The undersigned certify that he has read and hereby recommends for acceptance by the

University of Dodoma a Dissertation entitled, An Examination of the Powers of the DPP in

Administration of Justice in Mainland Tanzania, in fulfillment of the requirements for the
Bachelor of Laws (LL.B) Degree of the University of Dodoma.

ACKNOWLEDGEMENT
First and foremost, I thank almighty God who has given me health, physical and emotional
strength as well as life during the entire preparation of this work. Glory be to Him.
I wish to express my genuine appreciation to my Supervisor, Dr. Pulluru, who worked
together with me in preparation of this work.
Special Appreciation should also be accorded to all my close friends for their moral and
material support in writing this research and mostly appreciated to my classmate at
University of Dodoma.
Most importantly, I owe my deepest gratitude to my family: my grandfather Mr. Joseph
Ngayashilanga Gembe, my grandmother Lucia Joseph Gembe, my father Mr. Jimreeves
Naftal , My mother Miss Geraldina Joseph Gembe.
They all made this work possible through their support, understanding, unconditional love,
patience and belief in me. To them I say thank you very much.
DEDICATION
I dedicate this research work to my sole and beloved Guardian Father Mr. Jim reeves
Naftal who raised me as his own, gave me reliable financial and moral support, inspiration
and encouragement throughout my life especially the attainment of my entire academic
brilliance.
ABSTARCT
The study deals with the assessment of the powers of the Director of public prosecutions in
mainland Tanzania. The sole legal purpose for the existence of the DPP is to conduct criminal
prosecutions of persons who are charged with various criminal offences in Mainland Tanzania,
the law generally requires that the DPP has to exercise his powers in accordance with the
constitution and other written Laws.

The study will assess the extent or degree of these powers granted to the DPP, the relationship
between the attorney general office and the DPP and the statutory Legal framework which
enables the DPP to exercise his powers as well as the legal problems arising from the entire legal
and institutional framework which allows the DPP to exercise his duties while complying with
the laws of the land.
As from its objectives the study will show to what extent the DPP in mainland Tanzania
implements the constitutional principles of Rule of Law and Separation of powers while
exercising his powers. This will involve reference to domestic legislations as well as
jurisprudence of difference courts so as to identify the extent these principles are implemented
and the major problems that face its implementation.
The study will also show that the implementation of the powers of the DPP are largely facing a
number of challenges such as interference from the government which in largely is attributed by
the nature of the institutional framework which allows the Attorney General and the DPP to
discharge their duties.
LIST OF ABBREVIATIONS
DPP Director of Public Prosecutions
Ed
Edition
Ibid Ibidem ((in the same place cited)
LHRC
Legal and Human Rights Centre
UDHR
Universal Declaration of Human Rights
Pg
Page
Pp
Pages
Vol Volume
LIST OF STATUTES AND CONVENTIONS
INTERNATIONAL INSTRUMENTS
The 1948 Universal Declaration of Human Rights
REGIONAL INSTRUMENTS
FOREIGN STATUTES

LOCAL STATUTES
The Penal Code [CAP.16 R.E 2002]
The Criminal Procedure Act [..]
The Attorney General Duties Discharge and Functions Act[.]
LIST OF CASE LAWS
TABLE OF CONTENTS

CHAPTER ONE
GENERAL BACKGROUND AND METHODOLOGY
1.1 Introduction
The Role of the State
The prosecution of persons suspected of having violated the law is part of the measures
which the government undertakes to ensure on behalf of the State the preservation of peace
and order. Indeed the prosecution of suspects forms part of the criminal justice process. The
general aim of that process is to punish the guilty and protect the innocent or those whose
guilt is not proved beyond reasonable doubt.
Every act which the law constitutes to be a crime is, as such, an offence not against the
individual who may have been injured by it, but against the community or the State. Where,
therefore, an offence has been committed, it ought not be left to the will or the ability of an
individual to institute a prosecution, but such a prosecution should be instituted by, and on
behalf of the State through (an) appointed officer.
per Lord Chief Justice Lockburn (Hetherington 1989:9)
The Control of Criminal Prosecutions.

In Tanzanias criminal justice system, the DPP is the person who is vested with the power of
conducting prosecutions of persons suspected of having violated the law by committing
offences, the DPP exercises all of his powers on behalf of the state or the republic, hence all
criminal prosecutions are the direct concern of the DPP. The DPP is appointed by the
President of the United Republic of Tanzania from among persons qualified to practice as
advocates of the High Court of the United Republic of Tanzania and have been so qualified
for not less than five years prior to appointment (Art.59B Constitution of URT 1977).
The DPP therefore has constitutional powers to institute to institute and undertake criminal
proceedings against any person before any court (other than a court martial) in respect of any
offence alleged to have been committed by that person. The DPP also has power to take over
and continue any such criminal proceedings, that have been instituted or undertaken by any
other person or authority, and to discontinue any such criminal proceedings instituted or
undertaken by him (her) or any other authority or person. However the constitution has made
it clear that in exercising his powers the DPP or any other person acting on his behalf has to
regard the need to dispensing justice, prevention of misuse of procedures for dispensing
justice and public interest. (Art.59B Constitution of URT 1977)
Statement of the Problem

1.2 Research Questions

1.3 Literature Review

1.4 Objectives of Research

1.5 Significance of the Study.

1.6 Research Methodology
1.7 Scope and Limitation of the study.

In international law, the principle of universal jurisdiction is classically defined as, a legal
principle allowing or requiring a State to bring criminal proceedings in respect of certain
crimes which are considered as International crimes,1 irrespective of the location of the
crime and the nationality of the perpetrator or the victim.2
1War crimes, Crimes against humanity, genocide, crime of aggression and other crimes
which had the status of Jus Cogens (Latin meaning compelling law or higher law must be
followed by all countries).
2C. R. Kenneth., Universal Jurisdiction under International Law, Texas Law Review, No. 6,
1988, pg. 785.
3Its when he emphasizes on it by providing this statement, In Order that he who punishes
may duly punish, he must possess the right to punish, a right deriving from the criminals
crime in 1625 in his book De Iure Belli Ac Pacis (The Law of War and Peace,), Book II,
Chapter XXI, para. III-1,2, IV-1,3, as cited in M.S. Jaques et al., The Principle of Universal
Jurisdiction, Humanitarian Law Perspectives, Australian Red Cross, 2010 pg. 8.
4M.S. Jaques et al., The Principle of Universal Jurisdiction, Humanitarian Law Perspectives,
Australian Red Cross, 2010 pg. 8.
The concept of universal jurisdiction has its origins in the writings of early scholars of note,
such as Hugo Grotius,3 and the prosecution and punishment of the crime of piracy. Piracy is

the oldest offence to be subjected to the principle of universal jurisdiction. States use
customary international law to prosecute perpetrators of this crime and punish them upon
conviction. Pirates are regarded as enemies of all people and are punishable by every State
because their acts are often committed against vessels and nationals of numerous States and,
especially when viewed cumulatively, piratical acts could disrupt commerce and navigation
on the high seas.4 2
Persons committing the crimes falling under universal jurisdiction are referred as hostis
humani generis or the enemy of all humanity or enemy of mankind.5 These make all State to
be required to prosecute or extradite any person who commit any crimes of such kind,
irrespective of nationality of the perpetrators or victims and disregard the place of
commission of such crimes.
5N.S. Leila., Symposium: Universal Jurisdiction: Myths, Realities, and Prospects:
Redefining Universal Jurisdiction, New England Law Review, No. 35, 2001, pp. 241& 244.
6Under the London Agreement of 8 August 1945, Article 1 provided for the jurisdiction of
the Tribunal for crimes having no precise geographical location and Article 4 for the
jurisdiction of national courts over other war criminals.
7The Nuremberg Trials were a series of military tribunals, held by the Allied forces of World
War II, most notable for prosecution of prominent members of the political, military, and
economic leadership of Nazi Germany, held in the City of Nuremberg.
8The Nuremberg Trials were a military tribunal, held by the Allied forces of World War II,
most notable for prosecution of prominent members of the political, military, and economic
leadership of Nazi Germany, held in the City of Nuremberg.
9Article 49(2) of Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field. Geneva, 12 August 1949; Article 50(2) of Convention (II)
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea. Geneva, 12 August 1949; Article 129(2) of Convention (III) relative to

the Treatment of Prisoners of War, Geneva, 12 August 1949; Article 146(2) of Convention
(IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
After the Second World War, the principle of universal jurisdiction gained ground through the
establishment of the International Military Tribunals;6 the Nuremberg Tribunal7 and the
Tokyo Tribunal, for the purpose of prosecuting all the perpetrators of international crimes
committed during the war and in respect of crimes committed by Japans leaders and other
tribunal in respect of prosecution of core international crimes.8
The Geneva Conventions of 1949 and the Additional Protocol I of 1977, impose obligations
upon States parties to search and prosecute the perpetrators of grave breaches of the
Conventions.9 3
The case of Attorney General of Israel v. Eichmann10 was also on the exercise of universal
jurisdiction, when the Israeli District Court, relying in part on universal jurisdiction,
convicted Eichmann (a German citizen) for organizing and managing mass deportations of
Jews and others to concentration camps in German-occupied Eastern Europe.11
10Attorney General of Israel v. Eichmann, District Court of Jerusalem, 1961, 36 ILR 5.
11K. Coombes., Universal Jurisdiction: A Means to End Impunity or a Threat to Friendly
International Relations? The George Washington International Law Review vol.43 of 2011,
pg.11.
12UN General Assembly Resolution 3074 (XXVIII), 3 December 1973, which was adopted
specifically on the Principles of international co-operation in the detection, arrest, extradition
and punishment of persons guilty of war crimes and crimes against humanity irrespective of
the nationality of the perpetrators, victims and place of commission.
In 1973 the United Nations General Assembly recognized the principle of universal
jurisdiction when it adopted the Principles of International Co-operation in the Detection,
Arrest Extradition and Punishment of Persons Guilty of War Crimes and Crimes against

Humanity.12 The preamble under paragraph 1 recorginises the principle of universal

jurisdiction which states that:
Affirms that, within the framework of international cooperation in the search for, arrest,
extradition and punishment of persons guilty of war crimes and crimes against humanity, the
highest priority should be given, independently of the circumstances in which these
violations are committed, to legal proceedings against all individuals responsible for such
crimes, including former heads of State or Government whose exile serves as a pretext for
their impunity.
Other sources have also been relied upon as evidence of the customary status of the
obligation to extradite and prosecute, including resolutions of international organisations,
such as United Nations General Assembly and United Nations Security Council resolutions
which urge States to prosecute alleged offenders of crimes under 4
international law or extradite them.13 States have interest and even a duty to punish
international crimes. This view has been articulated in the fourth paragraph of the preamble
to the Rome Statute of the International Criminal Court (1998) which affirms that:
13UN General Assembly Resolution 2840 (XXVI), 18 December 1971; UN Security Council
Resolutions 1318 (2000), 1325 (2000), 1379 (2001), 1612 (2005), 1674 (2006), 1820 (2008);
ECOSOC Resolution 1989/65.
14R. Rabinovitch, Universal Jurisdiction in Abstentia, Fordham International Law Journal,
Volume 28, Issue 2 2004, pg. 19.
15United Nations, General Assembly, 65th Session, Sixth Committee, item 86, Statement by
the ICRC, New York, 15 October 2010.
16The Organization is based on the principle of the sovereign equality of all its Members.
The most serious crimes of concern to the international community as a whole must not go
unpunished and that their effective prosecution must be ensured by taking measures at the
national level and by enhancing international cooperation.

Under this conception of international community, since all States are interested parties in
cases involving the commission of certain serious crimes, there is no reason to insist on any
special link between the victim, the offender, and that State in order for universal jurisdiction
to be exercised.14 In 2010, in its Sixth Committee, the United Nations General Assembly
recalled with its member States the principles that govern the exercise of universal
jurisdiction over grave breaches.15
1.2 Statement of the Problem
The exercises to the principle of universal jurisdiction are challenged by States sovereignty
principle as laid down under article 2(1)16 of the UN Charter of 1945 and immunity of States
officials under customary international law and States domestic legislations. 5
On 2002 in Arrest Warrant Case (Democratic Republic of Congo v. Belgium),17 when an
international arrest warrant was issued by Belgium on 11 April 2000 against Mr. Abdulaye
Yerodia Ndombasi(the incumbent Minister for Foreign Affairs of the Congo), alleging grave
breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto and
crimes against humanity. Such crimes were punishable in Belgium irrespective of where they
were committed or the nationality of the perpetrator or the victims. The Congolese contended
that, Belgium had violated the principle of sovereign equality among all Members of the
United Nations, as laid down in Article 2(1) of the UN Charter, as well as the diplomatic
immunity of the Minister for Foreign Affairs of a sovereign State, as per Article 41(2), of the
Vienna Convention of 18 April 1961 on Diplomatic Relations. With regard to the request
made by Congo, the Court held that:
172002 WL 32912040 (I.C.J.), 2002 I.C.J. 3.
By issuing and internationally circulating the arrest warrant of 11 April 2000 against Mr.
Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard to the Democratic
Republic of the Congo of the rule of customary international law concerning the absolute

inviolability and immunity from criminal process of incumbent foreign ministers; in so

doing, it violated the principle of sovereign equality among States.
In essence, the dilemma revolves around the question of how the international community
can prosecute breaches of international humanitarian law whilst at the same time preventing
the disruption of global stability that could result from the undermining of a system premised
on the co-equal sovereignties of all States.
Further the implementation of the principle of universal jurisdiction faced difficulties due to
some reasons such as extradition principle. For example, when Senegal failed to extradite
Hissne Habr to Belgium it showed that there are problems in implementing 6
the obligation to extradite as imposed to States in both international customary law and
treaties following to non- extradition of political offender in Senegal. Also the principle is
regarded to cause seriously damaging relations between States as it was observed when
United States threatened to cut off funding for a new NATO headquarters in Brussels unless
Belgium repealed its universal jurisdiction law.18
18In this example phenomenon, the United States threatened to cut off funding for a new
NATO headquarters in Brussels unless Belgium repealed its universal jurisdiction law, under
which President George W. Bush and U.S. generals had recently been charged after March
18, 2003, seven Iraqi families filed criminal complaints in Belgium alleging that they were
responsible for the 1991 bombing of a civilian air raid shelter in Baghdad that caused the
deaths of their family members during Gulf War. Ultimately, the universal jurisdiction
provisions were withdrawn entirely in August 2003, and Belgian law now provides that the
judiciary may reject complaints in which there are no victims of Belgian nationality or in
which the plaintiffs have lived in Belgium for less than three years. (Vernon Loeb, Rumsfeld
Says Belgian Law Could Imperil Funds for NATO, Wash. Post, June 13, 2003, pg. A24).
1.3 Research Questions

1. To what extent States comply with the obligation to extradite or prosecute under the
principle of universal jurisdiction in Africa and Europe?
2. What are the challenges facing the compliance of obligations to extradite or prosecute
under the principle of universal jurisdiction in Africa and Europe?
1.4 Literature Review
The principle of universal jurisdiction has created a wide discussion among different
scholars. Most of the scholars put an emphisise on the validity of exercise universal
jurisdiction by using the domestic court and domestic laws in respects of international
crimes. On the implementation of this principle of universal jurisdiction, the authors discuss
it in the aspects of enactment of domestic laws on universal principle, 7
prosecution and extradition of the perpetrators of international crimes as grave breaches.19
19I. Buffard et al; International Law between Universalism and Fragmentation, Martinus
Nijhoff Publishers, Leiden Boston, 2008.
20E.L. Lutz & C. Reiger., Prosecuting Heads of State, Cambridge University Press,
Cambridge, 2009.
21R. Memari., The Duty to Prosecute Crimes against Humanity under Universal Jurisdiction,
Customary International Law, and Conventional, International Law 2012 2nd International
Conference on Social Science and Humanity IPEDR vol.31 of 2012.
The exercise of the principle of universal jurisdiction, as an obligation to the State either by
virtual of customary international law or under the treaty obligation, make States to exercise
the principle in manner which make all international crimes not to remain unpunished in their
respective countries or to extradite the perpetrators to the interesting State of jurisdiction for
the prosecution of the perpetrators of international crimes.20
International crimes are regarded as part of Delicti Jus Gentium and as Jus Cogens which
give the courts competence to prosecute them based on the principle of universal jurisdiction
and constitutes a limitation for States to grant amnesty based on the recent developments in
international law and practice. Further, conventional and customary international law entitles

States to prosecute perpetrators of crimes against humanity, making amnesty laws covering
such atrocities of questionable legality.21
Both the Council of Europe and of the European Union has legislated on the issue of
concurrent jurisdiction and the solution of conflicts of jurisdiction. It is irrelevant whether the
jurisdictional principle applied is universal jurisdiction or any other principle of jurisdiction:
what matters is the fact that there is overlapping jurisdiction. But there is no country that
would establish express criteria to decide upon competing 8
national jurisdictions.22These shows that, the paramount consideration is to make
international crimes to be unpunished in whatsoever circumstances when its alleged and
proved to be committed.
22M. Agheni ei et al; Universal Jurisdiction and Concurrent Criminal Jurisdiction,
Constantin Brncoveanu University from Piteti.
23C.B. Murungu, Prosecuting International Crimes in Africa, in Chacha Murungu & Japhet
Biegon, Pretoria University Law Press, 2011, pp. 63-64.
24L.Arimatsu, Universal Jurisdiction for International Crimes: Africas Hope for Justice?,
International Law/April 2010/IL BP 2010/01, pp.1-2.
The practical implementation of the principle of universal jurisdiction may be challenged by
the diplomatic relations treaties, when the perpetrators are the State official as they are
shielded by the immunity of States officials under international law. This immunity prohibits
the State officials to be prosecuted in the domestic court of another State when commits
international crimes.23
The initiations of criminal proceedings by European courts have generally been welcomed by
the States when the crime was committed. Sometimes, however, the exercise of universal
jurisdiction, particularly when it involves senior sitting officials, has caused serious political
friction between African and European States.24
The close relation between sovereignty and criminal jurisdiction means that one nations
attempt to exercise jurisdiction over persons or matters that also fall within the jurisdiction of

another nation could be regarded as violations of the second nations sovereignty. Such
conflicting claims could threaten the stability of the international legal order by seriously
damaging relations between States, leading to breakdowns of diplomatic relations and armed
conflict. 9
The principle on the other hand face