PART VI
TRIALS
GENERAL PROVISIONS RELATING TO TRIALS

A. - Powers of Courts

(a) Powers Generally

166. The High Court may pass sentence or make any other order authorised by law.

167.-(1) Any court may pass lawful sentence combining any of the sentences which it is authorised by law to pass; but where a subordinate court presided over by a magistrate other than a resident magistrate or a senior district magistrate, imposes a sentence of corporal punishment in addition to a sentence of imprisonment, no such sentence of corporal punishment shall be carried into effect until confirmed by the High Court.

(2) In determining the extent of the court's jurisdiction under section 164 to pass a sentence of imprisonment, the court shall be deemed to have jurisdiction to pass the full sentence of imprisonment mentioned in the said section in addition to any term of imprisonment which may be awarded in default of payment of a fine.

(3) Where a court is passing sentence under subsection (1), it may prohibit the grant of parole to a prisoner and shall indicate the reasons for such prohibition.


168.-(1) Where a person is, at one trial by the High Court, convicted of two or more offences, the High Court may sentence him for those offences to the several punishments prescribed for them; and when consisting of imprisonment, such punishments shall commence the one after the expiration of the other in such order as the High Court may direct unless the High Court directs that those punishments shall run concurrently.

(2) Where a person is convicted at one trial of two or more offences by a subordinate court the court may, subject to the provisions of subsection (3), sentence him for those offences to the several punishments prescribed for them and which the court is competent to impose; and those punishments when consisting of imprisonment, shall commence the one after the expiration of the other in such order as the court may direct, unless the court directs that the punishments shall run concurrently.

(3) Notwithstanding the provisions of subsection (2), a subordinate court shall not, in any case in which it has convicted a person at one trial of two or more offences, be competent–

(a) where the court imposes substantive sentences of imprisonment only, to impose consecutive sentences of imprisonment which exceed in the aggregate–

(i) in any case in which of any of the offences
of which the offender has been convicted is an offence in respect of which a subordinate court may lawfully pass a sentence of imprisonment for a term exceeding five years, a term of imprisonment for ten years; or
(ii) in any other case, a term of imprisonment for eight years;

(b) where the court imposes sentences of fines only, to impose sentences of fines which exceed in the aggregate–

(i) in any case in which any of the offences of which the offender is convicted is an offence in respect of which a subordinate court may lawfully impose a fine exceeding ten thousand shillings, a sum equal to thrice the amount of which the subordinate court may so lawfully impose;
(ii) in any other case, a sum of thirty thousand shillings:

Provided that the aggregate of consecutive sentences of imprisonment in default of payment of fines shall not exceed a term of imprisonment of eight years;

(c) where the court passes a combination of a substantive sentence or sentences of imprisonment and a fine or fines, to impose sentences which exceed–

(i) an aggregate of consecutive sentences of imprisonment whether substantive sentences of imprisonment or sentences of imprisonment in default of payment of fine, of ten years; and
(ii) a total of fines of thirty thousand shillings or where any of the offences of which the offender is convicted is an offence in respect of which a subordinate court may lawfully impose a fine exceeding ten thousand shillings, a sum equal to twice the amount of fine which the subordinate court may so lawfully impose.

(4) For the purpose of appeal or confirmation, the aggregate imposed under this section in cases of convictions for two or more offences at one trial shall be deemed to be a single sentence.

(5) Notwithstanding subsection (4), where two or more sentences of imprisonment are directed to run concurrently, only the longer term of those sentences of imprisonment shall be taken into account for computing the aggregate of sentences of imprisonment for the purposes of this section.

(6) Where a court convicts a person in a case which involves sexual offence under the Penal Code, the court shall pass a sentence as prescribed in that Act and in accordance with the Minimum Sentences Act.

PART VI
TRIALS
GENERAL PROVISIONS RELATING TO TRIALS

A. - Powers of Courts

(b) Subordinate Courts

170.-(1) A subordinate court may, in the cases in which such sentences are authorised by law, pass any of the following sentences–

(a) imprisonment for a term not exceeding five years; save that where a court convicts a person of an offence specified in any of the Schedules to the Minimum Sentences Act which it has jurisdiction to hear, it shall have the jurisdiction to pass the minimum sentence of imprisonment;

(b) a fine not exceeding twenty million shillings;

(c) subject to the provisions of the Corporal Punishment Act, corporal punishment;

(2) Notwithstanding the provisions of subsection (1)–

(a) a sentence of imprisonment–

(i) for a scheduled offence (as defined in subsection (5), which exceeds the minimum term of imprisonment prescribed in respect of it by the Minimum Sentences Act;
(ii) for any other offence, which exceeds twelve months;

(b) a sentence of corporal punishment which exceeds twelve strokes;

(c) a sentence of a fine or for the payment of money (other than payment of compensation under the Minimum Sentences Act, which exceeds six thousand shillings,

shall not be carried into effect, executed or levied until the record of the case, or a certified copy of it, has been transmitted to the High Court and the sentence or order has been confirmed by a Judge:
Provided that this section shall not apply in respect of any sentence passed by a Senior Resident Magistrate of any grade or rank.

(3) The provisions of subsection (1) shall be without prejudice to the provisions of any written law authorising a subordinate court to impose in relation to any offence specified in such written law, a sentence in excess of the sentences provided for in that subsection.

(4) The provisions of subsection (2) shall apply in relation to a sentence of imprisonment whether such sentence is a substantive sentence of imprisonment in default of a payment of a fine or a combination of two sentences.

(5) In this section "scheduled offence" shall have the meaning assigned to that expression by the Minimum Sentences Act.

(6) The police officer in charge of a police station may, where he is satisfied that any person has committed an offence of which the penalty does not exceed two hundred thousand shillings by order under his hand compound such offence by requiring such person to make payment of a sum of money:
Provided that–

(a) such sum of money shall be half the maximum fine provided for such offence;

(b) the power conferred by this subsection shall only be exercised where the person admits in writing that he has committed the offence;

(c) the police officer shall issue to the person from whom he received such sum of money a receipt thereof.


171.-(1) Where under the provisions of this Act a subordinate court presided over by a District Magistrate convicts any adult of an offence if, on obtaining information as to the character and antecedents of such adult or as to the circumstances of the offence, the court is of the opinion that they are such that greater punishment should be inflicted for the offence than the court has power to inflict, the court may, instead of dealing with him in any other manner, commit the offender in custody to the High Court for sentence in accordance with the following provisions of this section.

(2) Where an offender is committed to the High Court for sentence under the provisions of this section, the High Court shall inquire into the circumstances of the case and shall deal with the offender in any manner in which he could have been dealt with by the High Court if he had been convicted by the High Court of the offence in question.

(3) If the High Court imposes a sentence on the offender, the provisions of this Act with regard to an appeal against conviction only shall apply as for any other case tried by a subordinate court.

(4) The High Court may in its discretion postpone its inquiry under the provisions of subsection (2) of this section until the expiration of the time for filing notice of appeal against conviction, and if such notice has been filed before the High Court commences such inquiry until final determination of such appeal or subsequent appeals or for such lesser period as the court may deem fit.

(5) Where a person, who has been committed in custody to the High Court for sentence in accordance with the provisions of subsection (1), files a notice of appeal against his conviction, the High Court or the subordinate court which convicted him may, for reasons to be recorded by it in writing, grant bail with or without sureties pending the hearing of the appeal.

(6) The provisions of this section shall be so construed as to enable the High Court in its consideration of any case thereunder to exercise its power of revision under section 373 of this Act in the same manner as if the record of the proceedings had under that section been reported to the High Court for orders.


172.-(1) Whenever a subordinate court passes a sentence which requires confirmation, the court imposing the sentence may in its discretion release the person sentenced on bail pending confirmation or such order as the confirming court may make.

(2) Where–

(a) a person is committed in custody for sentence by the High Court;

(b) a person is remanded in custody awaiting the confirmation of his sentence by a higher court; or

(c) a person has been in remand custody for a period awaiting his trial,

his sentence whether it is under the Minimum Sentences Act, or any other law, shall start to run when such sentence imposed is confirmed, as the case may be, and such sentence shall take into account the period the person spent in remand.

(4) If the person sentenced is, at the time sentence is passed, serving a sentence of imprisonment for another offence the term of imprisonment to which he is sentenced shall, unless the court otherwise orders, run from the date of the expiry of the sentence for such other offence, subject to subsection (5).

(5) The High Court may exercise the same powers in confirmation as are conferred upon it in revision by Part X of this Act.

(6) The confirming court may in its discretion where no order has been made under subsection (1) of this section by the convicting court, release the person sentenced on bail pending an order in revision made by the High Court in exercise of its powers under section 385 of this Act.

(7) Where a person is convicted of an offence specified in any of the Schedules to the Minimum Sentences Act, the provisions of this section shall have effect subject to provisions of section 8 of that Act.

PART VII
PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

(a) Provisions relating to the Hearing and Determination of Cases

235.-(1) The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code.

(2) If the court acquits the accused, it shall require him to give his permanent address for service in case there is an appeal against his acquittal and the court shall record or cause it to be recorded.


236. The court may, before passing sentence, receive such evidence as it thinks fit, in order to inform itself as to the proper sentence to be passed.


237. Without prejudice to the generality of section 236, a subordinate court presided over by a resident magistrate may, subject to the provisions of this section, for the purpose of assessing the proper sentence to be passed, take into consideration any other offence committed by the accused–

(a) if it has been explained by the court to the accused person in ordinary language that the sentence to be passed upon him for the offence of which he has been convicted in those proceedings may be greater if the other offence is taken into consideration; and

(b) after the explanation the accused person–

(i) admits the commission of the other offence; and
(ii) asks the court to take the other offence into consideration.

(3) Nothing in this section shall entitle a court which has taken an offence into consideration to pass upon an accused person any sentence in excess of the maximum sentence which may be awarded by that court for the offence of which that person was convicted in those proceedings.

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

C. - Sentences

(a) Passing Sentence in the High Court

314. If the judge convicts the accused person or if he pleads guilty, it shall be the duty of the Registrar or other officer of the court to ask him whether he has anything to say why sentence should not be passed upon him according to law, but the omission so to ask him shall have no effect on the validity of the proceedings.


315.-(1) The accused person may, at any time before sentence, whether on plea of guilty or otherwise, move in arrest of judgment on the ground that the information does not, after any amendment which the court is willing and has power to make, state any offence which the court has power to try.

(2) The court may, in its discretion, either hear and determine the matter during the same sitting or adjourn the hearing thereof to a future time to be fixed for that purpose.

(3) If the court decides in favour of the accused he shall be discharged from that information.


316. If no motion in arrest of judgment is made or if the court decides against the accused person upon such motion, the court may sentence the accused person at any time during the sessions.


317. The court before which any person is tried for an offence may reserve the giving of its final decision on questions raised at the trial and its decision whenever given shall be considered as given at the time of trial.


318.-(1) When any person has, in a trial before the High Court, been convicted of an offence, the judge may reserve and refer for the decision of a court consisting of two or more judges of the High Court any question which has arisen in the course of trial and the determination of which would affect the event of the trial.

(2) If the judge reserves any such question, the person convicted shall, pending the decision thereon, be remanded in prison or, if the judge thinks fit, be admitted to bail and the High Court shall have power to review the case or such part thereof as may be necessary and finally determine such question and thereupon to alter the sentence passed by the trial judge and to pass such judgment or order as the High Court may think fit.


319. No judgment shall be stayed or reserved on the ground of any objection which, if stated after the information was read over to the accused person or during the progress of the trial, might have been cured by amendment by the court, nor for any informality in swearing the witnesses or any of them.


320. The court may, before passing the sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed.


321.-(1) Without prejudice to the generality of section 320 the High Court may subject to the provisions of this section, for the purpose of assessing the proper sentence to be passed, take into consideration any other offence committed by the accused person but of which he has not been convicted.

(2) The High Court shall not take any offence into consideration
unless–

(a) it has been explained by the court to the accused person in ordinary language that the sentence to be passed upon him for the offence of which he has been convicted in those proceedings may be greater if the other offence is taken into consideration; and

(b) after that explanation the accused person–
(i) admits the commission of the other offence; and
(ii) asks the court to take the other offence into consideration.

(3) Nothing in this section shall entitle the court, after taking another offence into consideration, to pass upon an accused person any sentence in excess of the maximum sentence which could be awarded for the offence of which that person was convicted in those proceedings.


(b) Sentence of Death


322.-(1) When any person is sentenced to death, he shall suffer death by hanging.

(2) When any person is sentenced to death the sentence shall direct that he suffers death by hanging.


323. When an accused person is sentenced to death, the court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred.


324. A certificate under the hand of the Registrar or other officer of the court that sentence of death has been passed, and naming the condemned person, shall be sufficient authority for the detention of that person.


325.-(1) As soon as conveniently as may be, after sentence of death has been pronounced, if no appeal from a sentence of death passed by the High Court is preferred or if an appeal from any sentence of death is preferred and the sentence is upheld on appeal, then as soon as conveniently may be after the determination of the appeal the presiding judge or magistrate exercising powers conferred on him by section 173 shall forward to the President a copy of the notes of evidence taken on the trial with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

(2) After the report has been considered, the President shall communicate to the said judge or magistrate or his successor in office, the terms of any decision to which he has made, and such judge or magistrate shall cause the tenor and substance of that decision to be entered in the records of the court.

(3) The President shall issue a death warrant, or an order of the sentence of death to be commuted, or a pardon, under his hand and the seal of the United Republic to give effect to that decision. If the sentence of death is to be carried out, the warrant shall state the place where and the time when execution is to be had, and shall give directions as to the place of burial of the body of the person executed. If the sentence is commuted for any other punishment, the order shall specify that punishment. If the person sentenced is pardoned, the pardon shall state whether it is free or to what conditions, if any, it is subject.

(4) Subject to subsection (3), the warrant may direct that the execution shall take place at such time and at such place and that the body of the person executed shall be buried or cremated at such place, as shall be appointed by some officer specified in the warrant.

(5) The warrant or order, or pardon of the President shall be sufficient authority in law to all persons to whom it is directed to execute the sentence of death or other punishment awarded and to carry out the directions therein given in accordance with its terms.


(c) Other Sentences


326.-(1) Where any court thinks that the charge is proved but is of the opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or that it is expedient to discharge the offender conditionally as hereinafter provided, the court may, without proceeding to convict, either–

(a) order the offender to be discharged after such admonition as to the court as shall seem fit; or
(b) discharge the offender conditionally on his executing a bond, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order of the court.

(2) An order under subsection (1) shall, for the purpose of revesting or restoring stolen property, or in respect of matters relating to the restitution or delivery of property to the owner, have the like effect as a conviction.

(3) A bond executed under this section may contain such conditions as the court may, having regard to the particular circumstances of the case, order to be inserted therein with respect to all or any of the following matters–

(a) for prohibition of the offender from associating with undesirable persons or from frequenting undesirable places;
(b) as to abstention from intoxicating liquor, where the offence is connected with drunkenness or an offence committed under the influence of drink;
(c) generally for securing that the offender shall lead an honest and industrious life;
(d) providing that the offender with his surety or sureties, if any, shall appear in chambers before the judge of the court at such intervals as may be specified in the order.

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

D. - Miscellaneous Provisions in Dealing with Offenders

(a) First Offenders

337.-(1) In any case in which a person is convicted before any court of an offence not punishable with death and no previous conviction is proved against him, if it appears to the court before which he is convicted that, having regard to the youth, character, antecedents, health or mental condition, of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed, it is expedient to release the offender on probation the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, and during that period (not exceeding three years, as the court may direct), to appear and receive sentence when called upon and in the meantime to keep the peace and be of good behaviour.

(2) An order under this section may be made by the High Court when exercising its power of revision.


338.-(1) If at any time the court which convicted the offender is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his arrest.

(2) An offender when arrested on a warrant under subsection (1) shall be brought forthwith before the court by which the warrant was issued and the court may either remand him in custody until the case is heard or admit him to bail with sufficient surety conditioned for his appearing for sentence and the court may, after hearing the case, pass sentence.


339. The court, before directing the release of an offender under section 338, shall be satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place for which the court acts, or in which the offender is likely to live during the period named for his observance of the condition.


339A.-(1) In cases in which a person is convicted before any court of any offence not punishable with death either on its own motion, or application by the offender or any other competent authority, it appears to the court before which he is convicted that, having regard to the youth, character, antecedents, or health condition of the offender or to the trivial nature of the offence, or to any extenuating circumstances under which the offence was committed, it is expedient to release the offender on community service under the Community Service Act, the court may instead of committing the offender to prison, direct that he be released to community service on his entering into a bond, with or without sureties, and for a period to be specified by the court in the community service
order.

(2) Nothing under subsection (1) of this section shall preclude the court from making an order under this section on an application for review under this Act or the Magistrates' Courts Act.

(3) An order under this section may be made by any other court in the exercise of its appellate or revision powers over the case.

(4) For the purposes of this section, the term "competent authority" has the same meaning ascribed to it under the Community Service Act.


340. Sections 337, 338 and 339 of this Act shall not apply in any area of Mainland Tanzania to which the Probation of Offenders Act applies.

(b) Offenders with Previous Conviction


341.-(1) When any person–

(a) has been convicted of any offence against sections 59 or 60 of the Penal Code or section 25, 26 or 27 of the Societies Act; or
(b) having been convicted of any offence punishable with imprisonment for a term of three years or more or of an offence under section 343 of this Act,

the court may, if it thinks fit, at the time of passing sentence of imprisonment on such person, also order that he shall be subject to police supervision as hereinafter provided for a period not exceeding five years from the date of his release from prison.

(2) If the conviction is set aside on appeal or for any other reason, the order shall become void.

(3) An order under this section may be made by the High Court when exercising its powers of revision.

(4) Every order made under this section shall be made out in the prescribed form and in addition be stated in the warrant of commitment.


342.-(1) A court may at any time direct that a person shall, whilst subject to police supervision and at large in Tanzania, comply with all or any of the following requirements and may vary any such direction at any time–

(a) to reside within the limits of any specified district;
(b) not to transfer his residence to any other district without the written consent of the administrative officer or police officer in charge of the district where he resides;
(c) not to leave the district in which he resides without the written consent of the administrative officer or police in charge of such district;
(d) at all times to keep the police officer or, if there is no police officer, the administrative officer in charge of the district in which he resides notified of the house or place in which he resides;
(e) to present himself, whenever called upon so to do by the administrative officer or police officer in charge of the district in which he resides, at any place in such district.

(2) For the purpose of giving any directions or of varying any directions under subsection (1) of this section, a court may issue a summons to a person to whom the subsection relates and who is within the jurisdiction of that court requiring his attendance before it at such time and place as may be specified; and the provisions of sections 143, 144, 145, 146 and 147 of this Act shall apply mutatis mutandis to him as they apply to a witness.

(3) The Minister may make rules for carrying out the provisions of this section.


343. If any person subject to police supervision who is at large in Tanzania refuses or neglects to comply with any requirement prescribed by section 342 or by any rules made thereunder he shall, unless he proves to the satisfaction of the court before which he is tried that he did his best to act in conformity with the law, be guilty of an offence and liable to imprisonment for a term not exceeding six months or, on a second or subsequent conviction for such offence, to imprisonment for a term not exceeding twelve months.

Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Article 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
2. In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.