The key is to distinguish between:
1. giving evidence as a witness; and
2. being sued or prosecuted for acts committed while President.
Those are not the same issue.
1. Former/retired President as a witness
Section 8 of the Presidential Affairs Act, Cap. 9 R.E. 2023 protects “the President” from a court process compelling his or her personal appearance. It states that a process cannot be issued requiring or compelling the President’s appearance “in any capacity,” including as a witness.
The important question is whether that protection continues after retirement.
The better interpretation is: no, the special protection against compulsory attendance in section 8 is attached to the office of the President, not permanently to the individual after leaving office.
Once a President ceases to hold office, he or she is no longer “the President” for purposes of that provision. Therefore, the former President generally becomes subject to the ordinary rules governing witnesses.
In other words:
A sitting President is not a compellable witness; a retired President can generally be summoned and compelled to give evidence, subject to ordinary evidentiary privileges and procedural requirements.
2. But Article 46(3) gives a retired President a different immunity
This is where the issue becomes interesting.
Article 46(3) of the Constitution provides that, except where the President leaves office through the special impeachment process under Article 46A(10), it is prohibited to institute criminal or civil proceedings against a former President for anything he or she did in the capacity of President while in office.
So Article 46(3) creates continuing immunity from proceedings concerning official presidential acts.
But that does not necessarily mean the retired President cannot ever be a witness.
For example:
If former President X personally witnessed an accident while President, retirement does not make X legally incapable of giving evidence about what X saw.
If X possesses relevant information concerning a transaction, the fact that X is a former President does not automatically make X incompetent as a witness.
But if the proceeding is actually brought against X concerning an official act performed as President, Article 46(3) becomes relevant and may bar the proceeding itself.
Therefore, immunity from being sued is conceptually different from immunity from being called as a witness.
3. What about acts done in a private capacity?
Article 46(2) is also important. It concerns civil proceedings against the President in his or her personal capacity as an ordinary citizen, including matters occurring before or after assuming presidential office.
The Presidential Affairs Act also contains provisions dealing with civil proceedings and the consequences of the President leaving office. For example, the Act specifically addresses proceedings relating to the President’s personal capacity and limitation periods after retirement.
Thus, retirement does not create a blanket immunity from every legal process.
4. The High Court has dealt with the effect of Article 46(3) on former Presidents. In Phinas Abamwesiga Kalokola v His Excellency the President of the United Republic of Tanzania & 2 Others, Misc. Civil Cause No. 6 of 2020 [2021] TZHC 5520, the court discussed Article 46(2) and proceedings involving acts of the President, including the distinction between proceedings against the President personally and proceedings concerning presidential acts.
This supports an important analytical approach: presidential immunity must be examined according to the nature of the legal proceeding and the capacity in which the former President is involved.
The statutory immunity in section 8 of the Presidential Affairs Act against compulsory appearance is directed at the sitting President. Upon retirement, the former President is generally subject to the ordinary law concerning witnesses. However, Article 46(3) of the Constitution continues to protect a former President from civil and criminal proceedings concerning acts performed in the capacity of President, subject to the constitutional exception concerning removal under Article 46A(10).
So, do not confuse “immunity from proceedings” with “immunity from giving evidence.”
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