Lecture 10

ADMISSIONS AND
CONFESSIONS
26/1/2016

©Dr. Nangela 2015/16

 Introduction

 Admissions and confessions are admissible as exceptions

to the rule against hearsay evidence. These statements are
admissible on the strength that they are based on the
principle that no person can make statement against his
own interest unless it is true.

A. ADMISSIONS
 Definition
According to the Black’s Law Dictionary, the term
“admission” is defined as confessions, concession or
voluntary acknowledgment which is made by a party to the
suit. These are statements which are laid by the parties to a
suit or by parties who are related by some ways to the party
to the suit.
Sarkar (14th edtn, at 261): an admission is
concession or voluntary acknowledgment made by a
party or someone identified with him in legal
interest of the existence of certain facts which
are in issue or relevant to an issue or in the case.

Section 19 of the Evidence Act, [Cap 6 RE

2002] defines the term “admission.”
An admission is a statement, oral or
documentary, which suggests any inference as to
a fact in issue or relevant fact and which is made
by any of the persons and in the circumstances
hereinafter mentioned.
Admissions are “statements”, which may be
oral or documentary in accordance with section
19. This means admission by conduct is
excluded.
Under English law admissions include conduct
of a party. In Bessela v. Stern (1877) 25 WR 561
In an action for breach of promise of marriage, it
is proved that the plaintiff said to the defendant,
“You always promised to marry me, and you
don’t keep your word.” The defendant made no
answer to this assertion, but said he would give
the plaintiff money to go away. His silence on the
subject of marriage was held to be an admission.
Principle of English Law: Silence may
amount to an admission when it is natural to
expect a reply. But when circumstances are
such that a reply cannot reasonably be
expected, the party’s silence in face of a
charge or assertion will not amount to an
admission .
 But, under the Evidence Act conduct is
admissible under section 10.
 Admission as defined by section 19 is
restricted to statements.
Admissions and Confessions ― Relationship
• There is a close relationship between
admissions and confessions:

Both are concessions, acknowledgments,

A confession is a species of which an

admission is the genus,

All admissions are not confessions but all

confessions are admissions,

Both are evidence against interest.

Admissions and Confessions ― Differences
• Admissions are covered by sections 19 ― 26 of
the Evidence Act, [Cap 6 RE 2002] whereas
Confessions are covered under sections 27― 33
of the Evidence Act, [Cap 6 RE 2002].
• A confession indicates guilt, whereas an
admission in a criminal case sometimes relates
to a relevant fact.

• Under the Evidence Act, [Cap 6 RE 2002]

admissions are limited to statements (made oral
or in writing) but confessions are partly defined
by section 3 to include conduct.
• Admissions are wide in scope as they cover both civil and
criminal cases but confessions are narrow in their scope as
they apply to criminal cases only. However, under the
English law admissions are restricted to civil cases.

• Sarkar (14th edtn, p. 264): the acid test which distinguishes a

confession from an admission is that where conviction can
be based on the statement alone, it is a confession and
where some supplementary evidence is needed to
authorize a conviction, then it is an admission.
• No statement that contains self exculpatory matter can
amount to a confession, if the exculpatory statement is one
of fact which is if true would negative the offence alleged
to be confessed. Moreover, a confession must admit in
terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely
incriminating fact is not of itself a confession.
 Read the following cases:

Copa v. R (1953) 20 EACA 318

Sebastian Swai and others v. R, 1973 LRT n.
75
Bampamnyiki s/o Buhile v. R [1957] EA 473
Pakala Narayana Swami v. King Emperor
[1939]1 All ER 397.
Scope of Application of section 19- 22 TEA
According to Sarkar (14th edtn, at 261): it is
not correct to say that admission is usually
applied to civil transactions, and those
matters of fact in criminal cases, which do
not involve criminal intent.
THUS: Sections 19 to 22 of the TEA are
not restricted to civil cases. They also apply
to criminal cases as well.
• Kinds of Admissions
• Admissions are ordinarily categorized into
two: (1) judicial admissions, and (2) extra-
judicial admissions.
1. Judicial (formal) admissions:
They are formal admissions made by parties
during the proceedings of the case. When they are
made they are binding on a party making them.
They constitute a waiver of proof.
Formal admissions are admissible under section
60 of Evidence Act, [Cap 6 RE 2002].
They are scattered in different pieces of legislation
(for instance, see O8 r 3-5 of the Civil Procedure
Rules, 1st Schedule to the Civil Procedure Code, Cap
33 RE 2202]. See also O11 r 22 of the Civil
Procedure Rules (interrogatories).
There is no evidence needed to prove such
admissions that is why the law is not much
concerned itself with formal admissions
2. Extra- judicial (informal) admissions:
They are informal admissions not appearing in
the record of the case.
Unlike judicial admissions they are binding
only partially and not fully except in cases
where they operate or have the effect of
estoppel in which case they are fully binding.
Extra-judicial (or informal admissions) are
usually made in the course of casual
conversation in ignorance of the possibility of
their being used in the future litigation..
 The law is concerned much with informal or
extra-judicial admissions.
Rationale for Admission of Admissions
• Strictly speaking, evidence in the nature of
admission is hearsay evidence. It is so
because it is used by one person who relies
on what another said.
• Admissions are received because of life
experience that human beings tend to say
good things about themselves and on that
account it has to be believed to be true. Thus
in Slaterrie v. Pooley (1840)6 M & W 664,
Parke B partly said: “… what a party
himself admits to be true, may reasonably
presumed to be so.”
Admissions are usually made when a person is
not under any fear or anticipation of any legal
proceedings.
Conditions for the admissibility of Admission
(i) admission of which evidence is sought to be
given must relate to the subject matter in issue,

(ii) Admission must be in the nature of self-

harming (against the interest of the maker) and
not in the nature of self-serving (in favour of the
maker).

(iii) Admissions must be made by persons and in

the circumstances mentioned under sections 20 ―
22 of the Evidence Act, [Cap 6 RE 2002].
 Who May Make Admission?

1. Parties to the suit or proceedings

Section 20(1) of the Evidence Act, [Cap 6 RE
2002].
A party to the proceedings is usually identified
by records or pleadings of the case. Thus,
statements made by parties to the suit or
proceedings which suggest an inference to the
fact in issue or relevant fact may be proved
against them as admissions.
2. Agents of the parties or persons expressly
or impliedly authorised
• Section 20(1) of the Evidence Act, [Cap 6 RE
2002].
An “agent” is a person who manages the
affairs of another person called the
“principal”. The relationship between the two
is a matter of substantive law. Who is an
agent, the court may decide depending on the
particular circumstances. Sometimes an agent
is a representative, deputy, emissary, broker,
attorney, etc.
Admissions of an agent made to third
persons are receivable against his principal
(1) when the agent is expressly authorised to
make them; (2) when the agent is authorised
to represent the principal in any business
and the admissions are made in the ordinary
course of such business.
Thus, statements made by agents of the
parties to the suit or proceedings are binding
on the parties to such suit or proceedings
and may be proved against him as
admission.
Rationale: the law ties the agent with the principal
because it is said whoever puts another to work is
responsible for the deeds of that other person, and
thus the agent’s statement may be used against the
principal.
In Kirkstall Brewery Co.v. Furness Railways Co. (1874)
LR 9 QB 468, the Brewery Company was suing the
Railways Company for loss of luggage through
negligence. The station master had made statement
before the Police when on inquiry to the effect that
the Railway Company had the habit of losing
passengers’ luggage.
• Held: the statement was admissible as an
admission against the Company.
3. Parties to suits suing or being sued in a representative
character
• Section 20(1) of the Evidence Act, [Cap 6 RE 2002].
• A statement made by a person suing or being sued in a
representative character may be used against the person
who is represented. For instance,
• Executor of a will can sue another person on behalf of
the beneficiary of the will. The statement made by the
executor can be used by one party to the case against
the beneficiary.

• A trustee’s statement can be used against the

beneficiary.
• In order for a statement to be admission, it must have
been made by a person at the time when he was acting
under such capacity. (See New’s Trustee v. Hunting
[1897]1 QB 609).
4. Persons having proprietary or pecuniary
interest in the subject matter of the proceedings
• Section 20(3) (a) of the Evidence Act, [Cap 6 RE
2002].
• For instance, the landlord has a proprietary
interest in the leased land; the owner of a
borrowed car, etc. Statements of such persons
may be used as admission against other
persons in relation to the subject matter
(property) in question. For example a
neighbour who is suing a tenant may use the
statement of the landlord against the tenant.
5. Parties from whom parties to the suit or
proceeding derived their interest in the subject
matter of the suit
• Section 20(3) (b) of the Evidence Act, [Cap 6 RE
2002].
• Illustration: If B inherited land from A, and the
land is subject matter of dispute, C can use the
statement of A against B if there is a dispute
between B and C.
• In La Roche v. Armstrong [1922]1 KB 485, it was
held that “I think it is true that if a chattel is
transferred, admissions made by transferor at the
time of or prior to the transfer, which qualify or
affect the title are admissible in evidence against
transferee.”
7. Persons expressly referred to by a party to the
suit
• Section 22 of the Evidence Act, [Cap 6 RE
2002].
• Illustration: There is dispute between A and B.
A tells B to go to C to find a certain
information about a subject matter in dispute,
the statement made by C is admissible against
A.
• Rationale: when a party refers the second party
to a third party for information, the first party is
presumed to undertake to adopt, as his own,
the information furnished by a third party.
 General Rules on Admissions
1. Admission is evidence against its maker (or
interest)
Admissions are generally evidence against their
makers and their representatives-in-interest and
cannot be proved in their favour. This rule is
provided for under section 23.
In Kumar v. Singh AIR 1916 Pat 27, 39 IC 635, it
was held where an execution of a mortgage deed
is admitted and the deed contains a definite
admission by the executants regarding the passing
of consideration, the admission is evidence
against the mortgagors and their representatives
in interest.
Exceptions
• Section 23 also enumerates the exceptions to
this general rule. Admission may be
evidence in favour of its maker in the
following cases:
(i) If the statement was of such nature that, if
the maker were dead, it would be admissible
under section 34. [Section 23(a) of the Evidence
Act]. Section 34 deals with relevancy of
statements by persons who cannot be called as
witnesses.
Illustration I:
• A, the Captain of a ship, is tried for casting
her away. Evidence is given to show that the
ship was taken out of her course.
• A produces a book kept by him in the
ordinary course of his business, showing
observations alleged to have been taken out
of her proper course.
• A may prove these statements, because they
would be admissible between third parties if
he were dead under section 34 (b).
Illustration II:
• A is accused of a crime committed by him
in Mwanza.
• He produces a letter written by himself and
dated at Arusha on that day, and bearing
Arusha post-mark of that day.
• The statement in the date of the letter is
admissible, because, if A were dead, it
would be admissible under section 34(b).
(ii) When admission consists of a statement of the
existence of any state of mind or body, relevant or in
issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct
rendering its falsehood improbable. [Section 23(b) of
the Evidence Act].
 There are three conditions to be fulfilled in order for
this provision to be brought into operation:

(a) Such state of mind or body is in issue or relevant,

(b) The statement is made at or about the time when

such state of mind or body existed,

(c) The statement was accompanied by conduct

rendering its falsehood improbable.
Illustration I:
• A is accused of receiving stolen goods knowing them
to be stolen.
• He offers to prove that he refused to sell them below
their value.
• A may prove these statements, though they are
admissions, because they are explanatory of conduct
influenced by fact in issue.

 The statement made by A refusing to sell the

goods below their market value although they are in
self-harming form are admissible because they are
explanatory of the conduct influenced by the facts in
issue.
Illustration II:
• A is accused of fraudulently having in his
possession counterfeit coin which he knew to
be counterfeit.
• He offers to prove that he asked a skilful person
to examine the coin, as he doubted whether it
was counterfeit or not, and that person did
examine it and told him it was genuine.
• A may prove these facts, though they are
admissions, because they are explanatory of
conduct influenced by fact in issue.
 These facts may be proved by A as they
explain and accompany his state of mind
rendering the falsehood of his statement
improbable.
(iii) If the statement is relevant otherwise than
as an admission. This means that if the
admission is admissible under other provisions
of the Act, it cannot be shut out. [Section
23(c) of the Evidence Act].

 This exception admits admissions in the

self-serving nature which might be admissible
under a different provision of the Evidence
Act or other law.
2. Oral admissions as to the contents of a
document are not admissible. [section 24 of the
Act].
• Section 24 of the Evidence Act echoes the best
evidence rule which holds that it is the best
evidence that must be offered in proof.
According to section 66 of the Act which
provides that “Documents must be proved by
primary evidence except as otherwise provided
in this Act.”
• As Taylor says, “the general rule is that the
contents of a written instrument which is
capable of being produced must be produced by
the instrument itself and not by parol evidence.”
If a documentary statement is to be admitted as
admission, the document itself has to be
produced.

• Exceptions

(i) If it is allowed by the rules of evidence

regarding secondary evidence [sections 63 to 75
of the Evidence Act].  See section 65 (e) of the
Act.
(ii) If there is a question to be resolved as to
whether the document is genuine, then oral
statements may be made.
3. Admissions made without prejudice in civil
cases
• This rule is provided for under section 25 of the
Evidence Act, [Cap 6 RE 2002].
• It is restricted to civil cases only.
• Generally, what the parties expressly agree or
under some circumstances that may be inferred
so by the court, that certain information will
not be given in evidence, then such information
cannot be given in evidence even if it was in the
form of admission.
• The common expression used is “without
prejudice.” It is used to show the intention not
to be bound.
Sarkar (17th edn, at p.585): “The words “without
prejudice” simply mean this: ‘I make you an
offer, if you do not accept it, this letter is not
going to be used against me”[per James LJ] or
“they are tantamount to saying, I make you an
offer which you may accept or not, as you like;
but if you do not accept it, my having made it,
is to have no effect at all.”[per Mellish LJ in re
River Steamer Co., Mitchell’s Claim, LR 6 Ch App
822]
• Thus, generally, admissions made without
prejudice are not admissible under section 25.
• Rationale: the law is trying to encourage
people to negotiate without fear that whatever
they say might be used against them in legal
proceedings.
4. Admissions are not conclusive proof, but may
operate as estoppels
• Section 26 ordains that admission is not
conclusive proof of the matter admitted,
though it may in certain circumstances operate
as estoppel.
• Sarkar: admission is not conclusive unless it
amounts to estoppel. It may be proved to be
wrong; but unless so proved, it is a very strong
piece of evidence against the maker thereof and
is decisive of the matter though not conclusive.
• Estoppel (ss 123-126): rules which prevent a
person from changing his position, who made
the other to believe a certain fact.
5. Admission must be taken “as a whole”
• This principle is not codified in the Evidence
Act but propounded by case law.
• Admission made by a person whether
amounting to a confession or not cannot be
split up and part of it used against him.
Admission must be used as a whole or not at
all.
B. confessions

Confessions are covered by sections 27 ― 33

of Evidence Act, Cap 6 RE 2002.
Confessions apply to criminal cases and thus
narrower in scope whereas admissions cover
both civil and criminal cases and hence
wider in scope.
Confessions are evidence against interest
and not in favour of the maker.
Confessions made in the course of judicial
proceedings are reliable evidence and hence the
two maxims:
(i) Confessio facta in judicio omini probatione major
est (which means confession in judicial
proceedings is greater than any other proof).
(ii) Confessio facta in judicio est plena probatio (which
means that a confession in judicial
proceedings is the absolute truth).
However, the experience has shown that people
may sometimes falsely confess in order implicate
themselves for various reasons. Courts are thus
supposed to be careful.
Confessions, though hearsay in nature, are
admissible on the experience that human beings
tend to say good things about themselves and
hence there is high probability that confessions
are true.
Confessions are of two kinds: judicial and extra-
judicial.
• Judicial confessions are made in the course of
judicial proceedings. For judicial confessions,
see sections 282 and 283 of the Criminal
Procedure Act, [Cap 20 RE 2002], which relate to
the plea of guilty.
Extra-judicial confessions are made out of the
court. Describing the extra-judicial confession,
Rao (p.1350) states thus:
“Extra-judicial confessions are those made by the
party elsewhere than before the magistrate or
court. In short, extrajudicial confessions are those
made by a party to or before a private individual
which includes even a judicial officer in his private
capacity.”
The extra-judicial which is voluntarily made is a
very strong piece of evidence. The Supreme Court
of India, in Kishore Chand v State of Himachal
Pradesh, AIR 1990 SC 2140, commented thus on
the extra-judicial confession:
• “The unambiguous extra-judicial confession
possesses high probative value force. As it is
emanates from the person who committed the crime
and is admissible in evidence provided is free from
suspicion and suggestion of its falsity in its truth.
The court has to look into the surrounding
circumstances and to find whether the extra-judicial
confession is not inspired by any improper or
collateral consideration or circumvention of the law
suggesting that it may not be a true one. For this
purpose, all the relevant facts, such as, the person to
whom confession is made, the time and place of
making it, the circumstances in which it was made
and finally the actual words used by the accused.”

 The law of evidence is, however, much concerned

with extra-judicial confessions than the judicial ones.
• Definition

• Section 3(1) of the Evidence Act, [Cap 6 RE 2002] defines the

term "confession" to mean –
• (a) words or conduct, or a combination of both words and
conduct, from which, whether taken alone or in conjunction with
other facts proved, an inference may reasonably be drawn that
the person who said the words or did the act or acts constituting
the conduct has committed an offence; or
• (b) a statement which admits in terms either an offence or
substantially that the person making the statement has
committed an offence; or
• (c) a statement containing an admission of all the ingredients of
the offence with which its maker is charged; or
• (d) a statement containing affirmative declarations in which
incriminating facts are admitted from which, when taken alone
or in conjunction with the other facts proved, an inference may
reasonably be drawn that the person making the statement has
committed an offence.
• Comments: this definition was introduced by
amendments effected in 1980. Before that year, there
was no definition of the term “confession” in the
Act. It was suggested by the Judicial System Review
Commission. The Commission had noted that lack of
definition was not a happy state of the law and there
were many conflicting decisions [See The Report by
the Judicial System Review Commission, 1977, pp. 264-
65].

• Sir James Fitzjames Stephen made an attempt to

define: “A confession is an admission made at any
time by a person charged with the crime stating or
suggesting an inference that he committed the
crime.”[Stephen, Digest of Law of Evidence].
• In Pakala Narayana Swami v. King Emperor [1939]1 All ER
397, the Privy Council disapproved the definition by Sir
James Stephen. Lord Atkin said that confession cannot
be construed mean a suggestion by a person accused of
an offence that he committed the crime.

“No statement that contains self-exculpatory matter can

amount to a confession, if the exculpatory is of some fact
which if true would negative the offence alleged to be
confessed. Moreover a confession must either in terms
the offence, or at any rate, substantially all the facts
which constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating fact,
is not of itself a confession, for example, an admission
that the accused is the owner of and was in recent
possession of the knife or revolver which caused the
death would not be consistent with the natural use of
language to construe confession.”
The Court of Appeal of Tanzania in Mathei
Haule v. R. [1992] TLR 148 endeavoured to
define “confession” in the following words:
“Confession within the context of criminal
law is one which admits in terms the offence
charged. It is which admits all the essential
elements or ingredients of the offence. An
admission of one or only some of the
ingredients of the offence is not sufficient.”
 TO WHOM CAN CONFESSION BE
MADE
• The Evidence Act, [Cap 6 RE 2002] does not
state exhaustively as to whom the confession
may be made. It merely mentions some
categories of persons to whom confession
may be made. The tradition position of the
Law of Evidence has always been that it is
immaterial to whom confession may be
made. In this respect Rao84 quotes Phipson85
who says:
 “It is in general immaterial to whom a voluntary confession has
been made. Thus, a confession made to a person in authority is
admissible, if not induced by him,while one induced by, though
not made to him will be rejected. So statements made, or letters
written, when in custody, by the accused to the prosecutor,or to
outside friends,where the letter was written after trial and received
on appeal, or to his wife, or statements made by the prisoner to his
wife or even to himself,or confidences to a fellow prisoner
overheard by the police, or statements to solicitor, are admissible, if
independently proved. The confession of a third person cannot be
used in a prisoner’s favour.”

 Thus, generally a confession can be made to any person provided

that it is made voluntarily and it is true.

• READ:
• R. v. Thompson [1893]2 QB 12. ; R. v. Robinson [1917] 2 KB 108. M
Rumping v. DPP [1964] AC 814. and R. v. Gardner and Hanox (1915)
11 Cr App R. 265
• Confession to a Police Officer
• Under section 27(1) of the Act, a confession
made voluntarily to a police officer is
admissible against its maker.
• “A police officer” is defined by section 3(1)
of the Act to mean any member of the
Police Force of or above the rank of
corporal.
• This definition thus excludes a police
constable.
 The meaning of the phrase “police officer” was
considered by the Court of Appeal of Tanzania in
Kennedy Owino Onyachi and others v R , Court of
Appeal of Tanzania, Criminal Appeal No 125 of
2005 (judgment given in 22 December 2009)
nd

(unreported).
 In short, the question was whether the phrase
“police officer” was confined to Tanzania Police
officers or could be extended to cover Kenyan police
officers. After considering the meaning of “police
officer”, “force“97, and “the United Republic”, the
court came to the conclusion that “the term police
officer for the purpose of section 27(1) of the
Tanzania Evidence Act, Cap 6 means police officer
from the police force of the United Republic of
Tanzania.”
 ….
THE HISTORY
Before 1980, the law was that a confession
made before a police officer was not admissible.
This was the position inherited from the Indian
Evidence Act, 1872 (section 25) which applied in
Tanzania until 1967.
Previously, section 27 of the Evidence Act, 1967
provided thus: “no confession made to a police
officer shall be proved against a person accused
of an offence.”
The reason for this exclusion was that native
police officers were regarded as brutal and were
thus likely to extract or extort confessions.
 The Decision of Russel CJ (High Court of Tanganyika) in
Rex v. Asmani Mwakewambwa, 1 TLR (R) 119, expounds the
reason for exclusion of confessions made to police officers:

“In dealing with this question it is necessary to consider what is the

object of section 25, which is a special provision in the Indian
Evidence Act and does not exist in the law of evidence of England.
The Report of the Indian Commissioners shows the reasons which
prompted the legislature to enact section 25. It is because the tendency
of a native police officer who receives an intimation of the occurrence
of an offence of a serious character and who fails to discover the
perpetrator of the offence, to endeavour to secure himself against any
charge of supiness or neglect by getting up a case against parties
whose circumstances and character are such are likely to obtain
accusation of the kind against them. This is not infrequently done by
extorting or fabricating false confessions; and when this step is once
taken, there is of course impunity of the real offenders, and a great
encouragement to crime.”
• In Bampamiyaki s/o Buhile v. R. [1957] EA 473 at
477 the Court of Appeal for Eastern Africa remarked
that section 25 of the Indian Evidence Act, 1872 was
enacted to “guard against the danger of the police
employing coercion or inducement in order to
extract confession”.
• The Judicial system Review Commission showed how
this rule which they described as a “sweeping
exclusionary rule”, was quite unacceptable. It
rejected confessions simply because they were made
to police officers. It used the case of Alli v. R. [1971]
EA 75 [also Mkareh v. R. (1971) HCD n. 74]. In that
case, Mkareh, who was a policeman, killed his wife
in his house which was one of the houses in a police
line alongside Kilwa road in Dar es Salaam. He the
called his neighbour, an off-duty police corporal and
told him: “I have killed, go in and see.”
• The neighbour was then shown the dead body of the latter’s
wife. The corporal was the key witness at Mkareh’s trial. The
defence Counsel objected to admission of evidence by the
corporal because he was a police officer. He cited section 27
of the Evidence Act, 1967. Georges, CJ admitted the
statement on two reasons: first, it did not amount to
confession, and second, it was made to a person who was not
in the capacity of police officer, because the corporal was off-
duty. The accused was convicted.
• On appeal the East Africa Court of Appeal, the decision was
reversed. First it held that the definition that the Chief Justice
had given to confession was too restrictive. And second, what
the Chief Justice did was to interpolate the words “acting in
his capacity as such” after the words “police officer”, which in
their view he was not entitled to do so. To them the true test
was: “was or was not the person to whom the statement was
made a police officer? If the answer is yes, the statement must
be excluded. The conviction was quashed and release of
Mkareh was ordered.
• The Commission was of the view this was a clear
case of miscarriage of justice occasioned by the law.
It went on to make the following recommendation:
“We are, accordingly, of the considered view that the
rule which now makes all confessions made to police
officers by persons accused of crime inadmissible in
evidence should be modified. We would recommend
that the law should be amended so as to make
voluntary confessions given to police officers of or
above the rank of police corporal be admissible in
evidence. We would recommend that the law provide
in no uncertain terms that the onus of proving any such
confessions were obtained from the accused person
voluntarily lies on the prosecution. A confession will be
held not to be voluntary if for instance it is induced by
any threat, promise or other prejudice held out by the
investigating officer or any other person in authority
“…We would recommend that the person the present
law as to the discretion which a court has in
disregarding a confession, if its prejudicial effect
outweighs its probative value, should continue to apply.
We finally recommend that the rule which requires
repudiated or retracted confessions to be corroborated
should also continue in its present form. “To this end,
we would like to explain why we have selected only
certain cadres of the police for the purpose of our
recommendation. We have not done this because we
think police officers below the rank of police corporal
are less trustworthy and more likely to resort to use
force in order to extract confessions from accused
persons or that no black sheep can be found among the
senior ranks of the police force. That is not our reason.
…”
• Compare the provisions of section 27 with
the above recommendations.

 In Shihobe Seni v. R. [1992] TLR 330, the

Court of Appeal agreed to the contention that
a confession made to a member of peoples’
militia was inadmissible because the law
equates such a member to a police constable
[section 3(1) of the People’s Militia Laws
(Miscellaneous Amendments) Act, 1989 (No 9)].
• Confession to a Magistrate
• Section 28 makes confessions which are made
to a magistrate admissible. The term
“magistrate” is defined by the Magistrates’
Courts Act, [Cap 11 RE 2002].
• The term “magistrate” is defined by section 2
of the Magistrates’ Courts Act, [Cap 11 Re 2002]
to mean a primary court magistrate, a district
court magistrate, or a resident magistrate and
also includes civil magistrate and an honorary
magistrate.
• The above definition brings other two terms
which call for definitions― “civil magistrate”
and “honorary magistrate.” They also defined
by section 2 of the same Act.
“Civil magistrate” means a resident magistrate
and such other magistrate as the Chief Justice
may appoint either generally or in respect of
any proceeding or category of proceedings, to
be a civil magistrate.
 “Honorary magistrate” means any person
appointed under section 16 to be, or to perform
the functions of, a magistrate.

In recording confession under this section the

magistrate would not be acting in judicial
capacity but in a different capacity. He is like the
police officer and he would be required to give
evidence on that confession.
• Confession to a Justice of the Peace
• Justices of the peace are allowed to take
confession under section 28 of the Evidence Act,
[Cap 6 RE 2002].
• Section 59 of the Magistrates’ Courts Act, [Cap
11 RE 2002] provides thus,
• A confession made by a person in the custody
of a police officer which is made in the
immediate presence of a justice of the peace
assigned to a district court house may be proved
in evidence in the same manner and to the
same extent as a confession in the like
circumstances in the immediate presence of a
magistrate may be proved.
 Definition of the “justice of the peace” is far from being clear.
The following persons are justices of the peace:

(i) a specified officer [under s 51(1)],

(ii) a person appointed by the Minister [sect 51(2)],
(iii) a primary court magistrate [sect 58(1)],

Analysis of section 27
• Section 27 of the Act is a mere reproduction of the
recommendations made by the Judicial System Review
Commission.
• Two conditions under section 27(1) that attach to the statement
made to a police officer:

(i) voluntarily made, and

(ii) by an accused person

Voluntariness of Confession

The word “voluntary” which is used under sect

27(1) is not defined. But, it is defined in an
indirect way under section 27(3) which defines
the word “involuntary.”
Confession is involuntary if it is induced by
threat, promise or other prejudice. The question
whether a confession is voluntary or not is a
question of fact.
To “induce” means incentive, encouragement
or enticement. The question whether a
confession is voluntary or not is always a
question of fact (Rao, p.1350).
Threat
It is an intimidation of some sort given by a
police officer or other person in authority in
order to induce the accused to confess.
In R. v. Thompson (1783)1 LEACH 291, the
words, “You have had better split and not
suffer for all of them”, were held to be a
threat.
In R. v. Collier and Morris (1848) 3 Cox CC 57,
the statement, “it will be better to tell the
truth as you will save the shame of such
warrant in your house”, was held to be a
threat.
Promise
It is a certain assurance given by a police officer
or a person in authority or any other person to an
accused person to induce him to confess.
• In R. v. Thompson (1989)2 QB 12, Cave, J held
that the statement that, “tell me where things
are and I will be favourable to you” were held
to be a promise.
• In R. v. Boughton (1910) 6 Cr. App. R. 8, a
police officer promised the prisoner, “if you
sign the admission there will be no
prosecution.” This statement was held to be a
promise.
 Principle: an offer of some collateral convenience or
advantage, unconnected with the result of the
prosecution, is not such an inducement as will render
a confession inadmissible.

“Other prejudices”
• The phrase “other prejudices” used in section 27(3)
indicates that categories of prejudices are not closed.
In other words that provision is not exhaustive in so
far as oppressive matters which may induce untrue
confession are concerned.
• A person in authority
• Section 27 (3) provides that an inducement may be
caused by a police officer, any member of the police
force or any other “person in authority” that makes a
confession involuntary.
There is no definition in the Act of who is a
person in authority. But is usually means
whoever involves in investigation, arrest,
prosecution etc. Case law has tried to point
out as to who are persons in authority.
In England the following persons have been
held to be persons in authority: magistrates,
their clerks, coroners, police constables,
warders and others having custody of
prisoners, searchers, prosecutors, their wives
and attorneys.
In East Africa, the case of R. v. Kasule and
others (1948)15 EACA 148, is the case in
which the question whether a local chief
(Gombolola chief) was a person was a
person in authority came under focus.
The three appellants were convicted of
murder but their prosecution depended on
the statement that was made to the chief
who had said, “Tell me how you killed your
father.” The Court held that the statement
was a threat because the Chief was a person
in authority.
 In Tanzania, there are also some decisions on the same
point. In Shihobe Seni v. R. [1992] TLR 330, the Court of
Appeal of Tanzania, decided that a “village chairman” is
a person in authority under section 27 (3) of the
Evidence Act, 1967 and that confession made to him is
involuntary if the court believes that it was induced by
any threat, promise or other prejudice. But, it actually
found that the particular confession was not induced by
threat, promise or other prejudice.
 In Masasila Mtoba v. R. [1982] TLR 131, Katiti, J held
that a “ward secretary” was not such a person in
authority. But subsequently, in the case of Mayaya Ngolela
v. R, CAT, Crim App No 30 of 1990(unreported), the
Court of Appeal held that a “village secretary” was a
person in authority, and that a “village chairman” was
even more so. However, in this latter case, admission was
admitted because there was no evidence that it was
induced by threat, promise or other prejudice.
Who may induce a threat, promise or other prejudice

• The law and the effect of authorities seem to be that

threat, promise or threat may be induced by a police
officer or any other person in authority. It seems the law
does not associate such an inducement with a person
who has no sort of authority.
• The English case of R. v. Gibbons (1823) 1 C & P 97,
illustrates this point. On a charge of murder, a surgeon,
Mr Cozens, was called to prove confession made by the
prisoner to him. He objected to giving evidence on the
ground that when the statement was made he was acting
in the capacity of a surgeon. The objection was however
overruled. He said that he held out no threat promise or
promise to the prisoner, but a woman present said that
she had told the prisoner to tell, and then the prisoner
confessed to the witness (the surgeon).
• Held (Park, J): as no inducement had been held out by Mr
Cozens, to whom the whom the confession was made; and the
only inducement had been held out by (as was alleged) by a
person having no sort of authority; must be presumed that the
confession made was free and voluntary.

• Comments: If the promise had been held out by any person

having any office or authority as the prosecutor, constable, etc.,
the case would have been different; but here some person, having
no authority of any sort, officiously says, “You had better
confess.” No confession follows: but sometime afterwards, to
another person (the witness), the prisoner, without any
inducement held out, confesses. They (the judges) had not the
least doubt that the present evidence was admissible.

Duty to prove that confession was voluntary

• According to section 27 (2) of the Act, the onus of proving that
confession sought to be produced in court was voluntary lies on
the prosecution side.
Rules Governing Admissibility of Confessions

• The general principle is that confession is

provable if it was made voluntarily. If it was
made to a police officer or any other person in
authority then it is admissible if it was not
induced by threats, promise or other threats.
Although the Court of Appeal has decided that
the requirement of voluntariness has exception
it would appear that the Evidence Act, [Cap 6
RE 2002] provides some circumstances where a
confession made be admissible despite the fact
that it was induced by threat, promise or other
threat. Such circumstances are indicated in
sections 29 to 32 of the Act.
1. Confession though induced by threat, promise or other
prejudice is admissible unless the inducement was likely to
cause an untrue confession. This is provided for under section
29.
 In Josephat Maziku v. R. [1992] TLR 227, Justice Katiti said:
“While it is trite law that the condition precedent for the
admissibility of a confession is its voluntariness, a confession is not
automatically inadmissible simply because it resulted from threats
or promise; it is inadmissible only if the inducement or threat was
of such a nature as likely to cause untrue admission of guilt.”

 In Thadei Mlomo and others v. R. [1995] TLR 187, interpreted

this section. Ramadhani, JA (as he then was) delivering the
judgment of the Court said: “This section (section 29) appears
to encapsulate the principle in Tuwamoi’s case, that is, confession
though made involuntarily is admissible if it is true. This Court
has held in Marcus Kisukuli v. R. (unreported) that section 29
cannot be used where there is actual torture. [But] here there was
no proof of torture but only threats thereof.”
 A long thread of authorities, including the above
cited cases, indicated that section 29 permits
admission of involuntary confessions which are
otherwise true. But the Court of Appeal decided to
revisit such cases and impliedly overruled them in
Richard Lubilo and Mohamed Selemani [2003] TLR
149. The following are the authoritative statements
of the Court:
“The law of this country is that in order for a confession to be
admitted in evidence it must be voluntary. The law places
the onus of the prosecution to prove affirmatively the
voluntariness of any confession sought to be put in
evidence. That is a rule of procedure that emerges from the
totality of sections 27 and 28 of the Evidence Act as well as
decided cases over the years. Except in the limited context of
evidence obtained in consequence of inadmissible confessions,
there is no exception or qualification to the rule.”
 Section 29 does not qualify section 27 but it is complementary to
it. What the section (i.e. section 29 of the Evidence Act) does is
to salvage otherwise voluntary confessions which would be lost
if every promise or threat were taken at face value and to exclude
those confessions which are in fact the product of promises and
threats. If the court is of the opinion that the promises and
threats were not of such a nature and were not offered in such
circumstances as to operate on the mind of the accused, the
confession is admissible. Such a confession not being a product
of threats or promises, is a species of voluntary confessions.

 The question whether or not the threat and promises have

operated on the mind of the accused is a subjective one and the
Court will have to decide each case on its peculiar facts. Some
threats and promises may by their nature make no impression on
some people. Should such people go ahead and confess, they will
be taken to do so out of their own free will and their confessions
will be admissible.
• There is distinction between the truths or correctness of a
confession and the truth of self-incrimination by the
accused. Section 29 is not concerned with the former but
with the latter. A confession may therefore be true, that
is, a correct account of what took place, but it may be
false in the aspect of sel-incrimination by the accused.

• Where there is likelihood of an untrue admission being

made, the confession has to be excluded even if it is true
in all other respects.

• It is incorrect to say that involuntary confessions are

admissible under section 29 when they are true. Until the
prosecution have established that the accused was
unlikely to make untrue admission of guilt, the truth of
the statement matters for nothing.
• Torture: the Court of Appeal has taken a
serious view about confessions resulting
from torture. It has held that such
confessions must be rejected without
consideration of whether they are true or
not.
• The most cited case, Marcus Kisukuli v R.,
Criminal Appeal Number 146 of 1993
(unreported), was the one in which this
position was adopted by the Court. (See also
Maona and another v R., Criminal Appeal No
215 of 1992 (unreported)).
 In this respect, torture may be physical as well as mental. In a
recent case, Janta Joseph Komba and 3 others v. R. Court of
Appeal (at Dar es Salaam), Criminal Appeal No 95 of 2006
(unreported), the Court of Appeal interpreted the provisions of
section 50(1) of CPA which limits the period of interview to four
(4) hours. In this case the accused persons had been held in
custody well beyond the statutory period. The Court declared
that illegal incarceration beyond prescribed time amounts to
“torture.” It held at page 10 of the judgment:
“We agree with [the] learned Counsel for the appellant that being in police
custody for a period beyond the prescribed period of period results in torture
either mental or otherwise. The legislature did limit the time within which a
suspect could be in police custody for investigative purposes and we believe
that this was done with sound reason.”

The rationale behind rejection of confessions obtained as a result of

torture irrespective of whether it is true or not is to discourage the
Police and other persons in authority to indulge in the practice of
torture which is inhuman, degrading and unconstitutional.
2. Confession made after removal of impression caused
by inducement
 This is provided for in section 30. A confession made by
a person who was induced by threat or promise but then
such inducement ceases and thereafter confesses, is
admissible.
 The law envisages some passage of time since the
inducement was made and to be presumed that a
confession is not the result of that inducement.

In Josephat Maziku v. R. [1992] TLR 227, through

interrogation by the Sungusungu, the appellant confessed to
have stolen lovre glasses. He was subsequently questioned
by D/CPL Benjamin (Tabora Police station) and confessed
to have stolen the same. In his appeal, the appellant
contended that his confession to the Sungusungu was
extracted by threats and with violence.
Justice Katiti said:
 “Where you have threats and confession far apart
without a causal connection, and no chance of such threats
inducing confession, such confession should be taken to be
free of inducement, voluntary and admissible.”
 “It is a principle of evidence that where a confession is,
by reason of threat, involuntarily made, and therefore
inadmissible, a subsequent voluntary confession by the
same maker is admissible, if the effect of original torture,
or threat, has before such subsequent confession, been
dissipated and no longer the motive force behind such
subsequent confession.”
 In Richard Lubilo and Mohamed Selemani [2003] TLR
149, the Court of Appeal noted that “where the threats
and promises are remote in point of time to the
confession so as to have had no influence on the mind of
the accused such confession is admissible...”
 In an English case, R. v. Smith [1959]2 QB 35, the first
confession made by the accused, a serving soldier, was
rejected because it was made to his Regimental Sergeant-
Major (a person in authority) who had threatened to
keep a number of soldiers on parade until a confession
was forthcoming from one of them. However, when the
treatment had ended, the accused made further oral and
written confessions to regular investigations officers, who
presented no fear of prejudice or hope of advantage.
These latter confessions were admitted .

 In another English case, Prouse v. DPP [1999] All ER (D)

748, it was held that where the accused was at first
improperly denied legal advice, but that impropriety was
corrected before the accused made his confession, it
could not be said that the confession was caused by the
denial of legal advice and the confession was properly
admitted.
• 3. Confession leading to discovery (Section 31 of the
Act).
• If the accused is induced by threat, threat, promise or
other prejudice and thereby confesses and such
confession leads to a discovery of some fact or articles
relevant to the case, the confession would nevertheless be
admissible.
• In Ally Fundi v R. [1983] TLR 210, Samatta J (as he then
was) attempted to interpret this provision when he said:
“Save as for the addition of the words "provided that", this
section is in pari materia with its predecessor, s. 27 of the Indian
Evidence Act, 1872, which was the subject of discussion in
several cases.
In Kenyarithi s/o Mwangi (1956) 23 E.A.C.A. 422 a case
originating from the Supreme Court of Kenya, the Court of
Appeal for Eastern Africa held that the section operated as
provision to section 24,25 and 26 of the same Act, i.e, the Indian
Evidence Act. ..
• It seems to me that there is no reason for taking a different view with regard
to s.31 of the Evidence Act, 1967, when read in relation to s. 27, 28 and 29
of the same legislation before the Evidence (Amendment) Act, 1980, came
into force. If what I have just expressed is correct, it follows that the
confession allegedly made by Hassani Hokororo could, subject to the
limitation imposed by s.31 of the Evidence Act, be admitted in evidence.
What is that limitation? The answer would appear to be, that it is not the
whole of the statement made by the accused in consequence of which the
fact is discovered which is admissible; it is only so much of the statement
which distinctly relates to the fact discovered.
• In other words the information and the fact alleged to have been discovered
should be connected with each other as cause and effect. Any portion of the
information which does not satisfy this test should be shut out of the case.
It should be pointed out, for the avoidance of doubt, I think, that the word
"discovered" is used in the section to mean physically discovered and not
mentally discovered. The rationale behind the section is that if a fact is
actually discovered in consequence of information given, some guarantee is
afforded thereby that the information was true, and accordingly can be
safely allowed to be given in evidence: see R. v Tomu s/o Nuglombe (1943)
10 E.A.C.A. 54.”
• 4. Confession that is admissible does not become
inadmissible because it was induced by promise of
secrecy, deception, or that he was drunk. (Section 32 of
the Act).
According to this section, confession may be admissible
though it is obtained through:
• (i) promise of secrecy, (ii) deception, (iii) while the
accused was drunk, or (iv) made in answer to a question
which was not required to answer, or (v) made as a
consequence of answering a question for which he was
not warned that he was not bound to answer.
• This section seems to widen the scope of illegalities that
may be perpetrated on the accused person and yet
confession induced thereby may be admitted in evidence.
It would that appear that this Provision permits
admission of evidence which is illegally obtatined.
• Read the following:

• 1. In Kuruma v. The Queen [1955] AC 197 [also Kuruma s/o Kaniu

v. Reginam [1955]1 All ER 236]

• 2. Shila s/o Mchomba v R (1968) HCD n 39

• 3. R. v Amiri s/o Rashidi (1968) HCD n 302

• 4. Section 169 of CPA [Cap 20 RE 2002]

• 5. Janta Joseph Komba and 3 others v R., Court of Appeal (At

Dsm), Criminal Appeal No 95 of 2005 (unreported).

• 6. Tumaini Molel@ John Walker and others v R., Court of Appeal

(at Arusha), Criminal Appeal No 40 of 1999 (unreported).
• Illegally Obtained Evidence
• The provisions of sections 29 to 32 of the Evidence Act,
[Cap 6 RE 2002], allow reception of evidence which is
technically obtained illegally. The Courts have never been
pleased with these provisions. The Court of Appeal of
Tanzania has repeatedly cited its decision in Kisukuli’s
case that if the actual torture has been perpetrated then
confession resulting therefrom would be excluded. The
idea behind that policy is that to admit such evidence
would encourage the police to torture accused persons in
order to extract or extort confessions.
• In the USA, the courts have taken a very strict stance of
excluding any evidence that is illegally obtained. In most
cases they have rejected such evidence by invoking the
so-called the “exclusionary rule.” In Weeks v United States,
232 us 383(1914), it was held that evidence obtained as
result of an illegal search was inadmissible in federal
criminal proceedings.
 The two great American judges, Oliver W. Holmes and Benjamin Cardozo, once
debated on the exclusionary rule.
 In People v. Defore (1926) 242 N.Y. 13, at 25: Cardozo J said:

“The question is whether protection for the individual would be gained at a

disproportionate loss of protection for society. On the one side is the social need
that crime shall be repressed. On the other hand, there is a social need that law
should not be flouted by the insolence office. There are dangers in any choice…
We must hold it to be law (that the evidence is admissible) until those organs of
Government by which a change of policy is normally effected shall give notice
to the courts that the change has come to pass.”

• Justice Holmes, on his part, took a different view. In Olmstead v. United

States (1927) 277 US 438 at 470:
“We must consider the two objects of desire, both of which we cannot have and
make up our minds which to choose. It is desirable that criminals should be
detected and to that end that all available evidence should be used. It is also
desirable that the Government should not itself foster and pay for other crimes
when they are the means by which the evidence is to be obtained. We have to
choose and for my part I think it is a lesser evil that some criminals should
escape than the Government should play the ignoble part.”

Holmes’ view is the one which represents the judicial stance in America.
• Confession Implicating Co-accused (Section 33 of the Act).

• The confession of one accused person that touches another or others is

admissible against that another or other accused persons. [S 33(1) of the
Act].
• At common law, it is fundamental principle that confession is evidence
against the maker of the confession only, and not any other person
implicated by it. This common law principle is reflected in sections 27(1) and
28 of the Evidence Act. Both provisions partly provide that confession by a
person “may be proved as against that person.” Thus, section 33 is an
exception to that principle insofar as it allows confession of one person
against another person with whom he is charged.

• Section 33(2) codifies the principle which was propounded by case law that
confession by the co-accused person or accomplice would normally require
corroboration if the person implicated is to be convicted.

• In Selemani Rashid and others v. R. [1981] TLR 252, the appellant and two
others were charged with and convicted of being in unlawful possession of
Government trophy. The basis for convicting the third of the appellants was
a confession by a co-accused implicating him. On appeal convictions of the
first two appellants were upheld but that of the third was quashed.
• Held (Kisanga, J):

(i) as a matter of practice conviction should not be based

solely on the confession of a co-accused.

• Rationale: He (co-accused) may for different motives,

which are not apparent, decide to implicate an innocent
person. He may do so, for instance, out of an old grudge
or some misunderstanding or purely out of malice simply
in order to get a company in sufferance.

(ii) As a matter of practice accomplice evidence requires

corroboration to support conviction.

(iii) Conviction of the third appellant cannot stand having

been based on the confession of his co-accused.
• Why the Law Requires Corroboration in case of
Confession of One Accused Person that Implicates
the Co-accused?
• Confession by one accused person which implicates
another accused is a species of accomplice evidence.
There is thus a need to briefly discuss on the
evidence by an accomplice.
• Section 142 of the Evidence Act, [Cap 6 RE 2002]
provides:
• An accomplice shall be a competent witness against
an accused person; and conviction is not illegal
merely because it proceeds upon the uncorroborated
testimony of an accomplice.
• This section enacts that an accomplice may give
evidence and a person can be convicted solely on the
evidence of an accomplice.
 ….
• Why the Law Requires Corroboration in case of
Confession of One Accused Person that Implicates
the Co-accused?
• Confession by one accused person which implicates
another accused is a species of accomplice evidence.
There is thus a need to briefly discuss on the
evidence by an accomplice.
• Section 142 of the Evidence Act, [Cap 6 RE 2002]
provides:
• An accomplice shall be a competent witness against
an accused person; and conviction is not illegal
merely because it proceeds upon the uncorroborated
testimony of an accomplice.
• This section enacts that an accomplice may give
evidence and a person can be convicted solely on the
evidence of an accomplice.
• Who is an accomplice?
• The Evidence Act does not define the term an “accomplice.”
• In Davies v. DPP [1954] AC 378, Lord Simmonds, LC, had the
following to say:
• “My Lords, I have tried to define the term “accomplice”. The
branch of the definition relevant to this case is that which covers
“particeps criminis” in the respect of the actual crime charged,
whether as principals or accessories before or after the fact.”
• In Watete v. Uganda [2002]2 EA 395, the Court attempted to
define the term “accomplice.” It said:
• “A witness would be an accomplice if he participated as a
principal or an accessory in the commission of the offence, and
the evidence of an accomplice would not be relied on to convict
without corroboration.”
• Thus, an accomplice is generally a party to a crime. He is a
witness who seeks to give evidence against his own associate
with whom they committed the offence together.
Who is an accomplice?

The Evidence Act does not define the term an “accomplice.”

• In Davies v. DPP [1954] AC 378, Lord Simmonds, LC, had the
following to say: “My Lords, I have tried to define the term
“accomplice”. The branch of the definition relevant to this case
is that which covers “particeps criminis” in the respect of the
actual crime charged, whether as principals or accessories before
or after the fact.”
• In Watete v. Uganda [2002]2 EA 395, the Court attempted to
define the term “accomplice.” It said: “A witness would be an
accomplice if he participated as a principal or an accessory in the
commission of the offence, and the evidence of an accomplice
would not be relied on to convict without corroboration.”

• Thus, an accomplice is generally a party to a crime. He is a

witness who seeks to give evidence against his own associate
with whom they committed the offence together.
Repudiated and Retracted Confessions

• The Evidence Act, [Cap 6 RE 2002] is silent on the repudiated and

retracted confessions. It often happens that the prosecution
produces a statement made by an accused person out of court to
prove the charge. It is also very common for the accused persons
to object to such statements. They may do so by “repudiating” or
“retracting” such statements.
• The distinction between repudiated and retracted statements was
made in the famous case in East Africa, Tuwamoi v. Uganda
[1967] EA 84. In this case, the East Africa Court of Appeal after
discussing different issues, it partly said at 88: “We now come to
the distinction that has been made over the years between a statement
“retracted” and statement “repudiated”. The basic difference is, of
course, that a statement retracted occurs when the accused person admits
that he made the statement recorded but now seeks to recant, to take back
what he said, generally on the ground that he had been forced or induced
to make the statement, in other words that the statement was not a
voluntary one. On the other hand a repudiated statement is one which
the accused person avers he never made.”
• Thus, a “retracted confession” is that one which the
accused acknowledges that he made it but it was untrue
on account of prejudice perpetrated against him. On the
other hand, a “repudiated confession” is one which the
accused totally denies to have made it; it is total
concoction of the police or however is concerned.

Resolution of a dispute over the disputed statement

• When an accused retracts or repudiates a confession,
which was sought to be produced by the prosecution, this
indicates a dispute. The court has to resolve that dispute
before proceeding to determine other matters. The
common practice is to conduct the so- called “trial within
a trial” in order to determine whether the confession was
voluntarily made or even made at all. A similar
procedure before a subordinate court is called an
“inquiry.”
High court
• The procedure of the trial within a trial was stated by the Eastern Court
of Appeal in the case of Kinyori s/o Karuditu v. R.(1956) 23 EACA 480.
The same Court reiterated the same procedure in Ezekia v. R. [1972] EA
427. That procedure may be summarised as follows:
(i) If the defence is aware, before the commencement of the trial, that
such an issue will arise; the prosecution should be informed of that
fact. Having been informed, the prosecution would refrain from
mentioning anything in relation to the statement in the presence of
the assessors.
(ii) When the stage is reached at which the issue must be tried, the
defence should mention to the court that there is a point of law to be
resolved and submit that the assessors be asked to retire (withdraw
from the court room). This must be done before any witness testifies
in relation to the statement. The insistence is that it should be quite
early before any such witness goes to the witness box.
(iii) The court will then order the lay members of the court (the
gentlemen or/and ladies assessors) to retire, i.e. to go out of the court and stay
at a distance long enough not to hear or even see anything in the courtroom.
(iv) After the departure of the assessors, the prosecution (upon whom the
burden to prove the statement lies) will call its witnesses including, of course,
the person to whom the statement was made, the interpreter (if any) and any
other person . acquainted with the fact in issue. These witnesses would be
examined-in-chief in a normal way, and then the defence will cross-examine
them. (See Sect.27(2) TEA.1967
(v) in a normal way, and then the defence will cross-examine them.
(v) The accused has the right to give evidence or to make a statement from the
dock, and to call witnesses, whose evidence will be limited to the issue of the
admissibility of the statement. The accused and his witnesses (if any) will be
cross-examined by the prosecution on the issue of admissibility of the
statement and never on the general issue in the main trial.
(vi) Having heard both sides of the case, the judge will then make a ruling
either to admit the statement or to exclude it, and pronounce that ruling to the
parties.
(vii) After the ruling, the lay members of the court (the assessors) would be
called back to retake their seats in the courtroom and the main trial would
then resume.
• If the statement is admitted, witnesses who had been called
during the trial within trial will have to give evidence for the
second time but this time before the assessors.
• The effect of authorities is that this procedure is applicable to the
High Court but not in subordinate courts. In subordinate courts,
a procedure called “an inquiry” is applicable (Masasila s/o Mtoba
v. R. [1982] TLR 131].
Subordinate Court
• The procedure of conducting inquiries in subordinate courts was
recently stated by the Court of Appeal in the case of Seleman
Abdallah and 2 others v. R., Criminal Appeal No 384 of 2008
(unreported). The court partly held: “…since the end result of a
trial within a trial and an inquiry is the same, we are of the
considered opinion that the procedure (modus operandi) to be
followed by a subordinate court in determining the voluntariness
of such statement should be the same. So, the procedure of
conducting a trial within a trial which is normally conducted in
High Court where it sits with assessors should also be applicable
in subordinate courts when conducting an inquiry, save that
portion pertaining to retirement and recalling of assessors.”
Evidentiary Value of Retracted and Repudiated Confession
• Confession of a person is a good proof against him and he may
be convicted solely on it. In Taylor on Evidence, 11th Edtn, at p.
584 (cited in Tuwamoi’s case, at p.90), it is said:
• “Indeed all reflecting men are now generally agreed that
deliberate and voluntary confessions of guilt, if clearly proved,
are among the most effectual proofs in law, their value depending
on the sound presumption that a rational being will not make
admissions prejudicial to his interest and safety unless by the
promptings of truth and conscience.”
• But, when confession is retracted or repudiated its evidentiary
value depreciates. It cannot, generally, be the basis of conviction
unless it is believed to be true. In Emperor v. Shambhu and another,
ILR (1932), 54 All 350, Sir Grimwood Mears, CJ, said: “The
evidentiary value of a retracted confession is very little and it is a
rule practice, also a rule of prudence, that it is not safe to act on a
retracted confession of an accused person unless it is
corroborated in material particulars.”
• Thus, in the leading case of Tuwamoi v. Uganda [1967]
EA 84, the Court noted:
“We would like to summarise the position thus ― a trial
court should accept any confession which has been
retracted or repudiated with caution, and must before
founding a conviction on such a confession be fully satisfied
that in all the circumstances of the case that the confession
is true. The same standard of proof is required in all cases
and usually the court will only act on the confession if
corroborated in some material particular by independent
evidence accepted by the court. But corroboration is not
necessary in law and the court may act on a confession
alone if it is fully satisfied after considering all the material
points and surrounding circumstances that the confession
cannot but be true.”
 …
This principle has been accepted and followed by courts in Tanzania even
after the demise of the East Africa Court of Appeal in 1977.

In Ali Saleh Msutu v. R. [1980] TLR 1, it was argued for appellant at his
trial that since he denied making the statement sought to be admitted as a
confession, such confession must be treated as repudiated thus requiring
corroboration to support conviction.
Held (Nyalali, CJ, delivering the judgment of the court):

 Extra judicial statement by an accused amounted to a confession, but

since the accused denied making it, it must be regarded in law as
repudiated confession.

 A repudiated confession, though as a matter of law can support

conviction, generally requires corroboration as a matter of prudence.
• READ: Hamisi Athumani and two others v. R. [1993] TLR 110,
• Hatibu Gandhi (Captain Hatty McGhee) and others v. R. [1996] TLR 12