Plea Bargaining in Zanzibar: A Comparative Narrative with Mainland Tanzania.

✨ Plea Bargaining in Zanzibar: A Comparative Narrative with Mainland Tanzania

Author: Joseph Kisole (PhD), Esq

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Plea bargaining has become an increasingly important tool in the administration of criminal justice across East Africa. Both Zanzibar and Mainland Tanzania now recognize it formally, but they do so through different legal instruments and philosophies. In Zanzibar, the system is governed by the Plea Bargaining Rules, 2006, issued under section 390 of the Criminal Procedure Act, 2004, and reinforced by the Criminal Procedure Act, 2018 (“CPA 2018”).  Mainland Tanzania, by contrast, adopted its comprehensive framework much later, with the Criminal Procedure (Plea Bargaining) Rules, 2021, made under Section 194 of the Criminal Procedure Act [Cap. 20 R.E. 2019] 

What emerges is a fascinating comparison: Zanzibar’s framework, though older, is stricter and court-centric, while Mainland Tanzania’s is newer, more flexible, and geared towards procedural efficiency.

To begin with, in Zanzibar, judicial oversight is embedded from the very beginning. No negotiation can take place without the knowledge of a magistrate or judge, and the written consent of the Director of Public Prosecutions (DPP) is mandatory.  This ensures that the court is not a mere recipient of agreements but an active supervisor from the outset. The judicial officer must confirm that the accused understands the meaning and consequences of pleading guilty and must also ensure that the decision is made voluntarily and without coercion.  For example, in cases where an accused person has limited education or faces complex charges, the magistrate must take additional steps to confirm comprehension. On the other hand, Mainland Tanzania developed differently. Historically, bargaining took place outside the court system, with the DPP and defence concluding agreements privately before involving the court. The 2021 Rules sought to correct this by requiring notification of the court once the intention to negotiate is declared, but the depth of judicial involvement is less intrusive than in Zanzibar. 

Further, the treatment of evidence disclosure shows another striking difference. Mainland Tanzania’s 2021 Rules introduced a major reform; the prosecution is now under an express duty to disclose all evidence obtained during investigations, a safeguard meant to level the playing field and help accused persons make informed choices.  As a result, the accused in Mainland cases can evaluate the strength of the prosecution’s case before entering into a plea agreement. Zanzibar’s 2006 Rules are less explicit about disclosure. Instead, they frame protection around voluntariness and understanding, requiring the court to be satisfied that the accused has grasped the facts, supported by witness statements and exhibits. In particular, this places the burden on the judiciary to ensure fairness, whereas on the Mainland, the burden is shifted toward prosecutorial transparency.

In addition, the scope of offences that may be resolved through plea bargaining differs between the two systems. In Zanzibar, neither the 2006 Rules nor the CPA 2018 expressly excludes categories of offences. This technically leaves open the possibility of bargaining across a wide range of offences, provided the DPP consents and the court is satisfied. In practice, however, very serious offences such as murder, treason, terrorism, and other crimes carrying the death penalty are rarely considered suitable. The High Court, exercising its powers under sections 244 to 246 of the CPA 2018, often rejects bargains in such cases because justice requires a full trial. A recent example illustrates this in practice: in Mwanakhamis Juma Khamis v. DPP (Zanzibar High Court, 2025),  the accused was charged with misappropriation under the Zanzibar Anti-Corruption and Economic Crimes Act No. 1 of 2012. The court approved a plea bargain and discharged the accused on condition that he paid the agreed sum. This outcome demonstrates how economic and corruption-related offences, rather than capital crimes, have become the main candidates for plea bargaining in Zanzibar, showing both the flexibility and the limits of the system.

By contrast, Mainland Tanzania adopts a more explicit and reformist approach. The 2021 Rules specifically extend plea bargaining to a wide range of offences, including those that carry severe statutory minimum sentences. Economic crimes, sexual offences, and drug-related offences, which in the past were considered too rigid for negotiation, are now expressly included. For example, an accused charged under the Economic and Organized Crime Control Act can negotiate compensation or restitution as part of a plea deal. The Rules address long-standing fears by allowing accused persons and prosecutors to propose alternative sentences, while giving the court discretion to impose penalties even below statutory minimums when justice so demands. Still, as in Zanzibar, offences carrying the death penalty, such as murder and treason, remain outside the scope of plea bargaining. Consequently, the Mainland system reflects a conscious policy choice to widen the availability of plea bargaining as a means of promoting efficiency, while keeping capital crimes beyond its reach.

Moreover, the rights of accused persons within the process highlight differences in philosophy. Mainland Tanzania’s 2021 Rules explicitly empower accused persons to participate actively in the negotiation, particularly where issues of compensation or restitution arise. The accused may even propose the inclusion of compensation terms in plea agreements, giving them a formal role in shaping outcomes. In Zanzibar, the 2006 Rules are silent on such active involvement, focusing instead on voluntariness and fairness. Nevertheless, section 313 of the CPA 2018 empowers courts to make compensation orders, which means restitution can still be built into plea agreements, albeit more indirectly, through judicial authority rather than accused-driven proposals.

Equally important, the question of sentencing reveals perhaps the sharpest contrast between the two systems. Mainland Tanzania’s reforms were designed precisely to address the rigidity of minimum statutory penalties, which had long discouraged accused persons from negotiating. For instance, drug trafficking and sexual offences previously discouraged negotiations because of harsh minimum custodial sentences. The 2021 Rules now allow sentencing flexibility, enabling the court to impose penalties below statutory minimums where justified by the agreement. Zanzibar’s approach remains more conservative. Although the High Court has discretion to accept, reject, or modify plea agreements, the Rules do not expressly allow for departure from statutory minimum penalties. As a result, sentencing flexibility is more tightly controlled by judicial authority in Zanzibar, and less open to negotiated compromise than on the Mainland.

Finally, the role of defence counsel further illustrates this divergence. In Zanzibar, the 2006 Rules impose clear ethical duties on advocates. They may only advise a guilty plea if satisfied of the client’s guilt, and must ensure the plea is voluntary, informed, and free from inducement. On the other hand, Mainland Tanzania’s Rules recognize the role of advocates but frame it more in terms of representation within the procedural structure, without codifying the same affirmative ethical responsibilities.

In conclusion, the two systems reveal distinct philosophies. Zanzibar emphasizes judicial oversight, prosecutorial consent, and advocate responsibility, producing a cautious and court-driven model. Mainland Tanzania, by contrast, emphasizes prosecutorial disclosure, active accused participation, widened eligibility, and sentencing flexibility, reflecting a reformist and process-driven model. Consequently, while both systems ultimately pursue the same goal, speeding up the resolution of criminal cases while protecting fairness, they do so through different lenses. Zanzibar’s model is conservative, judicially controlled, and rights-oriented, while Mainland Tanzania’s is pragmatic, process-driven, and reform-focused. Taken together, they highlight how two jurisdictions under a shared union structure can develop distinct approaches to the same criminal justice tool, shaped by their legal traditions and policy priorities.

References

1. Criminal Procedure Act Cap. 20 R.E. 2019

2. Criminal Procedure Act, 2018 (Zanzibar) 

3. Plea Bargaining Rules, 2006 (LN No. 52 of 2006), made under s. 390, CPA No. 7 of 2004.

4. Criminal Procedure (Plea Bargaining) Rules, 2021 (GN No. 180 of 2021), CPA Cap. 20 R.E. 2019.

5. Mwanakhamis Juma Khamis v. DPP [2025] TZZNZHC 40 (Zanzibar HC). CRIMINAL CASE NO 36 OF 2024 (CRIMINAL CASE NO 36 OF 2024, DPP VS MWANAKHAMIS JUMA KHAMIS) [2025] TZZNZHC 40 (13 March 2025) - ZanzibarLII 

6. Controller & Auditor General Report, cited in The Citizen (2023), “Plea Bargaining Plot Thickens as CAG Recommends Further Probe.” CAG reveals improvement in public expenditure, but… | The Citizen