QUESTION; Discussing different amendments of the evidence Act, by

showing the Laws amended the Act in a Specific year and reason for that
amendment.

INTRODUCTION

(An overview of the work)

The law of evidence is very significant since it provides for the wide ground
of judges to make decisions on easy way and parties to the disputes or trial
to prove their facts before the court of law. The law provides the general
understanding on the meaning of evidence what evidences are admissible
and how to produce that evidences at the court of law.

On this work generally we have examined the Tanzania Evidence Act Cap 6
of 1967, since its establishment and various amendments as time to time.

The paper tries to speculate the reasons for the amendments, what
amendment with refences with other laws particularly the Indian Evidence
Act

The act was established in 1967 but followed by various amendments in

1971, 1980, 1998, 2000, 2002, 2007, 2012, 2015, 2016, 2019, and currently
2022.

Why this Act needed amendments, what amendments were made and were
the amendments effective? This issue is what made the preparation of this
academic paper.

On the approach we shall see the series of amendments under the following
category;

The establishment of the Evidence Act Cap 6 1967

Establishment of the Evidence (Amendment) Act, 1980

The amendments made in the evidence act on 2007

The Written laws (miscellaneous amendments) no. 3) act, 2011

The Written laws (miscellaneous amendments) no. 2) act, 2012

The Evidence Act Cap 6 R. E 2022

The establishment of the Evidence Act Cap 6 1967

This marked the beginning of the Evidence Act and its application in united
republic of Tanzania assented by the late Julius Kambarage Nyerere on 27 th
April 1967 written ‘’ An Act to declare the Law of Evidence enacted by
the parliament of the united republic of Tanzania ‘’. 1 The Tea was drafted by
an Englishman, James Fitz-James Stephen and derived largely from the
Indian evidence act of 1872. Since its enactment the law has undergone
several amendments for the purpose of addressing several weakness, which
posed challenges in both criminal and civil proceedings. Among the greatest
weakness was on the prove of circumstantial evidence since the law did not
expressly explain the concept about circumstantial evidence.

This act was adopted from the Indian Evidence Act, the law created a wide
range for the court and the parties to the suit to prove the facts. This Act was
later amended and establishment of new sections these sections were
amended to the changes of needs within its application and as well the
development of science and technology.

Establishment of the Evidence (Amendment) Act 1980

In 1980 the Tanzania evidence Act Cap 6 was revised and several
amendments were made and new provisions were also established the Act
was aimed at making the amendment on the Evidence Act Cap 6 of 1967 the
Act was introduced as Establishment of the Evidence( Amendment) Act,
19802

This act amended the following sections

1
Section 1 of the Law of evidence No.6 1967 page 9
2
Establishment of the Evidence( Amendment) Act, 1980
Amendment of section 3

Section 3 of the principal Act was amended in subsection (1)-(a) by inserting

immediately before the definition’’ court’’, the following new definition. 3

‘’confession’’ means—

(a) Words or conduct, or a combination of both words and

conduct, from which , whether taken alone or in conjunction
with the other facts proved , an inference may reasonably be
drawn that the person who had said the words or did the acts
constituting the conduct has committed an offence or;
(b)A statement which admits in terms items either an offence the
person making the statement has committed an offence; or
(c) A statement containing an admission of all the ingredients of
the offences with which in maker is charged; or
(d)A statement containing affirmative declarations in which
incriminating facts are admitted from which when taken alone
or in conjunction with other facts proved, an inference may
reasonably be drawn that the person making the statement
has committed an offence;

Reasons for the amendment of this section

The section was added with a new definition ‘’confession’’ as to mean the
statements or conducts made by an accused person as to admit that he or
she had really conduct that offence. This was due to in some instances within
criminal offences or civil litigations people elect to confess before the court
of law that they were responsible for the matter or the offence at present at
the court of law.

Repeal and replacement of section 27

Section 27 of the principal Act was repealed and replaced by the following;

3
Establishment of the Evidence( Amendment) Act, 1980
‘’ admissibility of confessions to police officers’’ 4

27.-(1) a confession voluntarily made to a police officer by an accused

person of offence may be proved as against that person. 5

(2) the onus of proving that any confession made by an accused person
was voluntarily made by him shall lie on the prosecution.

(3) a confession shall be held to be involuntary if the court believes that

it was induced by threat, promise or other prejudice held out by the police
force or by any other person in authority.

Reason for the Repeal and replacement of section 27

The section is about the admissibility of confessions to police officers on

which the law found it to be necessary to accept the confession by an
accused to the police offer but there condition to accept that confession as
prove to that:

1. It was not induced with any treat or violence

2. It was not induced by promise
3. It was voluntarily made

Repeal and replacement of section 28

Repeal and replacement of section 33

Section 33 of the principal Act was repealed and replaced by the following

‘’ confessions may be taken into consideration against co-accused’’

33.-(1) when two or more person are being tried jointly for the same offence
or for different offences arising out of the same transaction, and a confession
of the offence or offences charged made by one of those persons affecting

4
Section 27 of the Evidence Act Cap
5
Section 27 (1) of the Evidence Cap 6
himself and some other of those persons is proved, the court may take that
confession into consideration against that other person. 6

(2) Notwithstanding subsection (1), a conviction of an accused person

shall not be based solely on a confession by a co- accused.

(3) in this section ‘’ offence includes the abetment of, or attempt to

commit the offence charged, and any other offences which are minor and
cognate to the offence charged which are disclosed in the confession and
admitted by the accused.’’

Amendment of section 34

Section34 of the principal Act is amended by deleting introductory clause of

that section, commencing with the word ‘’ statements’’ and ending with the
word ‘’ cases’’ and the punctuation’’-‘’ and substuting for it with the
following clause:

‘’ statement by deceased person, etc., when…7’’

34. statements, written or oral, of relevant facts made, by a person who

cannot be summoned owing to his enticement to diplomatic immunity ,
privilege or other similar reason, or. Who can be summoned’ but refuses
voluntarily to appear before the court as a witness, or who has become
incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which in the circumstances of the
case appears to the court, to be unreasonable, are themselves admissible in
the following cases:’’

The principal Act is amended by adding, immediately after section 34, the
following new sections:

‘’ Admissibility of certain trade or business’’ 8

6
Repeal and replacement of section 33 of the Evidence Act Cap 6
7
Section 34 of The Evidence Act Cap 6
8
Section 34A (1) The Evidence Act Cap 6
34A.-(1) in, any criminal proceedings where direct oral evidence of a relevant
fact would be admissible, any statement contained in any writing, record or
document, whether in the form of any entry in a book or in any other form,
and which tends to establish that fact shall, on production of the writing,
record or document, be admissible as evidence of that fact if-

(a) The statement, was made, as a memorandum or record of the act,

transaction, occurrence or event; or
(b)The writing record or document is, or forms part of, a record relating to
any trade o business and was made or compiled in regular course of the
business where it is the practice to record such act, transaction,
occurrence or event when it takes place or within a reasonable time
after
(2)All other circumstances of the making of the statement, including
lack of personal knowledge by the person making it, may be held
as affecting its weight as evidence but those circumstances shall
not affecting admissibility
(3)In estimating the weight, if any, to be attached to a statement,
admissible as evidence by virtue of this section regard shall be
had to all circumstances from which any inference can be
reasonably drawn it’s to the accuracy or otherwise or not the
person making the statement, or concerned with making or
keeping the writing, record or document, containing the
statement, has any incentive to conceal or misrepresent the
facts.
(4)For the purpose of this section-
‘’business’’ includes a occupation, profession, trade or calling of
every kind;
‘’ statement’’ includes any representation of fact, whether made
in words or in any other way.
 34 B.-(1)Proof by written statements in criminal
proceedings.9
34 C.-(1)proof written statements in civil proceedings10

Addition of section 43 A 11

Relevancy to judgment in criminal proceedings

Amendment of section 76

There was an amendment to by deleting the definition of ‘’bank’’ and

substuting for it the ‘’bank’’ or ‘’banker’’

Amendment of section 127

Section 127 of the principal Act is amended-

Subsection 2 and 3 was deleted and substituted by the following subsections

(3) notwithstanding any rule of law or practice to the contrary, where

evidence received by virtue of, subsection (2) is given on behalf of the
prosecution and is not correlated by any other material evidence, in support
of it impacting the accused, the court may, after warning itself of the danger
of doing so, act on that evidence to convict the accused

Repeal and replacement of section 130

‘’ evidence of spouses and by..’’12

Repeal and replacement of section 131

Section 131 of the principal Act was repealed and replaced by the following
section

9
Section 34 B (1) of the Evidence Act Cap 6
10
Section 34 C (1) of the Evidence Act Cap 6
11
Section 43 A of the Evidence Act Cap 6
12
Section 130 of the Evidence Act Cap 6
‘’general competency of spouses in civil proceedings ‘’ 13

131. in all civil proceedings the parties to the suit, and the husband
and wife or wives of any party to the suit, shall be competent and
compellable witnesses’’.14

Amendment of section 132

Section 12 of the principal Act was amended by inserting, immediately after

the word ‘’ document’’ where it last occur in that section, the words ‘’or a
copy of it’’ and a comma after the words.15

Amendment of section 134

Section 134 A of the principal Act is amended in subsection (1)-

(a) By meting the full stop occurring after the word ‘’ client at
the end of the provision to, that subsection; and
(b)By adding, immediately after paragraph (b) of the provision to
that subsection the following paragraph
‘’C’’ proceedings in which the professional conduct of the
advocate himself is or might be in issue.’’ 16

Addition of new section 141 A

The principal Act was amended by adding, immediately after section 141,
the following section;

‘’evidence in offence of receiving.’’17

141 A,-(1) where any person is charged with the offence of receiving any
property while he knew it to have been stolen, or for having in his possession

13
Section 131 of the Evidence Act Cap 6
14
ibid
15
Section 132 of the Evidence Act Cap 6
16
Section 134 A of the Evidence Act Cap 6
17
Section 141 A (1) of the Evidence Act Cap 6
any stolen property or property fraudulently or in any other way unlawfully
obtained, then for the purpose of proving guilty knowledge, there may be
given at any stage of the proceedings-18

(c) Evidence of the fact other property stolen or fraudulently or in

any other way unlawfully obtained, was found or had been in
his possession within the period of twelve months
immediately preceding the date of the commission or
discovery of the commission of the offence with which that
person is then charged-
(d)Subject to subsection (2), evidence of the fact that within the
period of five years immediately preceding the date of the
offence with which he is then charged he was convicted of
any offence involving fraud or dishonesty.
(5)No evidence of the fact mentioned in subsection (1) (b) may be
proved unless-
(a) a written notice of the intention to give evidence of the
previous conviction or conviction has been given to the accused
or to his advocate or other representative at least three days
before the day when the evidence is intended to be given and
(b) evidence has been given that the property in respect of which
the accused is being tried was found or had been in his
possession.

Amendment of section 147

Section 147 of the principal Act was amended by adding, immediately after
subsection(4), the following new subsection;

‘’ (5) Notwithstanding the preceding provision of this section, the court may
in any case, defer or permit to be deferred any examination or cross-
examination of any witness until any other witness or witnesses have been

18
ibid
examined-in- chief, cross-examined, re-examined or, as the case may be
further examined –in- chief or further cross-examined.’’ 19

Reasons for the amendment and establishment of new sections in

the evidence act in amendments of 1980

in 1980 the evidence Act was widely amended the amendments of these
section were the results of various problems on which the court was difficult
to answer or even to reach the justice accordingly. For instance section 127
of Cap 6 came with an approach of child with the tender age in giving
evidence either the child with the tender age shall give evidence as long he
or she understands the responsibility of speaking the truth by not telling lies
and having possession of sufficient intelligence see the case of Agustino
Lyanga v. Republic.20

Also in the case of GODI KASEGALA V. R

The amendments made in the evidence act on 2007

As from The Written laws (miscellaneous amendments) Act 2007 the law was
amended to introduce definition and establishment of new sections 21

32. this part shall be read as one with the Evidence Act, hereinafter referred
to as the’’ principal Act’’

The principal act is amended by adding immediately after section 40

the following new section-22

Section 40. evidence obtained under cover operations

(a) an information retrieved from computer systems, networks or servers, or

19
Section 127 of the Evidence Act Cap 6
20
Criminal Appeal No.105 of 1995
21
The Written laws ( miscellaneous amendments) Act 2007
22
ibid
(b) the record obtained through surveillance of means of preservation of
information including facsimile machines , electronic transmission and
communication facilities;

(c) the audio or video recording of acts or behaviors or conversation of

persons charged’

Shall be admissible evidence.23

Amendment of section 76

The principal act is amended by adding immediately after the definition of

the word ‘’ bank’’ appearing in section 76, the following new definition-

‘’Banker’s books’’ include ledgers, cash books, account books and any other
records used in the ordinary business of the bank or financial institution,
whether the records are in written form or a data message or kept on an
information system including but not limited to computers and storage
devices, magnetic tape, micro-film, video or computer display screen or any
other form of mechanical or electronic data retrieval mechanism’’ 24

Addition of section 78 A

35. the principal act is amended by adding immediately after section 78 the
following new section-

‘’ Electronic records’’

78 A-(1) A print out of any entry in the books of a bank on micro-film,

computer, information system, magnetic tape or any other form of
mechanical or electronic data retrieval mechanism obtained by a mechanical
or other process which in itself ensures the accuracy of such print out, and
when such print out is supported but a proof stipulated under subsection (2)
of section 78 that it was made in the usual and ordinary course of business,

23
ibid
24
Section 76 of the Evidence Act Cap 6
and that the book is in custody of the bank it shall be received in evidence
under this Act.25

(2) any entry in any banker’s book shall be deemed to be primary

evidence of such entry and such banker’s book shall be deemed to be a ‘’
document’’ for the purposes of subsection (1) of section 64.’’ 26

Reasons for The amendments made in the evidence act on 2007

The amendments were highly necessitated by the growth and development

of science and technology or the ICT information communication technology
by which it became necessary to accept the evidence obtained electronically
previously it was difficult to prove the evidence based on electronic
records such as tape recorders because the TEA did not provide for
admissibility of such type of evidence due to such need it made a force to
establish the laws on which the electronic evidence could be admissible 27

The Written laws(miscellaneous amendments) no. 3) act, 2011.28

Amendment of the evidence Act cap 6 Section 3 this part shall be read as
one with the Evidence Act, hereinafter referred to as the’’ principal Act’’

Amendment of section 3

This principal act is amended in section 3 by-

(a)deleting the definition of the term ‘’ police officer’’ and substituting for it
the following new definition;

‘’ police officer ‘’ means a member of the police force or above the rank of
constable;

(b) inserting the phrase ‘’ being physically present at the time of making the
statement or by use of other means of communication including

25
Section 78 A (1) of the Evidence Act Cap 6
26
Section 78 of The Evidence Act Cap 6
27
ibid
28
The Written laws( miscellaneous amendments) no. 3) act, 2011
teleconference or video conference’’ between the words ‘’ witnesses’’ and in
relation to’’ which appears in the definition of ‘’oral evidence’’ 29

Reasons for the amendments of these sections

The amendment was straight forward by substuting the meaning of police

officer and showing his or her respective functions on which he shall conduct
who shall be at the physical present as he may use several means as to
communicate in performing his functions or duties.

The Written laws ( miscellaneous amendments) no. 2) act, 201230

construction 34. Amendment of section 34 B

section.33 this part shall be read as one with the Evidence Act, hereinafter
referred to as the’’ principal Act’’

section.34 the principal act is amended in section 34 (B) by-

(a) Deleting a semi colon(;) and substuting for it with a full

colon(:) appearing in paragraph (e); and
(b)Inserting immediately after paragraph (e), the following
proviso;
‘’ provided that the court shall determine the relevance of any
objection’’31

The reasons for the amendments of these sections

Within this miscellaneous amendment there were some amendments on two

sections 33 together with section 34 basically 34 (a) was about substuting
the punctuation marks and (b) was about the law in determine the relevance
of any objection. Which the court may determine.

29
Section 3 of The evidence Act Cap 6
30
The Written laws( miscellaneous amendments) no. 2) act, 2012
31
Section 34 (B) The evidence Act Cap 6
The written laws miscellaneous amendment amendments no. 2 Act
2016

In the gazette of the united republic of Tanzania no.21 vol. 97 dated 20 th may
2016 printed by the government printer, Dar es Salaam by order of
government (the written laws miscellaneous amendment amendments no. 2
Act 2016. Part VIII amendment of the evidence act cap. 6 25. Construction
26. This made the amendment of section 12732

this part shall be read as one with the evidence act, hereinafter referred to
as the ‘’the principal Act’’.

section 127 of the principal act is amended by-

(a) inserting immediately after subsection (7) the following-

‘’(8) Notwithstanding the preceding provisions of this section, where in

any criminal proceedings the only independent evidence is that of a child of
tender age, the court shall receive the evidence, and may, after assessing
the credibility of the evidence of the child of tender age on its own merits,
notwithstanding that such evidence is not corroborated proceed to convict, if
for reason to be recorded in the proceedings, the court is satisfied that the
child of tender age is telling nothing but the truth’’ 33

(b) renumbering subsection (8) as subsection (9)

Reasons for the amendments under this section

On this point also the law made emphasize on section 127 as the evidence of
child of the tender age shall be accepted if the child is in a possession of
sufficient knowledge and responsibility of speaking the truth as on
the case of Agustion Lyanga v. Repblic34

32
The written laws miscellaneous amendment amendments no. 2 Act 2016
33
Section 127 of The Evidence Act Cap 6
34
Section 126 of the Evidence Act Cap 6
Amendment on the evidence Act Cap 6 R.E 2019 In the current R.E
2022

The evidence Act Cap 6 was revised on the following sections section 134 (1)
R.E the amenments are seen in R.E 2022

Amendment on section 126.

‘’Estoppel of a bailee or licencee’’35

Section 126 has been amendend and it shall read as follows; 36

126. A bailee or licencee shall not be permitted to deny that his bailor or
licencensor had, at the time when bailement or licence commenced,
authority to make such bailment or grant such licence;

Reasons for the amendment of this section

The amendment has made not to permit a bailee or licensee that his bailor
or licensor had , commenced, authority to make such bailment or grant such
licence.

‘’Professional communication act No 19 of 1980 s. 15’’

134,-(1) an advocate shall not at any time be permitted, unless with his
client’s express consent, to disclose any communication made to him in the
course and for the purpose of his employment as an advocate by or on
behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of
his professional employment , or to disclose any advice given by him to his
client the course and for the purpose of such employment

Reasons for the amendment of this section

The amendment has on limited circumstances not allowing the advocates to

disclose the communications or documents of their client unless the consent

35
Section 134 of the Evidence Act Cap 6
36
ibid
by their clients this amendment is aimed at strengthening the issue of
confidentiality of the advocate legal profession to their clients.

BIBLIOGRAPHY

STATUTES

1. The Evidence Act Cap 6

2. Indian evidence act of 1872

CASES

1. GODI KASEGALA V. R 2007

2. Agustion Lyanga v. Republic Criminal Appeal No.105 of 1995