Indictment Act, Cap 23.
lxxxix The Police Act, Cap 302.
xc The Ugandan People’s Defense Forces Act, Act No. 7 of 2005.
xci The Criminal Procedure Act, Cap 116.
xcii Article 23(6)(a) of the Constitution of Uganda, 1995.
xciii Ibid. Article 23 (6) (a) .
xciv Ibid. Article 23 (6) (b).
xcv Ibid. Article 23 (6) (c).
xcvi Ibid. Article 28 (3) (a).
xcvii According to section 75(1) of the Magistrates Court Act, the Magistrates’ Courts in Uganda have no
jurisdiction to grant bail in respect to offences of terrorism, cattle rustling, abuse of office, rape, embezzlement,
causing financial loss, defilement, offences under the Fire Arms Act punishable by at least ten years
imprisonment or more, offences triable by only the High Court, Corruption, Bribery and any other offences for
which the Magistrate Courts have no jurisdiction to grant bail.
xcviii Miscellaneous Criminal Application No. 96 of 2005, High Court of Uganda, (Unreported).
xcix In the petition of Joseph Tumushabe vs Attorney General, Constitutional Petition No.6 of 2004, Uganda
Constitution Court
c Constitutional Petition No. 18 of 2005, Uganda Constitution Court
ci In the case of Hon.Godi Akbar H. Akbar vs Uganda, (Misc. Appl. No. 20 of 2009) [2009] UGHC 13.
cii Article 49 (1)(h) of the Constitution of Kenya, 2010.
ciii Republic vs Joktan Mayende and Others, Criminal Case No. 55 of 2009, [2012] eKLR.
civ Section 123 (1) of the Criminal Procedure Code, Chapter 75, Laws of Kenya.
cv Republic vs Joktan Mayende and Others, Criminal Case No. 55 of 2009, [2012] eKLR and Mohamed
Abdulrahman Said and Another vs Republic, [2012] KLR.
cviW’Njuguna vs Republic [2004] 1 KLR 520.
cvii Article 3 of the Universal Declaration of Human Rights, 1948, article 9 of the International Covenant on
Civil and Political Rights, 1966 and article 6 of the African Charter on Human and Peoples Rights, 1981.
cviii General Comment 32
cix Article 126(1) of the Treaty for Establishment of the East African Community.
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