CRIMINAL PROCEDURE

DIPLOMA IN LAW

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 INTRODUCTION TO CRIMINAL
PROCEDURE
• MEANING OF CRIMINAL PROCEDURE
– Is the branch of law which deal with crimes.
– It involves a system i.e criminal system as opposed
to civil system.
– The system involves institutions such as
– Police
– Courts
– State orders

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• All the Courts except the Court of Appeal have
the original Jurisdiction on criminal matters
while the Court of Appeal have Appellate
jurisdiction.

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• There are various Statutes which provides for
criminal procedure, these includes;
• The Penal Code [Cap 16 of R.E of 2019]
• The Magistrates’ Courts Act [Cap 11 of R.E of 2019]
• The Criminal Procedure Act [Cap 20 of R.E of 2019]
• The Minimum Sentence Act [Cap 90 of R.E of 2019]
• The Police Force and Auxiliary Service Act, CAP 322 R.E
of 2019]

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• The Institutions responsible for criminal
procedure includes;
• Juvenile Courts
• Ward tribunals
• Court Martial
• District Courts
• RM’S
• Primary Courts
• High Courts

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 PURPOSES AND IMPORTANCE OF
CRIMINAL PROCEDURES
• The importance of criminal procedure was
stated in the case of Joseph Masunzu v R
CRIMINAL APPEAL NO. 3 OF 1991.
• where Justice Katiti held that“….We can’t
peaceful make our journey through life
without the law telling us the light direction to
follow, and sometimes even the time to follow
and when to start our journey and through
which route….”

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• The fundamental purpose of criminal
procedure was also stated in the case of
Kamundi v R , [1957] EA 540. where it was
held that the all purpose and intention of
criminal procedure is to laid down provisions
and procedures to see that justice is done.

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 DIFFERENCES BETWEEN CIVIL
PROCEDURE AND CRIMINAL
PROCEDURE
• The burden of proof in criminal procedure is
that beyond reasonable doubt, while, the
burden of proof in civil cases is on balance of
probabilities.
• A person is said to be prosecuted in criminal
cases, while, In Civil cases a person is said to
be sued.

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• Criminal cases are instituted by lodging a
charge sheet of information before the court
of law as per section 132 of CPA, while, civil
cases are instituted by presentation of plaint
as per order 4 rule 1 & section 22 of CPC.

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• Criminal procedure entails the frame work of
laws that govern the administration of justice
in cases involving an individual who has been
accused of a crime, while, CIVIL procedure on
the other hand entails the frame work of laws
that govern the administration of justice in
cases involving an individual who has DONE A
CIVIL WRONG.

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• Civil procedure is the written set of rules that
sets out the process that the court will follow
when hearing cases of civil nature, while,
Criminal procedure is the written set of rules
that sets out the process that the court will
follow when hearing cases of criminal nature.

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• In civil matters the controversy is between
individuals and it is put to one of them to bring
an action against the other, while, criminal
procedure is different from civil procedure
because the burdens and results are dramatically
different. In criminal matters action is taken by
the state against an individual or organization for
violation of law. In case an accused person has
been convicted of crime he can put-on probation
or ordered to pay fine or confined to serve term
in jail.

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• Criminal Procedures rules on the other hand
are designed to give both parties a set of
equal rules to go by, while, the rules of
criminal procedure are different from civil
procedure because the results and objectives
of the litigation differ. Criminal procedure
rules are generally designed to protect right of
the suspect and the accused person.

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Differences between Criminal law and
Criminal Procedure
• Criminal law
I. Substantive Law .
II. It declares what acts are punishable
III.It defines crimes, treats of their nature and
provides for their punishment

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Criminal Procedure
• Remedial/Procedural Law
• It provides how the act is to be punished
• It provides for the method by which a person
accused of a crime is arrested, tried or
punished.

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 SOURCES OF CRIMINAL PROCEDURE
• Constitution
– How Constitution is the source of criminal
procedure?
• Constitution is the fundamental law of any country,
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 contravenes any of the provisions of
constitution in terms of sprit or procedure or
otherwise.

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• 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.

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• 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) (b) 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.
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• 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 there can
never be a criminal procedure which allows a
punishment of a person for a non-existence
offence as that rule would be illegal.

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 2.Statute
• Piece of legislations made by the parliament or
any other bodies authorized to do so, form a
basic source of criminal procedure in Tanzania.
• For example the Criminal procedure Act is a basic
source of criminal procedures, 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

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• 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.

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• 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.

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 3. International law
• International law entails a total of norms
accepted by the international community to
regulate relation between state and also
between states and their subjects.
• The international laws are applicable in Tanzania
subject to the provision of Article 63(3) (e) of the
Constitution. International law is also one of the
sources of criminal procedure especially in the
areas of human right promotion and protection.

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• There a number of international convections
which have a direct bearing to the
administration of criminal Justice, One of the
convection of this nature is the convention of
the right of the child of 1990.
• This convention protects the child under the
age of 18 years against capital punishments or
life imprisonment and calls of a separate
detention facilities from adults.

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 4. Precedents
• It is another important source of law in
Tanzania.
• These are cases arising from the decision of
the High Court and Court of Appeal.
• They are either reported cases or unreported.
Therefore they form the basic precedents of
Tanzanian laws and bind lower courts thereto.

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• Reported cases in Tanzania can be found in a
number of Law Reports.
• Between 1957and 1977 cases reported from
the High Court of Tanzania and the East
African Court of Appeal appeared in East
Africa Law Reports.
• Precedents or case laws are substantially the
basic source of criminal procedure.

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• For example the case of Mwango s/o Manana
vs R [1936]3 EACA, pg.29. , lay down
important criminal procedures regarding
conducting identification parade.

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 The current criminal procedures in
Tanzania
1. Investigation
Investigation is most important step after a
report of any criminal offence, because it’s
the only thing that will help the prosecution
to have the basis for their case in court
through accumulation of evidence.
Apprehension can be done at the scene of
crime; if not detection work of various kinds
may occur until the police have a suspect.

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 2. Arrest
• Police Officer has powers to arrest with or
without warrant depending on the certain
circumstances as provided for under S. 14 of
the Criminal Procedure Act, which includes
when commission of offence is done at his
presence.

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• Arrest can be done by private person without
warrant when involving injury to property by the
owner of the property or his servants or a person
authorized by the owner of the property and
other circumstances provided by s.14 of the
Criminal Procedure Act.
• Arrest can be done by magistrate as well, when
the commission of offence is within the local
limits of his jurisdiction s.17 of the Criminal
Procedure Act.

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 3. Search
• Search must be carried in accordance with the
law and laid procedures, because it interfere
ones privacy, liberty and freedom.
• Hence you must seek search warrant from
appropriate authority. Two types of search; first
is warranty from in charge of a police station
s.38 Criminal Procedure Act.
• This may be issued to any person including police
officers. The second one is search warrants by
the court.
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 4.Charge Sheet (Charge)
 Charge is a foundation of institution of
criminal proceedings against an accused.
 This is a document that states the offences
and provisions of the laws that the accused
has breached together with his personal
information.

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• Prosecution will draw charge if the case is
triable by subordinate courts or information
if the offences are triable only by High Court.
• There are certain offences triable by High
Court only such as incest, murder, arson and
treason.

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 5.Plea Taking
• Here the accused will be required to plead for
the charges read to him .
• The accused will be asked by the court to give
a plea of guilty or not guilty.
• If the accused plead guilty the plea must be
unequivocal , which means clear plea if the
plea is not clear court enters a plea of not
guilty.

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• If plea of not guilty is entered by the court the
prosecution will be allowed to proceed to
present their case.
• If postponed the accused will have a chance
to ask for bail, if is bailable offence.
• If the plea of guilty is entered then the
procedure will skip to Acquit/Convict till the
end.

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 6.Bail
• Most of time if accused plead guilty and plea
is entered bail do not apply.
• After plea a person is remanded or bailed. Bail
is constitutional right art.13 (6) (b) of United
Republic of Tanzania Constitution, [Cap 2, R.E
2019], presumption of innocence.

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• There are unbillable offences like Treason,
armed robbery, defilement and murder under
s.148 (5) of Criminal Procedure Act.
• Police bail can be granted before matter set
to court.
• Court bail is when the matter is set in court.

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 7.Preliminary Hearing (PH)
• This is an important stage where the parties
meet to draft a memorandum of agreed fact
so as to expedite the case speed .
• The parties have to meet decide on what
matters are not in dispute and those matters
are not supposed to be brought during trials
neither party is required to prove any of those
facts except the facts in dispute only.

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 8. Trial Stage
• This is when the case is set for hearing or
mention and the prosecution have to prove
whether they have case against the accused
or not, before the court.
• Ref: Section 275 and 228 of the Criminal
Procedure Act [Cap 20 R.E 2019] Section 148
and 63 Section of the Criminal Procedure Act
[Cap 20 R.E 2019]

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 9. Prosecution Case
• This is a stage where the prosecution have to
present their case ,where the prosecution will
call upon the witnesses to give their
testimonies and present any other evidence
that support their case, for court to decide
whether there is a case to answer or not.

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• It is in this stage where the witness will be
examined by prosecution at first (Examination
in Chief), then will be examined by defense
(Cross examination) lastly will be reexamined
by prosecution (re-examination).
• Importantly: Generally the burden of proof
lies on Prosecution and the standard of proof
is beyond reasonable doubt.

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10.Case to Answer /No Case to answer
• This is a stage where the court has to decide
on whether there is a case to answer or not,
basing on the evidence provided by
prosecution.
• If no case to answer the court will acquit the
accused, if there is a case to answer accused
will be having chance to present evidence in
his support.

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 11. Defense Case
• Basically here the defense team will present
their evidence, witness be examined in chief,
cross examined by prosecution and re-
examined by the defense.
• Final Submission: This is a summary of the
whole presentation from each side; defense
will be the first to make their final submission
then followed by the prosecution side.

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• Final submission can be orally or in writing,
this have to be with the leave of the court.

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 12. Acquit or Convict
• This is a stage where by the court will rule
depending on the submission by prosecution
and defense if the accused is found guilty or
not.
• Therefore the accused can be found not
guilty, if found not guilty, game over, he will
be acquitted and set free, If found guilty the
next step will follow.

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13. Mitigating and Aggravating factors
• When the accused is convicted, Defense will
be given chance to present factors that tend
to diminish the magnitude of sentence
whereas prosecution will be give factors that
tend to increase the magnitude of the
sentence.

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 14. Sentence and Judgment
• This will be second last thing, the court will
read the sentence in the judgment and there
is a set rule in the law that it shall be within
ninety days under s.311 of the Criminal
Procedure Act.
• The contents of the judgment are provided by
the law under s.312 of CPA.

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 15. Right to Appeal Explained
• The judge /magistrate must pronounce the right
to appeal for any aggrieved party with the
decision.
• Note: The sixty days rule established under
section 225 of CPA require criminal prosecution
to be finalized within 60 days from the day of
their commencement subject to certain
exceptions like in serious offences whose
investigation is likely to protracted such as
treason.

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TOPIC TWO

JURISDICTION

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 Jurisdiction
• Jurisdiction is the defined area over which
authority and responsibility extends.
• Is the extent to which the court can exercise
its powers.
• Jurisdiction is the question of law, hence the
court cannot exercise any power other than
which have been conferred on them by the
law.

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 CATEGORIES OF JURISDICTION
• 1. ORIGINAL JURISDICTION
– Refers to the power of the Court to hear and
determine the case at the first instance.
– Ref. Sections 164 and 165 of CPA
– Part III and IV

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 2. COMMITTAL PROCEDURES
• Subordinate court have power to undertake
preliminary inquiry so as to ascertain whether
sufficient materials exists so as to send a case
to the High Court.
• Eg. Murder, infanticide
• Ref. S. 178 of CPA
• CASE: Hassan Waliseme v Republic 1958 EA 800

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 3. APPEALLATE JURISDICTION
• Refers to the power of the Higher Courts in
hierarchy to deal with a matter sent to it by
way of appeal.
• Ref. Art. 13 (6) of the CURT,1977.
– S. 66 OF CPA and S. 3 of MCA

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• Procedure to appeal on matters originating
from primary court to the Court of Appeal; Is
only allowed when there is a point of law and
the High Court checks the existence of point
of law.
• No appeal to the Court of Appeal when there
is no point of Law.

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 4. EXTENDED/ PERSONAL
JURISDICTION
• Refers to the jurisdiction vested to the
Magistrate to try matters which can be tried
by the High Court.
• Ref. section 173 of CPA
• Section 45 of MCA

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 5. REVISIONAL JURISDICTION
• This is the type of jurisdiction where the High
Court is vested with the power to call for the
records of any criminal proceeding of the
Lower Courts so as to examine whether the
decision were appropriate/ to ascertain
regularity, correctness, legality of the
subordinate findings and sentence (order)
passed by subordinate Courts.

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• The High Court may exercise its jurisdiction;
• On its motion
• On Application of parties
• Any other way including public response.
Ref. s. 372 and 376 of CPA
S. 21-31 of MCA

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 6. SENTENCING JURISDICTION
• Some of courts are limited in the sentencing
jurisdictions.

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There are three main areas of jurisdiction:  
• personal (personam);
• territorial (locum); and
• subject matter (subjectam
NB: Jurisdiction over an area can relate to a number
aspects, for example territory, the nature of offences,
sentencing powers, ability to hear appeals.

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 Categories of jurisdiction

1. Territorial
This refers to the geographic remit. It may be a
ward, district, region, state, etc.
 
2. Sentencing  
This relates to the sentencing powers, i.e.
fines, imprisonment, corporal punishment,
death penalty.

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 3. Original
If a court has original jurisdiction it indicates
that it is the Court of first instance with power
to conduct a trial.
 

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