Automated Summary
Key Facts
The petitioner, Godfrey Mjuni Martin Basasingohe, challenged the constitutionality of Section 194 of Tanzania's Criminal Procedure Act and the Witness Protection Regulations, 2025, arguing they violate equality before the law and the right to a fair hearing by granting protection exclusively to prosecution witnesses and permitting ex-parte applications. The court declared the provision unconstitutional to the extent it denies defense witnesses equal protection and mandated Parliament to amend it within 12 months.
Issues
- The second issue concerned the constitutionality of ex-parte applications under Section 194, which permit the DPP to seek protective measures without the accused’s input. The petitioner contended this undermines Article 13(6)(a) and (b) of the Constitution by denying the accused an opportunity to challenge such orders. The court held that while ex-parte procedures are justified for witness safety, they do not violate the right to a fair hearing as the accused retains statutory avenues (e.g., Rule 8 of the Rules) to seek review of protective orders at a later stage.
- The court addressed the issue of whether Section 194 of the Criminal Procedure Act and the Witness Protection Regulations, 2025, violate the principle of equal protection of law under Articles 12(1) and 13(1) of the Constitution. The petitioner argued that the provisions create procedural imbalance by allowing the Director of Public Prosecutions (DPP) to apply for protection of prosecution witnesses while denying the defence similar rights for its witnesses. The court concluded that this exclusivity indeed violates equal protection, requiring legislative amendment within 12 months.
Holdings
- The Parliament of Tanzania must amend Section 194 within twelve months from the ruling date (16th February, 2026) to uphold equal protection of the law, or the section will have no legal force.
- Section 194 of the Criminal Procedure Act violates the principle of equal protection of law under Articles 12(1) and 13(1) of the Constitution by granting protection rights exclusively to prosecution witnesses and denying corresponding rights to defence witnesses.
Remedies
- The court mandated the Parliament of Tanzania to amend Section 194 within twelve months from the ruling date (16th February 2026) to uphold equal protection of the law. Failure to comply will result in the section having no legal force.
- The court declared that Section 194 of the Criminal Procedure Act is unconstitutional as it grants protection rights exclusively to prosecution witnesses and denies corresponding rights to defence witnesses, violating the principle of equal protection of law under Articles 12(1) and 13(1) of the Constitution.
Legal Principles
- The court addressed the constitutional principle of equal protection of the law under Articles 12 and 13 of the Constitution, declaring section 194's exclusion of defence witnesses as violating this principle.
- The principle of equality of arms under Natural Justice was central to the court's analysis, requiring both prosecution and defence to have equal procedural opportunities to present their cases without substantial disadvantage.
- The court applied the Literal Rule in interpreting section 194 of the Criminal Procedure Act, emphasizing that the plain meaning of the statute's wording must be adhered to without adding or amending its text.
Precedent Name
- Principal Secretary Ministry of Finance and Planning, Zanzibar v. Said Ally Usi & 9 Others
- Jean Claude Garofoli v. Her Majesty the Queen
- NID HUBER v. SWITZERLAND
- Alex John v. Republic
- Republic v. Amos Kipchumba & Others
- Attorney General v. Dickson Paulo Sanga
Cited Statute
- Basic Rights and Duties Enforcement Act
- Appellate Jurisdiction Act
- Criminal Procedure Act
- Witness Protection Regulations
Judge Name
- F. H. Mtulya
- K.S. Kamana
- W.M. Chuma
Passage Text
- It is therefore both unthinkable and impracticable for the DPP to act on behalf of the accused in an application to protect the accused's witnesses.
- 2. Within twelve months from the date of this ruling, section 194 of the Criminal Procedure Act be amended by the Parliament of the United Republic of Tanzania to uphold the principle of equal protection of the law, and failure of which, the said section shall have no legal force.
- 1. Section 194 of the Criminal Procedure Act violates the principle of equal protection of law as enshrined under article 12(1) of the Constitution and expressly stated under article 13(1) of the Constitution to the extent that it grants protection rights exclusively to prosecution witnesses and denies corresponding rights to the defence witnesses;