Plea taking procedures in Tanzania. By Johnson Yesaya.

WHAT IS PLEA?

In Tanzania plea is construed under section 228 of The Criminal Procedure Act [Cap 20 : R.E 2022]. A term plea simply means a reply to a truthfulness of a charge. Plea is a formal response given by an accused person in a criminal case to the charges brought against them. It is the accused person's statement of whether they admit or deny guilt for the alleged offense. The accused person is the one who enters a plea. They are presented with the charges during the arraignment in court and at that point, the accused is asked to respond to the charges by entering a plea. Plea can either be guilty or not guilty, autrefois convict, autrefois acquit and pardon.

TYPES OF PLEA

I. Plea of Guilty.

A plea of guilty is a formal response made by an accused in a criminal case admitting that they committed the crime they're charged with. When an accused enters a guilty plea, they are essentially accepting responsibility for their actions and acknowledging that they violated the law. By pleading guilty, the accused person is waiving their right to trial and choosing not to contest the charges levelled against them. It is a straightforward way to resolve a case without the need for a lengthy trial process. Instead of proceeding to trial, the focus shifts to the sentencing phase, where the court determines the appropriate punishment for the accused's admitted offense and the court proceeds to convict an accused accordingly as established under section 228(2) of The CPA.

In the case of Patrick Rimmer V R (1972) 56 Cr. App. R. 196, the court stated that "the plea of guilty has two effects, one being it is a confession of facts and second being it is such a confession that without further evidence the court is entitled to and indeed in all proper circumstances will act upon it and result in a conviction".

Plea of guilty is divided into two categories, 1. Equivocal Plea of Guilty and 2. Un-equivocal Plea of Guilty.

An equivocal plea of guilty, occurs when an accused enters a plea of guilty while still maintaining their innocence or raising doubts or ambiguity about their guilt. In other words, it is a plea that contains some form of defense, indicating that the accused is not fully admitting guilt. He/she sets statements or defenses which are likely to exonerate an accused from charges or to lessen the punishment which may be issued on the offence committed. When an accused enters equivocal plea of guilty, the court will proceed with trial to determine further evidences which may convince the court to rule otherwise rather than a direct conviction from un-equivocal plea of guilty. Equivocal plea of guilty is as good as plea of not guilty.

An Example of Equivocal Plea of Guilty - A mother who stole breads from Mangi's shop to feed her kids as they were starving.

Accused: Your Honor, I... I plead guilty, but I need to explain my situation. I did take those breads from Mangi's shop without paying, and I know it's wrong. But I was desperate. My children were hungry, and I couldn't bear to see them suffer. We were going through tough times, and I didn't have any money to buy food.

Magistrate: Thank you for your plea, but I need a clear answer. Are you pleading guilty or not guilty?

Accused: I mean, I am admitting that I took the food, but I don't feel like a criminal. I did it out of necessity to survive and protect my kids.

Un-equivocal Plea of Guilty, occurs when an accused admits to their guilt without any defense or ambiguity. In other words, it is a clear and straightforward admission of responsibility for the crime charged, with no claims of innocence or doubts about the accused's culpability. When an accused enters un-equivocal plea of guilty, they're accepting full legal responsibility for the offense and acknowledging that they committed the crime as it is charged. By pleading guilty un-equivocally, the accused person waives their right to a trial and the opportunity to challenge the prosecution's evidence. They forego the chance to present their own evidence, cross-examine witnesses, and contest the charges against them in a formal court trial. Instead, the case proceeds directly to the sentencing phase, where the court determines the appropriate punishment for the admitted offense.

An Example of an Un-equivocal Plea of Guilty - A mother who stole breads from Mangi's shop unreasonably.

Accused: Your Honor, I... I plead guilty, I did stole those breads from Mangi's shop without paying, and I know it's wrong. I accept full legal responsibility from my behavior.

II. Plea of Not Guilty

A plea of not guilty is a formal response by the accused in a criminal case, indicating that they deny the charges brought against them and assert their innocence. When an accused pleads not guilty, they are stating that they did not commit the alleged offense and the court will proceed to hear the matter as provided under section 228(3) of CPA. By entering a not guilty plea, the accused preserves their right to a fair trial, during which the prosecution must present evidence to support the charges. The trial process allows the accused's defense team to challenge the evidence, present counterarguments, and call witnesses on their behalf to support their case.

III. Plea of Autrefois Convict and Acquit

Plea of Autrefois Convict and Acquit applies when an accused has already been convicted or acquitted of the same offense in a previous trial. The principle of double jeopardy prohibits a person from being tried or punished twice for the same offence. If the accused can prove that they have already been convicted or acquitted of the same offense, they can raise the plea of autrefois convict or acquit to prevent a new trial or further punishment for the same act. Autrefois convict and acquit are provided under section 228(5)(a) and 280(1)(a) of CPA.

Example: John was previously convicted or acquitted of theft in a court of law. Later, he is charged with theft again for the same incident. John may raise the plea of autrefois convict or acquit to assert that he cannot be tried again for the same theft offense. This defense prevents an accused person from being tried again or punished for an offense they have already been convicted or acquitted of in a former trial.

IV. Plea of Pardon

This is  plea where an accused pleas that, he has formerly being granted pardon of the offence he committed as provided under section 228(5)(b) and 280(1)(b) of CPA.

On the side of pardon, the president only has been vested with this power, and its normally him who can rescind the pardon, Article 45 (a)of Constitution of United Republic of Tanzania. Provide that;

“A president may grant a pardon to any person convicted by a court of law of any offence and he may grant such pardon unconditionally or on condition subject to the law”. Also section 280 (1) (b) of the C.PA, supports that the accused person can plead a plea of pardon.

Hence a person who has obtained a pardon from the president cannot be prosecuted again for the same offence of the same facts. However this plea cannot act as a bar to the subsequent proceedings, if the court has rescinded the pardon through judicial review.

PLEA TAKING PROCEDURES BEFORE SURBODINATE COURTS

Plea taking procedures in criminal trials are crucial for upholding the principles of fairness and ensuring the accused's right to a fair trial. Plea before subordinate courts are governed by various provisions including section 228 and 229 of the Criminal Procedure Act [Cap 20 R.E 2022].

As per section 228(1) of the CPA, Once an individual is apprehended based on reasonable suspicion of committing a crime, the criminal justice process commences. If the prosecution's evidence is sufficient to establish a prima facie case, the next step is the arraignment of the accused before the court to answer the charges. At this stage, a charge detailing the specific allegations is read, and the accused must enter a plea.

If the accused equivocally pleads guilty, the court is obliged to record the plea exactly in the words as stated by the accused and open the case for the prosecution to present evidence and witnesses before court (equivocal plea of guilty is as good as plea of not guilty).

If an accused un-equivocally pleads guilty and admits all those essential legal elements of the charge, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts.

If the accused does not agree with the statement of facts or asserts additional facts which if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to the sentence. The statement of facts and accused’s reply must, of course, be recorded”.

Pleading guilty signifies that the accused takes responsibility for the offense, leading to the determination of an appropriate sentence by trial court. On the other hand, if the accused pleads not guilty, it indicates a denial of the charges, placing the burden of proof on the prosecution, thereby initiating the trial process. When a plea of not guilty is entered, a prosecutor will open the case against the accused person and call witnesses and adduce evidence in support of the charge as per sections 229 of CPA.

When an accused person enters an Autrefois Convict, Acquit, or pardon plea, asserting that they have been previously convicted or acquitted of the same offense; or that they have obtained a legal pardon for the offense they are charged with, the court is obligated to conduct a preliminary inquiry to determine whether such a plea is true or not. If, after examining the evidence and arguments presented in support of the plea, the court finds that the evidence does not support the plea or that the plea is false in fact, the accused person will be asked to enter a plea in response to the charge brought against them. See section 228(5) of CPA.

In event the accused remains silence, whether out of malice or inability to respond directly to the charges, the court has the authority to order a plea of "not guilty" to be entered on behalf of the accused person in accordance with section 228(4) of CPA. This plea entered on behalf of the accused carries the same legal weight and effect as if made by the accused. Alternatively, if the accused's silence is due to mental infirmity, the court assesses their mental capacity. If the accused is found to be of sound mind, the trial proceeds accordingly. However, if they are determined to be of unsound mind, rendering them incapable of presenting a defense, the court adjourns the trial and orders the accused person's safe custody in a suitable place. The court records are then transmitted to the Attorney General for further consideration.

PLEA TAKING PROCEDURES BEFORE HIGH COURTS

When an individual is arraigned before High Court to answer his allegations, an information detailing the specific allegations is read over him by the Registrar or other officer of the court, in a language that an accused understands and the accused is required to enter a plea. (See section 275(1) of CPA). Where the accused plea guilty and admits all those essential legal elements of the information, the judge should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The judge should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts.

If the accused does not agree with the statement of facts or asserts additional facts which if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the judge should record a conviction and proceed to hear any further facts relevant to the sentence.

Pleading guilty signifies that the accused takes full responsibility for the offense, leading to the determination of an appropriate sentence immediately without further trial. On the other hand, if the accused pleads not guilty, it indicates a denial of the charges, placing the burden of proof upon prosecution, thereby initiating the trial process where the court will choose assessors and proceed to the trial as per sections 279 and 283 of the CPA.

During the trial, the prosecution presents evidence and witnesses to establish the accused's guilt beyond a reasonable doubt. The accused, either through an advocate or self-representation, has the right to challenge the evidence presented and cross-examine the prosecution's witnesses, as provided under sections 279.

When an accused person enters an Autrefois Convict, Acquit, or pardon plea, asserting that they have been previously convicted or acquitted of the same offense; or that they have obtained a legal pardon for the offense they are charged with, the court is obligated to conduct a preliminary inquiry to determine whether such a plea is true or not. If, after examining the evidence and arguments presented in support of the plea, the court finds that the evidence does not support the plea or that the plea is false in fact, the accused person will be asked to enter a plea in response to the information brought against them, otherwise if it is true, a court will either struct-out an information and release an accused person. (See section 280 of CPA).

In the event the accused remains silent, whether out of malice or inability to respond directly to the charges, the court has the authority to direct the Registrar or another court officer to enter a plea of "not guilty" on the accused person's behalf, in accordance with section 281 of the Act. This plea entered on behalf of the accused carries the same legal weight and effect as if made by the accused. Alternatively, if the accused's silence is due to mental infirmity, the court assesses their mental capacity. If the accused is found to be of sound mind, the trial proceeds accordingly. However, if they are determined to be of unsound mind, rendering them incapable of presenting a defense, the court adjourns the trial and orders the accused person's safe custody in a suitable place. The court record is then transmitted to Attorney General for further consideration.

PROCEDURES TO BE FOLLOWED BY THE COURT WHEN THE ACCUSED UN-EQUIVOCALLY PLEADS GUILTY TO THE CHARGE.

The case of  Laurence Mpinga vs. The Republic (1993) TLR 166.

This case establish principles and stages on conducting plea of guilty proceedings. The exact words from the case are quoted here below;

"...there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met: -

1. The Appellant must be arraigned on a proper charge. That is to say, the offence section and the particulars thereof must be property framed and must explicitly disclose the offence known to law;

2. The Court must satisfy itself without any doubt and must be clear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result.

3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228(1) of the Criminal Procedure Act.

4. The facts adduced after recording a plea of guilty should disclose and establish all the elements of the offence charged.

5. The accused must be asked to plead and must actually plead guilty to each and every ingredient of the offence charged and the same must be properly recorded and must be clear (see Akbarali Damji vs R. 2 TLR 137 cited by the Court in Thuway Akoonay vs Republic [1987] TLR. 92);

6. Before a conviction on a plea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements of the offence charged" [Emphasis added].

Other relevant case laws.

1. Michael Adrian Chaki vs. R. Cr. Appeal No. 339 of 2017 (unreported)

2. Thuway Akoonay vs Republic [1987] T.L.R. 92]

3. Athuman Bakari Meja © Bodde vs Republic Criminal Appeal No. 179 of 2021

4. Nkalango Nkumbulwa vs. Republic Dc. Criminal Appeal 32 Of 2022)

5. Adan v Republic [1973] EA 445

6. Khalid Athumani v R. [2006] TLR 79