There is a very important distinction between being legally competent to give evidence and being legally compellable to attend court.
Under Tanzanian law, the three offices are not treated in exactly the same way. The President enjoys a special statutory protection that the Vice-President and Prime Minister do not.
1. General rule: who can be a witness?
The starting point is section 127(1) of the Evidence Act, Cap. 6. It establishes the general rule that every person is competent to testify unless the court finds that the person cannot understand the questions put to him or her or cannot give rational answers because of tender age, extreme old age, disease or a similar cause.
Therefore, merely holding a constitutional office does not ordinarily make a person incompetent to be a witness.
The crucial question is therefore:
Is the person merely competent to testify, or can the court compel that person to attend and testify?
That distinction determines the answer for the President.
2. The President of the United Republic
A. The President is a competent witness
There is no general rule in the Evidence Act declaring the President incompetent to give evidence. In principle, therefore, the President possesses the ordinary legal capacity to give evidence.
However, competence is not the same as compellability.
B. The President cannot be compelled to attend court as a witness
The decisive provision is section 8 of the Presidential Affairs Act, Cap. 9 R.E. 2023.
Section 8(2) provides that, subject to subsection (3), no process may be issued by a court requiring or compelling the President’s personal appearance or attendance “in any capacity.” It also prohibits process compelling the President to produce any person or thing.
This is exceptionally broad. It is not limited to the President appearing as a defendant. It expressly covers attendance “in any capacity”, which includes attendance as a witness.
More specifically, section 8(3) deals with an application to compel the President to appear as a witness. The court may notify the President of the application, but it cannot issue the compulsory process.
Thus:
The President is competent to give evidence, but is not a compellable witness.
This position was recognized in Mwalimu John Mhozya v Attorney General [1996] TLR 303, which has been relied upon by the High Court in subsequent proceedings concerning presidential immunity. The principle is that where an application is made to compel the President’s attendance, the court may notify the President but has no power to order his attendance.
The same principle was discussed in Ado Shaibu v Honourable John Pombe Magufuli & Others, Misc. Civil Cause No. 29 of 2018, where the High Court considered the scope of presidential immunity and referred to Mhozya.
C. Does this mean the President can never testify?
Not necessarily.
Section 8 prohibits a court from issuing compulsory process. It does not say that the President is incapable of voluntarily providing evidence.
Therefore, the legally accurate position is:
The President can be a competent witness. The court cannot compel the President’s attendance as a witness.
A court may receive evidence from the President if the President voluntarily chooses to give it, subject to the applicable rules of evidence and procedure.
If a party applies for a summons requiring the President to testify, the court may notify the President but cannot issue the compulsory process.
This distinction is important. Saying simply “the President cannot testify in court” is technically too broad. The better statement is “the President cannot be compelled to attend court as a witness.”
3. Constitutional basis of presidential immunity
The position is reinforced by Article 46 of the Constitution of the United Republic of Tanzania, 1977.
Article 46(1) provides immunity from criminal proceedings during the President’s tenure of office. Article 46(2) regulates civil proceedings concerning matters done or omitted in his personal capacity, while Article 46(3) extends protection concerning acts performed in the capacity of President after leaving office, subject to the constitutional exception.
However, an important analytical point must be made:
Article 46 principally concerns immunity from legal proceedings. The specific rule preventing compulsory attendance as a witness is found in section 8 of the Presidential Affairs Act.
Therefore, you should not rely on Article 46 alone to answer the witness question. The strongest authority is:
Article 46 of the Constitution + section 8 of the Presidential Affairs Act.
4. The Vice-President
The position of the Vice-President is different.
The Presidential Affairs Act itself defines the Vice-President and Prime Minister, but its special protection against compulsory attendance in section 8 is expressly directed at “the President.”
There is no equivalent provision in section 8 granting the Vice-President immunity from being summoned as a witness.
Consequently, the Vice-President is generally subject to the ordinary rules governing witnesses.
Under section 127(1) of the Evidence Act, the Vice-President is competent to testify unless the ordinary grounds of incompetence apply.
More importantly, unlike the President, there is no special statutory provision preventing a court from issuing a summons requiring the Vice-President’s attendance as a witness.
Therefore:
The Vice-President can be a witness and, in appropriate circumstances, can be compelled to attend and testify before a court.
This does not mean that every question can necessarily be asked or every document can necessarily be demanded. Other evidentiary privileges, confidentiality rules, national-security considerations and procedural rules may still apply.
But the constitutional office of Vice-President, by itself, does not create the same immunity from compulsory attendance enjoyed by the President.
5. The Prime Minister
The same basic analysis applies to the Prime Minister.
The Prime Minister is not covered by the special protection in section 8 of the Presidential Affairs Act because that provision is specifically concerned with the President.
Accordingly, the Prime Minister remains subject to the general law of evidence.
Section 127(1) of the Evidence Act establishes the general presumption that every person is competent to testify.
The ordinary civil procedure rules also recognize the power of parties to obtain summonses requiring persons whose attendance is necessary to give evidence or produce documents. Order XVI of the Civil Procedure Code provides for summoning and attendance of witnesses.
Therefore:
The Prime Minister can be a witness and may, subject to the ordinary law and any applicable privilege, be summoned and compelled to testify.
6. Comparative position
The key distinction is therefore:
Competence is not compellability.
The President is competent but specially protected against compulsory attendance.
The Vice-President and Prime Minister are generally both competent and compellable.
7. Why does the law protect the President?
The immunity should not be understood as placing the President “above the law.” Rather, it is an institutional protection designed to prevent the judicial process from unnecessarily interfering with the functioning of the Head of State.
The Presidential Affairs Act goes further than merely protecting the President from being sued. Section 8 protects the President from compulsory attendance and production processes.
The High Court’s approach in Mwalimu John Mhozya v Attorney General [1996] TLR 303 demonstrates that the protection is intended to prevent the court from issuing an order compelling the President’s attendance.
This is better understood as immunity ratione officii or institutional immunity attached to the office, rather than an assertion that the President possesses greater evidentiary credibility or is incapable of being a witness.
8. The stronger legal formulation is:
“The President is legally competent to give evidence, but is not compellable to attend court as a witness. By virtue of section 8(2) and (3) of the Presidential Affairs Act, Cap. 9 R.E. 2023, the court cannot issue process compelling the President’s personal attendance, although the court may notify the President of an application seeking his attendance as a witness.”
Then contrast this with the Vice-President and Prime Minister:
“No equivalent statutory immunity from compulsory attendance is conferred upon the Vice-President or Prime Minister. They therefore fall under the general rule of section 127(1) of the Evidence Act that every person is competent to testify, and may ordinarily be summoned and compelled to give evidence, subject to applicable privileges and procedural limitations.”
Conclusion
The correct position under Tanzanian law is therefore not that all three constitutional leaders are immune from giving evidence.
The President has a special position: competent, but not compellable. The Vice-President: competent and generally compellable. The Prime Minister: competent and generally compellable.
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