Its true that bail is the constitution right in Tanzania.

This is proven in the Constitution of United

Republic of Tanzania of 1977 as amended time to time, it proven in various Article of the
Constitution such as Article 13(6) where its under on this Article we found the presumption of
innocent that every person charge with a criminal offence is presume to be innocent until proved
guilty by a competent court. Also Article 15(1) which provide that every person has right to
enjoy his personal freedom and also the right to enjoy his freedom of movement. In the case of
TITO DOUGLAS LYIMO v. R 1978 L.R.T N.55
“briefly it can be stated that bail is a right not a privilege to an accused person unless the court
is convinced that by concrete evidence in most cases.”
Although bail is the constitution right but the court has the power to grant or refuse to give bail
to the accused person. In oder for the court to grant bail the accuse person must meet all
condition required by the court for such kind of the bail. The aim of the bail is to secure the
attendance of the accused person not other wise. In the case of R v. CHARLES ROSE ( 1921 –
1952 ) TLR 213, the court said that
“bail should never be intended to be punitive, but only to secure the attendance of the prisoner
at the trial and magistrate is not competent to refuse bail, unless the law sanction such refusal”
Therefor even if a bail is the constitution right but the court may refusal to grant bail to the
accused person. There are two circumstance where the court can refuse to grant bail to the
accused person. Those circumstance are;

i. Statutory Restriction
ii. Judicial Consideration
STATUTORY RESTRICTION:
section 148 (5)(a-e) of the Criminal procedure Act, [Cap 20 R.E 2002] provide for statutory
restriction as following bellow;

A person may be denied bail for his own protection, in the case of ATHUMANI ALLY
MUAMBA [1988] TLR 11, “the appellant had violated some children and the police objected
to bail on the ground that he could be assaulted by the parents of the victim”
A person who has previously been granted bail but has failed to observe the conditions of bail or
has absconded shall not be eligible to bail.
If a peson before a court is charged with murder, treason, or armed rebbery shall not be admitted
to bail. In addition to that where a person is charge with an offence of illict in drugs which is not
for commerical or co veyence purposes.
A person who has previosly been convicted and sentence to imprisoment for a term execeeding
three years shall not granted bail.
Where a person is charge with an offence involving actual money or property whose value
exceed ten milion shiling, such person before granted bail shall deposit cash or property
equivalent to half the amount.
JUDICIAL CONSIDERATION
Apart from the statutory provision ob restriction of grand bail, court normally do consider the
following factors before granting bail.
One among the factor that may be considered by the court is the likelihood of the accused to
commit another offence while out on the bail. Here the assumption is that the applicant us guilty
of having committed the same offence in the past.
Court will look whether the investugations will take too long to complete and thus the accused
will spend a long time in custody. In R v. JOHN OLATE (1972) NO.198, The court held that
fear of the prosecution that if released on bail will impede investigations or flee is not sufficient
ground for denying bail the investigations are delayed.
The court also look at severity of the punishment to be imposed on the applicant upon
conviction. A man face with death penalty if convictedn, is more like to abscond than the one
faced with a mere fine. In EDWARD D Y KAMBUGA & ANOTHER V. R [1990] TLR 84,
the court said;
“The seriousness of the charge is one of the factors which ought to be considered in bail
application…. The test is whether the accused, if released on bail, would appear to take his trial.
Nothing on the record suggests that the accused would not appear to take his trial”. Bail was
granted.
The court will look on the allegation that the applicant for will temper with investigations and
prosecution witnesses. In the case of MOHAMED ALI BHI v. R ( 1921 – 1052) 1 TLR 138,
the court said
“in deciding whether or not to grant bail court should look at the allegations on reasonable
ground that the accused if released on bail is likely to temper or attempt to temper with or
improperly influence Republic witnesses, thus interfering with due course of justice. The
allegations must base on reasonable ground.
Generally; The amout of bail except where the law sets the amout of security to be taken from
the accused person, each case is to be dealt with according to its merits. However its principle of
the law that the amount should not be too excessive to accused to afford hence leading to
unncessary detaining of the accused.
Information regarding to the commission of an offence may be given orally or in writing to a
police officer, and the receiver of that information has to record it in the manner prescribed under
section 10(3) CPA--S.9 (1) & (2) CPA. Then an entry in the R.B; name of the reporter, name of
the victim, suspect of the offence committed, place and time and the name and rank of the officer
receiving theinformation.
Police officer is empowered under section 10(1) CPA to visit the scene of crime, make
investigation and arrest the offender.
Any police officer conducting an investigation is empowered under section 10(2) CPA to order
in writing any person who is within the limits of the station and who is acquainted with the
circumstances of the case to attend before such police officer. And the person so acquainted shall
attend.
According to section 10(3) CPA the police officer is required to examine orally any person who
is acquainted with the facts or circumstances of the case. And then he (the police officer) is
supposed to reduce into writing any statement made by such person so examined. The statement
may be in English or Kiswahili or in any other language familiar to the person examined. After
recording such statement, it has to be shown or read over to him and such person shall be at
liberty to alter or correct the statement. He (the person making the statement) signs that statement
immediately below the last line and may call upon any person in attendance to sign as a witness
of his signature.
THE INVESTIGATION
The police officer is required to proceed to the scene of crime after receiving a report about the
commission of any offence and to investigate the facts of the case, and circumstances of the case.
Furthermore according to section 10(1) CPA the officer is required to take all necessary actions
for the discovery and arrest of the offender.

The facts and circumstances of the case may require either a warrant of arrest or search warrant
to be issued for the discovery and apprehension of the offender. If the victim wasbinjured PF 3
has to be issued. It is advisable that a complicated case be investigated by a police officer that is
higher in rank.

 Powers to Interrogate
When the police officers are looking for the circumstances, which led to the occurrence
of the offence, they need to interrogate people who are familiar with the case. The police
officers are empowered to summon any relevant person within the local limits of their
police station or any of the adjourning stations to appear before them for the purpose of
examination as to the facts and circumstances of the case—S.10 (2) CPA. Such person so
summoned must attend as directed failure of which could attract charges such as failure
to obey lawful order c/s 124 PC. After the attendance of that person, the examining police
 officer is supposed to reduce into writing any statement made by a person examined
including the clarification as per section 10(3) CPA, just like writing a statement.

Before examination it will be the duty of the police officer to inform the person examined that he
is bound to answer truly all questions relating to the case put to him by the police officer. And
that he may not decline to answer any question relating to the case put to him and that he may
not decline to answer any question on the ground that the question has a tendency of exposing
him to a criminal charge, penalty or forfeiture—S.10 (4) CPA.

SEARCH

Search in general or ordinary meaning means to look over or through in order to find something. In
criminal investigation it means the examination of person’s body or premises with a view of discovering
some evidence for the purpose of connecting the person with the offence suspected to have been
committed.

Authority to search is provided under the CPA and the PGO. The police officer is empowered to search
persons, premises, stop and search and detain vehicles, seizure of offensive weapons, search in
emergency, inspection of licenses and search of vehicles.

According to section 38 CPA, the officer in charge of a police station (OCS) may search himself or issue a
written authority to any police officer under him to search building, carriage vessel etc. The search can
only be done if there is anything in respect of which:

 An offence has been committed,

 There are reasonable grounds to believe that it will afford evidence to the commission of the
offence

 Is intended to be used for the purpose of committing any offence.

When there is authority to search, such police officer shall as soon as practicable report the issue of the
authority, the grounds on which it was issued and the result of any search made under it to the
magistrate.

Search in emergency is provided under section 42 CPA where the police officer may enter upon any land
or premises and search. This however must be made on reasonable grounds of belief.

In the case of Olotho V.R. (1970) HCD No.204, the appellant was convicted of being in unlawful
possession of piwa .It was contended that, the complainant, a police constable, had no search warrant
to search the appellant’s premises, hence the search was illegal.

It was held that in considering whether evidence is admissible, the test in whether it is relevant to the
matters in issue, and if it is relevant, the court is not concerned with the method it was obtained.

Search of Premises with Warrant

PGO paragraph 2 give powers to OCS or OC—CID or investigating officer to make an application to the
magistrate for search warrant. The officer concerned may do so when he considers that search of
private premises is necessary in order to;

 Take possession of anything or article by which an offence has been committed.

 Take possession of anything or article connected with the commission of the offence.

The person named in the warrant is the one who is supposed to conduct the search.

The search warrant can be used on any day between the hours of sunrise and sunset. If it is to be used
at any other time, the court may permit upon an application by the police officer—S.40 CPA

Anything seized during the search has to be detained until the conclusion of the investigation or case
and reasonable care should be taken for its preservation.

POLICE BAIL
Introduction

The reasons for granting police bail is the presumption that every person is innocent until proved guilty
by a competent court. The freedom of any person should not be restricted unless there is legal
justification for doing so. Thus we find that before conviction i.e., from the time of arrest and during the
trial one has the right to preserve his liberty for bail is the right and not a privilege to the accused or
suspect.

Bail

Simply bail is an agreement entered into between an accused person and the court or police for
releasing him from custody and entrusting him to the custody of the surety/sureties. The accused
person pledges that he will pay to the government a certain sum of money fixed by the police or court
should he fail to attend his trial on a specified date. When an accused person is granted bail he is not
completely free but is only released from the custody of law officers. In order to ensure the attendance
of the accused before the court or at the police station bail is usually attached by some conditions. The
conditions may be in the form of bond, recognizance and sureties.

WITNESSES

Procurement of witnesses

Witnesses’ attendance may be procured in the following ways;

• By the party who would like the service of such witness asking him to come to court on specified date
and time (this is without summons.)

• By court issuing witness summons under section 142 CPA.

• By a court issuing a warrant of arrest to a witness who is likely not to appear if a mere summons was
issued—SS.143&144 CPA.

• By a court issuing an order to produce a person who is in custody for the purpose of examination
under section 146 or 390 (1) CPA.

Consequences of Non—Appearance

• The court may issue a warrant of arrest u/s 143 CPA.

• The defaulter may be liable to a fine u/s 147(1) CPA.

Mode of Examination of Witnesses

There are three stages of examination of witnesses, these are:

Examination-in-chief: the party calling the witness does this type of examination. Usually the public
prosecutor does this. Examination-in-chief is done by the party calling the witness in order to extract
from such witness any thing known by him (witness) in order to prove the party’s case.

In examination-in-chief, the pubic prosecutor must adhere to the rules of procedure and evidence. For
example, he is not allowed to ask leading questions or cross-examine his witness, unless such witness
has turned hostile.

Cross-examination: This is done by the other party i.e. the accused or his advocate cross- examination is
used in order to discredit or disprove the witness’s story. Here the interest of the cross-examiner is to
ask questions to discredit the evidence of the witness. For example he may ask the witness that he has a
poor memory, is biased, etc, by asking questions which are favourable to the cross-examiner, this means
that he is building up his case; this is done by extracting information from the witness which are
favourable to him.

The accused or his advocate is not obliged to conduct cross-examination nor can the court force him to
do so.

There are situation whereby the prosecution may call a witness but later decide not to examine him.This
witness though not examined by the prosecution, may be cross-examined by the accused or his
advocate. If this witness is cross-examined by the defence the prosecution will be entitled to re-examine
him.
Re-examination: the party calling the witness does this. The aim of conducting re-examination is to
repair damages done by the defence to the prosecution’s case during cross-examination. Since damage
to the evidence is done during cross-examination, it follows that re-examination will be done only when
there has been cross-examination. No cross-examination, no re-examination. In addition to that, the
party has discretion to conduct re-examination and the court cannot force him to do so.

CHARGES

Definition

A charge is a written accusation against the accused of an offence or an allegation of an offence,

which he is said to have committed. It specifies and furnishes necessary details in a summary
form.
Once the complaint has been laid down before the court, and the magistrate is satisfied that
the accused person is likely to be prosecuted, then the charge is prepared and filed together
with the complaint.
It is very important that a charge must be preferred before the trial commences. It is
unthinkable that an accused be tried without a charge being laid down against him.

Functions of the charge

A charge is a result of a decision by a police officer to prosecute. Once a decision has been
made, the charge should be drafted in a precise and detailed form to contain all the ingredients
of the offence. The drafting of a charge in this way serves the following purposed;

i. To inform the accused person about the offence for which he is charged, i.e., the charge
contains particulars of such accusations, these include, time, date, place, names and the
manner in which the offence was committed.

ii. To enable the accused to prepare for his defense.

iii. To enable the accused to decide rationally whether or not to plea guilty.
iv. To enable the court to issue necessary court processes, like summons.
v. To confer jurisdiction to the court to proceed against the accused.

vi. To avoid taking the accused by surprise.

vii. For the purpose of record—criminal records are normally kept, thus a charge is convenientfor that
purpose

PLEAS

Definition of a Plea

Plea is a formal statement by or on behalf of the accused person as to his admission or denial of his
guilty to the charge. The substance of the charge must be stated to the accused person who will be
asked whether he admits or denies the truth of the charge—S.228 (1) CPA.

Plea must be personal, free, voluntary and by a fit person. It must be personal because no body is
allowed to plead on behalf of another (including advocates), unless it is;

 A case against corporate bodies—S.109 CPA

 A warrant offence covered by section 193 CPA

 A situation where the accused stands mute in which a plea of not guilty is entered for him

—S.216—221 CPA
The law requires that before taking the accused’s plea, the court must state and explain the

substance of the charge to him. All the ingredients of the offence must be carefully set out. This is
because, although the accused may presumably know the facts giving rise to the offence charges, it does
not automatically follows that he can determine whether he is guilty of the offence unless its nature is
made clear to him. This is especially true where the definition of the offence makes use of concepts and
distinctions not readily understood by the layman. This was the position in the case of

Buhimbila Mapembe V R [1988] TLR 174 whereby the appellant was charged and convicted purportedly
on his own plea of guilty of the offence of being in possession of government trophy, to wit lion skin,
contrary to Paragraph 16 (a) 1st Sch. And ss.56 (1) and s.59 (2) of the Economic and Organized Crime
Control Act, 1984 together with ss.67 (1), (2) (a) & (g) of the Wild Life Conservation Act. When the
charge was read over and explained to the accused he was asked to plead and he said “it is true” and
being briefed to the facts he said, “The facts are correct”, the court entered a plea of guilty and
convicted him.

Prima Facie Case

Definition

In all criminal trial, the prosecution has a duty to prove its case beyond reasonable doubt against the
accused. According to section 231 CPA, if at the closure of the prosecution’s case, the court finds that if
there is no explanation on the party of the accused is given he could be convicted of the offence charged
or a lesser offence, then a prima facie case is established.

Once the court finds that a prima facie case has been established, section 231 CPA requires it to call
upon the accused person to make his defence.
However, before ruling out that a prima facie case has been made, the court is supposed to take into
consideration the prosecution’s evidence and the law applicable to conclude that if no explanation by
the accused he can rightly be convicted.

JUDGMENT

Introduction
The court after hearing both parties i.e. the prosecution and the accused person and their witnesses and
evidence if satisfied that the evidence warrant conviction may convict the accused person.

After convicting the accused person, the trial magistrate is required to write a judgment and read it to
the accused person.

Mode of delivering a Judgment

According to section 311 CPA the judgment in every trial should be delivered/pronounced:

 In an open court,

 Immediately after the conclusion of the trial if it is not delivered immediately then notice

should be given to the parties on the time and place of delivering the judgment.

 The magistrate may explain the substance of the judgment in lieu of reading it if there is no objection
from the parities.

 At the time of delivering the judgment;

 If the accused is in custody the magistrate should cause him to be brought before the court.

 If he is not in custody he should be required to attend to hear the judgment; except where;

a.His personal attendance has been dispensed with, during the trial,

b.The sentence is one of fine only,

c.He is acquitted.

 Where there is more than one accused person and on the day of delivering a judgment one or more of
them do not attend, the magistrate may proceed to deliver the judgment.

Content of a Judgment

According to section 312 CPA, every judgment shall be:

i. In writing or may be reduced into writing under the personal direction or superintendence of

the presiding magistrate,

ii. Shall be in the language of the court,

iii. Contain a clear and concise statement of the case,

iv. Include the point(s) for determination,

v. Include the decision of the case,

vi. Bear the signature of the presiding magistrate.

The provisions of section 312(1) CPA are mandatory. If the trial court fails to comply with these
provisions will render the trial a nullity. In the case of R V Suna (1971) HCD No.208, the accused was
charged with unlawful possession of uncut diamonds. The magistrate neither wrote the judgment nor
did he register a conviction before imposing a sentence. The issue was whether these irregularities were
fatal to the proceedings. The court held that:

Every judgment should state the facts of the case establishing each fact by reference to the particular
evidence by which it is supported and it should give sufficient and plainly the reasons that justify the
finding. Failure to write the judgment is clearly an incurable irregularity

Judgement; Is an opinion,decision or a sentence given by a court of law while Good judgement includes
considering the consequences of one’s decisions, thinking before acting and speaking and having the
tools to make good decisions in a variety of cases. An example of judgement is someone being
sentenced to two months in prison for a criminal reported case No .8. the case of REPUBLIC
V.MWANSASU ( CRIMINAL REVISION CASE NO.8 OF 2000)TZHC7: (17JULY 2000) contempt of the Court's
order,,, he is sentenced to six months imprisonment (2) for the suspended REV. CASE NO.8 OF 2000
CR .NO 849/19 AT KISUTU The applicant was charged and convicted of obtaining money by false
pretenses CIS 302 OF THE PENAL CODE. CAP.16 of the sentence in that he should keep clean.

The following below are the requirements for Good judgement.

Good judgement should be done in open court. This means that decision of the Court should be done in
front of both side means the defendant, plaintiful, witness and other court officers. This is according to
the CRIMINAL PROCEDURE ACT SECTION NO 311(1).311.-(1) The Decision of every trial of any criminal
case or matter shall be delivered in an open court immediately or as soon as possible after termination
of trial, but in any case not exceeding ninety days, of which notice shall be given to the parties or their
advocates, if any, but where the decision is in writing at the time of pronouncement, the Judge or
Magistrate may, unless objection to that that course is taken by either the prosecution or the defence,
explain the substance of the decision in an open court in lieu of reading such decision in full.

312.-(1) Every judgment under the provisions of section 311 shall, except as otherwise expressly
provided by this Act, be written by or reduced to writing under the personal direction and
superintendence of thepresiding judge or magistrate in the language of the court and shall contain.
There judgement should be conducted or done in open but also in presence of plaintiful and defendant.

Judge should specify the offence and law applicable in that offence. This is according to the CRIMINAL
PROCEDURE ACT SECTION NO 312 (2)(2) In the case of conviction the judgment shall specify the offence
of which, and the section of the Penal Code or other law under which, the accused person is convicted
and the punishment to which he is sentenced.
Judge should proved copy of the judgement to the convicted person. SECTION NO 313 (1) OF THE
CRIMINAL PROCEDURE ACT.312.-(1) Every judgment under the provisions of section 311 shall, except as
otherwise expressly provided by this Act, be written by or reduced to writing under the personal
direction and superintendence of thepresiding judge or magistrate in the language of the court and shall
contain.

Judge should provide address to the convicted person.After the judgement judge should give address to
the accused person person in order to simplify incase the accused person wants to appeal. SECTION NO
312(4) OF THE CRIMINAL PROCEDURE ACT, (4) Where at any stage of the trial, a court acquits an
accused person, it shall require him to give his permanent address for service in case there is an appeal
against his acquittal and the court shall record or cause it to be recorded.

Thefeore;