DEFENCES TO CRIMINAL CHARGES IN TANZANIA

a
b DEFENCES TO CRIMINAL CHARGES IN TANZANIA
 DEFENCES TO CRIMINAL
CHARGES IN TANZANIA

Ofmedy Mussa Mtenga

LLB UDSM, LLM UNICRI&UNIVERSITY OF TORINO

Published by Kifii Blacksmith,

Website: www.sheriabooks.com
Email: [email protected],
Phones: +255 787 95 27 73
+255 767 15 41 41

Copyright ©Ofmedy Mussa Mtenga, 2023

All rights reserved. No part of this publication may be

reproduced, stored in a retrieval system or transmitted
in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior
permission of Kifii Blacksmith or Ofmedy Mussa Mtenga.
 FOREWORDS

This manual will assist criminal law practitioners

such as defence counsels, State Attorneys, Public
Prosecutors, Honorable Judges and Magistrates, law
enforcement officers as well as law students to quickly
learn or grasp types of defence applicable in criminal
charges. The manual has included a good number
of current Court of Appeal precedents to update the
reader on appropriate legal positions. It is my hope that
it will produce fruitful results in the administration of
criminal justice in Tanzania.

ii DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 ACKNOWLEDGEMENTS
I first and foremost give thanks to the Almighty God,
the creator of heaven and earth, the Savior of the world,
“in him my life is anchored and in him alone, there’s no
failure!”

Other special thanks are conveyed to my caring, loving,

and supportive wife, Hilda John and our children; my
deepest gratitude. It was a great comfort and relief to
know that you were willing to provide management
of our household activities while I was preparing this
work. My apology to you and our children for taking
away the time you should have benefited out of me. My
heartfelt thanks.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 TABLE OF CONTENTS

FOREWORDS........................................................ ii
ACKNOWLEDGEMENTS........................................ iii
TABLE OF CONTENTS...........................................iv
INTRODUCTION....................................................vi

PART ONE .............................................................1

DEFENCE OF ALIBI................................................1
1.0 Introduction................................................... 1
1.1 Procedures to rely on defence of alibi.............. 1
1.2 Why furnish notice?....................................... 3
1.3 Considering alibi even in absence of notice..... 3
1.4 Burden of proof in alibi.................................. 5
1.5 Relaxation on the burden to prove alibi.......... 5

PART TWO.............................................................7
INTOXICATION......................................................7
2.0 Introduction................................................... 7
2.1 Types of intoxication...................................... 7
2.1.1 Voluntary intoxication................................. 7
2.1.2 Involuntary intoxication.............................. 8
2.2 When intoxication can be a defence................ 8

PART THREE.......................................................11
DEFENCE OF INSANITY.......................................11
3.0 Introduction..................................................11
3.1 Exceptions to the rule of sanity.....................11
3.2 Things to remember in insanity.....................12
3.3 Procedure to plead defence of insanity...........13
3.4 Burden of proof in Insanity defence...............15

iv DEFENCES TO CRIMINAL CHARGES IN TANZANIA

PART FOUR.........................................................16
PROVOCATION AS A DEFENCE TO MURDER........16
4.0 Introduction..................................................16
4.1 Proof of provocation.......................................17
4.2 Essentials in provocation..............................18

PART FIVE...........................................................21
Self-Defence........................................................21
5.0 Introduction..................................................21
5.1 Burden of proof in self- defence.....................22

PART SIX ...........................................................24

OTHER DEFENCES..............................................24
6.0 Introduction to other defences.......................24
6.1 Immaturity of Age..........................................24
6.2 Mistake of fact...............................................25
6.3 Compulsion...................................................25
6.4 Retrospectivity of the law...............................25
6.5 Bona Fide Claim of Right...............................26
6.6 Death within a Year and a Day......................26
6.7 Judicial immunity.........................................27
6.8 “autrefois acquit” as a defence.......................27
6.9 “autrefois convict” as a defence.....................28
6.10 Presidential Pardon as defence......................29
6.11 Parliamentary Privileges................................30
6.12 Prosecutions which require consent of DPP...30

LIST OF BOOKS...................................................32
REPORTED CASE LAWS.......................................32
UNREPORTED CASE LAWS...................................33

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

v
 INTRODUCTION

Defences to criminal charges that have been discussed

in this manual, are not restricted only to those which
may be raised by the accused at the stage when he is
called to defend his case. I have included both, those
which may be applied at any time from when a charge
is instituted in court and throughout the trial and those
which normally the accused raises during defence case
when he is called to answer the allegations facing him. I
have done so for ease of understanding not only by law
practitioners but also students.

vi DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 PART ONE
DEFENCE OF ALIBI
1.0 Introduction

The word “alibi “is a Latin word, meaning “elsewhere

“or “at another place”. Based on that definition, an
accused person raises the defence of alibi by alleging
that during the particular time when the offence was
committed, he was not present at the scene of crime
hence he could not have been the one who committed
it.1 One can therefore define defence of alibi as;

“A defence raised by an accused person, alleging

that, when the purported offence was committed,
and or during the said particular time, he was
not at the said scene of crime”, and therefore
rendering it impossible for him to have committed
the said offence.

1.1 Procedures to rely on defence of alibi

Any person charged with an offence of which during

its commission he was at another place other than the
scene of crime, may raise the defence of alibi to cast
doubts on the prosecution’s case of the impossibility of
him committing it. The law has put in place procedures
to follow when the accused person intends to rely
on such defence, and it is required of him to do the
following;

1 MsafiriBenjamin vs Republic, Criminal case No.549 of 2020 CAT

(unreported) pg. 8, borrowing the position in a Kenyan case of Karanja
vs Republic [1983]eKLR 501.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 (1) To give to the court and the prosecution
notice of his intention to rely on defence of
alibi before commencement of the hearing
stage.2

(2) If he fails to give such notice before

commencement of hearing, he shall furnish
the prosecution with the particulars of the
alibi at any time before the case for the
prosecution is closed.3

(3) Where he raises defence of alibi without

having furnished notice as required by
law, the court may on its discretion, accord
no weight of any kind to such defence.
(Although the court is still required to give
reason of rejecting it failure of which is
fatal)4

In Paul Thomas Komba and another vs Republic,5

the Court stated that:-

“…… it is cardinal principle for a prior notice to

rely on such defence to be given as per section 194
(4) of the CPA; or if the accused fails to give such
notice at the early stage then he will be required
to give the prosecution the particulars of alibi at
any time before the prosecution closes its case
as per section 194 (5) of the CPA. If the accused
raises the said defence against the dictates of
section 194 (4) and (5) of the CPA, then the court
is entitled to accord no weight to such evidence.”
2 Section 194(4) of CPA
3 Section 194(5) of CPA
4 Section 194(6) of CPA
5 Criminal Appeal No.177 of 2018 CAT (unreported) pg.16

2 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 1.2 Why furnish notice?

The law has deliberately required the accused

person to raise defence of alibi at the earliest
possible moment as such, to serve the following;6

(i) To give to the prosecution an opportunity to

inquire into the purported alibi and either
concede with it by terminating the charge or
if they are satisfied that it is false, challenge
it by presenting in court adverse evidence
to disprove it. If the notice is not furnished
within the aforementioned dictates of the
law, the prosecution will be deprived of the
opportunity to challenge it since their case
has already been closed, and that is bad for
want of fair trial. It is also proper to believe
that they would have discontinued the case
upon being satisfied that the alibi was true.

(ii) To establish before the court that the alibi

is genuine. If he does not bring it forward
within the avenues stated by the law, there
is naturally a doubt as to whether he has
not been preparing it in the interval.

1.3 
Considering alibi even in absence of
notice

The general position as per Section 194(6) of the CPA is

that, where the accused person fails to furnish notice to
the court prior to hearing or to the prosecution before
they close their case, the court may, in its discretion
accord no weight of any kind to the that defence.

6 R vs. Sukha s/o Wazir Singh & others (1939)6 EACA 145

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 However, as it is always the rule of law, the discretion of
the court in according weight in respect of subsection
(6) must be exercised judiciously, meaning that, a
reason for the refusal or acceptance must be furnished.
Case laws have further expounded that, the meaning of
subsection (6) of section 194 of CPA, to require the trial
court to consider such defence even when the accused
did not comply with sections 194(4) and (5) of CPA (the
good example is when he raises it during defence).

As long as it has been raised, the trial court is required

to consider it in the judgment otherwise the judgment
may be vitiated. It was stated in Richard Otieno @
Gullo vs Republic 7 that;

“Lastly, the provision tasks the trial court to

consider the defence of alibi even if no such notice
has been given to the prosecution (subsection 6).”

And in Masamba Musiba @ Musiba Masai Masamba

vs R 8, quoting the decision in Mwita Mhere and
Ibrahim Mhere v. The Republic [2005] TLR 107 the
Court stated that;

"Where a defence of alibi is given after the

prosecution has closed its case, and without any
prior notice that such a defence would be relied
upon, at least three things are important under
the provisions of section 194(6) of the Criminal
Procedure Act 1985 (now the CPA):

a) The trial court is not authorized by the

provision to treat the defence of alibi like it
was never made,

7 Criminal Appeal No.367 of 2018 CAT (unreported) pg.26,

8 Criminal Appeal No.138 of 2019 CAT (unreported) pgs.18&19

4 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 b) The trial court has to take cognizance of
that defence, and

c) It may exercise its discretion to accord no

weight to the defence."

1.4 Burden of proof in alibi

When defence of alibi is raised, it is the prosecution

which has the burden to prove that the accused person
was indeed at the scene of crime at the time when the
offence was committed. The accused person has no
obligation to prove his alibi as it is enough for him to
raise a reasonable doubt on balance of probabilities for
his alibi, and leave then it to the prosecution to disprove
it.9

The general principle is that, an accused person does

not assume the burden of proving his defence, including
defence of alibi. And for defence of alibi in particular, it
is sufficient if his alibi raises a doubt in the mind of the
court that it might be true, and thereafter, it remains to
the prosecution to disprove it.10

1.5 Relaxation on the burden to prove alibi

In order to cast doubts on the minds of the court, it is

not expected of the accused person to stay idle even
in circumstances where it was possible for him to
establish important matters. For instance, if he says
9 SaleheSiasa v R,Criminal Appeal No.281 of 2017, CAT (unreported)
pg.3. Kubezya John Vs Republic, Criminal Appeal No.488 of 2015 CAT
Tabora (unreported), Kilaga Daniel vs Republic, Criminal case No.425
of 2017, CAT (unreported)pg.14, Masanja Lupilya vs Republic, Criminal
Appeal No.444 of 2017 CAT (unreported) pg.14&15, Rehani Said Nyamila
vs R Criminal Appeal No.222 of 2019 CAT (unreported) pg.22, Kubezya
John vs R Criminal Appeal No.488 of 2015 CAT (unreported) pg.20-23.
10 Leornard Aniseth v R (1963) E.A.C A 206

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 he was at another place and with witnesses out of read,
it is expected of him to procure them at least to assist
the court to believe it, although not proving it like what
is required by the prosecution. In Trazias Evarista@
Deusdedit Aron vs Republic11, it was held that;

“if a person charged with a serious offence alleges

that at the time when it was committed he was
at some other place where he is well known and
he does not prove to the satisfaction of the court
then the court must necessarily attach little if not
no weight to his allegations.

11 Criminal Appeal No.188 of 2020 CAT Bukoba (unreported),pg.12

6 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 PART TWO
INTOXICATION
2.0 Introduction

Intoxication can be defined in several ways depending

on the circumstance of each case, but generally, it
refers to the condition where a person does not have
the normal mental capacity necessary to carry out a
crime or understand its implications, due to ingestion
of, or being injected with intoxicants, voluntarily or
involuntarily. Intoxicants may be in the form of alcohol
or drugs.

2.1 Types of intoxication

There are two types of intoxication as far as criminal

law is concerned. They include voluntary intoxication
and involuntary intoxication.

2.1.1 Voluntary intoxication

This refers to a willing ingestion or injection of

intoxicating substance knowingly or when ought to
have known of its intoxicating effects.

The good example is when a person drinks alcohol or

injects himself with drugs while knowing it to have
possible negative effects out of its influence. A person
under such circumstances would have no other person
to blame for the negative effects emanating from the
influence of such intoxication, since he had prior
knowledge of its possible effects and yet he went on to
consume it anyway.12
12 Adam Salehe Ramadhen v R Criminal Appeal No.547 of 2020 CAT
(unreported) pg.21&22

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 2.1.2 Involuntary intoxication

This refers to intoxication caused by malicious or

negligent acts of another person without the consent of
the person who is being intoxicated.

The good example is when a person is tricked into

ingesting drugs through drinks without his knowledge
or against his will, thereby losing his mental capacity
to understand what he is doing or whether what he is
doing is wrong.

Negligent acts of other persons leading to involuntary

intoxication is like when professional doctors inject
medications to patients and results to negative effects. If
the influence of such medication results to commission
of offences, the offender can plead involuntary
intoxication as a defence.

2.2 When intoxication can be a defence

As a general rule, in Tanzania, intoxication does not

constitute a defence in any criminal charge. However,
as an exception, it is taken into account in those cases
requiring proof of a specific intention for the purpose of
determining whether the person charged had formed
any intention to commit the offence.13 The specific
intent construed here includes constructive intent to
ingest or inject intoxicants voluntary with knowledge of
their effects.

In majority of the common law jurisdictions, only

involuntary intoxication within the meaning ascribed
above can be accepted as a defence to criminal charges.
13 Section14(1)(4) of the Penal Code [Cap.16 R.E 2022], Nicco Peter @
Rasta v Republic, [2006] TLR 84, Anthony Samila v R Criminal Appeal
No.32 of 2010 CAT (Unreported) pg.15

8 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

Voluntary intoxication (self-induced intoxication) is
not accepted since the law stands to protect the victim
rather than the offender who knew or was in a position
to know the possible effects of intoxicants prior to its
consumption.14

In John Ulirick Shao vs Republic,15 the court asked

itself whether it should protect suspects who commit
offences under self-induced intoxication or the victim,
borrowing with approval the wisdom from the English
decision of R v Heard [2007] EWCA Crim 125 All ER
2007 Vol.3 (30/09/2022) where it was held that;-

“The defendant could not rely upon his voluntary

intoxication, including intoxication or otherwise
altered state of mind resulting from the voluntary
taking of drugs or other substances as negating
the necessary intention to touch”

The provision of section 14(2) (a) and (b) of the CPA,

states that, intoxication can be a defence under the
following circumstances;

(1) If by reason thereof, the person charged at

the time of the act or omission complained
of, did not understand what he was doing
and the state of intoxication was caused
without his consent by the malicious
or negligent act of another person. (The
meaning of this subsections falls under
involuntary intoxication and the remedy of
which will be a discharge);

14 JohnUlirick Shao v Republic, Criminal Appeal No.151 of 2019 CAT

(unreported) pg.8&9, Adam Salehe Ramadhen v R Criminal Appeal
No.547 of 2020 CAT (unreported) pg.21&22
15 ibid

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 (2) If the person charged, at the time of the
act or omission complained of did not
understand what he was doing “and” was by
reason of intoxication insane temporarily or
otherwise. (The remedy thereof is to subject
him to provisions relating to insanity).

Borrowing the wisdom from the Indian case of Shaik

Ahmed vs State Of Telangana, Criminal Appeal No.533
Of 2021 the use of the words “and” before mentioning
the subsections and “or” between the two subsections
under section 14(2)(a) and (b) of the CPA, seem to have
been couched with a purpose and objective. The use
of “and” requires the theme under subsection (2) to be
read in conjointly with either (a) or (b). Also, the use
of the word “or” thereof, separates (a) from (b) making
them independent items.

Construing subsection (2) of section 14 thereof, you will

find that, there are only two separate instances where
intoxication can be accepted as defence and that is
either section 14(2)(a), or section 14(2)(b) of the Penal
Code as narrated to be (1) and (2) above.

10 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 PART THREE
DEFENCE OF INSANITY
3.0 Introduction

Generally, insanity refers to a defence to criminal

charges based on the idea that due to mental disorder or
defect at the time of commission of the alleged offence,
the accused person was unable to understand what he
was doing, or, that he was unable to understand that
what he was doing was wrong. It implies lack of criminal
responsibility by reason of mental disease or defect.16

As a general rule, it is a principle of law that every human

being is presumed sane at all times unless the contrary
is proved. Section 12 of the Penal Code provides that:-

“Every person is presumed to be of sound mind

and to have been of sound mind at any time which
comes in question until the contrary is proved.”

3.1 Exceptions to the rule of sanity

The law recognizes circumstances where a person may

be insane and as a result of it be unable to understand
what he is doing or that what he is doing is wrong,
hence he should not be punished for the acts emanating
from his mental defect. Section 13(1) of the Penal
Code provides that, a person shall not be criminally
responsible for an act or omission if at the time of doing
the act or making the omission, he is “through any
disease affecting his mind”;-

(a) Incapable of understanding what he is

16 Thomas Pius vs Republic, Criminal Appeal No.145 of 2019 CAT
(unreported)

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

11
 doing,

(b) Incapable of appreciating that he ought not

to do the act or omission,

(c) Does not have control of the act or omission.

A person however, may be criminally responsible for an

act or omission although his mind is affected by disease,
if such disease does not in fact produce upon his mind
one or other of the effects referred in subsection (1) of
section 13 to that act or omission.17

3.2 Things to remember in insanity

Before we embark on the procedure to be followed on

raising the defence of insanity, it is important to note
the following;

(i) Do not mix up aspects between “unfitness

to make a defence due to insanity” (that the
accused person is incapable to stand trial)
and a “plea of insanity as a defence to a
charge or information” (that at the time of
the alleged offence, he was insane). The
law provides for two separate instances of
insanity and procedures to raise them as
defence.18

(ii) If an accused person intends to raise a

defence of insanity as a bar to a trial, in
that, he is incapable to stand trial; it will be
dealt with according to sections 216 and

17 Section 13(2) of the Penal Code

18 Fracis Siza RWambo vs Republic, Criminal Appeal No.17 of 2019 CAT
(unreported), MT. 81071 PTE Yusuph & Another vs Republic, Criminal
Appeal No. 168 of 2015 CAT (unreported)

12 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 218 of the CPA. The inquiry must be in
relation to an accused's mental condition
at the time of the trial as distinct from his
mental condition at the time the offence or
omission was made.

(iii) If an accused person wishes to rely on

insanity as a defence to criminal charge
or information, that is to be dealt with
according to Section 219(1) of the CPA,
and he shall raise it at the time when he is
called upon to plead.19

(iv) Insanity within the context of section 13 of

the Penal Code is a question of fact which
could be inferred from the circumstances
of the case and the conduct of the person
at the material time. Courts are not bound
to accept medical experts where there are
good reasons for not doing so.20

3.3 Procedure to plead defence of insanity

The procedure to be followed where the accused intends

to plead insanity as a defence to a criminal charge was
laid down in the cases of MT. 81071 PTE Yusuph &
Another vs Republic,21 and Mwale Mwansasu vs
DPP,22 and it includes: -

19 Estar Jofrey Lyimo vs Republic, Criminal Appeal No.123 of 2020 CAT

(unreported) pg.22
20 Hilda Abel V Republic 1993 TLR 246 (CA).
21 MT. 81071 PTE Yusuph & Another vs Republic, Criminal Appeal No.
168 of 2015 CAT (unreported)
22 MT. 81071 PTE Yusuph and Another vs Republic, Criminal Appeal No.
168 of 2015 (unreported), Mwale Mwansasu vs DPP, Criminal Appeal
No.105 of 2018 CAT (unreported) pg.15

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 (1) First, where it is desired to raise the defence
of insanity at the trial in relation to mental
status of the accused at the time the offence
was committed; such defence should best
be raised when the accused is called upon
to plead.

(2) Second, upon being raised the trial court

is enjoined to adjourn the proceedings and
order the detention of the accused in a
mental hospital for medical examination.

(3) Third, after receipt of the medical report

the case precedes the normal way with the
prosecution leading evidence to establish
the charge laid and then closes its case.

(4) Fourth upon the closure of the prosecution

case, the defence leads evidence as against
the charge laid, including medical evidence
to establish insanity at the commission of
the alleged act, and

(5) Fifth, the court then decides on the

evidence, whether or not the defence of
insanity has been proved on a balance of
probabilities. If such enquiry be determined
in the affirmative, the court will then
make a special finding in accordance with
section 219 (2) and 220 (4) of the Act and
proceed in accordance with enumerated
consequential orders.

14 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 3.4 Burden of proof in Insanity defence

The burden to prove insanity lies on the accused

person who raises it, not for the prosecution to prove
his sanity.23 In Bashiru Rashid Omar vs Director of
Public Prosecutions,24 the court held that, the burden
of proof in respect of insanity lies to the accused person
on a balance of probabilities and not merely to raise a
reasonable doubt as to his sanity.

23 Thomas Pius vs Republic, Criminal Appeal No.145 of 2019

CAT (unreported), pg.11, Bashiru Rashid Omar vs Director
of Public Prosecutions, Criminal Appeal No.309 of 2017, CAT
Zanzibar,(unreported) pg.11
24 BashiruRashid Omar vs Director of Public Prosecutions, Criminal
Appeal No.309 of 2017, CAT,(unreported) pg.11, Joseph John Makune
v. Republic [1986] T.L.R. 44

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

15
 PART FOUR
PROVOCATION AS A DEFENCE
TO MURDER
4.0 Introduction

Under section S.201 of the Penal Code, the term

"provocation" means and includes, except as herein
after stated,

“any wrongful act or insult of such a nature as

to be likely, when done to an ordinary person, or
in the presence of an ordinary person to another
person who is under his immediate care, or to
whom he stands in a conjugal, parental, filial or
fraternal relation, or in the relation of master or
servant, to deprive him of the power of self-control
and to induce him to commit an assault of the
kind which the person charged committed upon
the person by whom the act or insult is done or
offered.”

In majority of common law jurisdictions,

provocation is accepted as a defence to murder
in exclusion of other offences involving violence.
This is the same position for Tanzania, and
this part will only concentrate on killings under
provocation.25

Provocation however, is not an absolute defence,

but partial within the meaning that, where the
accused successful establishes it, he will not be
acquitted, rather, it reduces the offence of murder
to Manslaughter. So the accused person will not
25 Section 201 of the Penal Code

16 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 walk out completely unpunished as if it was an
absolute defence, he at least gets convicted on a
lesser offence of manslaughter.26

4.1 Proof of provocation

The following are conditions to be fulfilled for the

defence of provocation to stand, as reduced from Kato
v. Uganda [2002] 1 EA 101 and Georgina Venance v
R [2005] TLR 84, adopted by Hamis Chuma @ Hando
Mhoja v Republic 27 and Ibendu Hashimu v Republic,28

(1) The act or insult which causes provocation

must be wrongful; lawful act or conduct
cannot provide provocation.

(2) The person provoked must have been

deprived of the power of self-control.

(3) The provocation must be sadden and the

death must have been caused in the heat
of passion before there is time to cool,29

(4) The person assaulted must be the one

who offered the provocative act, insult or
conduct.

26 Section 201 of the Penal Code

27 Hamis Chuma @ Hando Mhoja v Republic, Criminal Appeal No.36 of
2018 CAT (Unreported) pg.28
28 IbenduHashimu v Republic,Criminal Appeal No.546 of 2020 CAT
(unreported) pg 18
29 Benjamin Mwansi v. Republic[1992] TLR 85, Said Kigodi@Side v
Repulic, Criminal Appeal No.281 of 2009 CAT (unreported)

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

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 (5) The provocative act, insult or conduct must
have been directed to the person committing
the assault or a person who stands to him
in the relationship as explained under
section 202 of the Penal Code.

(6) The provocative act or insult must have

been done or offered in the presence of the
person committing the insult.

(7) The test is the ordinary person in the

society. The wrongful act or insult must be
of such a nature as would likely to deprive
an ordinary person of the class to which
the accused belongs, the power of self-
control. This is to say that, any individual
idiosyncrasy, such as for instance as that
the accused is a person who is more readily
provoked to passion than the ordinary
person; is of no avail;

4.2 Essentials in provocation

Apart from the above elements to prove the

provocation, the following can be used as a
checklist that one should have in mind when
dealing with it;

(a) A successful defence of provocation reduces

the offence of murder to manslaughter.
This is why it is termed as a partial defence
(not absolute) because a successful defence
of provocation does not render accused to
go unpunished, he will still be convicted to
the lesser offence of manslaughter.30

30 Section 201 of the Penal Code

18 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 (b) Defence of provocation is available only
when the accused admits killing the
deceased. Where the accused denies an
act of killing, such defence disappears
automatically.31

(c) For the defence of provocation to stick, it

must pass the objective test of whether an
ordinary man in the community to which
the accused belongs would have been
provoked in the circumstances.32

(d) Defence of provocation is available to a

suspect who kills at the spur of the moment
in the heat of passion before he has time to
cool down. If the chain of events breaks to
allow it to cool, the defence cannot stand.33

(e) For provocation to be a defence it is not

enough for one to cite a long existing
conflict or provocation, what is required
is a sudden provocation without time for
cooling down.34

31 Shabani Rashidi v Republic 1995 TLR 259 (CA).

32 Damian Ferdinand Kiula & Charles v R 1992 TLR 16 (Ca).
33 See Kagambo Bashasha vs Republic, Criminal Appeal No.591 of 2017
CAT (unreported) pg.13, Saidi Kigodi Side vs R, Criminal Appeal
No.281 of 2009 CAT (unreported) pg.12.
34 Jacob Asegelile Kakune vs DPP, Criminal Appeal No.178 of 2017 CAT
(unreported) pg. 20.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

19
 (f) When the unlawful act or insult is done
or offered by one person to another, or in
the presence of another to a person who is
under the immediate care of that other, or to
whom the latter stands in any relationship
referred to in subsection 202(1), the former
is said to give the latter provocation for an
assault.35

(g) A lawful act is not provocation to any person

for an assault.36

(h) An act which a person does in consequence

of incitement given by another person
in order to induce him to do the act and
thereby to furnish an excuse for committing
an assault is not provocation to that other
person for an assault.37

(i) An arrest which is unlawful is not

necessarily provocative for an assault,
but it may be evidence of provocation to a
person who knows of the illegality.38

(j) For the purposes of section 202 of Cap. 16,

the expression "an ordinary person" means
an ordinary person of the community to
which the accused belongs.39

35 Section 202(2) of the Penal Code

36 Section 202(3) of the Penal Code
37 Section 202(4) of the Penal Code
38 Section 202(5) of the Penal Code
39 Section 202(6) of the Penal Code

20 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 PART FIVE
Self-Defence
5.0 Introduction

This refers to the use of force to protect

oneself, another person or property from a real
or threatened attack.40 It involves the use of
essential and reasonable defensive force against
an aggressor who is perpetrating an illegitimate
attack for the purpose of repelling this attack and
thus protecting legitimate interest.41

Section 18A (1) of the Penal Code provides that,

every person has the right to;

(a) To defend himself or any other person

against nay unlawful act or assault or
violence to the body; or,

(b) To defend his property or any property in

his lawful possession, custody or under his
care or the property of any other person
against any unlawful act of seizure or
destruction or violence.

When exercising such right, section 18B (1) of the

Penal Code is clear that, he is required to use only
such reasonable force as may be necessary for
that defence. The use of excessive force renders
him criminally liable for the offence which results
out of it.

40 Black’s Law Dictionary,9th Edn (West Group, 2009) pg 1481

41 Sangero, Self-Defence in Criminal Law (Oxford: Hart Publishing, 2006)
pg 45-52.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

21
 Also, where death occurs as a result of excessive
force used in defence, the accused shall be guilty
of manslaughter.42

A successful establishment of self-defence plea results

to an acquittal of the accused, and where he was not yet
arraigned in court and the prosecution upon reviewing
evidence in the file recognizes so; he ought not to be
prosecuted at all. Section 18 of the Penal Code provides:

“subject to the provisions of section 18A, a

person is not criminally liable for an act done in
the exercise of the right of self defence, or the
defence of another or the defence of property in
accordance with the provisions of this Code.”

5.1 Burden of proof in self- defence

Where the accused person raises defence of self-defence,

defence of another person or property, the burden of
proof does not shift to him. It still remains with the
prosecution to disprove it beyond reasonable doubt that
the accused was either not acting under self-defence or
used excessive force.43

Under the common law, and reducing from the above

provisions, there are three conditions which have to
be met before the defence of self-defence or defence of
another is accepted;

(i) There must be an imminent danger to the

life or limb of the accused, another person
or property sought to be protected.

42 Section 18B (2) and (3) of the Penal Code.

43 Oloo S/o Gai Versus R. (1969) EA 86 EACA, Crime Prosecution
Service of the UK, Legal Guide 2022

22 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

(ii) The force used in the face of this danger
must be necessary for the safety of the
accused. By this it means, the force must
be both necessary in the circumstances
and proportional to the threat which is
being combated, and,

(iii) If the person assaulted has means of escape

or retreat, they are bound to opt for it.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

23
 PART SIX
OTHER DEFENCES
6.0 Introduction to other defences

This part will discuss all other defences other than those
discussed above. Some may be perceived not as pure
defences but pleas, although the same can be argued in
court as defences as well.

6.1 Immaturity of Age

This is a defence in criminal prosecution that due to

age, the suspect is immune to be responsible for the
crime. It is provided under Section 15(1)-(4) of the Penal
code which provides that:-

(1) A person under the age of ten years is

not criminally responsible for any act or
omission.

(2) A person under the age of twelve years is

not criminally responsible for an act or
omission, unless it is proved that, at the
time of doing the act or making the omission,
he had capacity to know that he ought not
to do the act or make the omission.

(3) A male person under the age of twelve

years is presumed to be incapable of having
sexual intercourse (therefore he cannot be
charged with rape or unnatural offence
offence).

24 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 (4) Any person under the age of twelve years
who commits an act or omission which is
unlawful shall be dealt with under the law
of the Child Act. (it means, he is immune to
be prosecuted in adult courts).

6.2 Mistake of fact

Section 11 of the Penal Code provides that, unless

there exists an express or implied provisions of the law
relating to the subject, a person who does or omits to do
an act under an honest and reasonable, but mistaken,
believing the existence of any state of things, is not
criminally responsible for the act or omission to any
greater extent than if the real state of things had been
such as he believed to exist.44 Mistake of law is generally
not a defence, so is ignorance of law.

6.3 Compulsion

A person is not criminally responsible for an offence if

it is committed by two or more offenders and if the act
is done or omitted only because during the whole of the
time in which it is being done or omitted the person
is compelled to do or omit to do the act by threats on
the part of the other offender or offenders instantly to
kill him or do him grievous bodily harm if he refuses;
but threats of future injury do not excuse any offence,
unless the offender is a child. The governing provision
is section 17 of the Penal Code.

6.4 Retrospectivity of the law

It is settled principle that, a person is not criminally

responsible for an act or omission of which, at the time
it was so committed, did not constitute a crime under
44 Section 11 of the Penal Code.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

25
 the law. In other words it means, no person shall be
criminally responsible under a Statute for the conduct
committed prior to its entry into force. This position is
provided under Article 13(6) (c) of the Constitution of the
United Republic of Tanzania which states;

No person shall be punished for any act which

at the time of its commission was not an offence
under the law, and also, no penalty shall be
imposed which is heavier than the penalty in
force at the time the offence was committed.

This therefore may be used as a defence when a person is

charged and he has proof that at the time he committed
the alleged offence, it was not a crime under the law.

6.5 Bona Fide Claim of Right

This is provided under section 9 of the Penal Code which

states that, a person is not criminally responsible in
respect of an offence relating to property if the act done
or omitted to be done by him with respect to the property
was done in the exercise of an honest claim of right and
without intention to defraud.

6.6 Death within a Year and a Day

Death within a year and a day is also a defence in

criminal law especially when the suspect assaulted
deceased who died after a year and a day as a result of
the purported assault. Section 205 of the Penal code
provides that, a person is not deemed to have killed
another, if the death of that person does not take place
within a year and a day of the cause of death.

For the purpose of reckoning the period referred to

above regards shall be made to the followings;

26 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 (a) The period shall include the day on which
the last unlawful act contributing to the
cause of death was done;

(b) When the cause of death is an omission

to observe or perform a duty, the period is
reckoned inclusive of the day on which the
omission ceased; and

(c) When the cause of death is in part an

unlawful act and in part an omission to
observe or perform a duty, the period is
reckoned inclusive of the day on which the
last unlawful act was done or the day on
which the omission ceased, whichever is
the later.

6.7 Judicial immunity

Under section 16 of the Penal Code, judicial officers are

immune from criminal prosecutions for acts or things
done or omitted to be done bonafidely in the exercise of
their judicial functions.

6.8 “autrefois acquit” as a defence

Although this is considered more as a plea to a criminal

charge as such, on the other hand it may be construed
as a defence against prosecutions. Autrefois acquit (a
former acquittal), is grounded on the universal maxim
of the common law of England, that no one is to be
brought into jeopardy of his life or limb more than once
for the same offence he was formally acquitted.45

In a simple language, it is a bar to charge a person with

the same offence which he was previously charged by
45 Double jeopardy Rule, House of commons commentary pp.335-6

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

27
 a competent court and acquitted.46 It may be used as a
defence from further prosecution.

6.9 “Autrefois convict” as a defence

This one also may be used as a defence from further

prosecution. It is the rule against double jeopardy,
grounded on the principle that, no man ought to be
twice brought in danger of his life for one and the same
crime which has previously been adjudicated by a
court of competent jurisdiction and convicted him. i.e
Nimo Bis Debet Puniri pro Uno Delicto. Since a court of
competent jurisdiction has previously convicted such a
person on such same offence, he has already paid the
price of his guilty and it will not be fair to punish him
again for the same.47

HOWEVER, this rule does not protect a person from

being prosecuted for a different offence originating
from the same facts, as was stated in Republic v
Msusa Ally,48 where an accused person was charged
and convicted of assault causing actual bodily harm.
Later on the victim died of the same assault and was
again charged with murder. He attempted to raise the
defence of autrefois convict but was barred since his
previous conviction was not on murder, but assault
causing actual bodily harm which is a distinct offence
though they originate from the same transaction.

46 Godison Ndobho v Republic [1993]TL 287,Republic v Msusa Ally

[1987] TLR 190, Twaha Hussein v R, Criminal Appeal No.415 of 2017
CAT Mwanza (unreported), Section 228(5) (a) (i) of the CPA
47 Double jeopardy Rule, House of commons commentary pp.335-6
48 Republic v Msusa Ally [1987] TLR 190

28 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

In the case of Maduhu Masele v Republic,49it was
further stressed that, it is the duty of the accused to
raise the plea of autrefois acquit or convict at any time
before closure of defence case, and as a general rule,
the burden of proof is upon him who asserts it.

6.10 Presidential Pardon as defence

A pardon is a common law extra-judicial power which is

exercised by the Crown under the Royal Prerogative of
Mercy.50 In Tanzania it can be defined as a Presidential
decision to relieve a convict or prisoner of some or all
of the legal consequences resulting from a criminal
conviction. It is a forgiveness which exempts a convict
or prisoner from a particular punishment.

Article 45(1) (a)-(d) of the Constitution of the United

Republic of Tanzania designates the President as the
only person with the power to grant pardons.

A person cannot be tried for a criminal offence if he

shows that he had been pardoned for that offence by
the President.51 He can reply to the charge that he has
already been pardoned by the President on that offence,
and thereafter the provision of section 228(5) (b) of the
CPA shall apply. So when such person is charged, he
may use it as a defence from prosecution or conviction
on the same.

49 Maduhu Masele v Republic [1991] TLR 143

50 The Royal Prerogative of Mercy, 2015 & see R v Foster (Barry) [1985]
QB 115; [1984] 3 W.L.R. 401]
51 Momanyi Bwonwong’a, Procedures in Criminal Law in Kenya. Nairobi:
East African Education Publishers Ltd,1994 pp.87

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

29
 6.11 Parliamentary Privileges

Under Article 100(2) of the Constitution of the United

Republic of Tanzania, subject to the constitution and
other laws in force, a Member of Parliament shall not be
prosecuted and no civil proceedings may be instituted
against him in a court in relation to anything which
he has said or done in the National Assembly or has
submitted to the National Assembly by way of a petition,
bill, motion or otherwise.

6.12 
Prosecutions which require consent of
DPP

Generally, anything can be used as defence in criminal

charges especially where the process infringes a
requirement of law. This part shall not discuss consent
in economic offences which is well known by many,
although that is also important, but consent under “the
Consent to Prosecute (Delegated Powers) Government
Notice No. 830 published on 8/11/2019” which many
people may not be aware of.

This GN contains about 113 offences stipulated under

its 2nd Schedule which cannot be prosecuted without
the consent of the DPP. Under its Regulation 5(1)(e) for
example, the following persons cannot be prosecuted
without the consent of the DPP, they include;

i) A person who is presidential appointee,

ii) Member of Parliament,

iii) Justice of Appeal,

iv) Judge of the High Court,

30 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 v) Registrar of Court of Appeal and High
Court,

vi) Magistrate and

vii) State Attorneys.

Therefore, where it follows that any of the above listed

is being prosecuted, and detects that no consent was
issued in that respect, he may use that fact as defence.

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

31
 LIST OF BOOKS
1. Black’s Law Dictionary,9th Edn (West
Group, 2009) pg 1481

2. Crime Prosecution Service of the UK,

Legal Guide 2022

3. Double jeopardy Rule, House of commons

commentary pp.335-6

4. Momanyi Bwonwong’a, Procedures in

Criminal Law in Kenya. Nairobi: East
African Education Publishers Ltd,1994

5. Sangero, Self-Defence in Criminal Law

(Oxford: Hart Publishing, 2006)

6. The Royal Prerogative of Mercy, 2015

& see R v Foster (Barry) [1985] QB 115;
[1984] 3 W.L.R. 401]

REPORTED CASE LAWS

1. Benjamin Mwansi v. Republic[1992] TLR

85

2. Damian Ferdinand Kiula & Charles v R

1992 TLR 16 (CA)

3. Godison Ndobho v Republic [1993]TL 287

4. Hilda Abel V Republic 1993 TLR 246 (CA)

5. Joseph John Makune v. Republic [1986]

T.L.R. 44

32 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

 6. Karanja vs Republic [1983]eKLR 501

7. Leornard Aniseth v R (1963) E.A.C A 206

8. Maduhu Masele v Republic [1991] TLR 143

9. Nicco Peter @Rasta v Republic, [2006]

TLR 84

10. Oloo S/o Gai vs R. (1969) EA 86 EACA

11. R vs. Sukha s/o Wazir Singh & others

(1939)6 EACA 145

12. Republic v Msusa Ally [1987] TLR 190

13. Shabani Rashidi v Republic 1995 TLR 259

(CA)

UNREPORTED CASE LAWS

1. Adam Salehe Ramadhen v R Criminal

Appeal No.547 of 2020 CAT (unreported)

2. Anthony Samila v R Criminal Appeal

No.32 of 2010 CAT (Unreported)

3. Bashiru Rashid Omar vs Director of

Public Prosecutions, Criminal Appeal
No.309 of 2017, CAT (unreported)

4. Estar Jofrey Lyimo vs Republic, Criminal

Appeal No.123 of 2020 CAT (unreported)

5. Fracis Siza RWambo vs Republic, Criminal

Appeal No.17 of 2019 CAT (unreported)

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

33
 6. Hamis Chuma @ Hando Mhoja v
Republic, Criminal Appeal No.36 of 2018
CAT (Unreported)

7. Ibendu Hashimu v Republic,Criminal

Appeal No.546 of 2020 CAT (unreported)

8. Jacob Asegelile Kakune vs DPP, Criminal

Appeal No.178 of 2017 CAT (unreported)

9. John Ulirick Shao v Republic, Criminal

Appeal No.151 of 2019 CAT (unreported)

10. Kagambo Bashasha vs Republic, Criminal

Appeal No.591 of 2017 CAT (unreported)

11. Kilaga Daniel vs Republic, Criminal case

No.425 of 2017, CAT (unreported)

12. Kubezya John Vs Republic, Criminal

Appeal No.488 of 2015 CAT (unreported)

13. Masamba Musiba @ Musiba Masai

Masamba vs R Criminal Appeal No.138 of
2019 CAT (unreported)

14. Masanja Lupilya vs Republic, Criminal

Appeal No.444 of 2017 CAT (unreported)

15. Msafiri Benjamin vs Republic, Criminal

case No.549 of 2020 CAT (unreported)

16. MT. 81071 PTE Yusuph and Another vs

Republic, Criminal Appeal No. 168 of 2015
(unreported)

17. Mwale Mwansasu vs DPP, Criminal Appeal

No.105 of 2018 CAT (unreported)

34 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

18. Paul Thomas Komba and another vs
Republic Criminal Appeal No.177 of 2018
CAT (unreported)

19. Rehani Said Nyamila vs R Criminal Appeal

No.222 of 2019 CAT (unreported)

20. Richard Otieno @ Gullo vs Republic

Criminal Appeal No.367 of 2018 CAT
(unreported)

21. Said Kigodi@Side v Repulic, Criminal

Appeal No.281 of 2009 CAT (unreported)

22. Salehe Siasa v R,Criminal Appeal No.281

of 2017, CAT (unreported)

23. Thomas Pius vs Republic, Criminal Appeal

No.145 of 2019 CAT (unreported)

24. Trazias Evarista@Deusdedit Aron vs

Republic Criminal Appeal No.188 of 2020
CAT (unreported)

25. Twaha Hussein v R, Criminal Appeal

No.415 of 2017 CAT (unreported)

DEFENCES TO CRIMINAL CHARGES IN TANZANIA

35
 NOTES

36 DEFENCES TO CRIMINAL CHARGES IN TANZANIA

DEFENCES TO CRIMINAL CHARGES IN TANZANIA
37
 OFMEDY MUSSA MTENGA earned
an LLB degree from the University of
Dar es Salaam in 2007 and LLM in
International Crime and Justice from
the United Nations Interregional
Crime Research Institute (UNICRI)
in collaboration with the University
of Torino, Italy in 2010. Currently, he
works as a Senior State Attorney in the
National Prosecutions Service of Tanzania,
with experience in prosecution of over twelve years. In 2019 he
authored the popular two handbooks, A STEP BY STEP GUIDE TO
TRIALS IN SUBORDINATE COURTS and A BEST PRACTICE
GUIDE TO TRIALS IN THE HIGH COURT. The two books have
been revised in 2023 with the most current legal positions and serve
as among the best guides in Court Practice. In 2023, he has authored
criminal practice guides in the subjects of (1) Defences to Criminal
Charges in Tanzania, (2) Form and Contents of a Proper Charge, (3)
Admissibility of Evidence in Court, (4) Admissibility of Confession
Statements and (5) Identification Evidence in Criminal Law. Other
guides written in Swahili include (6) Haki ya kupata dhamana Polisi
& Mahakamani, (7) Haki za Mtoto Kisheria, (8) Haki ya Mwanamke
katika Ndoa, (9) Sheria ya Ndoa Tanzania, (10) Yafahamu Makosa
ya Kujamiiana, (11) Kugawa Mirathi kisheria, and (12) Uandishi
wa Wosia Kisheria.

38 DEFENCES TO CRIMINAL CHARGES IN TANZANIA