INTRODUCTION.

Privileged Communication, this is communication between individual who are in a protected

relationship by the virtue of which, the details of their communication cannot be communicated. 1
This form of communication exist to protect the disclosure of information during the substance
of confidential or protected relationships, this communication are such that they may not be used
as evidence in court of law against the person communicating due to specific nature of their
relationship.2 Witness are playing a vital role in the administration of criminal and civil justice,
the term witness must also being taken to include parties to proceedings. Judgement are normally
made based on the evidence given by witness. However not every witness is allowed to testify
some of them are competent and compellable but others are not compelled to testify before the
court due so some legal protection imposed by law and whatever is communicated by the parties
remain confidential and the court cannot force for their disclosure, even disclosure of one party
comes with legal limitation3

MAIN BODY:

Witnesses generally can be classified in three groups that is witnesses who are competent and
compellable to testify, witnesses who are competent but not compellable and witnesses who are
competent, but for some reason or another, the court will not allow them to testify. This brings us
to the three important notions used in the law relating to witnesses namely competency
compellability and privilege

A witness is competent if he may lawfully be called to give evidence. This means those people
who can testify. Such person is expected to be conversant with the facts of the case. More
precisely a witness is competent to give evidence if his testimony is admissible. The competency
of a person to testify is a condition precedent to the taking of a witnesses’ testimony.
Competency being a condition precedent to the administration of an oath or affirmation, a
determination of competency must be made before the oath or affirmation is administered. The
responsibility for determining competency lies with the court.

1
Garner, B.A. (2009): Black’s Law Dictionary, 9th Edn, pg. 326
2
Halakandi, N “Privileged Communication”, https;//www.blog.ipleaders.in/privileged-communication-betweenwife
and husband. Retrieved on 13th July 2020, at 10:30 am
3
https://www.investopedia.com/terma/p/privileged-communication.asp. Retrieved on 13th July 2020, at 10:50 am
A witness is compellable if he is obliged to go into witness box and to answer question put to
him or else sanctioned for contempt of court if he refuses to do so

this is due to the general rule propounded under section 127(1) of the Evidence Act 4 which is to
the effect that “every person shall be competent to testify unless the court considers that he is
incapable of understanding the question put to him or giving rational answers to those questions
by reasons of tender age, extreme old age, disease (whether of body or mind) or any other
similar cause.” The general rule promulgated under this section may be reduced into two
proposition, that is to say any person is competent before any proceeding and all competent
witness are compellable unless the exceptions supplies. However a witness may refuse to testify
on the ground of privilege.

Thus in so far as the question is concerned our main focus will base on the third notion relating
to witness namely privilege, the attendance of witness in court can be enforce under the pain of
penalty for non-compliance. As a general rule any person who called in court of law as a witness
is not excused from answering questions put to him on the ground that the answer will
incriminate him or expose him on any penalty or forfeiture of any kind this is provided for by
section 141 of the Evidence Act,5 But there are certain matters which a witness cannot either be
compelled to disclose or even if the witness is willing to disclose he will not be permitted to do
so, such matters are known as privileged communications

Spousal Communication, this refers to the communication between a man and his wife, any
communication between a married couples is considered confidential. Either party is disallowed
from divulging any such information to any third party made within the confines of a valid, or
existing marriage. Section 130(1) of the Evidence Act 6 provides for this privileged
communication whereby person who is or has been married shall not be compelled on behalf of
prosecution side to disclose any communication made to him during marriage to any person
whom he is or has been married Where in any criminal case a husband or wife is an accused of
an offence is a competent witness for the defense in his or her case but not compellable witness
to give evidence. Also where the spouses is in need to give evidence either for prosecution or
defense, thus as the general rule is that spouses is competent but not compellable witness for the
4
[Cap 6 R.E 2019]
5
Ibid
6
Ibid
prosecution, in other word this means that the communication between spouses at to the
commission of any criminal offence is privileged, and operates or extend to both spouses
whether the marriage is monogamous or not. The problem with this privileged communication
may, however, arise where concubinage is involved. The issue is whether concubine is covered
by the privilege. This matter had a day in court in the case of Republic v. Siwajibu Kibaya7in
this case a couple lived together in a concubinage for three years, begot two children and
entertained the desire and hope of going through ceremony of marriage in the near future. The
court consider that whether spouse under such circumstance in Tanzania is under duty to testify
against the other spouse then the High Court of Tanzania speaking through Mapigano J, held that
where the line between a valid marriage and concubinage is obscure and where cohabitation
takes on the typical feature of a durable establishment a spouse of such cohabitation is not under
duty to testify for the prosecution. Here under this decision it has to be noted that if only and only
if the clear line or the line between a valid marriage, and cohabitation is uncertain or concealed
and the cohabitation took the features of long period of time then the spouses in such relationship
is not compelled to testify against each other for the prosecution.

The privilege stated in section 130(1) of the Evidence Act8 has two exceptions, a husband or a
wife is a competent and compellable witness in the following cases:

Where the charge is under chapter XV of the Penal Code, under this chapter if a husband or wife
is charge with offences such as rape, gang rape, attempted rape, abduction, abduction of girls
under sixteen years, sexual assault on persons and indecent assaults on women defilement of
idiots or imbeciles defilement by husband of wife under eighteen year, acts of gross indecency
between persons, sexual exploitation of children, rave sexual abuse, sexual harassment or if a
husband or wife is charged with an offence such as, false statement in notice of intention to
marry or in notice of objection, failure to attend before the marriage conciliation Board without
reasonable excuse ,or in any proceeding before the board knowingly makes a false statement,
fabricates evidence or makes use of fabricated evidence, destroys, mutilates or conceals any
documentary evidence; or attempts to influence any witness, marriage contracted under
prohibited relationship, or any married woman who commits a polyandry and other similar

7
[1989] TLR 12
8
Supra,
offences enumerated under part VI of the Law of Marriage Act 9 this exception is provided under
section 130(2)(a) the Evidence Act10 thus any information communicated between a husband and
wife as to the commission of those offences mentioned herein above is not privileged and any of
the spouse may is competent and comparable witness to disclose such information

Another exception is given under section 130(2)(b) of the Evidence Act in case where the person
charged is charged in respect of an act or omission affecting the person or property of the wife or
husband of such person or the children of either of them so if that happened any information
communicated as between husband and wife is subject to disclosure and the privilege provided
for by section 130(1) of the Evidence Act is waived and any spouse is competent and comparable
witness to testify, The rationale behind this exception is intended to protect personal and
property interests of spouses.

So in circumstances where a spouse is needed to give evidence for the prosecution the court
should make sure that the particular spouse is fully informed that he/she is under no duty to
testify against his/her partner before giving such testimony, otherwise such evidence would not
be admissible as per section 130(3) the Evidence Act. In other word where a prosecution side has
brought witness to testify on their behalf and the court see that the other spouse is either a
husband or wife but not charged with the offence under section 130(1) of the Evidence Act then
the court shall make sure that a particular wife or husband should be fully informed that he or she
is not under legal duty to give evidence against his or her spouse or partner.

Judges and magistrate, the information which are in the personal knowledge of judges and
magistrates are privileged and they are not compelled to disclose or to make communication of
such information, this has been provided forthwith under the provision of section 129 of the
Evidence Act which narrates as that “no judge or magistrate shall ….be compelled to answer
any questions as to his own conduct in court as a judge or magistrate, or as to anything which
came to his knowledge in court as a judge or magistrate, but he may be examined as to other
matters which occurred in his presence whilst he was so acting” the basis of this rule appear to
be that cross-examination or commenting on judicial conduct may be incompatible with the
prestige of office a judge or magistrates is therefore not compelled to answer any questions as to
9
[Cap 29 R.E 2019]
10
Supra.
his own conduct in court as a judge or magistrate for example Morrison, on his trial before the
court session, says that a deposition was improperly taken by Mr. Chama, the magistrate. So
Mr. Chama cannot be compelled to disclose any information or communication as to how the
statement was taken11.

Also a judge or magistrate privileged to disclose any communication as to anything which came
to his knowledge in court as a judge or magistrate this can be illustrated as follows John is
accused before the court of law of having given false evidence before David a magistrate. Thus
David the magistrate cannot be compelled to disclose or communicate as to anything which came
to his knowledge in court as a magistrates.

Also judge’s magistrates and police officer are protected under section 133(1) of the Evidence
Act12 not to disclose, communicate or to say as to where the information regarding to the
commission of an offence was obtained. Under section 7(1) of the Criminal Procedure Act 13
provides for a legal duty to any person who is or become aware of the commission or the
intention of any other person to commits any offence punishable under the Penal Code 14 or of
any sudden or unnatural death or death by violence….to give information as to the commission
or the intention of any other person to commits any offence to police officer or other person in
authority….” So section 133(1) of the Evidence Act intend to encourage people to give
information about the offence by protecting the source of information otherwise no one would
likely dare to give such information, the section also enable a judge, magistrates or police officer
and revenue officer to maintain secrecy about the source of their information rationale of this
rule is that the names of persons who assist in the detection of crimes through giving information
should not unnecessarily be disclosed. In Normal circumstances if this practice is allowed no
one would volunteer to give information on commission of offences. It has to be understood that
this privilege applies only to the identity of the informant and not the contents of the information
given.

The provision of the section 129 of the Act15 tries to protect the communication which are in the
knowledge of judges and magistrates not to be disclosed of, however the privilege covered by
11
Sarkar , M.C & Sarkar, S.C (2014):Sarkar Law of Evidence, 18 th Edn, pg.2576
12
Ibid
13
[Cap 20 R. 2019]
14
[Cap 16 R.E 2091]
15
The Evidence Act [Cap 6 R.E 2019]
this section is subject to some exceptions whereby there some circumstances of which a judge or
magistrate is required to disclose those information, and this is where he or she is obliged to do
so upon a special order of some court to which he is subordinate it. Also the privilege does not
extend to other collateral matters or incidents occurring in his presence while acting as a judicial
officer. In other words, if the matters about which the judge or magistrate is to be examined
concern occurrences in his presence while acting as a judge or magistrate, there is no privilege.
For example where in the course of trial the accused assaults the prosecuting officer the trial
judge or magistrate may be examined on the incident.

Privilege relating to official records, this is another privileged communication articulated under
section 132 of the Evidence Act16 whereby the section deals with the production of unpublished
official records and communications received by public officer in the course of his duty, such
records or communication shall not be admissible if the minster on oath states that he has
examined the contents of the document and it of the opinion that the production would be
prejudicial to the public interest. Thus the section give a privilege to public officers to refuse to
disclose matters which are brought to their knowledge in official confidence. The requisite of
this privilege is that there should be a public officer, a communication has been made to him in
official confidence and that he had the discretionary to refuse disclosure on the ground that
public interest would suffer by the disclosures. There is privileges which attaches under certain
circumstances, to communication made to public officers, state secrets, or matters which governs
the administration of the government, thus should not be communicated since to reveal them
might be highly prejudice public interest. Therefore communications relating to affairs of the
state are thereby held to be privileged, and the officer may refuse to disclose or communicate
them17

Communication between an advocates and client or professional communication; the term

advocate is defined under section 2 of the Advocates Act [Cap 214 R.E 2019 to mean any person
whose name is duly entered as an advocate upon the roll. therefore from the wording of this
provision it means that no one can serve as an advocate unless his or her name is appear on the
list of advocates and one among the core function of an advocate is to represent the respective
parties(clients) before the court of law, that being the case there is a fiduciary relationship that
16
Ibid.
17
Singh A, (2013) Principles of Evidence 12th Edn, pg.505
exists as between an advocate and clients in the due course of acting as a legal representative
before the court of law and this relationship is built on confidential matters that are conveyed
from the client to the Advocates.

So when it comes to the aspect of communication between the client and his advocate their
communication is privileged under the provision of section 134(1) of the Evidence Act 18the
section provide that no advocate shall be permitted…to disclose any communication made to
him in the course and for the purpose of his employment as an advocate by or on behalf of his
client or to state the contents or condition of any document with which he has become acquainted
in course and for the purposes of his professional employment or disclose any advice given by
him to his client in the course and for the purpose of such employment.

The gist of this section is to prohibits an advocate from communicating any of the information
that he had acquainted with at the time of his professional employment, the professional
communication between lawyer and his client made in the course or for the purpose of pending
trial or for the purpose of obtaining professional advice (under client and lawyers relationship)
cannot be disclosed unless with the client’s consent. Usually between lawyers and client there is
a duty of confidentiality thus a lawyer is not or cannot be compelled to disclose the information
of his client unless and until the prior consent is important thing to be noted here is that this type
of privilege is not is not there to protect the advocate but the client as against disclosure of
information, the prohibition of this type of privilege on disclosure is to encourage litigants to
communicate fully and frankly with their lawyers without any fear that the information given by
them can be passed on the opponent or to the court. In absence of this prohibition it would have
been difficult for anybody to get the best professional advice 19This privilege may also apply to
the situation where a client or a lawyer is a party to the litigation in which the question arises or a
mere witness and it is applies as much as to the production of documents containing such
communication as to the oral Evidence about them, in Minter v. Priest20in this the plaintiff was
arranging the sale of house to S of which he owned subject to mortgage. T was a plaintiff’s agent
for the sale and S had agreed to give T half of any of profit which might result from the resale of
the house. S and T was went to interview the defendant, a solicitor who had previously dealing
18
[Cap 6 R.E 2019]

19
Singh A, (2013), supra, pg. 508.
20
[1930] AC 558
with the plaintiff and suggested to him that he should provide the deposited money for the
purchase of the house and become their solicitor in completing the purchasing the first mortgage
at lower price. The plaintiff refused but suggested an alternative scheme for purchasing the first
mortgage at a lower price, the profits on resale to be shared between the defendant A and T. In
suggesting this scheme the defendant uttered a slander on plaintiff thereafter T reported the
slander to the plaintiff who then sued the defendant. At the trial court before Horridge J, T was
called as witness to prove the publication and claimed privilege, but the judge maintained that he
must tell what occurred and said that at the time when the slander was uttered the relationship
between solicitor and client did not exist between the parties. The House of Lords restore the
decision and Lord Atkin pointed out that the communication between solicitor and client are
doubly protected, the court further held that the communication must have been confidential and
if not actually made in the course of relationship of lawyer and client, it must at least have been
made with a view to the establishment of such relationship.

The essence privileging the communication between lawyer and client is based on the fact that if
there is not such type of privilege then the client may avoid disclosure of his information or
instructions to his lawyer and of his lawyers advice to him, this also the reason of protecting the
communication not to be disclosed it is founded on the impossibility of conducting legal business
without professional assistance and on necessity in order to render that assistance effectual and
securing full and the unreserved intercourse between the two.

The provision of section 135 of the Evidence Act21extends the privilege given under section 134
of the Evidence Act22to interpreters, clerk or servant of a lawyer, therefore the privilege or
prohibition not to disclose any information communicated as between a lawyer and his client
given under section 134 also apply mutatis mutandis as to the interpreters, clerk or servant of a
lawyer. This is due to the fact that the interpreters, clerk or servant of a lawyer, they are likely to
come to know the confidential information relating to litigation, 23 this has been discussed in the
case of Wheeler v. Le Merchant24 In this case the court said the following “....the actual
communication to the solicitor by the client is of course protected, and it is equally protected
whether it is made by the client in person or is made by an agent on behalf of the client; and
21
Cap 6 R.E 2019]
22
Ibid
23
Singh A, (2013) Principles of Evidence 12th Edn, pg.513
24
(1881) 17 Ch. D. 675.
whether it is made to the solicitor in person or to a clerk or a subordinate of the solicitor who
acts in his place and under his direction… it is a rule established and maintained solely for the
purpose of enabling a man to obtain legal advice with safety…”The obligation not to disclose
any information committed between lawyer and clients also continues after the employment has
ceased this is the legal requirement under imposed under section 134(2) of the Evidence Act25

However the privileged communication protected under section 134(1) of the Evidence Act does
not cover numbers of cases and this may operates as an exceptions to the privileged
communication as between an advocate and the client, the an advocate may disclose any
information or instructions obtained by him from his client in the course of employment in the
following cases:-

Disclosure with the express consent of the client, section 134(1) of the Evidence Act26
provides that no advocate shall at any time be permitted, unless with his client’s express
consent, to disclose any communication made to him in the course and for the purpose of his
employment as an advocate by or on behalf of his client...”thus the bold words gave an advocate
power to disclose any communication made between him and his client in the course of
employment. The prohibition is for the benefit of the client, and he may waive it, if he deemed it
advisable. The waiver should be expressly, the death of client shall not amount to waiver. His
death puts the matter beyond waiver and it must forever remain protected. Once a client has
revealed in court a party of the communication between himself and his advocate regarding a
transaction in issue, he thereby waives his privilege with respect to all communications
connected with the same transaction27

The communication is made in furtherance of an illegal purpose, the law under section
134(1)(a) of the Evidence Act28 waived the protected communication between lawyer and the
client to be disclosed in case the purpose of the communication or advice conveyed between an
advocate and the client is for the purpose of enabling the commission of illegal purpose. 29 For
example Ally a client say to John an advocate “I wish to obtain possession of piece of land by
using forged deed on which I requested you to sue” in accordance to the aforementioned
25
Supra
26
Supra
27
Singh A, (2013) ,supra pg. 511
28
Supra
29
Singh A, (2013) Principles of Evidence 12th Edn, pg. 510
provision though there is a confidential relationship between Ally a client and John an advocate
is not protected from disclosure since the communication is made in continuance of criminal
purpose.30 In R v. Cox and Railton 31 A client consulted a lawyer for the purpose of drawing up a
bill of sale which was alleged to be fraudulent, the communication was held to be not privileged,
for the consultation was for illegal purpose. Also in Crescent Farm (Sid cup) Sports Ltd v.
Sterling Offices Ltd32 the first defendant conveyed land to the second defendant in breach of
plaintiff contractual right of pre- redemption the plaintiff sought damages for breach of contract,
interfere with contract and conspiracy and sought to discover opinion prepared by the first
defendant counsel concerning the conveyance which the first defendant had given to the second
defendant counsel. It does not cover any facts observed an advocate in the course of his
employment as such showing any crime or fraud has been committed since the commencement
of his employment, whether the intention of such advocate or was not indicated to such fact or on
behalf of his client

Any fact observed by any advocate in the course of his employment as such, showing that
any crime or fraud has been committed since the commencement of his employment. This
means that if an advocate in the course of conducting his daily employment come into or
witnessed any fact or act which shows the commission of crime or fraud even where an advocate
is not aware of the fact then his communication with his or her client is not privileged this has
been given under section 134(b) of the Evidence Act. For instance Umesikia wapi is charged
with embezzlement retains Mkono, an advocate to defend him. In the course of proceeding
Mkono observed that an entry has been made in Umesikia wapi’s book charging him with a
sum said to have been embezzled, which entry was not in the book at the commencement of his
employment. This being a fact observed by Mkono in the course of his employment showing
that a fraud has been committed since the commencement of the proceedings then the
communication is not protected from disclosure33In the case of Butler v. Board of Trade34 a
solicitor sent her client a warning that his conduct, if persisted in, could result in serious
consequences. The court held that “the letter was privileged because it could not be regarded as

30
Ibid, pg. 508
31
(1884)14Q.B.D. 153.
32
[1973] ChD 553
33
Op. cit, pg. 508
34
[1971] Ch. 680
being in preparation for or in furtherance or as part of any criminal design on the part of the
client”

Proceedings in which the professional conduct of the Advocate himself is or might be in

issue. This means that if the proceeding before the court of law involves the professional conduct
of an advocate then the advocate is not privileged from disclosure of any information in relation
to the professional conduct which is subject to the proceedings. For example if an advocate
himself sues the client for his professional service he may disclose so much of the information as
is relevant to the issue, however such disclosure is not available in document which has already
been reduced or put on records35

Confidential communication with legal Advisors, this privilege has been given under section
137 of the Evidence Act36 where by the section provides to the effect that person shall not be
compelled to disclose to a court any confidential communication which has taken place between
him and his advocate or professional legal adviser, the protection under this section is offered to
witness and the client while the section we discussed above that is sections 134 and 135 provide
protection to the legal adviser, his clerk from disclosing confidential communication between
them and the client. If the protection is not provided from the client as was done in this section
the protection given to the advocate or legal adviser under section 134 and 135 of the Evidence
Act would become illusory. However the application of this privilege is subject to a condition ,
namely if a person offers himself as a witness he may be compelled to disclose any such
communications which may appears to the court necessary in order to explain any evidence he
has given in the court,

COCLUSION

Generally speaking, the mere fact that a communication was made as a result of an assurance of
confidentiality will not protect it from being revealed in court (or during pre-trial discovery). If a
witness has been told something in confidence he can be compelled to reveal that information
and will be in contempt of court if he refuses to comply. To this there are some well-established
exceptions, but they are few in number and confidentiality is not a separate head of privilege or
public interest immunity. If it were, `the law would operate erratically and capriciously

35
Supra pg. 512-513.
36
supra
according to whether or not a particular communication was made confidentially. However, two
important differences between the exercise of a privilege and the operation of public interest
immunity. First, public interest immunity, privilege entitles the person in whom it is vested not to
reveal certain information, but it does not prevent that information from being adduced by an
opponent if he has secondary evidence of it, for example because he has managed to obtain a
copy of a privileged document or has overheard a privileged conversation. Second, unlike if
evidence falls within the scope of a recognized privilege the party in whose favour it operates is
entitled to claim it but is under no obligation to do so. Privilege is no more than a personal right
which a party may claim or waive as he thinks fit, allowing him to refuse to produce certain
documents for inspection and to refuse to answer certain questions in the witness box (even if he
has been compelled to testify). He will suffer no sanction as a result of his exercising that right;
nor can any adverse inference be drawn from his silence or refusal to produce evidence.