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    Criminal Procedure Topic 1

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    RANDAN SADIQ
    Criminal procedure is about the way the state and its law enforcement organs are supposed to handle individuals suspected or accused of committing crimes with a view of establishing their guilty or innocence, through established courts of law. It is about rule of law, rule of law do not allow anybody to take the law upon his own hands.

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    Criminal Procedure Topic 1

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    RANDAN SADIQ
    71 views7 pages
    Criminal procedure is about the way the state and its law enforcement organs are supposed to handle individuals suspected or accused of committing crimes with a view of establishing their guilty or innocence, through established courts of law. It is about rule of law, rule of law do not allow anybody to take the law upon his own hands.

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    Criminal procedure is about the way the state and its law enforcement organs are supposed to handle individuals suspected or accused of committing crimes with a view of establishing their guilty or innocence, through established courts of law. It is about rule of law, rule of law do not allow anybody to take the law upon his own hands.

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    © All Rights Reserved
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    Download as pdf or txt
    71 views7 pages

    Criminal Procedure Topic 1

    Uploaded by

    RANDAN SADIQ
    Criminal procedure is about the way the state and its law enforcement organs are supposed to handle individuals suspected or accused of committing crimes with a view of establishing their guilty or innocence, through established courts of law. It is about rule of law, rule of law do not allow anybody to take the law upon his own hands.

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    RDL 215/RCL 203

    CRIMINAL LAW AND PROCEDURE

    PREPARED BY;

    MR. EGIBERT A. BONDO

    TOPIC SEVEN: INTRODUCTION TO CRIMINAL PROCEDURE

     Meaning of Criminal Procedure

    Criminal procedure is about the way the state and its law enforcement organs are supposed to

    handle individuals suspected or accused of committing crimes with a view of establishing their

    guilty or innocence, through established courts of law. It is about rule of law, rule of law do not

    allow anybody to take the law upon his own hands. The need to adhere to due process was stated

    in Joseph Masunzu v. R Cr. App. No.3 of 1991, (HC), (TB), at p.3.

    “…we can not peacefully make our journey through life, without law

    telling us the right direction to follow, and sometimes even the time to

    follow and when to start our journey and through which route”

    In Kamundi v. R (1973) EA 540. In this case it was held that the whole purpose and intention of

    the criminal procedure [Code] is to lat down provisions and procedure to see that justice is done.

     SOURCES OF CRIMINAL PROCEDURE


    1. The Constitution

    Constitution is any document or scheme which establishes the country’s government, defines the

    powers and limits of the three arms of the state namely the parliament, the judiciary and the

    executive and the necessary checks and balances in the manner the three arms are supposed to

    function. It also defines the relationship between the state and its citizens in terms of rights and

    obligations. The Constitution is a fundamental law of any country where it is available.

    How the Constitution does become the source of criminal procedure?

     Every law of the land, be it written or otherwise, must comply with the provisions of the

    Constitution

     No criminal procedure is valid if it violates any of the provisions contained in the

    Constitution.

    Article 13 (3) of the Constitution provides that civil rights. Obligations and interests of every

    person and of the society shall be protected and determined by the competent courts of law and

    other state agencies established in that behalf by or under the law.

    Article 13 (4) provides that no person shall be treated in a discriminatory manner by any person

    acting by virtue of any law or in the discharge of the functions of any state office or the party,

    and its organs.

    Therefore, if there is any criminal procedure in contravention of the right to fair hearing, for

    example through established courts of law that procedure is illegal.


    The Constitution also incorporates the fundamental rule of criminal justice and that is “every

    person is presumed to be innocent until the contrary is proved beyond reasonable doubts.(Art 13

    (6) (b).

    Article 13 (6) (c) provides that no person is to be punished for non-existent offences.

    2. Statutes

    Those pieces of legislation enacted by or under the authority of the parliament. Those enacted by

    the parliament are known as “principal legislations.” For example, Criminal Procedure Act,

    Economic and Organized Crimes Control Act, Minimum Sentences Act etc.

    Those statutes which are made under the authority of the parliament are known as Subsidiary

    legislation”. They are enacted by executives, ministries, commissioners, principal secretaries

    under a specific authority given to them to do so by the principal statutes. For example, The

    Habeas Corpus Rules, GN No. 150 made under S. 348 of CPA. Accelerated Trial and Disposal

    of Cases Rules, made under s. 192 etc.

    Section 4 (1) of CPA provides that all offences under the Penal Code shall be inquired into, tried

    and otherwise dealt with according to the provision of this Act.

    Section 4 (2) of CPA provides that all offences under any other law shall be inquired into, tried

    and otherwise dealt with according to the provisions of this Act, except where that other law

    provides differently for the regulation of the manner or place of investigation into, trial or

    dealing in any other way with those offences.


    3. International law

    This is a sum total of norms accepted by international community to regulate relations amongst

    states vis a vis its subject. It is also an interesting source of criminal procedure especially in this

    era of human rights promotion and protection. There are a number of Conventions which have

    direct bearing to the administration of justice. For example, Convention against Torture and

    other Cruel Inhuman or degrading treatment or Punishment, 1984, Resolution on Principles of

    the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Execution,

    1989, Convention on the Rights of the Child, 1990 to mention but few.

    4. Precedents

    There are judgments or decisions of a court of law cited as authorities for deciding similar sets of

    facts because of the legal principle embodied in them.

    Re Hallett (1880) 13 Ch. D. 969. It was held inter alia that:

    “Only use of authorities or decided cases is the establishment of some

    principle which the judge can follow out in deciding the case before him.

    Courts are therefore expected to be bound by their prevision decisions as

    guidance for deciding matters at issue.”


    5. Bilateral agreements / Treaties

    These are sources of criminal procedure; most of them are actually regional with a few

    exceptions. Under the provision of the Mutual Assistance in Criminal Matters Act, the

    government of Tanzania (through Attorney general) may enter into agreements with foreign

    countries, which have reciprocated the provision of the Act, for matters relating but not limited

    to:

    a. Obtaining of evidence, documents or other articles

    b. Location and identification of witnesses

    c. Execution of request to search and seizure

    d. Assistance in investigation

    e. Execution of courts orders

    f. Service of documents

     CRIMINAL PROCEDURE AND PROTECTION OF INDIVIDUALS RIGHTS

    The administration of criminal justice is based on Constitutional principles that all people are

    equal before the law. Thus all people are entitled to a fair and public hearing by competent,

    impartial and independent court or tribunal.

    The rights of those restrained by the police are set out under Sections 54 and 55 CPA, including

    the right to communicate with a lawyer, representative or relative and the right to be treated

    humanely and with respect for their human dignity.

    Section 54 of CPA provides that:


    (1) Subject to subsection (2), a police officer shall, upon request by a person who is under

    restraint, cause reasonable facilities to be provided to enable the person to communicate with a

    lawyer, a relative or friend of his choice.

    (2) A police officer may refuse under subsection (1) for the provision of facilities for

    communicating with a person being a relative or friend of a person under restraint, if the police

    officer believes on reasonable grounds that it is necessary to prevent the person under restraint

    from communicating with the person for the purpose of preventing–

    (a) The escape of an accomplice of the person under restraint; or

    (b) The loss, destruction or fabrication of evidence relating to the offence.

    Section 55 of CPA provides that:

    (1) A person shall, while under restraint, be treated with humanity and with respect for

    human dignity.

    (2) No person shall, while under restraint, be subjected to cruel, inhuman or degrading

    treatment.

    (3) Where a person under restraint–

    (a) Makes a request to a police officer to be provided with medical treatment, advice

    or assistance in respect of an illness or an injury; or


    (b) appears to the police officer to require medical treatment, advice or assistance in

    respect of illness or injury, the police officer shall forthwith take such reasonable action as is

    necessary to ensure that the person is provided with medical treatment, advice or assistance.

    Other rights are:

     Right to personal liberty

     Right to privacy

     Right to be availed with statement of prospective witnesses. [section 9 (3) of CPA]

     Presumption of innocence, art 13 (6) (b) of the Constitution

     Right to fair hearing, art 13 (6) (a) of the Constitution

     Right to bail, section 148 (5) (b) of CPA

     Right against retrospective application of laws, art 13 (6) (c) of the Constitution

     Right to appeal, art 13 (6) of the Constitution

    Review questions

     What is a rationale for criminal procedure

     Difference between procedural and substantive law

    “Quod iste et iste cur non ego”

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