Section 194 CPA: High Court rules witness protection must extend to the defence

Background

Our founder, Adv. Godfrey Mjuni Martin Basasingohe, petitioned the High Court at Mwanza under the Basic Rights and Duties Enforcement Act, challenging the constitutionality of section 194 of the Criminal Procedure Act [Cap. 20 R.E. 2023] and the Witness Protection Regulations, 2025 (G.N. No. 430 of 2025). The Attorney General and the Director of Public Prosecutions were the respondents.

Section 194 allows a court, on an ex parte application by the DPP, made before a charge is filed or at any stage of proceedings, to order protective measures for a witness. These include testimony by video conference, withholding a witness's identity and whereabouts, and withholding statements or documents that could identify them. Where identity-related measures are granted, the relevant statements and documents are not disclosed to the accused at committal or trial.

The petitioner was represented by Mr. Elias Hezron, and the respondents by Mr. Edwin Webiro, State Attorney. The petition was heard by a bench of three judges: Mtulya, Kamana and Chuma, JJJ.

The two questions before the Court

1. Does section 194, by giving only the prosecution the right to seek witness protection, violate equality before the law and equal protection of the law under Article 12(1) and (2) of the Constitution?
2. Does section 194, by allowing ex parte protection orders without guaranteeing the defence a way to challenge them, violate the right to a fair hearing under Article 13(6)(a) and (b)?

Equal protection: why the petition succeeded

The parties agreed that only the DPP can apply under section 194. They disagreed on its reach. The respondents argued that the DPP, acting in the public interest under Article 59B(4) of the Constitution, could also apply to protect defence witnesses.

The Court rejected that argument. Relying on the Court of Appeal's decision in Attorney General v. Dickson Paulo Sanga, Civil Appeal No. 175 of 2020, it held that in criminal proceedings the DPP stands on equal footing with the accused, as a party and not as a neutral guardian of both sides. It would be, in the Court's words, "unthinkable and impracticable" for the DPP to apply on the accused's behalf to protect the accused's own witnesses. Section 194 therefore covers prosecution witnesses only.

The Court then separated two related doctrines, drawing on decisions of the African Commission on Human and Peoples' Rights:

• Equality before the law concerns how the law is applied: whether courts and officials enforce it uniformly and without arbitrariness. The Court found nothing in section 194's scheme that invited arbitrary or discriminatory enforcement, so this doctrine was not breached.
• Equal protection of the law requires that people in similar circumstances be treated alike. Because section 194 offers protective measures to prosecution witnesses while leaving defence witnesses with no equivalent route, the Court held that it violates this guarantee, protected under Article 12(1) and expressly stated in Article 13(1).

Fair hearing: why that ground failed

The Court agreed with the respondents that protection applications must, by their nature, be heard ex parte. Requiring an inter partes hearing could expose the very witness the order is meant to protect.

It also characterised section 194 orders as interlocutory. They regulate how evidence is given, but do not decide guilt or innocence. On that basis, the Court held that:

• the appeal and revision routes under the Criminal Procedure Act and the Appellate Jurisdiction Act, which the respondents had relied on, do not apply to section 194 orders, because they are designed for decisions that finally determine a matter; and
• Article 13(6)(a) and (b), read purposively, applies to determinations that finally resolve parties' rights, not to provisional, procedural orders, unless such an order conclusively disposes of those rights.

The Court therefore found no violation of the right to a fair hearing.

What the Court ordered

1. A declaration that section 194 of the Criminal Procedure Act violates the principle of equal protection of the law, to the extent that it grants protection rights exclusively to prosecution witnesses and denies corresponding rights to defence witnesses.
2. An order that Parliament amend section 194 within twelve months of the ruling to uphold equal protection of the law, failing which the section shall have no legal force.

No order was made as to costs.

What this means in practice

• For accused persons and defence counsel: the ruling formally recognises that defence witnesses can face the same threats as prosecution witnesses and deserve comparable protection. Until section 194 is amended, the provision itself still offers no route for the defence to apply.
• For prosecutors: section 194 remains in force during the twelve-month window, and protection applications may continue to be made ex parte.
• The date to watch: 16 February 2027. Any amendment Parliament passes, and how it extends protection to the defence, will shape witness-protection practice in criminal trials across Tanzania.

This article is a summary for general information only and does not constitute legal advice. For advice on how the ruling affects a particular matter, please contact our team.