Section 194 unconstitutional for violating equal protection; Parliament given 12 months to amend.

The petitioner, a human rights advocate and practising advocate of the High Court of Tanzania, challenged the constitutionality of section 194 of the Criminal Procedure Act [Cap. 20 R.E. 2023] and the Witness Protection Regulations, 2025, insofar as they govern witness protection in criminal proceedings. He contended that the provision, which empowers the Director of Public Prosecutions (DPP) to apply ex parte for witness protection orders, violated Articles 12 and 13 of the Constitution by undermining equality before the law, equal protection of the law, and the right to a fair hearing. Specifically, the petitioner argued that vesting the power to seek protective measures solely in the DPP limits protection in practical effect to prosecution witnesses and affords no corresponding mechanism for defence witnesses to obtain similar safeguards. The respondents maintained that the provision was constitutionally sound, that ex parte applications were necessary to safeguard witnesses, and that existing statutory remedies sufficiently protected the accused's rights.

1. Whether section 194 of the Criminal Procedure Act, by vesting the power to seek witness protection solely in the DPP and thereby effectively limiting protection to prosecution witnesses, violates the principles of equality before the law and equal protection of the law under Articles 12 and 13 of the Constitution. 2. Whether permitting ex parte witness protection applications without an express inter-partes hearing mechanism violates the right to a fair hearing under Article 13(6)(a) and (b) of the Constitution.

The Court held that section 194 does not violate equality before the law, as that doctrine concerns the non-arbitrary enforcement of legislation rather than its textual design. However, by vesting the power to apply for protective measures solely in the DPP, the provision in practical effect limits protection to prosecution witnesses and denies defence witnesses comparable safeguards, thereby violating the principle of equal protection of the law. The Court further held that ex parte applications for witness protection are justified by the protective objective of the provision and are interlocutory in nature. As such, they do not determine the final rights of the parties and do not contravene the constitutional guarantee of a fair hearing.