PART IX
CONVICTIONS, JUDGMENT, SENTENCES AND THEIR EXECUTION IN THE SUBORDINATE COURTS AND HIGH COURT

C. - Sentences

(d) Execution of Sentences

327. A warrant under the hand of the judge or magistrate by whom any person is to be sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Tanzania Mainland, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of such prison and to all other persons for carrying into effect he sentence described in such warrant, not being a sentence of death; and every sentence shall be deemed to commence from, and to,
include the whole of the day of the date on which it was pronounced, except where otherwise provided in this Act or in the Penal Code .


328.-(1) Where a court orders money to be paid by an accused person or by a prosecutor or complainant for fine, penalty, compensation, costs, expenses or otherwise, the money may be levied on the movable and immovable property of the person ordered to pay the same by distress and the sale under warrant; but if he shows sufficient movable property to satisfy the order his immovable property shall not be sold.

(2) A person ordered under subsection (1) to pay money may pay or tender to the officer having the execution of the warrant the sum therein mentioned, together with the amount of the expenses of the distress up to the time of payment or tender, and thereupon the officer shall cease to execute the same.

(3) A warrant under this section may be executed within the local limits of jurisdiction of the court issuing it, and it shall authorise the distress and sale of any property belonging to such person when endorsed by a district or resident magistrate within the local limits of whose jurisdiction such property is found.


329.-(1) Any person claiming to be entitled to have a legal or equitable interest in whole or part of any property attached in execution of a warrant issued under section 327 may, at any time prior to the receipt by the court of the proceeds of sale of such property, give notice in writing to the court of his objection to the attachment of the property and the notice shall set out shortly the nature of the claim which the person (in this section called "the objector") makes to the whole or part of the property attached and certify the value of the property claimed by him, such value being supported by an affidavit which shall be filed with the notice.

(2) Upon receipt of a valid notice given under subsection (1) the court shall, by an order in writing addressed to the officer having the execution of the warrant, direct a stay of the execution proceedings.

(3) Upon the issue of an order under subsection (2) the court shall, by notice in writing direct the objector to appear before such court and establish his claim upon a date to be specified in the notice.

(4) A notice shall be served upon the person whose property was, by the warrant issued under section 328, directed to be attached and, unless the property is to be applied to the payment of a fine, upon the person entitled to the proceeds of the sale of property and the notice shall specify the time and place fixed for the appearance of the objector and shall direct the person upon whom the notice is served to appear before the court at the same time and place if he wishes to be heard upon the hearing of the objection.

(5) Upon the date fixed for the hearing of the objection, the court shall investigate the claim and, for that purpose, may hear any evidence which the objector may give or adduce and any evidence given or adduced by any person served with a notice in accordance with subsection (4).

(6) If, upon investigation of the claim, the court is satisfied that the property, attached was not, when attached, in the possession of the person ordered to pay the money or of some person in trust for him, or in the occupancy of a tenant, or other person paying rent to him, or that, being in the possession of the person ordered to pay the money at such time it was so in his possession not on his own account or as his own property but on account of or in trust for some other person or party on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.

(7) If, upon the date fixed for his appearance, the objector fails to appear or if, upon investigation of the claim in accordance with subsection (5), the court is of the opinion that the objector has failed to establish his claim, the court shall order the attachment and execution to proceed and shall make such order as to costs as it deems proper.

(8) Nothing in this section shall be deemed to deprive a person who has failed to comply with the requirements of subsection (1) of the right to take any other proceedings which, apart from the provisions of this section, may lawfully be taken by a person claiming an interest in property attached under a warrant.


330.-(1) When an offender has been sentenced to a fine only and to imprisonment in default of payment of the fine, the court may suspend the execution of the sentence of imprisonment and may release the offender on his executing a bond, with or without sureties, as the court thinks fit, conditioned for his appearance before such court on a date not being more than fifteen days from the time of executing the bond; and in the event of the fine not having been realised the court may direct the sentence of imprisonment to be carried into execution at once or may from time to time extend the operation of the bond for a further period of not more than fifteen days.

(2) In any case in which an order for the payment of money has been made the court may require the person ordered to make such payment to enter into a bond as prescribed in subsection (1), and in default of his so doing may at once pass sentence of imprisonment as if the money had not been recovered.

(3) Without prejudice to the provisions of subsections (1) and (2), in any case in which an order for the payment of money has been made, and whether or not any order has been made for imprisonment in default of payment, the court may, in its direction, either at the time such order is made or subsequently, direct that the money may be paid by installments at such times and in such amounts as the court may think fit.

(4) Where under subsection (3), the court directs that money may be paid by installments the whole of the amount outstanding shall, unless the court extends the period within which such instalments is to be paid, become due and payable and all the provisions of this Act and of the Penal Code applicable in the case of non-payment of a fine shall apply to and in respect of the amount outstanding.


331. If the officer having the execution of a warrant of distress reports that he can find no property or not sufficient property whereupon to levy the money mentioned in the warrant with expenses, the court may by the same or a subsequent warrant commit the person ordered to pay to prison for a time specified in the warrant, unless the money and all expenses of the distress, to be specified in the warrant, are sooner paid.


332. When it appears to the court that distress and sale of property would be ruinous to the person ordered to pay the money or his family or (by his confession or otherwise) that he has no property whereon the distress may be levied, or when other sufficient reason appears to the court, the court may, if it thinks fit, instead of or after issuing a warrant of distress, commit him to prison for a time specified in the warrant unless the money and all expenses of the commitment and conveyance to prison, to be specified in the warrant, are sooner paid.


333. Any person committed for non-payment may pay the sum mentioned in the warrant, with the amount of expenses therein authorised, if any, to the person in whose custody he is and that person shall thereupon release him if he is in custody for no other matter.


334.-(1) If any person who is confined in any prison for non-payment of any sum adjudged by a court in its criminal jurisdiction to be paid under this Act or under any other Act, pays any sum in part satisfaction of the sum adjudged to be paid, the term of his imprisonment shall be reduced by a number of days bearing nearly as possible the same proportion to the total number of days for which such person is committed as the sum paid bears to the sum for which he is liable.

(2) The officer in charge of a prison in which a person is confined who is desirous of taking advantage of the provisions of the subsection (1) shall, on application being made to him by such person, at once take him before a court and such court shall certify the amount by which the term of imprisonment originally awarded is reduced by such payment in part satisfaction, and shall make such order as is required in the circumstances.


335. Every warrant for the execution of any sentence may be issued either by the judge or magistrate who passed the sentence or by his successor in office or jurisdiction.


336. No commitment for non-payment shall be for a longer period than six months unless the law under which the conviction has taken place enjoins or allows a longer period.

PART IX
CONVICTIONS, JUDGMENT, SENTENCES AND THEIR EXECUTION IN THE SUBORDINATE COURTS AND HIGH COURT

E. - Miscellaneous Powers of the Court to order Compensation, Costs, Forfeiture, etc.

(a) Costs and Compensation


345.-(1) It shall be lawful for a judge of the High Court or any magistrate to order any person convicted before him of an offence to pay to the public or private prosecutor, as the case may be, such reasonable costs as to the judge or magistrate may see fit, in addition to any other penalty imposed; save that such costs shall not exceed four thousand shillings in the case of the High Court or two thousand shillings in the case of a subordinate court.

(2) It shall be lawful for a judge of the High Court or any magistrate who acquits or discharges a person accused of an offence, if the prosecution for such offence was originally instituted on a summons or warrant issued by a court on the application of a private prosecutor, to order the private prosecutor to pay to the accused such reasonable costs as to the judge or magistrate may see fit; save that such costs shall not exceed two thousand shillings in the case of an acquittal or discharge by the High Court or one thousand shillings in the case or an acquittal or discharge by a subordinate Court; save further that no such order shall be made if the judge or magistrate considers that the private prosecutor had reasonable grounds for making his complaint.

(3) The costs awarded under this section may be awarded in addition to any compensation awarded under section 347.

(4) In this section–
"public prosecutor" means any person prosecuting for or on behalf of the United Republic or for or on behalf of a public authority;

"private prosecutor" means any prosecutor other than a public prosecutor.


346. An appeal shall lie against any order awarding costs under section 345 if made by a magistrate, to the High Court and, if by a judge, to the Court of Appeal and the court to which the appeal is made shall have power to give such costs of the appeal as it shall deem reasonable.


347. If on the acquittal of an accused person a court is of the opinion that the charge was frivolous or vexatious, the court may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which he may have been put by reason of such charge, in addition to his costs.


348.-(1) Where an accused person is convicted by any court of any offence not punishable with death and it appears from the evidence that some other person, whether or not he is the prosecutor or a witness in the case, has suffered material loss or personal injury in consequence of the offence committed and that substantial compensation is, in the opinion of the court, recoverable by that person by civil suit, the court may, in its discretion and in addition to any other lawful punishment, order the convicted person to pay to that other person such compensation, in kind or in money, as the court deems fair and reasonable.

(2) Where any person is convicted of any offence under Chapters XXVII to XXXII of the Penal Code, the power conferred by subsection (1) shall be deemed to include a power to award compensation to any bona fide purchaser of any property in relation to which the offence was committed for the loss of such property if the property is restored to the possession of the person entitled thereto.

(3) Any order for compensation under this section shall be subject to appeal if an order for the payment of a fine of a similar amount would have been subject to appeal and no payment of compensation shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal is presented, before the decision on the appeal.


349. The sums allowed for costs or compensation shall in all cases be specified in the conviction or order, and they shall be recoverable in like manner as any penalty may be recoverable under this Act; and in default of payment of such costs or compensation and in default of distress as hereinafter provided the person in default shall be liable to imprisonment for a term not exceeding six months unless the costs or compensation are sooner paid.


350.-(1) Where a court imposes a fine or confirms, on appeal, revision or otherwise, a sentence of fine, or a sentence of which a fine forms part the court may, when passing judgment, order the whole or any part of the fine recovered to be applied–

(a) in defraying expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of the court, recoverable by civil suit.

(2) If the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal is presented, before the decision of the appeal.

(3) At the time of awarding any compensation in any subsequent civil suit relating to the same matter, the court hearing the civil suit shall take into account any compensation paid or recovered under section 348.


(b) Forfeiture

351.-(1) Where a person is convicted of an offence and the court which passes sentence is satisfied that any property which was in his possession or under his control at the time of his apprehension–

(a) has been used for the purpose of committing or facilitating the commission of any offence; or
(b) was intended by him to be used for that purpose,

that property shall be liable to forfeiture and confiscation and any property so forfeited under this section shall be disposed of as the court may direct.

(2) Where the court orders the forfeiture or confiscation of any property as provided in subsection (1) of this section but does not make an order for its destruction or for its delivery to any person, the court may direct that the property shall be kept or sold and that the property or, if sold, the proceeds thereof shall be held as it directs until some person establishes to the court's satisfaction a right thereto; but if no person establishes such a right within six months from the date of forfeiture or confiscation, the property or the proceeds thereof shall be paid into and form part of the Consolidated Fund.

(3) The power conferred by this section upon the court shall include the power to make an order for the forfeiture or confiscation or for the destruction or for the delivery to any person of such property, but shall be exercised subject to any special provisions regarding forfeiture, confiscation, destruction, detention or delivery contained in the written law under which the conviction was had or in any other written law applicable to the case.

(4) When an order is made under this section in a case in which an appeal lies the order shall not, except when the property is livestock or is subject to speedy and natural decay, be carried out until the period allowed for presenting the appeal has passed or, when an appeal has been presented, until the disposal of the appeal.

(5) In this section any reference to–

(a) "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which it is exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise;
(b) facilitating the commission of an offence includes the taking of any steps after it has been committed for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection.


352. Where a court has made an order for the forfeiture or confiscation of an article the court or any justice of the peace may, if satisfied on information on oath–

(a) that there is reasonable cause to believe that the article is to be found in any place or premises; and
(b) that admission to the place or premises has been refused or that a refusal of such admission is apprehended,

issue a warrant of search which may be executed according to law.

Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106
Supervision of enforcement of sentences and conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.