Tanzania: Requirements and procedures to obtain an arrest warrant in Tanzania, including issuing bodies; jurisdiction of warrants, including to what extent an arrest warrant issued in the Zanzibar area has jurisdiction on the mainland; appearance of the arrest warrant (2012-July 2013)
1. Brief Overview of Tanzania's Legal System
According to the International Religious Freedom Report for 2012,
On the mainland [Tanzania], secular laws govern Christians and Muslims in both criminal and civil cases except for family-related cases involving inheritance, marriage, divorce and the adoption of minors, where Christians may choose civil law and Muslims may choose Islamic law. In 16 mainland regions, a kadhi court system hears civil cases concerning Muslims. Judges trained in Islamic legal traditions administer the kadhi courts. If the parties do not agree with a kadhi court decision, magistrate courts hear the cases. (US May 2013, 2)
The National Organisation for Legal Assistance (NOLA), a Tanzanian NGO "formed in 2002 by practicing lawyers so as to use the law to further the cause of legal and social justice as well as human rights in the country" (NOLA n.d.a), notes that the judicial hierarchy for mainland Tanzania is as follows: the Court of Appeal; the High Court of Tanzania; Magistrate Courts and District Courts, having concurrent jurisdiction; Primary Courts (NOLA n.d.b).
As for Zanzibar, sources note the following judicial hierarchy: Court of Appeal for all of Tanzania; High Court in Zanzibar; Magistrate Courts and Khadi Appeal Courts; Primary Courts and Khadi Courts (NOLA n.d.b; US May 2013, 2-3). Khadi courts deal with cases involving Muslim families and relating to Islamic family law (US May 2013, 2-3; NOLA n.d.b), whereas Primary courts deal with criminal and civil matters (NOLA n.d.b).
The World Law Guide published on the Lexadin website and last updated on 19 September 2010 notes the judicial hierarchy for Tanzania as follows: Court of Appeal; High Court of Tanganyika and High Court of Zanzibar; Magistrates Court and the Kadhi Appeal Court; Primary Court and the Kadhi Court.
2. Requirements and Procedures to Obtain an Arrest Warrant
In correspondence with the Research Directorate, an Advocate of the High Court of Tanzania indicated that arrest warrants "can be issued by a police officer, a magistrate, a secretary of a village council and a ward secretary," and that they are primarily governed by the Criminal Procedure Act and the The Magistrates' Court Act (6 Aug. 2013).
Section 13 of Tanzania's Criminal Procedure Act states the following with regard to arrest warrants:
- Where information under oath is laid before a magistrate, Ward Secretary or a Secretary of a Village Council, alleging that there are reasonable grounds for believing that a person has committed an offence-
- the magistrate, the Ward Secretary or the Secretary of a Village Council, as the case may be, if the person is not then under restraint, but subject to subsection (3), may issue a warrant for the arrest of the person and for bringing him before a court specified in the warrant to answer to the information and to be further dealt with according to law; or
- the magistrate, the Ward Secretary or the Secretary of a Village Council, as the case may be, may issue a summons requiring the person to appear before a court to answer to the information.
- At any time after a magistrate, Ward Secretary or Secretary of a Village Council has issued a summons requiring a person to appear before a court to answer to an information under subsection (1) and before the summons has been duly served on the person, the Magistrate, Ward Secretary or Secretary of the Village Council, as the case may be, subject to subsection (3), issue a warrant for the arrest of the person and for bringing him before a court specified in the warrant to answer to the information and to be further dealt with according to law.
- A warrant shall not be issued under subsection (1) or (2) in relation to an information unless-
- an affidavit has been furnished setting out the grounds on which the issue of the warrant is being sought;
- the informant or some other person furnishes such further information as the magistrate, Ward Secretary or Secretary of the Village Council requires concerning the grounds on which the issue of the warrant is being sought; or
- the magistrate, Ward Secretary or Secretary of the Village Council is satisfied that there are reasonable grounds for issuing the warrant.
- Where an informant furnishes information to a magistrate, Ward Secretary or Secretary of the Village Council for the purposes of subsection (3)(b) he shall furnish the information under oath.
- Where the magistrate, Ward Secretary or Secretary of the Village Council issues a warrant under subsection (1), he shall state on the affidavit furnished to him in accordance with subsection (3) which of the grounds (if any) specified in that affidavit and particulars of any other grounds on which he has relied to justify the issue of the warrant. (1985)
Section 17 of the Act states that "[a]ny magistrate may at any time arrest or issue a warrant directing the arrest of any person whom he reasonably believes has committed an offence within the local limits of his jurisdiction" (Tanzania 1985).
The Criminal Procedure Act also allows for the issuing of arrest warrants after proceedings have been instituted:
Notwithstanding the issue of summons, a warrant may be issued at any time before or after the time appointed in the summons for the appearance of the accused but no such warrant shall be issued unless a complaint has been made upon oath or by a police officer or an authorised officer of a local government authority (ibid., Sec. 110).
Sections 19, 38-39, and 53-54 of the Magistrates' Court Act (No. 2 of 1984), which establishes the Primary, District and Magistrates Courts, also contains similar provisions regarding arrest warrants (Tanzania 1984).
Information on the implementation of the Criminal Procedure Act or The Magistrates' Court Act (No. 2 of 1984) in Tanzania, including in Zanzibar, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
2.1 Complaints Made to the Police
The Advocate of the High Court of Tanzania provided the following information:
An individual may make a complaint to the police office whereby the police can record the complaint and issue an "RB" [form that contains the information from the complaint] on which a complainant upon hearing any whereabouts of the accused can report to the police with his/her RB and the police can move forward to arrest the accused with or without the presence of the complainant. (6 Aug. 2013)
Corroborating and further information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The Criminal Procedure Act states that "[a] warrant of arrest may be executed at any place within the United Republic of Tanzania" (Tanzania 1985, Sec. 119).
The Constitution of the United Republic of Tanzania reads as follows regarding the transmission and execution of warrants issued by Tanzania courts:
124. 1. Orders issued by the Courts of Mainland Tanzania and the Courts of the Tanzania Islands in civil proceedings of any kind and in criminal proceedings of any kind (including warrants of arrest) may be sent to any place within Tanzania and these orders may be executed at any place within Tanzania in accordance with the following provisions:
- when a Court has issued an order which shall be executed at a place where this Court has no jurisdiction, then this order shall be sent there and the directions which are in this order shall be executed in accordance with the procedure which is in use there in respect of the transmission of warrants and the execution of the orders therein which have been issued by a Court having (the same) jurisdiction as the place to which the warrant has been sent; and
- if the Law in force at that place to which the warrant has been sent has made conditions that orders which have been issued by a Court at another place must first be endorsed by a Court having jurisdiction at the place where this Law is in force, then every order which has been issued by a Court of another place must first be endorsed in accordance with this Law before the directions therein can be executed.
2. If a person has been arrested anywhere within Tanzania in accordance with a warrant of arrest which has been issued by a Court which has no jurisdiction at the place where this person was arrested, then this person shall be deemed to be in lawful custody and he may be brought before the Court which issued this warrant, but the provisions which are in this sub-section must be used without prejudice to the provisions of the Law which is in force at the place where this person was arrested.
3. The provisions which are in this section shall not preclude an Act to establish the procedure for sending warrants outside Tanzania which have been issued by the Courts of Mainland Tanzania or the Courts of the Tanzania Islands. (Tanzania 1977)
Section 112 of the Criminal Procedure Act reads as follows:
- Every warrant of arrest shall be under the hand of the judge or the magistrate issuing the same and shall bear the seal of the court.
- Every warrant shall state shortly the offence with which the person against whom it is issued is charged and shall name or otherwise describe such person, and it shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant or before some other court having jurisdiction in the case to answer to the charge mentioned in the warrant and to be further dealt with according to law.
- Every warrant shall remain in force until it is executed or until it is cancelled by the court which issued it. (Tanzania 1985)
For information on the appearance of a summons and a warrant used by the Zanzibar police, please see the Response to Information Request TZA104052.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Advocate of the High Court of Tanzania. 6 August 2013. Correspondence sent to the Research Directorate.
Lexadin. 19 September 2010. "Courts and Cases Tanzania." The World Law Guide. <http://www.lexadin.nl/wlg/courts/nofr/oeur/lxcttan.htm> [Accessed 6 Aug. 2013]
National Organization for Legal Assistance (NOLA). N.d.a. "Home." <http://www.nola.or.tz/index.php> [Accessed 6 Aug. 2013]
_____. N.d.b. "Legal System." <http://www.nola.or.tz/legal/legal_system.php> [Accessed 6 Aug. 2013]
Tanzania. 1985. Criminal Procedure Act (No. 9 of 1985). <http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=TZA&p_classification=01.04&p_origin=COUNTRY> [Accessed 6 Aug. 2013]
_____. 1984. The Magistrates' Court Act (No. 2 of 1984). <http://tancare.webs.com/documents/The_Magistrates_Court_Act.pdf> [Accessed 6 Aug. 2013]
_____. 1977 (amended 1985). Constitution of the United Republic of Tanzania. <http://www.refworld.org/docid/3ae6b50c4.html> [Accessed 18 July 2013]
United States (US). May 2013. Department of State. "Tanzania." International Religious Freedom Report for 2012. <http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?year=2012&dlid=208204> [Accessed 6 Aug. 2013]
Additional Sources Consulted
Oral sources: Attempts to contact the following organizations were unsuccessful: Commission for Human Rights and Good Governance; Commonwealth Human Rights Initiative; Legal and Human Rights Centre; Tanganyika Law Society; Tanzania Women Lawyers Association; Zanzibar Female Lawyers Association; Zanzibar Legal Services Centre. A representative of the School of Law, University of Dar es Salaam was unable to provide information.
Internet sites, including: Amnesty International; The Citizen; Commission for Human Rights and Good Governance; Commonwealth Human Rights Initiative; Daily News; Dege Consult; East African Law Society; ecoi.net; Factiva; Freedom House; Helpline Law; Human Rights Watch; International Bar Association; International Commission of Jurists; Interpol; The Judiciary of Tanzania; Law Reform Commission of Tanzania; Legal and Human Rights Centre; Parliament of Tanzania; Southern African Legal Assistance Network; Southern African Legal Information Institute; Tanganyika Law Society; United Nations – Integrated Regional Information Networks, Office of the High Commissioner for Human Rights, Refworld; United States – Department of State; 24 Tanzania News.