Mwanza. The High Court of Tanzania has delivered a landmark constitutional ruling, declaring that legal provisions allowing certain prosecution witnesses to testify in secrecy fail to ensure equal justice for all parties.
In a judgement delivered on Monday, February 16, 2026, a three-judge panel ruled that the current legal framework granting "hidden witness" protection disproportionately favours the Republic (the prosecution) while denying equivalent procedural rights to the defence.
The case, filed by prominent advocate Godfrey Basasingohe, was heard by Judges Fahamu Mtulya, Kamana Stanley, and Wilbert Chuma.
The bench concluded that Section 194 of the Criminal Procedure Act (CPA) falls short of the equality guarantees enshrined under Articles 12(1) and 13(1) of the Constitution of the United Republic of Tanzania.
"Within 12 months from the date of this decision, Section 194 of the CPA should be amended by Parliament to reflect the principle of equal legal protection. Failure to do so will render the section legally void," the judges ordered.
Context of the ruling
The ruling arrives at a sensitive time for the Tanzanian judiciary, as the country follows the high-profile treason trial of the Chadema national chairman, Mr Tundu Lissu.
In those proceedings, several witnesses have testified under anonymity, with their identities withheld from the accused and the public.
Under the current arrangement in such cases, only prosecution lawyers are aware of the witnesses’ identities, while judges observe them from a shielded enclosure.
This practice has ignited a nationwide debate over how to balance witness safety with an accused person’s right to a fair and transparent trial.
The legal challenge
The constitutional petition, numbered 22482 of 2025, named the Attorney General (AG) and the Director of Public Prosecutions (DPP) as respondents.
Advocate Basasingohe, represented in court by Mr Elias Hezron, argued that the exclusivity of Section 194 of the CPA creates a "procedural tilt" that undermines the 1977 Constitution.
Specifically, the petitioner sought five remedies, including a declaration that both Section 194 and the 2025 Witness Protection Regulations contravene the Mother Law by failing to extend similar protections to defence witnesses.
Mr Basasingohe argued that allowing the DPP to make ex parte (one-sided) applications for witness protection, without the input of the accused or their counsel, deprives the defendant of the right to be heard.
He maintained that this violates the presumption of innocence and the right to a fair hearing.
Furthermore, the petitioner requested the court to compel Parliament to establish clear, bilateral procedures for witness protection that would allow the defence to shield its own witnesses from potential intimidation or harm.
Pending these legislative amendments, the petitioner had asked the High Court to issue interim orders requiring that any one-sided protection measures be subject to rapid review by both parties upon application.
The State’s defence
In response, the State, represented by State Attorney Edwin Webiro, argued that Section 194 was a necessary tool for the administration of justice in a modern legal landscape.
The AG and the DPP contended that the law does not violate constitutional rights but rather safeguards the integrity of the judicial process.
Mr Webiro argued that the DPP is empowered to seek protection at any stage to ensure witness safety, and that such measures apply "indiscriminately" to anyone facing credible threats.
The State maintained that the secrecy of the application process is essential to prevent the very harm the law seeks to avoid, asserting that the defence’s claims of constitutional violation were unfounded.
The bench’s findings
In their deliberations, the judges focused on whether the lack of opportunity for an accused person to contest a witness protection application breached Article 13(6), which guarantees the right to be heard.
While the judges acknowledged that witness safety is a legitimate state interest, they found a critical flaw in the "one-way street" nature of the current law.
"It is our view that Section 194 does not violate legal equality principles in theory, but it breaches the fundamental principle of equal legal protection in practice," the panel noted.
"The section denies the defence the right to seek protection for its witnesses, resulting in unequal legal protection between prosecution and defence. Only prosecution witnesses benefit, while defence witnesses are excluded," they added.
The court further clarified that while orders under Section 194 are interlocutory, meaning they regulate the presentation of evidence rather than determining ultimate guilt, they still carry significant weight in the fairness of a trial.
The judges noted: "Interlocutory orders under Section 194 do not constitute final remedies and cannot be challenged via ordinary appeal procedures. This makes it even more vital that the initial process is grounded in equality."
Implications for Parliament
The High Court’s 12-month ultimatum places the onus on the National Assembly to draft amendments that equalise the "shield" of witness protection.
Legal analysts suggest this may require the creation of an independent witness protection agency or a revised judicial protocol where both the DPP and defence counsel can apply for protective measures under a standardised set of criteria.
The ruling has been hailed by human rights activists and the Tanganyika Law Society (TLS) as a victory for the rule of law, ensuring that the "equality of arms" principle remains a cornerstone of the Tanzanian criminal justice system.
If Parliament fails to act within the year, the striking down of Section 194 could temporarily halt the use of anonymous witnesses in all ongoing criminal trials, including high-stakes cases currently before the courts.
