Q&A – 10 June 2024

New facts in re-examination

I am a handwriting expert and have attended numerous Court proceedings to understand the manner in which witnesses are usually questioned. However, in a recent case, I was surprised by a new practice. A counsel from one of the parties prayed to introduce a new fact in re-examination and was allowed to proceed. My understanding is that re-examination only focuses on matters examined in cross examination. Please enlighten me on this.
KS, Dodoma

The order and direction of examination of witnesses in legal proceedings is governed by the Evidence Act [Cap. 6 R.E 2022] (the Evidence Act). Your understanding is correct. Re-examination focuses on matters raised in cross examination. There are however exceptions to this general rule. According to section 147, witnesses will be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling them so desires) re-examined. The examination-in-chief must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.  Afterwards, the re-examination will be directed to the explanation of matters referred to in cross-examination; and if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. The Court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination and if it does so, the parties have the right of further cross-examination and re-examination respectively.

In simple terms, the party introducing a new fact in re-examination has to seek the permission of the Court. Equally, the Court has discretion to allow new facts in re-examination. Nonetheless, Courts in Tanzania have in several decisions held that such discretion has to be exercised judiciously and at least a fair opportunity should be given for the witness to be cross-examined by the other party upon the new facts.  Your lawyer can guide you further on the procedures.

Law of Limitation Act in criminal proceedings

I used to be a troublemaker in the past. After undergoing therapy and counselling, I am now a new person.  Unfortunately, during that dark period of my life, I committed a crime.  The police arrested me but I was released on bail. I have been informed that I will be brought to justice. A friend informed me that there is a law on limitation of time for legal action. I was wondering whether I can challenge the legal action brought against me using this law. Several years have passed already and I am now a law abiding citizen.
VM, Mwanza

We commend your efforts to become a law abiding citizen.

It is true the Law of Limitation Act [Cap. 89 R.E 2019] (the Limitation Act) provides for limitation of time for legal action. However, the application of the Limitation Act is limited to civil proceedings and related matters. Section 43 (a) of the Limitation Act specifically states that the Act shall not apply to (a) criminal proceedings; (b) applications and appeals to the Court of Appeal; (c) proceedings by the Government to recover possession of any public land or to recover any tax or the interest on any tax or any penalty for non-payment or late payment of any tax or any costs or expense in connection with any such recovery; (d) forfeiture proceedings under the Customs (Management and Tariff) Act or the Excise (Management and Tariff) Act; (e) proceedings in respect of the forfeiture of a ship or an aircraft; (f) any proceeding for which a period of limitation is prescribed by any other written law, unless a contrary intention appears in the written law. Therefore you cannot rely on the Limitation Act to challenge the legality of criminal proceedings.

You have not said what crime you committed. We are aware that section 241 of the Criminal Procedure Act [Cap. 20 R.E 2022], provides that except where a longer time is specially allowed by law, a charge of an offence whose maximum penalty does not exceed imprisonment for 6 months or a fine of TZS 5000 cannot be instituted after the expiration of 12 months counted from the date of commission of the offence. Your lawyer can guide you further.

Delay in taking accused to Court

My husband is a traditional healer and was arrested after being found with Elephant tusks which he uses as medicine. He has been under police custody for three months now. Every time I visit him, the police tell the same story that the investigation is not complete.  I want justice for my husband. What does the law say about delay in taking an accused person to Court? Please guide me.
JP, Kigoma

We are sorry to hear about your husband. Section 29 of the Economic and Organised Crime Control Act [Cap. 200 R.E 2022] (the EOCCA) requires that after a person is arrested, or upon the completion of investigations and the arrest of any person or persons, in respect of the commission of an economic offence, the person arrested shall as soon as practicable, and in any case within not more than 48 hours after his arrest, be taken before a District Court or the Resident Magistrate’s Court within whose local limits the arrest was made, together with the charge upon which it is proposed to prosecute him, for him to be dealt with according to law.  The Law is clear that the limit is 48 hours.

The position of the Courts in interpreting this section 29 of the EOCCA is that how soon the accused should be brought to Court after arrest, depends on the circumstances of each particular case. In case the accused is not brought to Court within the time limit, the prosecution has to give an explanation why there was a delay. In absence of any explanation, an adverse inference will be drawn against the prosecution creating a doubt on the prosecution case. Your lawyer can guide you further.