LECTURE 5

THE PROSECUTING MACHINERY

Objective:
At the conclusion of this part candidates should be able to demonstrate
sufficient knowledge of the functioning of the National Prosecution Service,
the constitutional mandate of the Director of Public Prosecutions, and also to
develop skills and abilities to handle the various legal aspects relating to the
prosecution of offences as well as the roles played by defence counsel in that
regard.

(i) The Constitution of the Prosecuting Machinery

The prosecuting machinery in Tanzania is constituted under the National Prosecution
Services Act 2008.

(ii) Establishment of the National Prosecutions Service

The National Prosecutions Service Act establishes a Service to be known as the
National Prosecutions Service.

The National Prosecutions Service consists of the Director of Public Prosecutions, as

well as such other officers appointed to assist the Director to perform the functions of
the Service.

The Director is the head of operations in the Service in relation to prosecutions and
coordination of investigation duties conducted by the investigative organs.

(iii) Role and functions of the Director of Public Prosecutions

¾ Constitutional Position
The office of the Director of Public Prosecutions is a creature of the Constitution.
Article 59B of the Constitution provides:

59B.- (1) Kutakuwa na Mkurugenzi wa Mashtaka

Mkuruge
ambaye atateuliwa na Rais, kutoka miongoni
nzi wa
mwa watu wenye sifa zilizoanishwa katika Mashita
ka
ibara ndogo ya (2) ya ibara ya 59 na amekuwa
sheria
na sifa hizo mfululizo kwa muda usiopungua ya 2005
miaka kumi. Na. 1
ib.12

(2) Mkurugenzi wa Mashtaka atakuwa na uwezo

wa kufungua, kuendesha na kusimamia mashtaka
yote nchini.
(3) Mamlaka ya Mkurugenzi wa Mashtaka kwa
mujibu wa ibara ndogo ya (2) yaweza
kutekelezwa na yeye mwenyewe au kwa
maelekezo yake na maofisa waliopo chini

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 yake, au wengineo wanaotekeleza kazi hizo
kwa maelekezo yake.
(4) Katika kutekeleza mamlaka yake,
Mkurugenzi wa Mashtaka atakuwa huru,
hataingiliwa na mtu yeyote au na mamlaka
yeyote na atazingatia mambo yafuatayo:-

(a) nia ya kutenda haki;

(b) kuzuia matumizi mabaya ya taratibu
za utoaji haki; na
(c) maslahi ya umma.
(5) Mkurugenzi wa Mashtaka atatekeleza
mamlaka yake kama ilivyoelekezwa
katika sheria yoyote iliyotungwa au
itakayotungwa na Bunge.

(iv) Powers of the Director of Public Prosecutions

Under section 9 of the National Prosecutions Service Act the Director has the
following powers, namely to:

(a) decide to prosecute or not to prosecute in relation to an offence;

(b) institute, conduct and control prosecutions for any offence other than a court
martial;
(c) take over and continue any criminal case instituted by another person or
authority;
(d) discontinue at any stage before judgement is delivered any criminal
proceeding brought to the court by another person or authority. This refers to
the Director’s powers to stop criminal proceedings begun by a private person
under section 99 of the Criminal Procedure Act.

(e) direct the police and other investigative organs to investigate any information
of a criminal nature and to report expeditiously.

The above provisions must be read in conjunction with the following powers of the
Director of Public Prosecutions, of which possibly the foregoing provisions of the
National Prosecutions Service Act (NPSA) are a summary:

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 o Director’s power to enter a Nolle Prosequi under section
91 of the Criminal Procedure Act which he can do by
informing the court concerned in writing on behalf of the
Republic that the proceedings shall not continue. The
consequences of a Nolle Prosequi upon the case are: the
discharge of the accused in respect of the charge for which
the nolle prosequi is entered, and if he has been committed
to prison his immediate release, or if on bail the discharge
of his recognisances. However such discharge of an
accused person shall not operate as a bar to any
subsequent proceedings on the same facts.
o Director’s power of Withdrawal under section 98 of the
Criminal Procedure Act in proceedings before a
subordinate court. The consequences of withdrawal by the
DPP or an officer acting under his instructions are: (1) the
discharge of the accused person if it is made before he is
called upon to make his defence. However such discharge
does not operate as a bar to subsequent proceedings
against the accused person on account of the same facts. In
R.v Mashuri 1972 HCD 118 where the charge had been
withdrawn after several mentions consequent upon the
accused person’s escape from remand prison; it was held
that withdrawal means there is no longer a charge before
the court. In this case since the accused had been re-
arrested after the escape a fresh charge must be drafted
and the trial to proceed as if there had been no prior trial.
(2) acquittal of the accused person if it is made after he is
called upon to make his defence.

(v) Tenure of office of the Director of Public Prosecutions

Section 19 of the National Prosecution Service Act provides that the Director of
Public Prosecutions shall have terms and conditions of service as those of a Judge of
the High Court and as such:
The Director shall not be removed from Office except for and on the reason of:
• inability to perform his functions for reasons of illness or any other
reason; or
• a conduct inconsistent with the Code of Ethics and professional
Conduct for Law Officers, State Attorneys and Legal Officers in the
Public Service provided for in the Office of the Attorney General
(Discharge of Duties) Act or other law concerning ethics of public
officials, and
• Where the President, acting on advice of the Attorney General,
considers that the question of removal of the Director from office

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 needs to be investigated, then the President shall appoint a Special
Tribunal.
• The Tribunal shall consist of a Chairman and two other persons
nominated on the advice of the Attorney General from amongst
persons who hold or have held the office of or could have qualified to
be appointed a Judge of a High Court or a Court of Appeal.
• The Tribunal shall investigate the matter and recommend to the
President on whether the Director be removed or not.
• Where the Tribunal recommends for the removal of the Director, then
the President shall remove the Director.
• In carrying out its functions, the Tribunal shall have regard to the
rules of natural justice, constitutional safeguards and the need to
uphold the integrity of the public service

(vi) Limits of the powers of the Director of Public Prosecutions

There are a number of limitations to the powers of the Director of Public
Prosecutions, for instance:
• under section 33 of the Magistrates’ Courts Act no advocate or public
prosecutor as such may appear or act for any party in a primary court.
• the Director of Public Prosecutions may not institute, conduct
prosecutions for any offence before a court martial ( see section 9 of
the National Prosecution Services Act)

(vii) Role of the Court in Controlling the Powers of the DPP

In the ordinary exercise of their powers the courts exercise control over the powers of
the Director of Public Prosecutions:
• Rejection of a charge filed by the DPP:
The Court is empowered to reject a complaint or formal charge if it is
of the opinion that the complaint or formal charge presented by the
public prosecutor or complainant does not disclose an offence1. See
section 129 CPA.

• Limitation of time for summary trials:

A complaint in relation to an offence, the maximum punishment for
which does not exceed imprisonment for six months or a fine of five
thousand shillings, or both, must be laid within twelve months from the

1
Arguably this is what the position will be under the National Prosecution Service Act, 2008; where
the National Prosecution Service will gradually take over from the police and other government
Departments the conduct of all criminal proceedings. In practice charges in the District/RM’s courts
will be filed by prosecuting Attorneys from the District /Regional Attorney’s Office. The National
Prosecution Service Act contemplates the gradual phasing out of police officers and officials of other
government departments from the prosecutorial role. To that effect section 29 (2) (a) of the National
Prosecution Service Act provides:
“ (2) Upon coming into operation of this Act:-
(a) the Service shall gradually take over from Government departments or
authorities the conduct or criminal proceedings instituted before the
commencement of this Act”

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 time when the matter of such charge or complaint arose. See section
241 of the CPA.
• Stage of trial at which a nolle prosequi may be entered:
A nolle prosequi by the DPP must be entered before the verdict or
judgment. See section 91 of the CPA.
• Stage of withdrawal from prosecution by the prosecutor:
In a trial before a subordinate court a public prosecutor may
withdraw from the prosecution before judgment is
pronounced, and at any rate before the accused is called
upon to make his defence. (See section 98 of the CPA).
• Limitation of time as to notice and petition of appeal by the DPP:
The DPP must give notice of his intention to appeal to the subordinate
court within thirty days of the acquittal, finding, sentence or order
against which he wishes to appeal; and
He must lodge his petition of appeal within forty-five days from the
date of such acquittal, finding, sentence or order; (See section 379
CPA).

(viii) Role of the Commission for Human Rights and Good Governance:
The office of the Director of Public Prosecutions is a public office and the
Director is consequently a person holding office in the service of the government.
In terms of section 6(1) of the Commission for Human Rights and Good
Governance Act, Cap. 391; the Commission has power to investigate or inquire
into complaints concerning practices or actions by persons holding office in the
service of the government. As such the Commission has power to inquire into
complaints concerning actions of the DPP if a complaint is filed with the
Commission alleging abuse of power, injustice or unfair treatment of any person,
by the DPP in the course of the discharge of the functions of his office.

(ix) Delegation of Powers

¾ Delegation by Statute
In terms of section 79 of the Interpretation of Laws Act, Cap.1; the functions of the
Director of Public Prosecutions may, in his absence from headquarters office or
incapacity to act through illness or otherwise, be exercised by such Law Officer as the
Attorney-General may nominate in that behalf2.

¾ Delegation by the Director of Public Prosecutions

In terms of section 23 of the National Prosecution Services Act, the Director may by
instrument delegate to a member of the Service or a public prosecutor any of his (the
Director's) powers and functions.

The DPP may also delegate to other officers the power to consent to prosecutions
where this is required by law. Thus in terms of GN No. 191 of 1984 consent to
prosecute may only be given by the Director of Public Prosecutions, a State Attorney-
in-Charge or a Regional State Attorney.

2
It is important to read ss.10 – 11Office of the Attorney- General (Discharge of Duties ) Act 4/2005 in
order to appreciate the relationship between the Attorney General and the Director of Public
Prosecutions.

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When a delegatee of the Director performs a delegated function; such function, shall
be deemed to have been performed by the Director.

(x) Control of Delegated Powers of prosecution

¾ By the DPP
In terms of Article 59B(2) of the Constitution of the United Republic all prosecutions
are under the control and superintendence of the Director of Public Prosecutions.
Generally no person may commence any criminal case without the express
permission from the Director of Public Prosecutions. More specifically, there
are three major ways through which the DPP controls delegated prosecution
powers.

• The first is that various statutes creating offences require

prosecution in respect thereof to be instituted subject to the consent
of the DPP. In such cases, no prosecution would begin and proceed
unless the Director has specifically consented to it in writing.
• Secondly, matters relating to cases falling outside the jurisdiction
of subordinate courts, and cases involving difficult points of law or
matters of great public interest, are always referred to the Director
for a decision on whether or not to prosecute or for a direction on
whether or not a particular prosecution should continue.
• Thirdly, in exercise of the powers conferred by section 9 of the
National Prosecution Services Act, the Director of Public
Prosecutions may intervene in any criminal case at any stage of the
proceedings before judgement is delivered3.

¾ By the Courts
A Prosecutor must first obtain leave of the court before commencing a prosecution.
This precondition apparently refers to persons seeking to appear as private
prosecutors. Prosecuting Attorneys and Public Prosecutors are duly appointed under
other statutes4. To that effect section 99 of the Criminal Procedure Act provides:
“Any magistrate inquiring into or trying any case may permit the prosecution to be
conducted by any person, but no person other than a public prosecutor or other officer
generally or specially authorised by the President in this behalf shall be entitled to
conduct the prosecution without such permission”.

(xi) Public versus Private Prosecutions

¾ Public Prosecutions

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It must be noted here that by virtue of section 31 of the National Prosecution Services Act; sections
95, 96, 89 and 90 of the Criminal Procedure Act have been repealed and replaced. These sections
referred to appointment of prosecutors (s.95), power of the court to permit public officers to act as
prosecutors in relation to matters falling under their administrative jurisdiction (s.96), creation of the
office of the Director of Public Prosecutions (s.89) and powers and functions of the Director of Public
Prosecutions (s.90).
4
Public Prosecutors are appointed by the DPP under section 22 National Prosecution Service Act. On
the other hand Prosecuting Attorneys are appointed by instrument under the hand of the Attorney
General in terms of section 24 of Office of the Attorney General (Discharge of Duties and Powers)
Act 5/2005. The instrument normally directs the nature of functions the State Attorney will discharge.

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The responsibility to prosecute on behalf of the public, that is to say, the government;
is that of the Director of Public Prosecutions. Generally prosecution aims at
punishing the guilty on the one hand and protecting the innocent on the other. The
DPP discharges his prosecution responsibilities through Prosecuting Attorneys, or
other public officials duly appointed by him to be public prosecutors and acting with
his authority in terms of section 22 of the National Prosecution Services Act.

¾ Private Prosecutions
A Private prosecution is normally commenced by an individual after obtaining
leave of the court to do so. Procedures on matters of private prosecutions are
to be found in Section 99 of the Criminal Procedure Act.

¾ Limits of Private Prosecution

A private prosecution could easily result in abuse of the process of law. Where this
is likely to be the case the private prosecution will normally be taken over by the
DPP and discontinued. Generally however a Private Prosecutor will be permitted
to retain the conduct of the proceedings unless:
(a) There is insufficient evidence to justify the continuation of the
prosecution;
(b) The prosecution is not in the public interest;
(c) There are reasons for suspecting that the decision to institute a private
prosecution was actuated by improper motives or otherwise constituted
an abuse of the prosecution process; or
(d) It would not be in the interests of justice for the conduct of the
prosecution to remain within the discretion of a private individual
having regard to the gravity of the offence and all the
surrounding circumstances.

(xii) Function of the Prosecuting Machinery in the Administration of

Criminal Justice

The prosecution of suspects forms part of the process of criminal justice. It is part of
the measures which the government undertakes to ensure on behalf of the State, the
preservation of peace and order. The general aim of the prosecution process is to
punish the guilty and to protect the innocent or those whose guilt is not proved
beyond reasonable doubt. In this context, every prosecution of a suspect embodies
four immediately observable goals, namely5:
(a) the maintenance of peace and order;
(b) the punishment of the offender;
(c) the appeasement of the public wrath, and
(d) the dispensation of justice.

5
See generally The Report of the Judicial System Review Commission at pp. 82 – 84, Government
Printer, Dar Es Salaam 1977.

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 (xiii) Statutory Control of Prosecution Process

The prosecution process is subjected to control under the following statutes:

¾ The Constitution
The constitution is the fundamental law of the land and as such every exercise of
power including the power to prosecute must be exercised within the ambit of the
constitution. The Constitution of the United Republic embodies a Bill of Rights, and
to that effect Article 13 which protects the right of equality before the law of all
citizens; provides for, among other matters, the right of a person accused to be heard,
the presumption of innocence, prohibition of ex post facto legislation, prohibition of
torture and inhuman or degrading treatment.

If any of the rights safeguarded by the Constitution were infringed, or prohibited acts
perpetrated; in the course of a prosecution; this would invite an appropriate sanction
depending on the circumstances.

¾ The Sixty Days Rule

Section 225 of the Criminal Procedure Act requires criminal prosecutions in

subordinate courts to be finalised within sixty days from the day of commencement.
The exceptions to the sixty days rule are the more serious cases whose investigation is
likely to be protracted such as: treason, treasonable offences, misprision of treason,
promotion of warlike undertakings and similar offences related to the security of the
State as well as offences involving fraud. Where the prosecution cannot finalize a case
not falling under the exceptions within the stipulated period of sixty days; a certificate
explaining why the case has been delayed has to be presented to the court: first by the
Regional Crime Officer who may, by certificate, request for an extension for a further
sixty days, then by a State Attorney requesting similar extension and finally by the
Director of Public Prosecutions who may seek for an extension of up to twenty four
months. To that effect sub-sections four and five of section 225 of the Criminal
Procedure Act read as follows:

4) Except for cases involving offences under sections 39, 40, 41, 43, 45, 48(a)
and 59, of the Penal Code * or offences involving fraud, conspiracy to defraud
or forgery, it shall not be lawful for a court to adjourn a case in respect of
offences specified in the First Schedule to this Act under the provisions of
subsection (1) of this section for an aggregate exceeding sixty days except
under the following circumstances–
(a) wherever a certificate by a Regional Crimes Officer is filed in
court stating the need and grounds for adjourning the case, the court may
adjourn the case for a further period not exceeding an aggregate of sixty days
in respect of offences stated in the First Schedule to this Act;
(b) wherever a certificate is filed in court by the State Attorney
stating the need and grounds for seeking a further adjournment beyond the
adjournment made under paragraph (a), the court shall adjourn the case for a
further period not exceeding, in the aggregate, sixty days;

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 (c) wherever a certificate is filed in court by the Director of Public
Prosecutions or a person authorised by him in that behalf stating the need for
and grounds for a further adjournment beyond the adjournment made under
paragraph (b), the court shall not adjourn such case for a period exceeding an
aggregate of twenty four months since the date of the first adjournment given
under paragraph (a).

(5) Where no certificate is filed under the provisions of subsection (4), the
court shall proceed to hear the case or, where the prosecution is unable to
proceed with the hearing discharge the accused in the court save that any
discharge under this section shall not operate as a bar to a subsequent charge
being brought against the accused for the same offence.

In practice the order for the dismissal of the charge and discharge of the accused
contemplated under sub-section five of section 225 of CPA can only be made after the
expiry sixty days. In R v. Mgema Manyuya (1992) TLR 48 where the order for
dismissal of the charge was made after a mere fifty five days it was held on revision
that the order for dismissal of the charge and discharge of the accused was null and
void.

(xiv) Prosecution and the Protection of Individual Rights

The prosecution of offenders contributes significantly to the protection of the rights of

individuals. The concept of ‘due process’ best illustrates the role of prosecution in the
protection of the rights of individuals. The prosecution process is a machinery through
which the state and its law enforcement organs handle individuals suspected of
committing crimes with a view to establishing their guilt or innocence, through
established courts of law. Consequently the rules of practice which govern the
prosecution process such as the right of the accused to have the charge read to him,
plea taking, the right of the accused to counsel, his right to cross examine prosecution
witnesses and to call witnesses for his defence and above all, the burden of proof
lying on the prosecution to establish the guilt of the accused person beyond
reasonable doubt; have as their principal objective: the protection of the rights of the
individual who is accused of having committed an offence.

In addition to protection of the rights of the suspect, prosecution seeks to protect the
rights of the rest of society: actual and potential victims alike. It is in this sense that
the prosecution process has the dispensation of justice as one of its goals as we saw.
Justice is dispensed when the guilty are punished or otherwise dealt with in
accordance with the law, and when the innocent are never charged with offences, or if
charged they are protected against conviction and punishment. When the guilty are
punished; an appropriate punishment; authorised by law is imposed by the court.
Basing on the facts disclosed during the trial the court determines whether the
punishment should be deterrent, reformative, retributive or merely token. A deterrent
sentence for instance will discourage the convict as well as potential offenders from
committing similar crimes. Consequently the potential vulnerability of society to such
crimes will be reduced or become completely eliminated. The same may be said in the
case of criminal who becomes reformed; society is less likely to become victim of his
acts; and may set about their daily tasks in full enjoyment of their rights, without fear
for their safety or their property.

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The prosecution process is therefore a comprehensive process of putting into practice
the ‘rule of law’ doctrine in that no person should be allowed to take the law into his
hands to resolve a grievance or a dispute. In the absence of a prosecution process
established by law; individuals would be left to take the law into their hands;
resolving grievances by way of self help. This would lead to anarchy and uncontrolled
infringement of rights of individuals; a situation which would not augur well for a
modern democratic society.

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