Tanzanian Criminal Law

“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. The Indian Codes—that is, Penal Code, Evidence Code, and certain civil codes—had been developed starting in the mid-1820s by legal scholars in England. These scholar took the unwritten common law of England and produced coherent, consistent codes to be used in the British colony of India. The Indian Codes were adopted in East Africa, including Tanganyika, in the early 1920s. This chapter describes the criminal law applicable to the Bill Kinsey case, including the interplay of customary law with the colonial-based evidence, criminal, and criminal procedure codes.

Emerging Trends from the Resentencing of Capital Offenders in Malawi

In 2007, the High Court of Malawi, sitting as a constitutional court, declared that the mandatory sentence of death for murder was unconstitutional. At the time of the High Court’s invalidation of the mandatory death penalty, Malawi’s prisons had over 190 prisoners serving their sentences as a result of the imposition of the mandatory death penalty. Some of these prisoners were on death row, while others had their sentences commuted to life imprisonment. When the mandatory death penalty was declared unconstitutional, the High Court also directed that all prisoners serving their sentences for murder should be brought before the High Court so that they could receive individual sentences taking into account the circumstances of the offense, the offender, as well as the interests of the victim(s). This paper interrogates the application of the sentencing discretion that was introduced with the outlawing of the mandatory death penalty in Malawi. Specifically, the paper analyzes decisions that have emerged from the resentencing of capital offenders in so far as judges have either considered or refused to consider the relevance of post-conviction factors during the resentencing. It is this paper’s central finding that a refusal to consider post-conviction factors, as some judges held, was not only unjustified but was also contrary to Malawi’s Criminal Procedure and Evidence Code and the Constitution of the Republic of Malawi. This refusal, the paper argues, resulted in sentencing discrepancies as well as a failure to properly utilize the discretion vested in the courts for purposes of sentencing.

A Travesty of Justice: Non-Compliance with the Automatic Review Mechanism for Sentences in Malawi

Section 15 of the Criminal Procedure and Evidence Code provides a fascinating automatic review mechanism. It requires the automatic review of sentences which exceed certain thresholds by the High Court and prohibits the continued detention of prisoners once the period of automatic review has lapsed. Due to delays in the review process, most sentences that are subject to automatic review are not reviewed timeously. However, the Malawi Prison Service does not release the offenders concerned as required by law, resulting in the unlawful detention of offenders whose sentences have technically expired. The Judiciary also fails to rectify this problem by reviewing sentences outside the automatic review period. This article examines the proper interpretation of section 15 and its consequences for the revisionary powers of the High Court with a view to highlight the incorrectness of the current approach.

An Evidence Code for Eritrea: Towards More Predictable Trials and Fairer Judgments

Eritrea does not yet have a comprehensive evidence law. Draft Evidence Rules were prepared in Ethiopia, whose legal system Eritrea has essentially adopted, but were not enacted and the void intended to be filled by those rules has not yet been filled. In this article the author first counters the reasons for absence of comprehensive evidence law for Eritrea. He argues that a separate evidence law fits into the Eritrean legal system and will contribute to uniform trials and fairer judgments in Eritrea and briefly describes the contents of the Draft Evidence Code of Eritrea.

The Admissibility of "Acquittal Evidence" in Criminal Trials: Toward Reform

Recent case law at appellate level in a number of common law jurisdictions has considered the admissibility of "acquittal evidence" – meaning, in the context of this article, either evidence of a defendant's earlier acquittals or evidence on which the acquittals were based. The author argues that the various rulings have resulted in uncertainty and inconsistency and illustrate the difficulty of establishing a single admissibility rule. After analysing the New Zealand case law, the author examines the relevant sections in the proposed Evidence Code, published by the New Zealand Law Commission in 1999, and she concludes by exploring some alternative legislative and judicial resolution of the issues.