Mwanza – In a landmark decision delivered on February 16, 2026, the High Court of Tanzania declared section 194 of the Criminal Procedure Act unconstitutional to the extent that it denies defence counsel the right to apply for protective measures for their witnesses.
The court, in a constitutional petition brought by human rights advocate Godfrey Mjuni Martin Basasingohe, found that the provision violates the doctrine of equal protection of the law guaranteed under Article 12(2) of the Constitution of the United Republic of Tanzania.
The ruling comes amidst a heated legal battle over the use of secret witnesses in the high-profile treason case against CHADEMA national chairperson, Tundu Lissu.
The court ordered that, pending legislative amendment, any ex-parte protective measures granted under section 194 shall be subject to urgent inter-partes review upon application by an accused person or their advocate.
This decision effectively allows Mr Lissu and other accused persons to challenge the anonymity of witnesses testifying against them.
READ MORE: High Court Approves Secret Witnesses in Another Tundu Lissu Case
The petitioner, Mr Basasingohe, had argued that section 194 of the Criminal Procedure Act and the recently enacted Witness Protection Regulations, 2025, create a procedural imbalance that undermines an accused person’s right to a fair trial.
His counsel, Mr Elias Hezron, contended that the law grants the Director of Public Prosecutions (DPP) the exclusive right to apply for witness protection, leaving the defence with no equivalent mechanism to protect its own witnesses.
“One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent,” the petitioner argued, citing the European Court of Human Rights.
The State, represented by Mr Edwin Webiro, had argued that the provision does not prevent the defence from seeking protective measures and is necessary to ensure the safety of witnesses and the integrity of criminal proceedings.
However, the court, in its ruling, drew a distinction between “equality before the law” and “equal protection of the law.”
Equal protection
While the court found that section 194 does not violate the principle of equality before the law, it held that it does violate the doctrine of equal protection. The judges reasoned that by vesting the power to apply for witness protection solely in the DPP, the law creates an unequal playing field.
READ MORE: High Court Orders Witness Protection in Treason Case Against CHADEMA Leader Tundu Lissu
“The impugned provision denies the defence the right to apply for the protection of its witnesses, thereby creating unequal protection of law between prosecution and defence witnesses,” the court stated in its ruling.
The court also addressed the issue of ex-parte applications, where the DPP can obtain protective orders without the accused being present.
While the court agreed that such measures are necessary to protect witnesses from intimidation, it found that the existing avenues for appeal or revision are inapplicable to these interlocutory orders.
This, the court reasoned, necessitated the creation of a new mechanism for urgent inter-partes review.
Partial victory for Lissu
The ruling has been hailed as a partial victory for Mr Lissu, who has been a vocal critic of the use of secret witnesses in his trial. His defence team has consistently argued that the practice is a “mockery of justice” and a violation of his right to a fair trial.
READ MORE: Court Hands Tundu Lissu Partial Victory in Secret Witness Battle, Trial to Proceed
In a court session on February 9, 2026, Mr Lissu argued that the witness booth, or kizimba, was so restrictive that even the judges could not see the witness, making it impossible to assess their demeanour.
“Allowing evidence of this kind will be a mockery of justice,” Mr Lissu told the court. “If you allow this procedure that they want to bring here, then we must forget about a fair trial.”
The use of secret witnesses has been a contentious issue in Tanzania, particularly following the gazettement of the Witness Protection Regulations in July 2025.
Critics, including opposition-aligned legal analysts, have argued that the regulations were strategically tailored for Mr Lissu’s case. Proponents, however, maintain that the rules are a necessary reform to protect witnesses in serious criminal cases.
This landmark ruling by the High Court sets a new precedent for witness protection in Tanzania, seeking to balance the need to protect vulnerable witnesses with the fundamental right of an accused person to a fair trial and equal protection under the law. The full impact of the decision on the ongoing treason trial of Mr. Lissu and other similar cases remain to be seen.
