CRIMINALPROCEDURENOTESINTANZANIA-MkundiLegalservice 1712900611865
CRIMINALPROCEDURENOTESINTANZANIA-MkundiLegalservice 1712900611865
CRIMINALPROCEDURENOTESINTANZANIA-MkundiLegalservice 1712900611865
I. CONSTITUTION
Constitution is a document or scheme that establishes a country’s government, defines powers and limits of
three arms of the state that is the Parliament, Judiciary, and Executive, and the necessary checks and
balances in the manner the three arms are suppose to function. It also defines the relationship between the
state and its citizen in terms of rights and obligations.
Constitution is the fundamental law of any country, In Tanzania we have two written constitution namely:
1. The Constitution of the United Republic of Tanzania of 1977 as amended time to time.
2. The Zanzibar Constitution of 1984. Constitution is said to be the source of criminal procedure because
principally the validity of any written law is determined against what is contained in the constitution.
No law is valid if it is contravenes any of the provisions of constitution in terms of sprit or procedure or
otherwise.
On the premise or basis no criminal procedure law is valid if it contravenes any provisions contained in the
constitution.
Article 13 of the Constitution of the United Republic of Tanzania of 1977 provides for the right to fair hearing.
Therefore if there is any law of criminal procedure that is against what is contain in article 13 then that law
would be illegal. The constitution contain also the fundamental rules of criminal justice, one of them is the
presumption of innocence that is the person is presumed to be innocent unless otherwise is proved beyond
reasonable doubt as provided under article 13(6) of the Constitution of the United Republic of Tanzania.
Therefore no law of criminal procedure is valid if it creates the presumption of guilty before the same been
proved. Again no person is to be punished for an offence which does not exist as per article 13(6)c of the
Constitution of the United Republic of Tanzania. Therefore they can never be a criminal procedure which
allows a punishment of a person for a nonexistent offence as that rule would be illegal.
II. STATUTES
Statutes can simply defined as a piece of legislation enacted by or under the authority of the parliament.
Those which are enacted by the parliament are called
PRINCIPAL OR PARENT LEGISLATION for example The Criminal Procedure Act, The Law of Limitation Act,
and National Security Act. On the other hand those statutes which are made under the authority of parliament
are commonly known as
SUBSIDIARY LEGISLATION. They are normally enacted by the Minister, Principal Secretaries or
Commissioners under a specific authority given by to them by the Principle legislations. One of the examples
of subsidiary legislation is Accelerated Trial and Disposal of Cases Rules of 1988 made as a GN NO. 192 of
1988. This law was made under section 192 of the Criminal Procedure Act. Therefore reading of those
statutes reveal procedural provisions relating the intended subject matter for example section 4(1) of the
Criminal Procedure Act provides that all offences under the Penal Code shall be inquired into, tried and
otherwise dealt with according to the provisions of this Act. Section 4(2) provides that all offences under any
other law shall be inquired into, tried and otherwise dealt with according to the provisions of this Act, except
where that other law provides differently for the regulation of the manner or place of investigation into, trial or
dealing in any other way with those offences. What can be observed from section 4 is that once an offence is
committed under the Penal Code procedures to be followed are those contained in the Criminal Procedure
Act. Further there are some other laws of criminal nature which may require different procedures in relation to
crimes committed against the provisions of those Laws for instance in Tanzania we have an Economic and
Organized Crimes Control Act Cap 200 Revised Edition 2002. Therefore if no other procedures in required by
the other laws than the procedures to be followed are those provided by the Criminal Procedure Act.
V. BILATERAL AGREEMENT
The mutual assistance in criminal matters Act empowers the Attorney General on behalf of the government
to enter bilateral agreement for the enforcement of the criminal law and procedure. One of such agreement
have been entered in Tanzania is EXTRADITION TREAT that exist between Tanzania and Kenya and many
other countries. This treat has got some procedural aspects relevant to the criminal law.
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