LECTURE 6
CONSENT CASES
Objective: At the conclusion of this part candidates should be able to
demonstrate sufficient knowledge, skills and abilities in various
legal aspects relating to he consent to prosecute offences.
(a) What is Consent?
In criminal trials consent to prosecute refers to the power of the Director of Public
Prosecutions to allow a prosecution not initiated by him to proceed. Consent to
prosecute therefore is permission by the Director that a case may proceed. Consent
however refers to consent to court proceedings. It was held in Abubaker Mayanja
[1960] EA 23 that the fact that the permission of the Director is required to prosecute
certain cases does not mean that an accused person cannot be arrested and charged
with one of those offences before the permission has been obtained.
(b) Cases requiring Consent to Prosecute
There are several categories of offences under various statutes which require the
sanction of the Director of Public Prosecutions before proceedings are instituted:
¾ Offences under the Penal Code, Cap. 16:
1. raising discontent and ill will among inhabitants – s.
63B P.C.
2. incest by males or females – s. 158 & 160 P.C.
3. abuse of office by public officials – s. 96 P.C.
4. false claims by officials – s. 95 P.C.
5. piracy – s. 66 P.C.
6. watching or besetting – s. 89A P.C.
7. intimidation – s. 89B P.C.
8. endangering safety of aviation – s. 318 P.C.
¾ All offences under the National Security Act: see section 16 thereof,
¾ All offences under the Economic and Organised Crime Control Act: see
section 26 thereof.
¾ Excepting offences under section 15; all offences under the Prevention and
Combating of Corruption Act.
¾ Offences under section 12 the Industrial Court of Tanzania Act (i.e. lock-ins,
lock-outs and strikes. See section 15 thereof.
(c) Who can issue Consent to Prosecute?
The Director of Public Prosecutions is vested with the superintendence of the
prosecution of criminal offences under Article 59B of the Constitution of the United
Republic. Consequently by virtue of GN No. 191 of 1984 consent to prosecute may be
given by the Director of Public Prosecutions, a State Attorney-in-Charge or a
Regional State Attorney.
(d) Why require Consent to Prosecution?
1
The decision to prosecute a person suspected of committing an offence or offences is
a quasi judicial decision. Some categories of offences require the taking into account
of a number of intricate issues including the public interest, prosecution policy etc.
before a decision may finally be made to mount a prosecution. Such decisions may
properly be made under proper guidance, at the highest level of the prosecution
machinery; that is the Office of the Director of Public Prosecutions.
(e) Mode and Procedure of Issuing Consent to Prosecute
When issued, the consent to prosecute must be in writing and must contain sufficient
information in order for it to be valid. In Abdul Aziz Suleiman [1958] EA 31 the Court
of Appeal for Eastern Africa considered the validity and sufficiency of a consent to
prosecute. The consent was given on information that was no more than, and almost
identical with, the particulars of the offence in the charge on which the proceedings
were instituted in the court. It was held that sufficient facts had been given to make
the consent valid.
The requirement for the consent to prosecute to be in writing is a question of logic.
Statutory provisions are not uniform in this regard. For instance under sections 96 and
162 of the Penal Code where sanction of the Director of Public Prosecutions is
required to prosecute ‘abuse of office’ and ‘incest by males or females’; there is no
requirement that the sanction be in writing. On the other hand sections 16 and 57(1),
respectively, of the National Security Act and the Prevention and Combating of
Corruption Act require the sanction to be in writing. The statutory position being what
it is there are however, a number of logical factors supporting the written sanction.
The first is that sanction or consent to prosecute is a mandatory statutory requirement.
Therefore after being issued; the court must be made aware of its issuance and the
consent/sanction of the DPP must become part of the record of the court. There is no
other way in which such consent can form part of the permanent record of the court
unless it is in writing and available for future reference. Secondly, the court must be
able to verify that the consent has been properly issued and by a person or persons
who are empowered to do so under the law. Such verification is only possible where
the consent to prosecute is in writing. Thirdly, consent is an administrative act
required by law to be performed by the Office of the Director of Public Prosecutions.
The written word is apparently the only proper and most convenient way to signify
the performance of a function or doing an act by a designated office or agency. It
must be noted however that in terms of section 78 of the Interpretation of Laws Act,
Cap.1; production of the document containing the consent of the Director of Public
Prosecutions is supposed to be prima facie evidence that such consent was given, and
it is not necessary to prove that the signature on the document is that of the Director
of Public Prosecutions or any public officer acting in that behalf.
(f) The concept of Consent and Equality before the Law
As a general concept consent is criticised for denying certain fundamental rights and
freedoms guaranteed under the constitution. Equality before the law for all persons is
one of the rights guaranteed under Article 13 of the Constitution of the United
Republic. Liberally interpreted equality before the law would mean protection of all
persons by the law and consequently unhindered access and resort to the law by all
persons at all times and whenever the need to do so arose. The concept of consent
seems to pose a condition before a right guaranteed under the constitution is
2
exercised. The concept of consent seems to be saying: ‘You have a right guaranteed
under the constitution but your exercise of that right is subject to the will of a
particular public official’. Writers have viewed this as a curtailment of a fundamental
freedom on the part of the requirement of consent1.
(g) Effects of Failure to Obtain Consent and Irregular Consent
¾ Failure to Obtain Consent
Consent is a statutory requirement. A court must satisfy itself that consent has been
granted by the DPP before proceeding to hear a case. In Abdullah Suleiman El Harthi
and 8 others v R. [1955] 22 EACA 404 it was held that where consent to prosecute is
statutorily required it must be given before commencement of the hearing process. In
all such cases the presiding judge or magistrate must satisfy himself before issuing
court process that such consent has been given, and if it is not attached to the charge
or complaint the magistrate must make sure that he has actually seen it by asking the
prosecutor to tender it to him, for should he proceed without it the proceedings
become a nullity ab initio.
Consent must be obtained in cases where it is required. If a case proceeds and the
proceedings are nullified on appeal, revision or review it is most unlikely that a retrial
can be ordered. The reason is that failure to obtain prior consent of the DPP before
mounting a prosecution is considered to be a lapse on the part of the prosecution for
which the prosecution must bear the blame. Where the court is convinced that the
prosecution was to blame it will not order a retrial. This point was stressed in Suke
Samwe and 2 others v. R [1947] 14 EACA 134 where the court held that it would not
order a trial de novo in order to allow the prosecution to fill a gap in its case against
an appellant which might have been filled at the first trial and more so when a nullity
was declared on account of an irregularity for which the prosecution was responsible.
¾ Irregular Consent
In cases where consent to prosecute is a statutory requirement, it is the giving of
consent which confers jurisdiction of the court in the matter in question. In order for it
to confer proper jurisdiction it must be valid and relate to the offence charged. Defects
on the consent are not curable. A consent which is irregular will not amount to
consent at all. In short there will be no consent before the court. Consequently the
court will have no jurisdiction in the matter. If the court tries the matter, the
proceedings will be a nullity.
1
See for example Peter, C.M., Five years of a Bill of Rights in Tanzania: Drawing a Balance Sheet,
1991 Eastern Africa Law Review, Vol.18 No.2, Faculty of Law University of Dar Es Salaam.
