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THE LAW OF EVIDENCE IN TANZANIA

State the procedures, features and rules

governing the examination and questioning
of witness.

By;

DATIUS DIDACE
LLB MZUMBE UNIVERSITY

068 5563 704

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A witness is the person who is called to testify before the court of law the facts
that are relevant to the fact in issue. Testimony of a witness is the major means
which magistrate or judges arrive at the truth or the substantive truth and so
resolves the issues in any given case. The judge or magistrate’s work is to listen
carefully to and record the evidence of the witness and in the end decides to
which of the witnesses should believe and to which he should disbelieve or
disregard altogether
Witness plays a very important role in the administration of criminal and
civil justice. The term witness here must be taken to include parties to the
proceedings; judgments are normally made on the basis of evidence given by
witness.
Examination and Questioning of witness is done when a witness is brought
before the court
of law then he is expected to give some information that would assist the court
to reach a decision. The process of giving evidence is through three main stages
namely; examination in chief, cross examination and re-examination as per
section 147(1) of the Tanzania Evidence Act and in certain circumstances re-
examination in chief and re-cross examination as per section 147(4).

THE FOLLOWING ARE THE PROCEDURES, FEATURES AND RULES

GOVERNING EXAMINATION AND QUESTIONING OF WITNESS IN THE
COURT OF LAW;

Witness must take oath

It is the statutory law requirement with exceptions every witness in criminal
cause or matter must be examined upon oath or affirmation in accordance with
the law. Section 198(1) of the criminal procedure Act provides that every witness
in a criminal cause or matter shall subject to the provisions of any other written
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law to the contrary, be examined upon oath or affirmation in accordance with,

The Oaths [Judicial Proceedings] and Statutory Declaration Act, Act NO 59 of

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1966. The oath must be administered by the magistrate himself or the officer
authorized by him in that behalf. However a child of tender age who in the
opinion of the court is incapable of understanding the nature and obligation of
the oath can give testimony without taking an oath or affirmation provided that
the court is satisfied that child is possess sufficient intelligence to justify that
the reception of his evidence and understands the duty of speaking truth as per
section 127 of the law of evidence Act.

A witness must provide information with reference to the case in hand

The witness while in witness box is required to provide information or to adduce
evidence which is relevant to the fact in issue of the case in hand. He or she is
not allowed to adduce matters which have no connection with the matter in
dispute. In the case of Madege v. R (1972) HCD 101 , the High Court quashed
both conviction and sentence of the accused person and ordered the district
court of Iringa to try the case de-novo due to the reason that the complainant
throughout her examination in chief did not allege that the accused had any
sexual intercourse with her while in a charge of rape there must be evidence of
penetration of the penis into the vagina though actual emission of seed is not
necessary.

Examination in chief
Is the examination of a witness by a party who calls him, this is sometimes called
as direct examination, per section 146 (1) of the Tanzania Evidence Act. The
objective of examination in chief is to enable the party calling the witness to
exercise from his witness subject to rules of evidence and procedure, everything
that the witness knows about the case so as to advance party’s case and it must
relate only to relevant facts, per section 147(2) of the Tanzania Evidence Act1.
For this reason the examiner should not only make himself thoroughly
acquainted with the entire facts of the case but also with the particular facts
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1
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which the witness has come to depose, the nature and character of the witness
and the degree of his intelligence.
Questions in examination in chief must be confined to facts in issue or
relevant facts,
Inferences, opinions or beliefs unless they come within sections 47-53 of the
Tanzania Evidence Act. As the general rule in examination in chief, a witness
should not be asked leading questions except with the permission of the court,
per section 151(1) of the Tanzania Evidence Act. Leading questions are
questions that suggest the answer which the person putting the question desires
from the witness.
The exception to the leading question shall be to the matter which are
introductory such as his name and address or undisputed or have already been
sufficiently proved, per section 151(2) of the Tanzania Evidence Act. This can be
seen in the case of; Bonifasi Wanani s/o Ndiyo vs. R [1957] E.A 453, in this
case the Court of Appeal of East Africa condemned that- leading questions are
most undesirable to the witness made at the preliminary inquiry. A party forming
that question may be permitted when a witness because of language barrier,
because of age, unable to convey information meaningfully in response to non-
leading questions.
The rule prohibiting the asking of leading questions to a party’s own
witness has its own foundation on the assumption that a witness is always
biased in favor of the party calling Him the rationale is to avoid conspiracy hence
to affect the administration of justice, the interest is only that a person should
explain what he know and nothing else.
There might happen that a person called as a witness has turned hostile,
there are no statutory procedures to treat such witness but through case law a
person calling the witness have to seek a leave from the court to cross-examine
the hostile witness so as to destroy the evidence given against his favour as per
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the case of Jumanne Athman mketo v R (1977) LRT 63. Where the witness
has been declared hostile his /her evidence should be ignored as stated in the

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case of Teddy Lucas v R (1977) LRT 33, that it’s a fatal irregularity to for the
court to treat the statement of the hostile witness as evidence and rely on it to
convict.
Cross examination, Is the examination of a witness by a party other than
a direct examined upon a matter that is within the scope of the direct
examination of the witnesses. Also cross examination is defined to mean the
examination of a witness by the adverse party, per section 146 (2) of the Tanzania
Evidence Act. Ordinarily cross examination follows immediately upon
examination in chief unless the court for some reasons postpones it.
The essence of cross examination is that it is the interrogation by one party of a
witness called by his adversary with the object either to obtain from such witness
admissions favorable to his cause or to discredit him. Cross examination is
therefore directed to the credibility of the witness, the facts to which he had
deposed in chief including the cross examiners version of the same, and the facts
to which the witness has not disposed but which the cross examiner thinks he
is able to dispose.
Cross examination is therefore intended to weaken, qualify or destroy the
case of the opponent and to establish the party’s own case by means of his
opponent witness, thus it is intended to impeach the accuracy, credibility and
general value of the evidence given in chief.
The failure to afford opportunity to exercise the right to cross examine is
a fatal error, this can be seen in the case of; Isa Jakala vs. R [1968] HCD 100,
in this case the accused was convicted of cattle theft. At the trial, the magistrate
did not give him an opportunity to cross examine the prosecution witness. On
appeal the High Court stated two things; first, the failure to extend to the accused
the right to cross examine was a fundamental error and the conviction cannot
stand despite the apparent strength of the prosecution case, and second, if the
accused does not desire to cross examine a particular prosecution witness after
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he has given the opportunity to do so, a note to that effect should be embodied
in the record. Thus, for this reasons the High Court quashed the conviction.

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The essence of cross examination is governed by section 147(2) of the
Tanzania Evidence Act which provides that the cross examination need not be
confined to the facts to which the witness testified in his examination in chief,
that is cross examination is not restricted in scope as judicial review, however
that liberty does not extend to the questioning of a witness on in admissible
evidence such as hearsay evidence.
Furthermore, leading questions are permitted in cross examination, per
section 152 of the Tanzania Evidence Act. The basis for this rule is that
normally a witness is biased in favor of the party who calls him.
Also, there are minimum rules that need to be observed while cross
examining a witness, the rules are as follows;-
(i) The court may forbid any questions or enquiries which it regards as
indecent or scandalous unless they relate to facts in issue or to matters to be
known in order to determine whether or not the facts in issue exist, per section
160 of the Tanzania Evidence Act.
(ii) The court may forbid any question which appears to it to be intended
to insult or annoy or which, though proper in it appears to the court to be
needlessly offensive in form, per section 161 of the Tanzania Evidence Act.
(iii) No question referred in section 158 of the Tanzania Evidence Act are
permissible unless the person asking has reasonable grounds for thinking that
the imputation which it conveys is well founded, section 159 of the Tanzania
Evidence Act
(iv) In the course of cross examination except as provided in the proviso to
section 162, a witness may be asked any question tending to impeach his
character or credit but unless such questions are also relevant to the matters in
issue, the witness answers are conclusive and cannot be contradicted by other
evidence.
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THE GENERAL RULE IS THAT ALL WITNESSES ARE LIABLE TO BE CROSS
EXAMINED
However there are three main exceptions to this as follows;
(a) A person summoned to produce a document cannot be cross examined
unless and until he is called as a witness, per section 148 of the Tanzania
Evidence Act.
(b) A witness who is not examined in chief because he has been called by
mistake
(c) A witness giving replies in answer to questions by the court can only be
cross examined with the leave of the court, per Section 176 of the
Tanzania Evidence Act. Ordinarily leave of the court to cross examine is
given if the evidence is adverse to either party.
Apart from the ordinarily situations where the opposite party does the cross
examination, a party calling a witness may need to cross examine his own
witness, this may occur in situations where a witness turns hostile at the time
when examination in chief is being conducted.

A HOSTILE WITNESS is the one who tells lies about what he obviously knows
or who deliberately changes his story and, from his demeanor and manner, is
clearly biased against the party calling him. In such cases, the party calling the
witness may be permitted by the court to cross examine him, per section 163
of the Tanzania Evidence Act.
A witness is not merely hostile because he gives unfavorable evidence against
the party calling him, such witness cannot be said to be hostile but he is simply
an unfavorable witness. An unfavorable witness is the one who, although he
displays no hostile animus to the party calling him, fails to come up to proof or
give evidence unfavorable to the party calling him.

Re-examination Is a means of allowing the witness to explain anything he

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had said in cross examination through inadvertence, excitement or

misunderstanding and which would damage your case if not explained, per
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section 146 (3) of the Tanzania Evidence Act. A witness once examined cannot
be re-examined as to the same matter without leave of the court but he may be
re-examined as to any new matter upon which he has been examined by the
other party to the action.
The re-examination shall be directed to the explanation of matters referred
to in cross examination and if new is by permission of the court introduced in
re-examination, the adverse party may further cross examine and re-examine
respectively.

THE OBJECTIVES OF CONDUCTING RE EXAMINATION ARE AS FOLLOWS

(a) To give opportunity to the witness to reconcile the discrepancies if any
between the statements in the examination in chief and cross examination
(b) To explain any statement inadvertently made in cross examination
(c) To remove any ambiguity in the deposition or suspicions cast on the evidence
by cross examination.
Leading questions cannot be asked in re-examination, as per section
151 (1) of the Tanzania
Evidence Act2. However, the court shall allow reading as to matters which are
introductory, undisputed or which have in its opinion been already sufficiently
proved, per section 151 (2) of the Tanzania Evidence Act.
Re-Examination In Chief, Re-Cross Examination And Re-
Examination, section 147(4) of the evidence Act3 to recall the witness for further
re examination in chief, where such witness is called the right to re-cross
examine and reexamine him exists4 this may due to rise of unseen situations or
there may have been inadvertent omission. Another possibility is where the
prosecution substitutes a charge or a particular count after taking evidence of
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2 [CAP 6 R.E 2002]

3 ibid
4 B.T Mapunda. Evidence Party Three, pg.36-37

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some witnesses as it ruled by the high court in the case of Halid s/o Twalibu v
R (1968) HCD 423.
The witness is allowed to refresh his or her memory by referring to
the any writing made by him at the time of the transaction: there may be
considerable delay between the trial and the event in question in the trial. It is
the commonplace of experience of memory fades with time and yet witnesses are
frequently expected to give detailed oral evidence about event which happened
month’s even years earlier. However, the witness might have written statement
about that event well before the trial when the memory of the event was sharper
in mind. This is provided under section 168 (1) and (2) of the Evidence Act.

CREDIBILITY, COMPETENCE, COMPELLABILITY, PRIVILEGES AND OF

WITNESSES;

CREDIBILITY OF WITNESSES
Section 143 of the Evidence Act5, provides that no number of witnesses is
required to prove any fact.
 Whether or not a witness is credible is a matter to be decided by the court
on the basis of the evidence on record. It is, however, “trite law that every
witness is entitled to credence and must be believed and his testimony
accepted unless there are good and cogent reasons for not believing the
witness” (see the case of Goodluck Kyando v. Republic [2006] TLR 363.
However, in the case of Mathias Bundala v. R, Criminal Appeal No. 62 of 2014,
CAT (unreported).
 See the case of Marco s/o Gervas v. R [2002] TLR 27.
 Even where relatives testify it is not the law that they should not be
believed unless there is also evidence of a non – relative corroborating their
story. The evidence of each of them must be considered on merit, the
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veracity of their story must be considered and gauged judiciously{ see the
case of Paulo Tarayi v. Republic, Criminal Appeal No. 216 of 1994, CAT
(unreported).
 It is trite law that where the decision of a case is wholly based on credibility
it is the trial court which is better placed to assess credibility than the
appellate court which merely reads the transcript of the record ( see
Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2000, CAT
(unreported).
 Section 164 (1) Cap 6- instances where the credibility of a witness may be
impeached by the adverse party or, with the consent of the court, by the
party who calls him, that is, by proof of former statements inconsistent
with any part or his evidence.
Section 154 Cap 6- the witness may be cross-examined on previous statement.

COMPETENCE WITNESS
Section 127 (1) Cap 66, As a general rule every person is competent to testify
unless the court considers that he is incapable of understanding the questions
or giving rational answers by reason of old age or disease.

COMPELLABILITY WITNESS
Arises in situations where a witness is compelled to give evidence; section
199 of CPA7 where refractory witnesses may be committed to prison for
refusing to be sworn.
Section 130 – A spouse may be a competent but not a compellable witness
for the prosecution.
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6
Tanzania Evidence Act
7
Criminal Procedure Act [Cap. 20 RE 2002]
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PRIVILEGE WITNESS
A witness may in certain cases claim privilege as a ground for declining to give
evidence on certain matters.
 It is for the presiding magistrate to decide whether or not claim for privilege
is well founded.
 Confidential official documents or communications between government
officials are privileged from production.
 Section 141 Cap 68, A witness is not excused from answering questions
on grounds that the answers will incriminate him provided that no such
answer which he is compelled to give shall subject him to any arrest,
prosecution.

GENERALLY
Witness plays a very important role in the administration of criminal and civil
justice, and the only way of getting information from a witness is by asking him
questions. The scope for asking questions is limited for the party calling a
witness and is wider to the opposite party in that there is a liberty of not only
leading questions but also asking questions even on irrelevant matters.

========================= THANK YOU ==========================

Prepared
BY:

DATIUS DIDACE

E-mail: datiuced115@gmail.com
phone: +255 68 5563.704
7/15/2020

visit: https://mzumbeuniversity.academia.edu/datius_didace

8
The Tanzania Evidence Act
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