INTRODUCTION OF PLEA BARGAINING IN TANZANIA: AN ENFORCEMENT OR

VIOLATION OF HUMAN RIGHTS PROVISIONS?

By
Abdulrahman O.J. Kaniki*
Abstract
This paper discusses the introduction of the concept of plea bargaining in the
Tanzanian criminal justice system. Given the fact that Tanzania has for years been
adopting the adversarial system in dealing with criminal cases, incorporation of plea
bargaining in her jurisdiction in 2019 is a total deviation from traditional plea taking
practice. The incorporation of plea bargaining in the jurisdiction also denies a trial
court its noble duty of receiving evidence from both parties of the case and making an
assessment regarding truthfulness of the same thereby awarding appropriate
sentences. Tanzania is not alone in adopting plea bargaining practice. Several
jurisdictions the world over have accommodated it. The most two fundamental
questions this work attempts to address are one, why deviating from the traditional
plea taking practice, and two, is an introduction of plea bargaining in Tanzania an
enforcement or violation of human rights provisions? Various reasons justifying the
introduction of plea bargaining are discussed in the paper. Demerits of the practice
are also analysed. It has been put in the fore that with plea bargaining in place, it is
expected that case backlogs are reduced the result of which decongestion in prisons is
noticed. The paper, however, argues that plea bargaining alone cannot be a panacea of
case backlogs in court without identifying and addressing factors that cause such
backlogs. Finally, the paper concludes that the introduction of plea bargaining in
Tanzania in fact goes contrary to rules of natural justice. It violates human rights
provisions as enshrined under the Constitution of the United Republic of Tanzania of
1977. The paper makes the following recommendations: there is a need for an
accused person to be afforded services of a lawyer so that in the course of
negotiations his rights are safeguarded; there should be a pre-bargaining negotiation
session properly so called so that an accused is made aware of all his rights and
obligations attached to the plea bargaining; the law should be amended to afford
victims of crime full opportunity to participate in the plea bargaining negotiation
process; the need to have proper monitoring and controlling mechanism in place to
avoid pressure or manipulation to compel accused to engage in plea bargaining
negotiations; and appropriate awareness-raising and training programmes on plea
bargaining should be conducted to law enforcement agencies and members of the
public as a whole.
Key words: Plea bargaining, plea agreement, criminal trial, negotiation, lesser offence, lenient
sentence, expediency, justice, human rights provisions.
1. Introduction
In any criminal jurisdiction, it is expected that the criminal justice system becomes more efficient in
the speedy dispensation of justice. It should also be there to provide protection of the society from

1
crime.1 An effective criminal justice system is fundamental to the maintenance of law and order. At
individual level, criminal justice system should protect the rights and interests of the individuals
involved in criminal cases such as the accused persons and the victims. It is no wonder that it has
been argued that the primary function of law is to maintain law and order, ensure that that justice
prevails and protect the right of every citizen.2
However, an expectation of having criminal justice, which is more efficient in the speedy
dispensation of justice has over time been hampered by a number of factors in many criminal
jurisdictions. Such factors include congestion of inmates in prison facilities, backlog of cases, lengthy
and cumbersome criminal trials and limited or inadequate resources. These factors have necessitated
the need to come up with alternatives to improve the effectiveness and efficiency of the judicial
system with a view to engendering quick administration of justice. Thus, one of the alternatives being
considered to deal with these factors that affect timely delivery of justice is that many jurisdictions
introduced the system of plea bargaining. This is the one whereby the prosecution has an opportunity
to meet with accused persons and negotiate on the crime at issue with a view to bring some lenience
on the accused. They explicitly or impliedly exchange reductions in charge for a plea of guilty, which
should be understood in the context of the negotiations that permeate the criminal process. 3 In this
understanding, plea bargaining is considered as one of the ways of addressing the problem of backlog
of cases. In fact, the essence of plea bargaining justice is exhibited by the fact that an accused
normally expects to receive some form of sentencing consideration in exchange for plea of guilty.
Likewise, the prosecution is relieved from the burden of proving the case beyond reasonable doubt
had the case been fully tried.
Tanzania is among the countries, which have introduced plea bargaining in their criminal justice
systems as a way of addressing case backlogs in courts. The concept of plea bargaining was
introduced in the Tanzanian jurisdiction in 2019 following the amendments, which were effected in

1
* LL. B (Hons), LL.M (Dar); Master Degree in Security and Strategic Studies (National Defence College-Tanzania);
PhD (Law), Dar; Senior Lecturer and Dean, Faculty of Law, Catholic University of Mbeya, Tanzania. This author can be
contacted at abdulkaniki@yahoo.com; abdulrahman.kaniki@cuom.ac.tz
?
With development in science and technology, crime is becoming a complex issue to handle world-wide.
2
Dewan, P. and Jain, S., “Plea Bargaining: Indian Law Overview”, 3(3) International Journal of Law Management &
Humanities, 2020, p. 714.
3
Freely, M.M, “Perspectives on Plea Bargaining”, 13(2) Law & Society Review, Winter, 1979, Special Issue on Plea
Bargaining, pp. 199-209, p.199.
2
the Criminal Procedure Act4, where new sections 194A, 194B, 194C, 194D, 194E, 194F, 194G and
194H were introduced therein for purposes of expediting disposal of criminal cases and decongesting
prisons.5 This paper critically examines the legal regime that regulates operationalisation of plea
bargaining in Tanzania in terms of its procedure and administration. It also looks at whether
introduction of plea bargaining practice in the Tanzanian criminal justice system is human rights
compliant.
2. Methodology
The methodology used in this study is secondary method of data collection. The study was conducted
through involving library research and literature survey. It was a desk-based research work, which
reviewed various sources related to the study. The research involved a review and assessment of
various documentary sources containing information related to plea bargaining information. Those
sources included peer-reviewed journals and other forms of reviews, theses and dissertations, official
reports and documents, text books and statutes.
3. The Concept of Plea Bargaining
The concept of plea bargaining is available in country’s legal system where criminal matters are
addressed with a view to bringing efficient, effective and speedy dispensation of criminal justice. Plea
bargaining has been defined by various authors. According to Mathur, plea bargaining is a process of
negotiations between the prosecution and the accused or his lawyer resulting in the accused pleading
guilty for a promise to reduce the charge, to drop some of the charges or getting a lesser punishment .6
Kathuria states that in its most conventional and general sense, plea bargaining refers to pretrial'
negotiations between the prosecution and the defence during which the accused agrees to plead guilty
in return for certain concessions promised by the prosecutor: usually to drop or reduce some charges,'
or to recommend a specific sentence or to refrain from making any sentence recommendation. Since
ultimately both affect the dispositional phase of the criminal proceedings by affecting the sentence,
plea bargaining in this note will be taken to imply the waiver of the right to a trial in exchange for
reduction in sentence.7
4
Cap.20 [R.E, 2022] and the United Republic of Tanzania, Plea Bargaining Guidelines, The National Prosecution
Service, June 2022, p. 1.
5
See the Written Laws (Miscellaneous Amendments) (No.4) Act, 2019, Act No.11 of 2019, sections 15 and 16.
6
Mathur, J.K., “Plea Bargaining –In Indian Context”, 34(3) Journal of the Indian Law Institute, July – September 1992,
pp.429 – 442, p.429.
7
Kathuria, S., “The Bargain Has Been Struck: A Case for Plea Bargaining in India” 19(2), Article 5 National Law School
of India Review, 2007, pp.55-68, pp.55-56. Available at: https://repository.nls.ac.in/nlsir/vol19/iss2/5 accessed on
3
Black’s Law Dictionary refers to a plea bargain as any agreement in a criminal case between the
prosecutor and accused whereby the accused agrees to plead guilty to a particular charge in return for
some concession from the prosecutor. This may mean that the accused will plead guilty to a less
serious charge, or to one of several charges, in return for the dismissal of other charges, or it may
mean that the accused will plead guilty to the original criminal charge in return for a more lenient
sentence. Plea bargaining also means that the accused person’s plea of guilt has been bargained for
and consideration has been received.8
The concept of plea bargain is said to be of American origin and became established in the celebrated
case of Robert M. Brady v. United States.9 This means the process in criminal proceedings whereby
the accused and the prosecution work out a mutually acceptable disposition of the case; including the
plea of the accused to a lesser offence than that charged in the complaint or information and in
conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that
for the higher charge subject to the court’s approval.10
Scott and Stuntz define plea-bargaining as a contractual agreement between the prosecutor and the
accused concerning the disposition of a criminal charge. However, unlike most contractual
agreements; it is not enforceable until a judge approves it.11
The Criminal Procedure Act defines plea bargaining as a negotiation in a criminal case between a
prosecutor and the accused whereby the accused agrees to- (a) plead guilty to a particular offence or a
lesser offence or to a particular count or counts in a charge with multiple counts; or (b) cooperate with
the prosecutor in the provision of information that may lead to a discovery of other information
relating to the offence or count charged, in return for concession from the prosecutor which may lead
to a lenient sentence or withdrawal of other counts. 12 It is an agreement by the accused to plead guilty
in return for the promise of some benefit.13

5/8/2023.
8
Garner, B., Black’s Law Dictionary, 7th Ed., p.1173.
9
397 U.S 742 [90 S. Ct. 1463, 25 L. Ed. 2d 747].
10
Mnyim, M.M. and Aboho, B., “Plea Bargain as an Instrument of Fast-Tracking Criminal Justice Delivery under the
State Administration of Criminal Justice Law of Benue State, 2019” Benue State University Law Journal, 2019/2020, pp.
247-262, p.249.
11
Scott, R.E. and Stuntz, W.J., “Plea Bargaining as Contract” 101 (8) Yale. Law Journal, 1992, pp. 1909–1968, p.1909.
12
Section 3 of the Criminal Procedure Act, Cap.20 [R.E, 2022].
13
Law Reform Commission of Canada, Criminal Procedure: Control of the Process, 1975, Working Paper No.15,
Ottawa, Information Canada, p. 45.
4
The National Prosecutions Service (NPS) in the Tanzania in its Plea-Bargaining Guidelines defines
plea bargaining in the following words:
“Plea bargaining is a form of alternative settlement of a criminal case without
trial. It involves an active negotiation process between the accused and the
prosecutor whereby the accused agrees to plead guilty to a particular offence or
lesser offence in return for a concession from the prosecutor which may lead to a
lenient sentence or withdrawal of other charges.”14
Noting from the above attempts, plea bargaining is the term used to describe pre-trial discussions
between the prosecutor and the accused during which the accused admits guilt to a lesser crime or to
just some of the numerous charges in exchange for compromises promises by the prosecutor. It is a
process whereby the accused bargains with the prosecution for a lesser punishment. In other words, it
is a process of negotiations between the prosecution and the accused resulting in the accused pleading
guilty for a promise to reduce the charge, to drop some of the charges or getting a lesser punishment.
It is described as a process where the accused and the prosecutor come to a "mutually satisfactory
disposition," with the approval of the court. In essence, plea bargaining between prosecutors and
accused persons let the accused to plead guilty to an offence in return for a reduction. It consists of
the exchange of official concessions for an accused's act of self-conviction. These concessions may
relate to the sentence imposed by the court or recommended by the prosecutor, the offence charged,
or a variety of other circumstances; they may be explicit or implicit. The benefit offered by the
accused, however, is always the same: entry of a plea of guilty.15
4. A Brief Historical Development of Concept of Plea Bargaining: Some Global
Coverage
Historically, the rise of plea bargaining is generally taken to begin in the 19th century, where it started
to feature in courts in England and America. It was not known in Common Law of England prior to
the 19th Century, where the vast majority of cases in the Anglo-American jurisdictions were disposed
of by jury trial rather than guilty pleas. Guilty pleas were considered rather ill-advised, and empirical
studies focusing on particular jurisdictions indicate that guilty pleas and plea bargaining in both the
United States and the United Kingdom were relatively rare until the latter half of the nineteenth

14
The United Republic of Tanzania, June 2022, p. i.
15
Alschuler, A., "Plea Bargaining and Its History," 79(1) Columbia Law Review, (1979), pp.1-43, pp.3-4.
5
century.16 Their use increased, sometimes dramatically, during the decades following the American
Civil War and soon reached, during the early decades of the twentieth century, the prevalence
associated with contemporary times.17
The concept originated and has evolved over ages to become a prominent feature of the England and
American criminal justice systems. It developed over the years and in modern times such that it has
become the primary procedure through which vast proportion of cases of serious crimes are disposed
in England and the Unites States.18 However, in England plea bargaining is a little discussed subject
into which insufficient research has been undertaken.19 This is in marked contrast to the United States,
where extensive and sophisticated literature on the topic has developed.20
Plea bargaining emerged as a compromise to ensure that criminals were appropriately punished. It is
also founded in the policy of the law to ensure that such punishment not only serves as deterrent to
would be offenders, but would be in the best interest of society. The idea is that where a person who
has stolen property, accepts to negotiate what he has stolen back, society would be better off
receiving back what it has lost in terms of property. The criminal on his part for accepting to remedy
the loss he has caused the society, should be mildly punished. It remains to be seen whether the act of
treasurer looting inflicts only property damage to society. This is so because the very act of looting
the public treasury flows from a debased mind and inflicts not only physical and financial injuries to
the social psyche but also does moral and spiritual harm to the social fabric of which society is made
of.21
As for the United States, legal technicalities in adversarial system of jurisprudence resulted in causing
delays in court procedures and often it became a challenging task for prosecutors to secure
convictions for guilty accused persons. Moreover, people remained under detention due to legal
technicalities and delays in judgments of criminal cases. To alleviate these problems, United States
16
Combs, N.A., “Copping A Plea to Genocide: The Plea Bargaining of International Crimes”, University Of Pennsylvania
Law Review, Vol. 151 November 2002 No. 1, pp. 1-157, pp. 12-13.
17
Ibid.
18
Vietel Tanzania PLC v. Republic, High Court of the United Republic of Tanzania at Dar es Salaam, Criminal Appeal
No.55 of 2021 (Mlacha, J.), (Unreported).
19
Thomas, P.A., “Plea Bargaining in England”, The Journal of Criminal Law & Criminology, 1978, Vol. 69, No. 2,
pp.170-179, p.170.
20
Ibid.
21
Eze, T.C. and Eze, A.G., “A Critical Appraisal of the Concept of Plea Bargaining in Criminal Justice Delivery in
Nigeria”, Global Journal of Politics and Law Research, Vol.3, No.4, pp.31-43, August 2015, pp. 31-43, p. 32.
6
became the pioneer in implementing the concept of plea bargaining. 22 As a result of the development
of a plea bargaining in the American criminal justice system, the vast majority of criminal cases in the
United States were settled by plea bargaining rather than by a full trial. It is basically noted that by the
19th century plea bargaining started to emerge in the United States criminal justice.
Overcriminalisation moved plea bargaining from a corrupt, taboo practice to a mainstream solution.
With a flood of new statutes and, subsequently, new criminal cases and accused persons, courts soon
became overwhelmed and began to explore options to lighten the load. 23 Regardless of its prior status
as a tool of corruption, plea deals came to be offered more frequently by prosecutors hoping to
expedite their caseloads and clear court dockets. 24 It is further stated that within only eight short
years, convictions resulting from pleas rose nearly twenty-five percent. 25 Coupled with an entirely
new class of defendants in the prohibition era, it became clear to prosecutors that their only option
was to attempt to settle cases out of court as quickly and seamlessly as possible. Kicking off a trend
which has continued to today’s criminal justice system, by 1925 nearly ninety percent of cases were
resolved by plea, almost as high a percentage as the ninety-five percent of cases which are likewise
resolved today.”26 This means that plea bargaining forms a larger part of the American justice system
than the formal trial today.
Currently, a plea bargaining is an essential part of the criminal justice system in most countries in the
world, such as the USA, Britain, Canada, India, Netherlands, Germany, Australia, China, Nigeria,
Ghana, South Africa, Malawi, Zambia, Kenya, Uganda and the Philippines, just to mention a few. A
great majority of charges, over 90% in some of these jurisdictions, are resolved through the various
types of plea bargaining because of its essential nature and recognition by law, which is part and
parcel of the superstructure of the society.27
5. The Justifications for Plea Bargaining

22
Absar, A.A. and Hassan, Z., “Plea Bargaining in India – A Decade of Existence”, 4(6) Journal of Legal Studies and
Research, December, 2018, pp. 91-104, p.91.
23
Burns, C.M., “Plea Bargaining Practice of Convenience or a Line-Crossing System of Coercion?”, Stetson Journal of
Advocacy and the Law, 2018, 5 (99) pp. 3-18, p.5.
24
Ibid.
25
Ibid., p.6.
26
Ibid.
27
Aidonojie, P.A., “The Legal Impact of Plea Bargain in Settlement of High Profile Financial Criminal Cases in Nigeria”
5(2) Sriwijava Law Review, July 2001, pp.161-174, p.164.
7
With plea bargaining practice in force, it is purportedly expected that there shall be, among other
things, not only reduction of pending criminal trials but also decreasing the number of under-trial
inmates, as well as cutting delays in disposal of criminal cases. Several literature argue that plea
bargaining is introduced with the objective of lightening the courts of the burden of pendency of the
cases and speedier disposal of cases.28 The establishment of plea bargaining is aimed at minimising
backlog of cases and ensure fast delivery of criminal justice. It is for instance noted that the current
American criminal justice system where the majority of convictions occur as a result of guilty pleas
rather than trial - in 2015, 97.1% of federal cases were resolved through guilty pleas by accused
persons resulting from plea bargaining.29 The practice is accepted as an efficient way of disposing of
cases. As a result, it is argued, prosecutorial resources in terms of finances and time for both parties to
the cases are served.
Tanzania being no exception has followed the suit. The country has in 2019 introduced plea
bargaining in its criminal justice system 30 to help reduce backlog in courts, prison congestion and
ensure timely delivery of justice. 31 This state of affairs is well summed up by the Director of Public
Prosecutions in the Plea Bargaining Guidelines in Tanzania who states that:
“The practice of plea bargaining which was introduced in our criminal justice
system in 2019 has changed the landscape in which public prosecutors and
accused persons operate. Unlike in ordinary criminal trials, in cases where there
are proposals to enter into plea bargaining, public prosecutors instead of
becoming adversaries, they interact, discuss and negotiate with accused persons
with a view to reach mutually acceptable outcomes of criminal cases.”32
One researcher, who researched on efficacy and laws and institutions governing plea bargaining in
Tanzania, argues that:
“In a nutshell, the system is currently practiced in Tanzania after being accepted
as other countries did. The system was adopted to help reduce backlog of cases in
28
See Dewan and Jain, 2020, p.714; Kathuria, 2007; PK Singh, “Plea Bargaining and Criminal Justice in India” 7 (1)
Athens Journal of Law, January 2021, pp. 33-52 and Eze, and Eze., 2015, pp. 31-43.
29
Helm, R.K. et al., “Limitations on the Ability to Negotiate Justice: Attorney Perspectives on Guilt, Innocence, and
Legal Advice in the Current Plea System”, Psychol Crime Law, (2018) 24(9), pp. 915–934, p. 916.
doi:10.1080/1068316X.2018.1457672.
30
See the Written Laws (Miscellaneous Amendments) (No.4) Act, 2019, Act No.11 of 2019, which amends the Criminal
Procedure Act, Cap. 20 [R.E. 2022] to, among other things, introduce plea bargaining in Tanzania.
31
See THE CITIZEN Newspaper, Sunday, August 04, 2019.
32
The United Republic of Tanzania, 2022, p.i.
8
 courts, prison congestion and ensure timely delivery of justice. So, people who
stand trial, for example, for money laundering or economic charges, do agree to
enter into plea agreement as a way of mitigating sentence or get their case
dismissed.”33
Almost all the jurisdictions justify the introduction of plea bargaining with the reduction of backlog
of cases and literature so support. It is, however, argued that plea bargaining alone cannot be a vehicle
towards addressing the problem without first identifying and addressing factors that lead to the said
backlog. Therefore, whether plea bargaining has been able to achieve this objective needs further
researches in future.
6. A Deviation from Traditional Plea Taking Practice
As far as traditional plea taking practice is concerned, a full criminal trial is supposed to take place.
After an accused person has been arrested and a decision has been made to prosecute him he is taken
to court to answer the charge preferred against him. 34 When a criminal litigation commences, an
accused is called upon to plead.35 This is referred to as taking the plea of an accused person. Once
informed of the substance of the charge or information, the accused is called upon to plead. The court
is required to explain the charge and all the elements of the charge and all elements of the offence to
the accused in a language he understands. This principle has been insisted in the case of Kato v. R.36,
where it was stated that the trial court should explain the accused in clear language every ingredient
of the charges and require him to admit or deny the same and record the exact words the appellant use
in his admissions or denials, as the case may be, in a form indicating that he fully understands the
charges he unequivocally pleads thereto. Once informed of the substance of the charge or
information, the accused is called upon to plead. 37 He should then be asked if he admits or denies the
truth of the charge. In other words, the accused must answer to the charge. This formal answer is
referred to as taking the plea of an accused person. The accused’s reply is then recorded as nearly as
possible in his own words. Where the accused person admits the truth of the charge, his admission
shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and

33
Nyagawa, K.E., “Efficacy and Laws and Institutions Governing Plea-Bargaining in Tanzania,” LL.B Dissertation,
Mzumbe University, 2022, p.29.
34
Bwonwong’a, M., Procedures in Criminal Law in Kenya, East African Educational Publishers, Nairobi, 1994, p.101.
35
Section 228 of the Criminal Procedure Act, Cap.20 [R.E. 2022]. See also the case of Adan v. R. [1973] E.A. 445.
36
(1971) HCD n.364.
37
The Criminal Procedure Act, Cap. 20 [R.E. 2022], s. 228(1).
9
pass sentence upon or make an order against him, unless there appears to be sufficient cause to the
contrary.38 It was held in the case of Rex v. Yonasani Egalu & Others39 that:
“In any case in which a conviction is likely to proceed on a plea of guilty (in
other words, when an admission by the accused is to be allowed to take the place
of the otherwise necessary strict proof of the charge beyond reasonable doubt by
the prosecution) it is most desirable not only that every constituent of the charge
should be explained to the accused but that he should be required to admit or deny
every constituent and that what he says should be recorded in a form which will
satisfy an appeal court that he fully understood the charge and pleaded guilty to
every element of it unequivocally.”
Where the accused person does not admit the truth of the charge, the court shall proceed to hear the
case,40 where the prosecution opens its case against the accused. 41 At the end of the trial, it is the
court, which finds an accused guilty or not guilty. If the court finds the accused guilty, it then
proceeds to pass an appropriate sentence against him. The trial court has complete discretion as
regards which sentence should be passed. In adversarial jurisdictions sentencing is not a matter to be
negotiated by parties to the case. It is only for the court to decide.42
With plea bargaining practice in force, the criminal trial does not take full swing as enumerated
above. Negotiations take place where offenders waive most of the procedures involved in criminal
litigation due to either the informal promises of leniency or threat of long sentences. The reason
behind is that plea bargaining is primarily aimed at getting a lenient sentence for an accused person. 43
That being the case, there is no doubt that the whole plea bargaining process is a deviation from
traditional plea taking practice, which has been entrenched in the criminal justice system over the
years. That means traditional trials are replaced by legal regime namely, plea bargaining, which
encourages suspects to admit guilty for lesser offences and waive their rights to full trial. As such,
many adversarial jurisdictions see plea bargaining occupying a central position in their criminal
justice systems. In USA for example, more than 90% of criminal cases are disposed of using plea

38
The Criminal Procedure Act, Cap. 20 [R.E. 2022], s. 228(2). See cases of R. v. M/S SP Construction [1981] TLR 6 and
John Faya v. Republic, Criminal Appeal No. 198 of 2007, CAT (Unreported).
39
[1942] 9 EACA 65, 67.
40
The Criminal Procedure Act, Cap. 20 [R.E. 2022], s.228(3).
41
Section 229 of the Criminal Procedure Act, Cap.20 [R.E. 2022].
42
Shiani v. R. (1972) E.A. 557.
43
Ibid.
10
bargaining.44 On the same note, plea bargaining also transcends the inquisitorial structures. Whether
reasons raised for the deviation are tenable, it depends on the effectiveness and efficiency of the legal
and institutional framework in achieving this objective.
7. Importance and Usefulness of Plea Bargaining & Criticisms of the Practice
7.1 Importance and Usefulness of Plea Bargaining
As already noted in the preceding parts of this paper, the prosecutors and the accused are involved in
the plea bargaining with a view to both of them expecting leniency in return and get justice in due
time. Thus proponents of plea bargaining argue that the introduction of this concept in the criminal
justice system is very important and useful in the administration of criminal justice. They argue that
whole task of dealing with crime is not one for which the traditional processes of law are suitable . As
such, slow but irresistible development of scientific thought concerning the criminal compels a
greater individualisation of treatment than a general law will permit.45 Therefore, much as plea
bargaining is sometimes seen as a clumsy and undesirable device, yet it is in part made necessary by
the need for individualising-making the punishment fit the criminal rather than the crime.46
It is expected that the problems of delay in the criminal justice system will be adequately addressed.
Both the state and accused person benefit from plea bargaining, which facilitates speedy
determination of cases at a lesser cost for prosecution; faster trial saves prolonged adjudicatory time. 47
Plea bargaining may be used to win convictions in cases that may otherwise have ended in dismissal
or acquittal due to procedural rights violations or a lack of evidence. Thus, plea bargaining is a useful
criminal prosecutorial tool in accelerating the prosecution of criminal cases. It has been argued that
plea-bargaining is an essential component of the administration of criminal justice, properly
administered, it also encourages and leads to prompt largely final disposition of most criminal cases. 48
In some jurisdictions where plea bargaining has been introduced, the benefits of plea bargain have led
to the effective administration of the respective criminal justice systems without having full trial. In

44
See the Plea Bargain Task Force Report of the American Bar Association (ABA), Criminal Justice Section, 2023, p.14
read together with endnote 2 at p. 36.
45
Moley, R., Politics and Criminal Prosecution, Minton, New York, 1929, p. 236.
46
Ibid.
47
Ogunye, J., The Imperative of Plea Bargaining, Lawyers’ League for Human Rights, Lagos, 2005, p.190.
48
Putra, G., “A Critical Analysis of Plea-bargaining in India”, 1(1) International Journal of Criminal, Common and
Statutory Law, 2021, pp.28-32, p.28.
11
the case of FRN v. Lucky Igbinedion,49 the Nigerian Court of Appeal per Ogunwumiju, J.C.A.
elucidated that:
“The benefits of plea bargain include: The defendant can prevent the time and
expense of protecting himself at the trial, as well as the danger of a harsher
penalty and the publicity that the trial brings.
The state saves time and money by avoiding a full trial, both sides avoid the
uncertainty of going to trial, and the judicial process avoids the hardship of
performing a trial upon each crime charged.”
These benefits explained above are prospective indicators that plea bargaining when properly applied,
will ensure justice for all, as well illustrated in the following words:
“The implication of plea-bargain is that it provides a win-win situation for both
the State and the accused it is a win for the state in such a way that the conviction
upon a plea bargain adds in number to the successful conviction by the state and
on the other hand, a win for the suspect because he receives a reduced charge and
sentence admitting the crime. This situation though noble in that it saves the time
of the Court and saves the tax-payers money, presents to the writer a situation
where in the hands of the judge are tied this means that the judge cannot give the
maximum sentence for the crime admitted because to do that would mean a
violation of the fundamentals of plea bargain, Thus the sentence that will then be
given by the judge may be of ridiculously small proportion in relation to the crime
committed.”50
Noting from what has been discussed above, it is apparent that plea bargaining is very important and
useful in the administration of criminal justice. The importance and usefulness are justified by the
following:

(a) Expediency and Economic Considerations

Aspects of expediency and economics occupy a major part in justifying the introduction of plea
bargaining. Proponents of plea bargaining argue that the most obvious benefit is the savings in time
and expense to the parties, the court, and the public. They state that as criminal trials become more
49
[2015] 2 NWLR [Pt 1444] 475; [2014] LPELR – 22760 (CA) 75-76.
50
Mordi, C.A., “The Use of Plea Bargain in Nigerian Criminal Law” 9(2) Beijing Law Review, 2018, pp.153-161, p.156.
12
expensive and time-consuming and court dockets become more crowded, plea bargaining decisions
which speed up the adjudicative process and reduce costs to all parties have become more
appealing.51 That means plea bargaining reduces enforcement costs for both parties to the case and
allows the prosecution to concentrate on more meritorious cases. Plea bargaining reduces the time
that would otherwise be consumed in criminal prosecution. Accused persons can avoid the time and
cost of defending themselves at trial, the risk of harsher punishment and the publicity a trial could
involve. On the same token plea bargaining avoids the necessity of a public trial, hence protects the
innocent victim of a crime against the trauma of direct and cross-examination. Proponents of the
practice argue that full trial is time consuming, expensive and very stressful. With full trial, it can be
extremely stressful because an accused person does not know what the final result will be. In other
words, if a case goes to a full trial, the trial would move much more slowly and it would have a
serious effect on people’s right to a speedy trial. However, with plea bargaining in place chances of
eliminating the uncertainties of the outcome are obvious. It has been argued that ‘plea bargaining is
an incredibly effective tool for increasing efficiency in the criminal justice system, as without it,
judges and lawyers would be flooded with caseloads, rendering them incapable of doing their jobs
effectively. Plea bargaining can benefit defendants.’52
The fact that plea bargaining process is much more flexible does away with full trials which are
guided by strict rules, procedures and practice as provided for by the constitution, procedural and case
law. The flexibility, which gives prosecutors wide discretion over the outcome of a case, expedites
disposal of cases with little costs.
(b) Lesser Sentence and Charges
In the course of bargaining, prosecution and the accused may enter into an agreement, which results
into a reduction in the charges against the accused or a less severe sentence. This could affect more
than just the penalties that could be imposed had there been a full trial. Plea bargaining may lead to a
lenient sentence or withdrawal of other charges. It assists the court in managing the caseload and
relieves pressure on the judicial institution. As a result of plea bargaining, accused persons receive
negotiated and agreed shorter sentences, which have less significant crimes on their criminal records.
Plea bargaining can also create the room for accused that help them to avoid serving jail time thereby
51
McDonough, N., “Plea Bargaining: A Necessary Evil”, University of Arkansas at Little Rock Law Review, 381 (1979)
Vol 2 Issue 2, pp.381-401, p.383. Available at: https://lawrepository.ualr.edu/lawreview/vol2/iss2/5.
52
Chierchio, J., “Behind the Plea: Factors that Shape Plea Bargaining Outcomes,” Master of Science in Criminal Justice
Dissertation, Rochester Institute of Technology, Rochester, New York, 2022, p. 5.
13
allowing them to continue with their day to day lives. It needs to be realised that plea bargaining is
primarily aimed at getting a lenient sentence for an accused person. This is achieved as a result of
negotiations between the prosecution and the defence whereby the prosecutor, depending on the
nature and circumstances of the offence, may reduce the charge or drop some of the charges. This
could be done in return for a plea of guilty by the accused to the lesser offences. The essence of plea
bargaining, which means the existence of full criminal trial waiver saves court system to be relieved
from the burden of conducting a trial on every crime charged. This in turn can reduce the jail
population. Lower sentences mean less incarcerated at one time.
(c) Removal of Uncertainty
One of the benefits accruing from the prosecution and accused entering into a plea agreement is
removing the uncertainty of the outcome of the case, which may result in the accused being found
guilty of a more serious offence at trial. For accused, the most significant benefit to plea bargaining is
to take away the uncertainty of a criminal trial and avoid the maximum sentence that a conviction at
trial could mean. In other words, with plea bargaining more predictable outcome is expected. With a
plea bargaining, there is a larger chance for a certain trial outcome. It also removes the uncertainty of
judicial prosecution as both parties know their fate beforehand. By adopting the plea, the prosecution
is assured of obtaining a conviction. In summary, plea bargaining eliminates any form of uncertainty
and helps the accused in making sure that he does not receive more serious charges or punishment for
the criminal acts filled against him.
(d) Plea Bargaining as Consensus
Much as plea bargaining is the process whereby the accused and the prosecutor negotiate a mutually
satisfactory disposition of the case, the said bargaining should strive to achieve consensus among
parties involved. The consensus is reached if the whole negotiation process is characterised by
voluntariness by all the parties, namely the prosecution and the accused. In this endeavour, plea
bargaining is said to be useful by the fact that efforts are made to ensure that an accused person enters
into the bargaining process voluntarily and fair environment is created. It is the contract between the
state and the accused where the state agrees to lower the penalties and the accused agrees to waive
rights available had the case against him been gone through the full trial. In the U.S. for example, the
Supreme Court has approved plea bargaining practice when properly conducted and controlled. 53 By

53
Santhy, K.V.K., “Plea Bargaining in US and Indian Criminal Law Confession for Concessions”, NALSAR Law Review,
2013, Vol. 7: No. 1, pp.84-102, p.89.
14
the twentieth century, guilty pleas dominated the majority of criminal cases. Almost every criminal
case is now conducted by plea bargaining and today it is often said that the American Criminal
Justice would collapse if plea bargaining is removed from it. 54 However, in order to protect the
accused persons, voluntariness and judicial scrutiny are two important aspects that are guaranteed in
the plea bargaining process. This is to ensure that all the parties participate freely and no one is
subjected to any coercion or duress of another in the process.
(e) Quick Recovery of Unlawfully Acquired Assets
It helps the state to recover the looted and stolen properties or to obtain information on more
important criminals which would not have been disclosed during full trial. Penal laws, which involve
punishments, have been in place since time immemorial. However, much as punishments are meted
out in one way or the other, practice shows that most criminals retain the benefit in monetary terms or
otherwise from criminal activities while victims are left feeling let down by the criminal justice
system.55 It has so far been proved that imprisonment and the imposition of suspended sentences as
well as fines alone have failed to be a sufficient deterrent compared to the potential economic gains
criminals stand to amass.56 After all imposing custodial sentences is costly and criminals regard it as a
temporary inconvenience. In fact, the enormity of revenues derived from some crimes diminishes the
deterrence capacity of traditional penal sanctions. Much as plea bargaining agreements include terms
that enable the state to recover the looted and stolen properties or to obtain information on more
important criminals which would not have been disclosed during full trial is a milestone in the
criminal justice system.
7.2 Criticisms of the Plea Bargaining
However, the practice is facing some criticisms. It is criticised for reducing the fairness and
legitimacy of the criminal justice system. Plea bargaining often times depend on the negotiation skill
of parties involved, rather than obtaining justice on its merit. It also makes the justice system to suffer
since both the defence and prosecution parties depend on their power to negotiate a deal, instead of
focusing on the outcome of full trial. Also, plea bargaining affects matters of sentence, which under

54
Ibid.
55
Kaniki, A.O.J., “An Examination of the Law and Practice Relating to Asset Recovery in Tanzania,” PhD Thesis,
University of Dar es Salaam, 2020, p. 3.
56
See Shaidi, L.P., “Tanzania Penal System: Retribution or Correction of Offenders,” 35-40 Eastern Africa Law Review,
December 2009, pp. 171-195, p. 172, who argues that the effectiveness of the deterrence theory is highly questionable
especially on the notion that the criminal and his crime are the products of society.
15
adversarial system are discretion of the trial court. 57 Neither the prosecution nor defence decides
which sentence should be passed against the accused. However, with plea bargaining in place both
the prosecution and defence have influence on sentence to be passed due to negotiations they are
involved into. Other drawbacks include the following:
(a) The Issue of Voluntariness
Although the system envisages the right of the accused to a speedy trial, it raises a general concern as
to whether the accused enters into a plea bargain and pleads guilty to the charged offences voluntarily
or not. The voluntariness of this plea deal appears to be defined more from state and institutional
perspectives than from the perspectives of accused. For plea-bargaining law to do justice to accused
persons, it must ensure that guilty pleas are voluntary in a more robust sense than is currently
recognised.58 The issue of voluntariness on the part of the accused person is measured by his level of
knowledge and fully understanding the whole concept of plea bargaining. Not all the accused persons
comprehend pros and cons of agreeing and entering into a plea bargaining. After all, not all accused
persons can afford to hire defence counsels to look after their rights and interests in the course of the
plea bargaining practice.
It is apparent that the prosecution has a discretional power in the process. To say the least, there is
unequal bargaining power between the prosecution and accused persons during negotiation. It has
been argued that one of the most troublesome criticisms of plea bargaining is that it is coercive, with
prosecutors using their discretion to induce accused to forfeit their rights out of fear of being
punished with additional charges and a harsher sentence if they do not plead guilty. 59 In this context,
an accused succumbs to a plea agreement out of fear of risking to be convicted of a more serious
crime. He does so out of necessity. To sum up this aspect, accused persons do not make the decisions
voluntarily and independently as the legal and institutional framework is not supportive.
(b) Plea Bargaining is Viewed as Unnecessary
Opponents of plea bargaining tend to view it as unnecessary, improper and degrading the criminal
justice system. It defeats the goals of criminal justice system. They argue that criminals do receive the

57
See Wanjema v. R. (1971) EA 493.
58
Covey, R.D.,“Plea-Bargaining Law after Lafler and Frye,” 51(3) Duquesne Law Review, 2013, pp. 595 – 623, pp. 618-
619. Available at: https://dsc.duq.edu/dlr/vol51/iss3/6 and accessed on 8/8/2023.
59
Ehrhard, S., “Plea Bargaining and The Death Penalty: An Exploratory Study”, 29(3) The Justice System Journal 2008,
pp.313- 324, p.313.

16
undeserved leniency. This is quite contrary to the conventional justice. Let it be understood that
conventional justice responses to crime tend to focus on punishment, deterrence, denunciation,
retribution, and community safety for breaches of the law, considerations which have to be balanced
by the court in the process of sentencing. It is argued that mere acceptance or admission of the
commission of an offence should not be reason for giving a lesser sentence. Merits alone need be
considered for conviction and sentencing. Accused cannot bargain for reduction of sentence because
he pleaded guilty. The trial court out to be left to assess the appropriate sentience rather than giving
choice to the accused.

(c) Plea Bargaining Undermines Procedural Guarantees

It is also argued that plea-bargaining undermines procedural guarantees for the accused. It does not fit
the adversarial system where full criminal trial is preferred. The most fundamental criticism of the
practice is that it destabilises many of the values of the criminal justice system by allowing the
circumvention of the rigorous standards of due process and proof imposed during criminal trials. As a
result, it undermines the public’s trust in the administration of criminal justice system and the fair and
non-discriminatory application of the law. In this context, it is argued that plea bargaining is an
imperfect method for dispensing justice.
(d) Poor Case Preparation and Investigation
Plea bargaining leads to poor case preparation and investigation. This is because the prosecution as a
result of the understanding does not take time to properly prepare for the case and poor police
investigation. Rather than pursuing justice, the parties would rely on plea bargaining, where the
details of the offence so committed will become less important. The plea bargaining does not provide
benefit for the innocent accused persons. This means that police officer or the prosecution undertakes
shoddy investigations. They rely on making deals and that the deals of what happened and the legal
consequences for those actions are less important.
(e) Some Accused are Unduly Influenced to Accept Plea Bargaining
Some research findings indicate that some accused out of their will, capacity and knowledge are
unduly influenced to accept plea bargain in which defeat their rights to fair trial in criminal justice. 60
In addition, prosecution knowingly unduly influence and coerce some accused who might be innocent

60
Nyagawa, 2022, p.xii. See also The United Republic of Tanzania, Annual General Report of Controller and Auditor
General for the Financial Year 2021/22, Central Government, March 2023, pp. 270-273.
17
to accept the deal.61 Again, not all citizens can afford the system and there are many implications of
inadequacy implementations of the laws.62 Think of accused who cannot afford to hire lawyers to
represent them. It is true that in such a situation there shall be unequal bargaining powers between the
accused and the public prosecutor. The plea agreement will more likely favour the prosecution. The
best option here would be full trial so that court decides the cases on merits.
(f) Weakest Trials
The prosecution is capable of taking full advantage of accepting the criminal act in weakest trials.
The more likely the trial ends in acquittal, the more beneficial a guilty claim is for the prosecution.
The resultant effects of the weakest trials arising out of plea bargaining are punishments, which are
“cheap, simple, and predictable”63. Such punishments at times defeat the purpose of justification for
punishment to offenders who are convicted for offences in full trials. There are valid reasons for
justification of punishment to offenders. It is believed that punishments deter, incapacitate and
rehabilitate offenders.64 In fact these make up the essence of criminal law. It is through full criminal
trial where the accused is properly tried that the court is able to assess the tendered evidence by both
parties to the case and punish him according to the law creating the particular offence and penalty
thereof. The punishment deters not only the accused but also others from committing such offence.
This objective is not achieved if the court is denied to run full trial when plea bargaining comes into
play. It may be argued that plea agreements affect the ability of courts to fully exercise their
discretion to sentence accused persons. As a result, there is the possibility to frustrate the purpose of
punishment especially the deterrence function.
8. Introduction of Plea Bargaining in Tanzania: An Analysis of the Legal Framework
In 2019 the Parliament made amendments to several laws through the Written Laws (Miscellaneous
Amendments) (No.4) Act, 2019.65 Among the amended laws was the Criminal Procedure Act66 to,
among other things, introduce plea bargaining in Tanzania, its procedure and administration. Sections
15 and 16 of the Act amend sections 3 and 194 of the Criminal Procedure Act (CPA) to introduce the
legal framework relating to plea bargaining. Section 15 amends section 3, which is the interpretation

61
The United Republic of Tanzania, Ibid.
62
Ibid.
63
Hessick, C.B., Punishment Without Trial: Why Plea Bargaining is a Bad Deal, Abrams Press, New York, 2021, p.33.
64
Paranjape, N.V., Criminology & Penology with Victimology, 15th Ed., Central Law Publications, Allahabad, 2011, p.
242.
65
Act No.11 of 2019.
66
Cap. 20 [R.E. 2022].
18
section by inserting definitions of words “plea agreement” and “plea bargaining”. Following the
amendments being effected, section 3 of the CPA defines words “plea agreement” and “plea
bargaining.”67
Section 16 of the Amendments Act amends section 194 of the CPA to immediately thereafter
introduce new sections, namely sections 194A, 194B, 194C, 194D, 194E, 194F, 194G and 194H that
relate to plea bargaining in terms of the modality and extent to which the same should operate in the
criminal justice system in the country. 68 The new sections provide procedures of, plea-bargaining
agreement and how may be entered between an accused person and the DPP. These new sections,
which give the administrative structure to regulating plea bargaining, allow accused in criminal cases
to plead guilty at first hearing in return for dismissal of charges or a more lenient sentence. The new
sections in the CPA provide a leeway for an accused person to bargain with prosecution his case
without going through the long and complex court proceedings.
The following discussion goes into detail on the legal framework on plea bargaining as provided for
by the CPA:
(a) Procedure for Plea bargaining
Section 194A of the CPA, which provides for the procedure for plea bargaining states that:

“194A.-(1) A public prosecutor, after consultation with the victim or investigator

where the circumstances so permit, may at any time before the judgment, enter a
plea bargaining arrangement with the accused person and his advocate if
represented or, if not represented, a relative, friend or any other person legally
competent to represent the accused person.
(2) The accused person or his advocate or a public prosecutor may initiate a plea
bargaining and notify the court of their intention to negotiate a plea agreement.

67
According to section 3 of the Criminal Procedure Act, “plea agreement” means an agreement entered into between the
prosecution and the accused in a criminal trial in accordance with sections 194A, 194B and 194C.
68
Neighbouring countries, namely Kenya and Uganda introduced the plea bargaining practice in their criminal
jurisdictions earlier than Tanzania. According to Abdulrahaman, Z., “Plea Bargaining in Corruption Cases in Kenya:
Towards a Restraint Approach,” LL.M Dissertation, University of Nairobi, 2021, p.4, plea bargaining which was foreign
to Kenya’s criminal law jurisprudential landscape was introduced in the country in 2008, when necessary amendment was
effected in the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. That is, where new sections 137A to 137 O were
added to section 137 of the Code. In May, 2014, Uganda introduced plea bargaining initiative to address the case backlog
of criminal cases and extensive pre-trial detention of accused persons. Initially, it started as a pilot project in some
selected parts of the country and later on it spread throughout the country. The practice is regulated by the Judicature
(Plea Bargain) Rules, 2016 (made under section 41(1) and 41(2) (e) of the Judicature Act, Cap.13.
19
 (3) The court shall not participate in plea negotiations between a public prosecutor
and the accused person.
(4) Where prosecution is undertaken privately, no plea agreement shall be
concluded without the written consent of the Director of Public Prosecutions.”
According to the section, plea bargaining may be initiated by either a public prosecutor, after
consultation with the victim or investigator where the circumstances so permit or by an accused or his
advocate. Both the prosecution and the accused have an interest in the matter. As Masara, J, so
indicated in the case of Peter Michael Madeleka v. The Republic,69 often times, if not always, this is
done after the proceedings before court are on progress but before judgment. It is further provided
under the section that the accused or his advocate or a public prosecutor having initiated a plea
bargaining should notify the court of their intention to negotiate a plea agreement. That means that
plea bargaining can be initiated by either the public prosecutor or by the accused person or his
advocate.
The High Court elaborates on what transpires in the procedure for plea bargaining as provided for
under section 194A of the CPA in the case Vietel Tanzania PLC v. Republic70, where Mlacha, J. states
that the accused is looking for leniency in sentence and compensation while the prosecutor is seeking
for an early disposal of the matter and compensation to the victim of crime. The prosecution agrees to
drop some charges or reduce the offence to a lesser offence to attract the accused to plead guilty. The
accused agrees to plead guilty to some offences or to a lesser offence in exchange of some favours.
The accused may also agree to co-operate with the prosecutor to volunteer some information for some
purposes. In some cases, he may also agree to be converted to a prosecution witness. Negotiations
may be done and the parties may reach an agreement. This is the plea bargaining agreement. Like all
other agreements, this agreement is binding on the parties on the terms contained therein.
It must be noted that victim of crime is not made party to the plea bargaining negotiations. He is
merely consulted, as so the law so requires. This legal position is similar to that of Zambia.
According to the Zambian law on plea bargaining namely of the Plea Negotiations and Agreements
Act, 201071 the prosecutor is required to “inform” the victim or the immediate family members of the
victim of the substance of, and reasons for the plea agreement. The victim is only entitled to be
69
The High Court of the United Republic of Tanzania (Arusha Sub-Registry) at Arusha, Criminal Appeal No. 87 of 2023
(Unreported), at p.18 of the judgment.
70
High Court of the United Republic of Tanzania at Dar es Salaam, Criminal Appeal No.55 of 2021, (Unreported).
71
Act No.20 of 2010, section 8(1)(a).
20
“informed” and, therefore, only envisioned to play a passive role in the whole plea negotiation
process.72 He cannot object or make any representations. The crafting of the provision also entails that
the victim is only informed when the plea agreement is concluded and not when it is in process nor
about its desirability.73 This stems from a well settled practice that in traditional criminal justice when
criminal proceedings are conducted in court against the accused, the crime alleged to have been
committed is against the state. As such the victim of the offence is represented by the public
prosecutor. That is to say, under the common law legal system, the tradition in criminal justice has
been to focus on the accused and to ensure that he gets punished. 74 The victim of the crime is ignored
and at most given the “opportunity” to assist the prosecution's case as a witness for the Crown or the
Republic. However, new thinking is emerging that calls for changing the mind-set and looking at the
plight of the many victims of crime. This is in line with recognising the rights of the victims of crime
to participate fully in the criminal justice process. As such, victims should be accorded a meaningful
role in the process of plea bargaining negotiations. They should always be kept informed so that they
are able to accept reasonable explanations for what has happened in their case. 75 It should be well
established that public prosecutors do not proceed with the plea negotiations until the the victims
have been notified and have been given an opportunity to be present. Their voices ought to have been
heard throughout the process, not merely consultation by the prosecutor.
During the plea bargaining between a public prosecutor and the accused person, the trial court is not
allowed by the law to participate in the plea negotiations. 76 Parties to the case participate in the
negotiations. This legal position is well reiterated in the case of Harry Msamire Kitilya & Two Others
v. Republic77, where Banzi, J. held that:
"Reading closely at the import of Sections 194A to 194H of the CPA, it is
apparent apart from receiving notification from the parties on their intention to
72
Kaaba, O. and Zhou, T., (2020) "Plea Bargaining, Reconciliation and Access to Justice in Zambia: Exploring the
Invisible Link," Zambia Social Science Journal, 2020, Vol. 8: No. 2, Article 4, pp. 35-56, p. 46. Available at:
https://scholarship.law.cornell.edu/zssj/vol8/iss2/4
73
Ibid.
74
Lugakingira, K.S.K. and Peter, C.M., “Victim Compensation and Aspects of Law and Justice in Tanzania”,
International Criminal Justice Review, Volume 18, Issue 3, First published online September 1, 2008, Abstract,
https://doi.org/10.1177/1057567708323597.
75
See Beall, G., “Principles of Plea Bargaining”, Loyola University Chicago Law Journal, 9(175), 2015, pp. 175-192,
p.184. Available at: http://lawecommons.luc.edu/luclj/vol9/iss1/5.
76
See section 194A (3) of the Criminal Procedure Act, Cap.20 [R.E. 2022].
77
The High Court of the United Republic of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam
Registry, Economic Application No. 02 of 2022 (Unreported).
21
 negotiate and enter into a plea agreement, the involvement of the Court in the
process begins after a signed plea agreement is presented before the Court for
registration. To be precise, under Section 194A (3) it is expressly stated that, the
court shall not participate in the plea negotiations between the DPP and the
accused persons. The fact that how, where, and when such negotiations and
agreement were conducted and ultimately signed, as the case may be, are not part
of the trial court's proceedings.
… Under the circumstances obtaining in this matter, whatever transpired in the
entire process of their negotiations leading up to the signing of the agreement
upon which involuntariness or misrepresentation may be challenged or
established cannot be found in the Court’s proceedings …”
That means the trial court is not involved in the process of negotiating a plea bargaining agreement.
The court is only duty-bound to allow the parties of the case to enter into plea bargaining discussions.
This happens after being notified by the prosecution, the accused or both of them. According to the
case Vietel Tanzania PLC v. Republic78, once the court is informed of the intention to enter into the
plea bargaining, it has to stay the proceedings or put the case on mention to allow the parties to
proceed with negotiations. Parties who participate in the negotiations are left to act without any
influence of the court. The court is only informed on what has been agreed upon. This legal position
appears to be so in many jurisdictions where the plea bargaining practice is in place. Alschuler states
the American position where plea bargaining originates by arguing that the general consensus seems
to be that the trial judges should not participate in the pretrial negotiations that currently lead to
overwhelming majority of American criminal defendants to plead guilty rather than exercise the right
to trial.79 Similarly, the American Bar Association’s Standards for Criminal Justice states that the
trial judge should not participate in plea discussions. That is a judge should not be a party to advance
arrangements for the determination of sentence whether as a result of a guilty plea or a finding of
guilty based on proof.80 The rationale behind avoiding the court to participate in plea bargaining
sessions is to prevent it from possibilities of being bias. It is left to remain independent examiner to
verify whether the accused’s guilty as a result of plea bargaining agreement is not based on
78
High Court of the United Republic of Tanzania at Dar es Salaam, Criminal Appeal No.55 of 2021, (Unreported).
79
Alschuler, A.W., “The Trial Judge’s Role in Plea Bargaining, Part I”, Columbia Law Review, Vol. 76, No. 7 (Nov.
1976) pp. 1059-1154, p.1059.
80
See ibid.
22
misapprehension or coercion. The fact that the court is barred from participating in the plea
negotiations with parties to the case assures it of acting independently and impartial.
In cases where private prosecution is undertaken, no plea bargaining is concluded without written
consent of the Director of Public Prosecutions. 81 Gathered from the provisions of the section is that
plea bargaining involves informal negotiations between parties to the case namely, the prosecution
and the defence.
(b) Consequences of Plea bargaining
Section 194B provides for the consequences of plea bargaining whereby, upon successful Plea
bargaining arrangement, the public prosecutor may either impose a lesser charge on the accused, or
the accused may plead guilty in exchange for withdrawal of charges, or the accused may be ordered
to pay compensation, or be subjected to forfeiture of the proceeds and instrumentalities that were used
to commit the crime in question. The section states that:
“194B. Where, consequent to a plea bargaining arrangement, a plea agreement is
entered into between a public prosecutor and an accused person-
(a) the public prosecutor may charge the accused person with a lesser offence,
withdraw other counts or take any other measure as appropriate depending on the
circumstances of the case;
(b) the accused person may enter a plea of guilty to the offence charged or to a
lesser offence or to a particular count or counts in a charge with multiple counts in
exchange for withdrawal of other counts; or
(c) the accused person may be ordered to pay compensation or make restitution or
be subjected to forfeiture of the proceeds and instrumentalities that were used to
commit the crime in question.”
Noting from the above-quoted provisions of the law, it is apparent that plea bargaining provides a
room for negotiations whereby both parties involved benefit. The benefit is in the sense that the
accused person pleads guilty in return for dismissal of some other charges or a more lenient sentence.
He may also be ordered to pay compensation or make restitution or be subjected to forfeiture of the
proceeds and instrumentalities that were used to commit the crime in question. On the part of
prosecution, it is relieved form being engaged in full criminal trials, which are tedious and take much
time. All these come into effect following the agreement by both parties involved thereto.
81
See section 194A (4) of the Criminal Procedure Act, Cap.20 [R.E. 2022].
23
 (c) Requirements of Plea Agreement
There are some requirements of plea bargaining, which must be fulfilled. The CPA provides under
section 194C that:
“194C.-(1) A plea agreement shall be in writing witnessed by advocate of the
accused or, if not represented, a relative, friend or any other person legally
competent to represent the accused, and shall-
(a) state fully the terms of the agreement, the substantial facts of the matter and
all other relevant facts of the case and any admissions made by the accused
person;
(b) be read and explained to the accused person in a language that he
understands;
(c) accepted by the accused person; and
(d) be signed by the prosecutor, the accused person and his advocate, if
represented or, if not represented, a relative, friend or any other person legally
competent to represent the accused.
(2) Where an accused person has negotiated with a prosecutor through an
interpreter, the interpreter shall certify that he is proficient in that language and
that he interpreted accurately during the negotiations and in respect of the
contents of the agreement.
(3) Without prejudice to the requirements set out under subsections (1) and (2), a
plea agreement shall not be entered between a prosecutor and accused person,
without prior written consent of the Director of Public Prosecutions or any other
officer authorised by him in writing.”
According to the above-quoted section, a plea agreement must be in writing and with prior written
consent of the DPP; plea agreement must be witnessed by advocate of the accused or, if not
represented, a relative, friend or any other person legally competent to represent the accused. It is
further stipulated that a plea agreement must state fully the terms of the agreement, the substantial
facts of the matter and all other relevant facts of the case and any admissions made by the accused
person; the plea agreement must be read and explained to the accused person in a language that he
understands; and the plea agreement must be accepted and signed by the accused person and his

24
advocate, if represented or if not represented, a relative, friend or any other person competent to
represent the accused and also must be signed by the prosecutor. Where the plea agreement is
negotiated through an interpreter, the interpreter must certify his language proficiency and that he
interpreted accurately during the negotiations.
(d) Registration of Plea Agreement
The law requires that plea agreement should be registered in court. Section 194D of the CPA
stipulates that:
“194D.-(1) Any plea agreement entered into in accordance with the provisions of
sections 194A and 194B shall be registered by the court.
(2) The court shall, before it registers any such agreement, satisfy itself that the
agreement was voluntarily obtained and the accused person was competent to
enter into such agreement.
(3) The court may pronounce a decision based on plea agreement or make such
other orders as it deems necessary including an order to reject the plea agreement
for sufficient reasons, except that, such rejection shall not operate as a bar to any
subsequent negotiations preferred by the parties.
(4) Where the court accepts a plea agreement-
(a) the agreement shall become binding upon the prosecution side and the accused
person; and
(b) the agreement shall become part of the record of the court.
(5) Where a plea agreement entered into in accordance with sections 194A and
194B is accepted by the court, the court shall proceed to convict an accused
person accordingly.
(6) Where conviction is entered in accordance with subsection (5), the court shall
proceed to sentence the accused person in accordance with the plea agreement
notwithstanding the sentence specified by the provisions of the applicable law.”
Noting from what is stated above, before the court registers the plea agreement it must satisfy itself
that the agreement was voluntarily obtained, and the accused at the time of entering the agreement
was competent, sound mind and acted voluntarily. Normally once the plea agreement is filled, the
parties appear before the court. The court has to satisfy itself that the accused had capacity and

25
entered into the plea agreement voluntarily. After being examined under oaths over their
voluntariness and competence to enter into such agreement, and upon being satisfied as such, the
court accepts and registers their agreement.82 The court has power under sub-section 194C to reject
the agreement if it has sufficient reasons, which will be recorded. The High Court of Tanzania
enumerates the circumstances under which the court may reject the agreement or decline to register
the plea agreement in the case of Vietel Tanzania PLC v. Republic83, where Mlacha, J. states that:
“This can happen when the court has the view that the accused did not have
capacity to enter into the agreement or did not enter into the agreement
voluntarily. It can also happen in my view, where the interests of the victim and
or the public were not taken into account properly. Here is where issues of the
amount of compensation comes public policy come in. The agreement must
reflect the reality on the ground. If it fails short of that, in my view, it must be
rejected. For example, the DPP is not expected to enter into an agreement to set a
person who has committed economic crimes or murder without paying any
compensation or paying something which does not reflect the reality. If it
happens, the court may reject the agreement and refer the parties to further
negotiations. It is not correct to imagine, as it is sometimes taken to be, that the
court should always agree with the DPP. It has a duty to examine the agreement
and be satisfied that it meets the justice of the case. It must see that the
compensation amount meets the interests of the victim and the society. If it will
not be properly convinced, it must exercise its powers of rejection without
hesitation.”
However, the rejection will not operate as a bar to subsequent negotiations by the parties. Where the
court accepts and registers the plea agreement, it becomes binding upon the prosecution side and the
accused person. Consequently, the court proceeds to convict and sentence the accused in accordance
with the plea agreement. It has been emphasised that much as the trial court in the course of passing
the sentence exercises its discretion, it must, inter alia, take into account the purpose behind the plea

82
See the case of Harry Msamire Kitilya & Two Others v. Republic, The High Court of the United Republic of Tanzania,
Corruption and Economic Crimes Division at Dar es Salaam Registry, Economic Application No. 02 of 2022
(Unreported).
83
High Court of the United Republic of Tanzania at Dar es Salaam, Criminal Appeal No.55 of 2021, (Unreported).
26
bargaining. The role of the court in dealing with cases wherein plea bargaining has been involved is
well explained by Mlacha, J. in Vietel Tanzania PLC’s case that:
“It is important to note that the court is not expected to act at the direction and or
wishes of the DPP in Plea Bargaining issues. The DPP has his role as defined
under the Law and the court has its role. The court must act independently and
impartial. It must maintain this status throughout.”
The Court’s position is in line with the Criminal Procedure (Plea Bargaining Agreement) Rules,
202184 made by the Chief Justice. The Rules state that notwithstanding that a prosecutor and the
accused person may each make a specific recommendation either in a plea agreement or otherwise to
sentence the court may impose, the court retains its role of discretion in sentencing. 85
(e) Procedure for Registration of Plea Agreement
Procedure for registration of plea agreement is well spelt out under section 194E of the CPA, where
the court is mandatorily required to observe the laid down procedure. The CPA provides under
section 194E that the accused person must be placed under oath and address as well as informs him
that by accepting the plea agreement he is not only waiving his right to a full trial but also the right to
appeal except as to the extent or legality of sentence imposed. The court should also inform the
accused person that the prosecution has the right, in case of false statement, to use any statement that
the accused gives in the agreement against him. Once all these were done, the court will then proceed
to convict the accused as provided under subsection (5) of 194E.
(f) Offences which Plea Agreements do not Apply
It must be noted that not all offences are covered in plea bargaining. Looking at the provisions of the
CPA, it is apparent that plea bargaining does not apply to all offences that are known in the penal
legislation. The CPA state under section 194F that there are a number of offences under which plea
agreements shall not apply. These include sexual offences whose punishments exceed five years or
involve victims under eighteen years, treason, possession or trafficking narcotic drugs, terrorism, and
possession of Government trophies. The section provides as follows:

“Plea agreements shall not be entered into in any of the following offences-

84
The Rules were published on 5th February 2021; vide Government Notice No.180 of 2021.
85
Ibid., Rule 21(1) and (2).
27
 (a) sexual offences whose punishment exceeds five years or involving victims
under eighteen years;
(b) treason and treasonable offences;
(c) possession or trafficking in narcotic drugs whose market value is above one
hundred million shillings, and for the purpose of narcotic drugs which have not
been valuated-
(i) narcotic drugs or psychotropic substances weighing more than one kilogram;
(ii) precursor chemical and substance with drugs related weighing more than one
hundred litres in liquid form or more than one hundred kilograms in solid form;
and
(iii) cannabis or khat weighing not more than one hundred kilograms.
(d) terrorism;
(e) possession of Government trophy whose value is above twenty million
shillings without the consent, in writing, of the Director of Public Prosecutions;
and
(f) any other offence as the Minister may, upon consultation with other relevant
authority and by order published in the Gazette, prescribe.”
(g) Applications to Set Aside Conviction and Sentence Relating to Plea Bargaining
However, the law outlines circumstances under which a verdict founded on plea agreement may be
set aside. That means the law provides an avenue through which either the Director of Public
Prosecutions or an accused person may challenge the plea bargaining. According to section 194G of
the CPA, the Director of Public Prosecution may, in matters relating to plea bargaining and in the
public interest and the orderly administration of justice, apply to the court which passed the sentence
to have the conviction and sentence procured on the grounds of fraud or misrepresentation pursuant
to a plea agreement be set aside. Likewise, the accused may apply to the court to set aside the
conviction and sentence on the grounds that the same were procured involuntarily or by
misrepresentation. According to the case of Devotha Amandus Ngonyani and Another v. Republic 86,
section 194G of the CPA provides safety valve against fraud, misdirection or misrepresentation in
respect of conviction and sentence relating to plea bargaining.
(h) Power to Make Rules
86
The High Court of Tanzania Land Division at Dar es Salaam, Misc. Criminal Application No. 06 Of 2022 (Unreported).
28
The Criminal Procedure Act empowers the Chief Justice to make rules and give directives for better
carrying out the legal provisions relating to plea bargaining. 87 This is in appreciation of the fact that
plea bargaining is still a new concept in Tanzania. The Chief Justice made the Criminal Procedure
(Plea Bargaining Agreement) Rules, 202188 to that effect. The following are among the aspects
covered in the Rules: notifications for plea bargaining, scope of plea bargaining, notice to appear,
disclosure, interest of victims and community to be taken into consideration, plea agreement
negotiations, compensation, submission of plea agreement, procedure before registration, plea
hearing date, procedure at plea agreement, etc.
It is apparent that the practice of plea bargaining has changed the way in which public prosecution
and accused persons operate in Tanzania. The changing has thus prompted the National Prosecution
Service (NPS) to develop Plea Bargaining Guidelines in 2022 in order to streamline the processes to
be followed by public prosecutors and authorised persons in conducting plea negotiation so that
negotiations are conducted in a more professional and transparent manner. 89 This can be achieved
because they contain important information and practical steps that need to be adhered to during plea
bargaining negotiation. They also set out the duties of the prosecutors during the whole process of
plea bargaining and, in particular, describe the manner in which the prosecutorial decision making in
plea bargaining will be undertaken. 90 It is hoped that the guidelines will assist prosecutors and
authorised officers to discharge their responsibilities during plea bargaining process in a more
efficient, professional and transparent manner thereby increase the public confidence in the
process.91
9. Brief Survey of Plea Bargaining in Tanzania for the Period between 2019-2022
Arguing from practical point of view, the introduction of plea bargaining in 2019 was tested by
dealing with economic crimes in order for the government to recover money and other assets illicitly
acquired out of such crimes for lesser penalties. With that focus, it is argued, only those accused
persons with deep pockets were the main targets who in turn benefited from the practice. It is thus no
wonder that money laundering charges featured prominently in the plea bargaining agreements. After

87
Section 194H of the Criminal Procedure Act, Cap.20 [R.E. 2022].
88
The Rules were published on 5th February 2021; vide Government Notice No.180 of 2021.
89
See the United Republic of Tanzania, Plea Bargaining Guidelines, The National Prosecution Service, June 2022, pp.i-ii.
90
Ibid.
91
Ibid.
29
all, criminal prosecution is among the anti-money laundering tools. 92 The move to enter into plea
bargaining agreements was prompted by the fact that the traditional focus of law enforcement
approach is on securing conviction and jail terms but recovery of stolen or illicitly acquired assets is
ignored.93 One of the facilitative techniques to the advantage of the prosecution was and still is the
pretrial detention resulting from absolute bar on granting of bail in a number of offences including
those on money laundering.94 The absolute bar on granting of bail means an automatic denial of bail.
As a result, there is no way an accused of money laundering could regain his freedom except for
either wait till his case is disposed of through full trial and the prosecution fails to prove the case
beyond reasonable doubt or entering into a plea bargaining agreement with the state. This explains
why accused facing money laundering charges languished in prisons for many years without knowing
when they shall regain their personal freedoms. So, the introduction of plea bargaining in Tanzania in
2019 was seen as one of the means through which the government could raise revenues through
recovering criminally acquired assets from criminals in consideration of lesser charges or lenient
sentences. It also consequently enabled those accused of economic crimes to release themselves from
pretrial detentions.
However, looking at the 2021/2022 Controller and Auditor General (CAG) Report, a period covering
from 1st July, 2019 to 31st March, 2022, it is noted that Tanzania started with a wrong footing in
introducing plea bargaining.95 The Report shows several flaws in the plea bargaining process. They
include (i) lack of transparency due to missing documentation in some case files thereby raising
concerns about the fairness of the process; (ii) inconsistencies in handling applications for an

92
See Materu, S.F., “Fighting Money Laundering through Criminal Prosecution in Tanzania: A Critical Comment on
Specific Aspects of the Law and Practice”, Eastern Africa Law Review, Issue No. 2, Vol.44, December, 2017,
pp.19-49, pp.32-49. See also Tenga, R.W., “Money Laundering Prosecutions in Tanzania: A Tentative Assessment”,
Eastern Africa Law Review, Issue No. 2, Vol.44, December, 2017, pp.50-94.
93
For detailed discussion on aspects of asset recovery in Tanzania, see Amani, N.P., “Civil Forfeiture in Tanzania: A
Panacea for Recovering Illicitly Acquired Property by Politically Exposed Persons (PEPs)?”, Eastern Africa Law Review,
Issue No. 2, Vol.41, December, 2014, pp.125-155; Kaniki, A.O.J., “Forfeiture of Criminally Acquired Property in
Tanzania: Some Reflections on Historical and Socio-economic Factors”, Eastern Africa Law Review, Issue No. 2, Vol.41,
December, 2015, pp.112-142; Diwa, Z.M., “Managing the Proceeds of Crime: An Assessment of the Policies of
Tanzania, South Africa and Nigeria”, PhD Thesis, University of the Western Cape, 2016; Kaniki, 2020; and Amani, N.P.,
“Navigating between Judicial and Extrajudicial Mechanisms for Asset Recovery in Tanzania: Examining Legal
Implications”, PhD Thesis, University of Dar es Salaam, 2021.
94
Section 148(5) (a) Criminal Procedure Act, Cap. 20 [R.E. 2022]. Apart from money laundering as non-bailable under
this section, others include murder, treason, armed robbery, defilement, serious drug crimes, terrorism and trafficking in
persons.
95
The United Republic of Tanzania, (Annual General Report of Controller and Auditor General for the Financial Year
2021/22, March, 2023, Central Government, pp. 270-273.
30
extension of the compensation payment deadline; (iii) absence of established guidelines or conditions
for pledging security/collateral in plea-bargaining agreements, resulting in inconsistencies in the
terms of the agreements, with the decision to require collateral or not left to the discretion of the
Director of Public Prosecutions; (iv) accused claiming to have written and signed letters of intent
after they were coerced to do so. This indicates that there was a violation of Rules 12 and 14 of the
Criminal Procedure (Plea Bargaining) Rules, 202196, raising concerns about the transparency and
fairness of the plea-bargaining process, and (v) the violations of the accused's rights during the arrest,
prosecution, and handling of cases concluded through plea bargaining. 97 Taking all these flaws into
consideration, it is apparent that issues related to the management of plea bargaining agreements and
procedures were not given an upper hand. Such violations raise concerns about the transparency and
fairness of the plea-bargaining process. Moreover, there may be possible misconduct and abuse of
public office in the plea-bargaining process. This is supported by the findings of the research that has
been conducted in 2022 by Nyagawa on efficacy of laws and institutions governing plea bargaining in
Tanzania. The findings indicated that some accused, out of their will, capacity and knowledge were
duly influenced to accept plea bargain in which defeated their rights to fair trial in criminal justice. 98
In addition, the findings of the research revealed that prosecution knowingly unduly influenced and
coerced some accused who might be innocent to accept the deal. 99 This state of affairs appears to be
noticed in other jurisdictions, which have introduced the plea bargaining practice in their criminal
justice systems. Ortman, an American scholar, sums it up when arguing that:
“Plea bargaining is coercive, according to its contemporary critics, because
prosecutors (by their charging decisions), judges (by the sentences they impose),
and legislators (by enacting criminal statutes with extreme maximum penalties)
inflate post-trial punishments to make plea offers look attractive in comparison.
When post-trial sentences are more severe than our normative theories of
punishment (e.g., utilitarianism or retributivism) can justify, defendants who

96
Government Notice No. 180 of 2021.
97
The United Republic of Tanzania, Annual General Report of Controller and Auditor General for the Financial Year
2021/22 (n 54) 272.
98
Nyagawa, 2022, Abstract.
99
Ibid.
31
 stubbornly insist on trial and lose pay a heavy price. Accordingly, most do not
insist on trial.”100
Such undue influence on the part of the accused, which comes out of necessity is an indication that
there is an imbalanced and coercive nature of plea negotiations. As a result, even the seemingly
innocent accused persons might plead guilty in fear of heavier punishment in case full criminal trials
are conducted.
10. Discussing Plea Bargaining from Human Rights Point of View
10.1 The Bill of Rights in Tanzania
With the entrenchment of the Bill of Rights in the Constitution of the United Republic of Tanzania of
1977 in 1984 as per the Fifth Constitutional Amendment, 101 Tanzania had taken a step forward
towards not only respecting but also creating an avenue for its citizens to be able to realise human
rights. According to the Constitution (Consequential, Transitional and Temporary Provisions) Act,
1984,102 with the Bill of Rights coming in force in March 1988, all basic rights and freedoms, also
referred to as political civil liberties as provided for under Part III of Chapter One of the Constitution
of the United Republic of Tanzania of 1977, are guaranteed. 103 Section 5(1) of the Act provides that
‘[w]ith effect from March, 1988 the courts will construe the existing law including customary law
with such modifications, adaptations and exceptions of the Fifth Constitutional Amendment Act 15 of
1984, that is the Bill of Rights’. Under the Constitution, the Bill of Rights provides for for basic rights
that include freedom of assembly and association, 104 freedom of movement,105 freedom of
expression106 and freedom of religion.107 Other rights are the right to work,108 the right to life,109
equality before the law,110 personal freedom,111 the right to participate in government,112 the right to
100
Ortman, W., “When Plea bargaining Became Normal”, Boston University Law Review, 2020, Vol.100, pp. 1435-1499,
p.1467.
101
See the Fifth Constitutional Amendment Act No. 15 of 1984. For more detail on the introduction of the Bill of Rights
in Tanzania, see Ruhangisa, J.E., “Human Rights in Tanzania: The Role of the Judiciary”, PhD Thesis, University of
London, 1998, pp. 128-140.
102
Act No.16 of 1984.
103
This part covers articles 12 to 32 of the Constitution.
104
Article 20 of the Constitution.
105
Article 17
106
Article 18
107
Article 19
108
Article 22
109
Article 14
110
Article 13
111
Article 15
112
Article 8
32
acquire and own property113 and the right to a fair remuneration. 114 These are the rights and freedoms
that have to be enforced subject to the laws of the land. All Tanzanians are entitled to enjoy these
rights and freedoms. These are natural rights and freedoms bestowed on them by the fact that they are
human beings. The state therefore is duty bound to ensure that in the course of implementing
appropriate law enforcement measures, it respects, protects, promotes and fulfils those fundamental
rights and freedoms to the letter.115
10.2 Presumption of Innocence
The Constitution provides that the accused is presumed innocent until proved guilty. 116 According to
the Court of Appeal of Tanzania in the case of DPP v. John Abdul Mwarabu,117 an accused is only
required to raise a reasonable doubt as to his guilt. The presumption of innocence, as provided for in
article 13(6)(b) the Tanzanian Constitution, therefore, should be observed. The phrase ‘presumption
of innocence’ has been defined as a conclusion or inference as to the truth of a person being not
guilty, harmless, or knowing nothing of evil or wrong. 118 The presumption of innocence in fact is a
fundamental principle underlying criminal law and enforceable under the Bill of Rights as enshrined
in the Tanzanian Constitution.119
Under this basic right, a person is presumed innocent until he is proven guilty by a competent court
through due process in criminal justice system.120 Due process of law refers to rules that are
administered through courts of justice in accordance with established and sanctioned legal principles
and procedures; with safeguards for the protection of individual rights. 121 Here the concept is limited
to the rules applicable to the administration of justice. Due process includes, inter alia, provisions
ensuring an accused person a fair and public trial before a competent tribunal, the right to be present

113
Article 24
114
Article 23
115
Kaniki, A.O.J., “Is the Forfeiture of Criminally Acquired Property in Tanzania Compliant with the Constitution?” 21
African Human Rights Law Journal, 2021, pp. 358-387, pp. 366-67.
http://dx.doi.org/10.17159/1996-2096/2021/v21n1a22. Accessed on 10/8/2023.
116
Article 13 (6) (b) of the Constitution.
117
Court of Appeal of Tanzania at Dar es Salaam, Criminal Appeal No. 138 of 2003 (Unreported). See also the case of
Fanuel Kiula v.R. (1967) HCD 369 where Georges CJ (as he then was) held that it is not necessary to accept the evidence
of the accused in order to find him not guilty. All that an accused need do is raise a reasonable doubt as to his guilt.
118
Mnyasenga, T.R., “Locating the Scope and Application of the Right to Presumption of Innocence in Tanzania,” 2(4)
International Journal of Law, Education, Social and Sports Studies, Oct-Dec 2015, pp.73-93, p.74.
119
Ibid.
120
Kaniki, 2021, p. 538.
121
Sepúlveda, M. et al., Universal and Regional Human Rights Protection Cases Commentaries, University for Peace,
Ciudad Colon, Costa Rica, 2004, p.447.
33
at the trial, and the right to be heard in his or her own defence. Due process includes both the right to
a fair trial and the right to an effective remedy. 122 The burden of proving guilt rests entirely on the
prosecution.123 The standard of proof is beyond a reasonable doubt unless the statute or the law
provides otherwise. The accused does not have the onus of proving his innocence. This is so because
the presumption of innocence always remains with a suspected person until he is proved guilty by a
court of law. This legal position has been reiterated by the Tanzanian Court of Appeal in the case of
Jackson Mlonga v. R124 where it was stated that proof in a criminal case is beyond a reasonable doubt.
The Court held in the case of Fadhili Majura v. R.125 that a failure by the prosecution to prove the
case beyond a reasonable doubt gives the benefit of doubt to the accused.
In view of the above discussion, presumption of innocence renders a person charged with a criminal
offence to enjoy the right to be presumed innocent until proved guilty by a competent trial court.
Before the proof beyond reasonable doubt by the prosecution, such person is always treated as a
suspect and not as guilty throughout the criminal trial. Therefore, the presumption of innocence plays
a role not only during the trial but also prior to the trial.
10.3 The Right to Fair Hearing
The Bill of Rights as entrenched in the Constitution in Tanzania guarantees the fundamental rights
that are accorded to an accused person and other parties involved in a case in court. Those rights are
meant to ensure, among other things, that there is fair hearing so that the court can reach a just
decision. The right to fair hearing is provided for under the Constitution, which states that when the
rights and duties of any person are being determined by the court or any other agency, that person
should be entitled to a fair hearing and to the right of appeal or other legal remedy against the
decision of the court or of the other agency concerned. 126 The procedure that is followed in the course
of due process should reflect all these. It has been argued that:
“Criminal procedure is the method laid down by law for bringing a person who is
alleged to have committed a crime before a court of law for trial. It encompasses
also the methods that are adopted by the court of trial, the powers of the court of
trial, the right of appeal of a person convicted of a crime, and the rules of court

122
Ibid.
123
Section 3(2)(a) of the Evidence Act, Cap. 6 [R.E.2022].
124
Court of Appeal of Tanzania at Dodoma, Criminal Appeal No. 200 of 2007 (Unreported).
125
Court of Appeal of Tanzania at Mtwara, Criminal Appeal No. 207 of 2007 (Unreported).
126
Article 13(6)(a) of the Constitution.
34
 governing the procedure of criminal appeals in appellate courts. This procedural
framework consists chiefly, of the right to fair hearing or trial; a right which in
broad terms comprises the common law principle that a man may be punished
only in accordance with the law and that he cannot be convicted of an unwritten
offence.”127
In view of what has been stated above, the right to a fair hearing is one of the fundamental rights and
freedoms that guarantee due process in the course of criminal trials. Due process also guarantees that
the law and legal proceedings should be fair within criminal proceedings and not conducted outside
of the law. Thus, due process procedures for those charged with a crime would have to include the
right to be represented by counsel throughout the proceedings, the right to cross-examine witnesses
who have testified against them, and the right to a trial by an impartial court of law. In order for
criminal statutes to pass constitutional test on these grounds, the law must be sufficiently clear so that
citizens would understand the specific conduct that is prohibited. 128 That is to say procedural
provisions that are relied on in the criminal proceedings are guaranteed. With such guarantee, rights
of the accused person are protected. It is within the ambits of criminal proceedings that trials should
be conducted publicly and the judgment should as well be pronounced publicly. The public hearing is
not only accorded to the accused but also to the general public. The underlying importance of public
hearing is that justice should not only be done but also seen to be done.
10.4 The Unconstitutionality of Plea Bargaining
Basing on what is discussed above, it may be argued that plea bargaining is quite contrary to what the
constitution envisages on what a criminal trial should be all about. It goes against fundamental right
of the accused person, which is that in law he is always presumed innocent by pleading guilty to
charges in exchange for some concession on the prosecution. That means the protection of rights of
accused persons, which are envisaged under article 13 of the Constitution is waived by the plea
bargaining practice.
Plea bargaining waives rights of accused person to a full trial except as to the extent or legality of
sentence. The fact that the accused enters a plea of guilty to the offence charged or to a lesser offence
or to a particular count in exchange for withdrawal of other count as envisaged under section 194B of
127
Olokooba, S.M. and Adebayo, M.K., “Plea Bargaining: A Panacea Towards Prison Decongestion In Nigeria”, 4
AGORA International Journal of Juridical Sciences, 2014, pp. 139-148, p.141.
128
Cheesman, S.J., “A Comparative Analysis of Plea Bargaining and the Subsequent Tensions with an Effective and Fair
Legal Defence,” PhD Thesis, University of Szeged, 2020, pp. 21-22.
35
the CPA, means a denial of the right of the accused to a full trial. In fact, the procedural short cut
brought about by plea agreement, which avoids full trial is detrimental to the principle of fair trial. It
has been argued that accused may, in some cases, enter into plea bargaining involuntarily, primarily
in pursuit of expedited release or to escape pre-trial indeterminate detention, among other
insurmountable coercive circumstances they might be going through at the time. 129 More so, it may be
argued that, the fact that an accused is, under whatever circumstances, called upon to enter plea of
guilty outside the due process premises it defeats the purpose of presumption of innocence. An
accused is found guilty before the prosecution proves its case against him beyond reasonable doubt.
Eventually the accused person is denied the benefit which normally accrues where the prosecution
fails to discharge that duty of proving the case beyond reasonable doubt in the fully-fledged criminal
trial. All these, which are contrary to article 13 (6) (b) of the Constitution, occur under the umbrella
of speed and expediency in disposing of cases. In other words, plea bargaining represents the choice
of expediency over justice.130 However, it should always be observed that much as speed and
expediency are required in the administration of justice, nothing should compromise the very justice
which the court of law seeks to dispense.
11. Conclusion
It is true that plea bargaining is a new system that has been incorporated in criminal justice in
Tanzania. The amendments that were effected in the Criminal Procedure Act131 in 2019 by the
Written Laws (Miscellaneous Amendments) (No.4) Act, 2019 132 are a testimony thereof. The
objective of having plea bargaining in the Tanzanian criminal justice system is to reduce criminal
backlogs and ensure timely delivery of criminal justice as well as decongesting the criminal inmates
in prisons. Its establishment to the criminal justice has opened an avenue through which criminal
liability is negotiated the result of which an accused person may be charged with an offence far lesser
than that he committed and therefore gets far lesser punishment than statutorily prescribed for an
offence actually committed. As a result of the plea bargaining, the prosecution is relieved from
proving the case against the accused beyond reasonable doubt.

129
Kisekka, N.G., “Plea Bargaining as a Human Rights Question,” 6(1) Cogent Social Sciences, 2020, pp.1-29, p.1.
Source: https://doi.org/10.1080/23311886.2020.1818935, accessed on 4/8/2023.
130
Ivsan, I., "To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial
System of Justice," 39(2) Article 4 North Carolina Central Law Review, 2017, pp.135-165, p.142. Available at:
https://archives.law.nccu.edu/ncclr/vol39/iss2/4, accessed on 4/8/2023.
131
Cap. 20 [R.E. 2022].
132
Act No.11 of 2019.
36
However, the discussion has demonstrated that plea bargaining is a deviation of traditional plea
taking practice in the course of the full criminal trial. It is alien to the well entrenched adversarial
system in the criminal justice jurisdiction in Tanzania. The practice of plea bargaining, it is argued,
denies the trial court of receiving and assessing evidence of both the prosecution and that of the
accused in the course of a full trial. In fact, this goes contrary to rules of natural justice.
12. Recommendations
Basing on what has been discussed in this paper, the following recommendations are made in order to
make plea bargaining more useful in the criminal justice system in the country that:

(a) In order for parties to have equal plea bargaining powers, there is a need for an accused person
to be afforded services of a lawyer so that in the course of negotiations his rights are
safeguarded. More so he will be advised accordingly. Laws and regulations related to legal aid
should be reviewed to make it clear that services of a lawyer to an accused is a condition for
the validity of a plea bargaining to be in place. Such services should be available
unconditionally.
(b) There should be a pre-bargaining negotiation session properly so called. The session should
enable the accused to know all his rights and obligations when full trial takes place so that at
the end, he makes an informed decision on whether he participates in plea-bargaining
negotiations or not. He should know well his basic right to presumption of innocence
throughout the trial until he is convicted, the right to be heard and the right to appeal upon
conviction in case of a full trial, etc.
(c) The law should be amended in line with recognising the rights of the victims of crime to
participate fully in the criminal justice process. Their voices must be heard throughout the
plea bargaining negotiation process not merely consultation by the public prosecutor.
(d) The need to have proper monitoring and controlling mechanism in place to avoid pressure or
manipulation to compel accused to engage in plea bargaining negotiations. On the same note,
to allow the court to have power to intervene on the negotiations at any stage whenever it
deems fit for ensuring fairness and justice.
(e) Appropriate awareness-raising and training programmes on plea bargaining should be
conducted to law enforcement agencies and members of the public as a whole. Such

37
 programmes are crucial due to the fact that the concept of plea bargaining is a new
phenomenon in our criminal justice system.

References
(a) Books

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York, 2021.

Moley, R., Politics and Criminal Prosecution, Minton, New York, 1929.

Ogunye, J., The Imperative of Plea Bargaining, Lawyers’ League for Human Rights, Lagos, 2005.

Paranjape, N.V., Criminology & Penology with Victimology, 15th Ed., Central Law Publications,
Allahabad, 2011.
Sepúlveda, M. et al., Universal and Regional Human Rights Protection Cases Commentaries,
University for Peace, Ciudad Colon, Costa Rica, 2004.
(b) Journal Articles

Absar, A.A. and Hassan, Z., “Plea Bargaining in India – A Decade of Existence”, 4(6) Journal of
Legal Studies and Research, December, 2018, pp. 91-104.
Aidonojie, P.A., “The Legal Impact of Plea Bargain in Settlement of High Profile Financial Criminal
Cases in Nigeria” 5(2) Sriwijava Law Review, July 2001, pp.161-174.

Alschuler, A., "Plea Bargaining and Its History," 79(1) Columbia Law Review, (1979), pp.1-43.

Alschuler, A.W., “The Trial Judge’s Role in Plea Bargaining, Part I”, Columbia Law Review, Vol. 76,
No. 7 (Nov. 1976) pp.1059-1154.

Amani, N.P., “Civil Forfeiture in Tanzania: A Panacea for Recovering Illicitly Acquired Property by
Politically Exposed Persons (PEPs)?”, Eastern Africa Law Review, Issue No. 2, Vol.41,
December, 2014, pp.125-155.

Beall, G., “Principles of Plea Bargaining”, Loyola University Chicago Law Journal, 9(175),
2015, pp.175-192, p.184. Available at: http://lawecommons.luc.edu/luclj/vol9/iss1/5.

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Burns, C.M., “Plea Bargaining Practice of Convenience or a Line-Crossing System of Coercion?”,
Stetson Journal of Advocacy and the Law, 2018, 5 (99) pp. 3-18.
Combs, N.A., “Copping A Plea To Genocide: The Plea Bargaining of International Crimes”,
University of Pennsylvania Law Review, Vol. 151 November 2002 No. 1, pp. 1-157.
Covey, R.D., “Plea-Bargaining Law after Lafler and Frye,” 51(3) Duquesne Law Review, 2013, pp.
595-623, pp. 618-619. Available at: https://dsc.duq.edu/dlr/vol51/iss3/6 and accessed on
8/8/2023.
Dewan, P. and Jain, S., “Plea Bargaining: Indian Law Overview”, 3(3) International Journal of Law
Management & Humanities, 2020.
Ehrhard, S., “Plea Bargaining and The Death Penalty: An Exploratory Study”, 29(3) The Justice
System Journal 2008, pp.313- 324.

Eze, T.C. and Eze, A.G., “A Critical Appraisal of the Concept of Plea Bargaining in Criminal Justice
Delivery in Nigeria”, Global Journal of Politics and Law Research, Vol.3, No.4, pp.31-43,
August 2015.
Freely, M.M, “Perspectives on Plea Bargaining”, 13(2) Law & Society Review, Winter, 1979, Special
Issue on Plea Bargaining, pp. 199-209.

Helm, R.K. et al., “Limitations on the Ability to Negotiate Justice: Attorney Perspectives on Guilt,
Innocence, and Legal Advice in the Current Plea System”, Psychol Crime Law, (2018) 24(9),
pp. 915–934. doi:10.1080/1068316X.2018.1457672.
Ivsan, I., "To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine
Our Adversarial System of Justice," 39(2) Article 4 North Carolina Central Law Review,
2017, pp.135-165. Available at: https://archives.law.nccu.edu/ncclr/vol39/iss2/4, accessed on
4/8/2023.

Kaaba, O. and Zhou, T., (2020) "Plea Bargaining, Reconciliation and Access to Justice in Zambia:
Exploring the Invisible Link," Zambia Social Science Journal, 2020, Vol. 8: No. 2, Article 4,
pp. 35-56. Available at: https://scholarship.law.cornell.edu/zssj/vol8/iss2/4.
Kaniki, A.O.J., “Forfeiture of Criminally Acquired Property in Tanzania: Some Reflections on
Historical and Socio-economic Factors”, Eastern Africa Law Review, Issue No. 2, Vol.41,
December, 2015, pp.112-142.
Kaniki, A.O.J., “Is the Forfeiture of Criminally Acquired Property in Tanzania Compliant with the
Constitution?” 21 African Human Rights Law Journal, 2021, pp. 358-387.
http://dx.doi.org/10.17159/1996-2096/2021/v21n1a22. Accessed on 10/8/2023.
Kathuria, S., “The Bargain Has Been Struck: A Case for Plea Bargaining in India” 19(2), Article 5
National Law School of India Review, 2007, pp.55-68. Available at:
https://repository.nls.ac.in/nlsir/vol19/iss2/5 accessed on 5/8/2023.

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Kisekka, N.G., “Plea Bargaining as a Human Rights Question,” 6(1) Cogent Social Sciences, 2020,
pp.1-29. Source: https://doi.org/10.1080/23311886.2020.1818935, accessed on 4/8/2023.

Lugakingira, K.S.K. and Peter, C.M., “Victim Compensation and Aspects of Law and Justice in
Tanzania”, International Criminal Justice Review, Volume 18, Issue 3, First published online
September 1, 2008, https://doi.org/10.1177/1057567708323597.

Materu, S.F., “Fighting Money Laundering through Criminal Prosecution in Tanzania: A Critical
Comment on Specific Aspects of the Law and Practice”, Eastern Africa Law Review, Issue
No. 2, Vol.44, December, 2017, pp.19-49.

Mathur, J.K., “Plea Bargaining –In Indian Context”, 34(3) Journal of the Indian Law Institute, July –
September 1992, pp.429 – 442.
Mordi, C.A., “The Use of Plea Bargain in Nigerian Criminal Law” 9(2) Beijing Law Review, 2018,
pp.153-161.

McDonough, N., “Plea Bargaining: A Necessary Evil”, University of Arkansas at Little Rock Law
Review, 381 (1979) Vol 2 Issue 2, pp.381-401. Available at:
https://lawrepository.ualr.edu/lawreview/vol2/iss2/5.

Mnyasenga, T.R., “Locating the Scope and Application of the Right to Presumption of Innocence in
Tanzania,” 2(4) International Journal of Law, Education, Social and Sports Studies, Oct-Dec
2015, pp.73-93.

Mnyim, M.M. and Aboho, B., “Plea Bargain as an Instrument of Fast-Tracking Criminal Justice
Delivery under the State Administration of Criminal Justice Law of Benue State, 2019” Benue
State University Law Journal, 2019/2020, pp. 247-262.

Olokooba, S.M. and Adebayo, M.K., “Plea Bargaining: A Panacea Towards Prison Decongestion In
Nigeria”, 4 AGORA International Journal of Juridical Sciences, 2014, pp. 139-148.

Ortman, W., “When Plea bargaining Became Normal”, Boston University Law Review, 2020,
Vol.100, pp. 1435-1499.
Putra, G., “A Critical Analysis of Plea-bargaining in India”, 1(1) International Journal of Criminal,
Common and Statutory Law, 2021, pp.28-32.

Santhy, K.V.K., “Plea Bargaining in US and Indian Criminal Law Confession for Concessions”,
NALSAR Law Review, 2013, Vol. 7: No. 1, pp.84-102.
Scott, R.E. and Stuntz, W.J., “Plea Bargaining as Contract” 101 (8) Yale. Law Journal, 1992, pp.
1909–1968.

Shaidi, L.P., “Tanzania Penal System: Retribution or Correction of Offenders,” 35-40 Eastern Africa
Law Review, December 2009, pp. 171-195.

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Singh, P.K., “Plea Bargaining and Criminal Justice in India” 7 (1) Athens Journal of Law, January
2021, pp. 33-52.

Tenga, R.W., “Money Laundering Prosecutions in Tanzania: A Tentative Assessment”, Eastern

Africa Law Review, Issue No. 2, Vol.44, December, 2017, pp.50-94.

Thomas, P.A., “Plea Bargaining in England”, The Journal of Criminal Law & Criminology, 1978,
Vol. 69, No. 2, pp.170-179.
(c) Official Reports
The Plea Bargain Task Force Report of the American Bar Association (ABA), Criminal Justice
Section, 2023.
The United Republic of Tanzania, Annual General Report of Controller and Auditor General for the
Financial Year 2021/22, Central Government, March 2023.
(d) Theses and Dissertations
Abdulrahaman, Z., “Plea Bargaining in Corruption Cases in Kenya: Towards a Restraint Approach,”
LL.M Dissertation, University of Nairobi, 2021.
Amani, N.P., “Navigating between Judicial and Extrajudicial Mechanisms for Asset Recovery in
Tanzania: Examining Legal Implications”, PhD Thesis, University of Dar es Salaam, 2021.

Cheesman, S.J., “A Comparative Analysis of Plea Bargaining and the Subsequent Tensions with an
Effective and Fair Legal Defence,” PhD Thesis, University of Szeged, 2020.

Chierchio, J., “Behind the Plea: Factors that Shape Plea Bargaining Outcomes,” Master of Science in
Criminal Justice Dissertation, Rochester Institute of Technology, Rochester, New York, 2022.

Diwa, Z.M., “Managing the Proceeds of Crime: An Assessment of the Policies of Tanzania, South
Africa and Nigeria”, PhD Thesis, University of the Western Cape, 2016.
Kaniki, A.O.J., “An Examination of the Law and Practice Relating to Asset Recovery in Tanzania,”
PhD Thesis, University of Dar es Salaam, 2020.

Nyagawa, K.E., “Efficacy and Laws and Institutions Governing Plea-Bargaining in Tanzania,” LL.B
Dissertation, Mzumbe University, 2022.

Ruhangisa, J.E., “Human Rights in Tanzania: The Role of the Judiciary”, PhD Thesis, University of
London, 1998.

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