Plea bargaining of a narcotic drug offence

Our uncle is charged with trafficking in narcotic drugs and is detained in prison because the offence he is charged with is not bailable. He told us to get your opinion on the following questions: (i) does the law allow plea bargaining of drug offences? (ii) can the offender be allowed to pay a fine and walk away? (iii) what amount of fine can the offender pay to have the case concluded by plea bargaining? (iv) is the fine determined by the parties or the Court?
JT, Dar es Salaam

Plea bargaining of a narcotic drug offence depends on the value, weight and type of the drug mentioned in the charge sheet. Section 194F(c) of the Criminal Procedure Act [Cap.20 R.E 2019] as amended by the Written Laws (Miscellaneous Amendments) Act disallows plea bargaining of a narcotic drug offence where the value of the drug involved exceeds TZS 100M. In case the charge sheet particularises the drug by its weight instead of value, limitation to plea bargaining shall depend on the type and weight of the drug. For narcotic drugs and psychotropic substances, the law limits plea bargaining to drugs weighing 1kg. There is no room for a plea bargaining of a narcotic drug or psychotropic substance offence whose weight exceeds 1kg. Where the offence charged is for possession of cannabis sativa (bhang) or khat weighing more than 100kgs, plea bargaining is also prohibited by the law. For precursor chemicals and other substances with drug effects, the law limits plea bargaining to 100 litres if the chemical or the substance involved is in liquid form but if it is in solid form, the threshold is 100kgs.

The normal penalty for the offence of trafficking in narcotic drugs ranges between a minimum of 20 years imprisonment to life imprisonment depending on the weight and type of the narcotic drug involved in the charge. However, under the plea-bargaining arrangement, section 194D (6) of the Criminal Procedure Act as amended by the Written Laws (Miscellaneous Amendment) Act, No.1 of 20202 allows the parties to the proceedings to agree on the penalty to be imposed by the Court and the Court is bound by the penalty agreed by the parties irrespective of the mandatory minimum sentence prescribed by the law creating the offence charged. If the parties to the plea agreement agree to fine as the sentence to be imposed and the amount of fine is mentioned in the plea agreement, the Court shall be bound to impose the agreed fine as the penalty. Hence, in a plea-bargaining arrangement, it is the parties who decide the nature of the sentence they desire to be imposed by the Court and where the desired sentence is a fine, the amount of fine is decided by the parties themselves and not the Court.

Witness’ refusal to take oath

I have been summoned by the Court to attend as a witness. I am told that the Court will require me to take oath before I give my testimony but taking oath is contrary to my faith. Am I allowed to refuse to take an oath on the ground that taking an oath goes against my faith?
MG, Shinyanga

As a general rule any person appearing in Court or tribunal to give evidence should take oath before he/she gives evidence. Only a child of a tender age is allowed to give evidence without taking oath but still he/she must promise the Court to tell the truth before being allowed to give evidence without taking oath.

Evidence given without taking oath without lawful excuse is as good as no evidence and the appellate Court can expunge it from the Court record in case the decision is appealed. A witness who refuses to take oath without lawful excuse is committing the offence of contempt of Court contrary to section 114(1)(b) of the Penal Code [Cap.16 R.E 2019] and in case of conviction is liable to imprisonment for a term not exceeding 6 months.

Where a witness objects to take oath on the ground that he/she has no religious belief or that taking oath is contrary to their religious belief, section 4 of the Oaths and Statutory Declarations Act [Cap.34 R.E 2002] allows such witness to make a solemn affirmation instead of taking oath and such affirmation gives the evidence the same legal weight like evidence given under oath. As a witness you will have the right not to take oath but will need to inform the Court why you don’t want to take oath for you to be excused from taking oath and take solemn affirmation instead. Unreasonable refusal to take oath without giving lawful excuse constitutes the offence of contempt of Court and is punishable.

Standing when hoisting or lowering the National Flag

I see people standing up or stopping walking when the National Flag is hoisted or lowered. Is this requirement of the law? If someone decides to walk or sit down when the National Flag is hoisted or lowered, will he/she be committing any offence?
ER, Mtwara

Walking or sitting down when the National Flag is hoisted or lowered is regarded as disrespect to the National Flag. It is an offence under section 7 of the National Emblems Act [Cap.10 R.E 2002] to do an act which brings into contempt or ridicule the National Flag or Coat of Arm of the United Republic of Tanzania. This offence is punishable by a fine not exceeding TZS 20,000 or to imprisonment for a term not exceeding 2 years or to both. Hence you must stand up or stop walking when the National Flag is hoisted or lowered in order to avoid being prosecuted for the offence of contempt of the National Flag.