CHAPTER ONE

INTRODUCTION TO CRIMINAL PROCEDURE

You should be familiar with the following areas

  • Concept of Criminal Procedure
  • Objectives
  • Sources of Criminal

1.1 MEANING OF CRIMINAL PROCEDURE

Is body of laws which regulate and inquire whether or not aperson violate criminal law. Criminal procedure defines the steps to be followed by the police, prosecutors, defense attorneys and judges at each stage in the criminal justice process and also addresses the rights of criminal suspects and defendants.[1] or is the way in which substantive law is applied. It is the way which the prosecution conducts it case also the way which the courts handle criminal matters that within their jurisdiction. Criminal Procedure law entertains a frame work of laws rules that govern the administration of justice in the cases involving individuals whose commits the crimes.

1.2 OBJECTIVES OF CRIMINAL PROCEDURE

  • The importance of Criminal Procedure was stated in the case of Kamundi v R[2] where it was held that the all purposes and intentions of criminal Procedure is to laid down provisions and procedures to see that justice is done. Example section 14
  • To assist systematic administration of justice. Administration of justice is the process by which the legal system of a government is executed. The presumed goal of such administration.
  • Acquire skills in preparation of court documents viz. charge sheets, witness summons, judgments, memorandum of appeal.
  • Acquire skills in dealing with irregularities arising •Acquire skills in dealing with irregularities arising in criminal trials; vide s. 387 CPA; irregular proceedings.
  • Acquire basic knowledge and skills in the use of various sentences including non custodial measures.

1.3 SOURCES OF CRIMINAL PROCEDURE

1.3 1 The Constitution of United Republic of Tanzania 1977

The constitution is the supreme law of land and is the central source of criminal procedure. You can find issue of criminal procedure referenced in a number of articles of the constitution. For example article 13 of the constitution provides for the right to fair hearing. If there is any law of criminal procedure that is against what is contains in article 13 then that law would be illegal. Article 13(6)(c)[3] provides that no person is to be punished for an offence which does not exist as per article 13(6).

1.3.2 Statutes

The parliament of Tanzania have passed laws that regulate various aspects of criminal procedure, for example the criminal procedure Act[Cap.20 R.E 2019] which contain mandatory provision for those involved in criminal trial as to what shall be done in certain circumstances, hence if these provision are not adhered to that the trial become a nullity. Other statutes that regulates are the Police Force and Auxiliary Act, The national security Act, The minimum Sentence Act, The Economic and Organized Crime Act and Evidence Act, [Cap.200 R.E 2019]

1.3.3 Judicial decisions/ case laws

The provision of the constitution and statutes are broadly phased, and their meaning is interpreted and explained by the courts. The High Court of Tanzania and the Court of Appeal of Tanzania has final word on the meaning of the text. In Director of Public Prosecution v Daudi Pete[4] the court of Appeal, party upholding the decisions of the High Court, held as contravening the Constitutions, the provisions of section 148(5)(e) of the CPA, which prohibited a court from granting bail to an accused persons whose act or any acts constituting the offence with which the accused was charged constituted of a serves assault causing grievous harm on or threat of violence to another persons or having or possessing a firearm or an explosive. Parliament almost immediately amended the provisions governing the granting of bail under section 148(5) of section 148 but added armed robbery as one of non bailable offences. Almost the same reasons which were declared unconstitutional in Daudi Pete’s case, have been re-enacted to deny bail, with the restriction now apply only to armed robbery.

Chronologically, the feudal state belongs to the Middle Ages (5th -17th A.D).  This was also a class society; big landowner and mass peasant labour. The main functions of criminal law were: to put down resistance on the part of the exploited peasant masses as well as anti-feudal uprings of the urban population and protecting feudal ownership of land and providing various forms of compulsion of the peasant to offer their labour for the landlord.

1.3.4 International Laws

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. 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. Other example are; extradition Act and Mutual Legal Assistance.

[1] M.Lippman, Criminal Procedure, SAGE Publication Inc, Newyork (2011), 6.

[2] [1957] EA 540.

[3] The Constitution of United Republic of Tanzania, 1977 (Cap 2 as amended from time to time)

[4] Director of Public Prosecution v Daudi Pete [1993] TLR 22