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Q&A – 10 July 2017

Donating my dead body

I do not wish to be buried when I die and want to donate my eyes and other organs to those in need. I also want my body to be used for medical or other research. Can I provide for this in my Will and can any of my family members challenge this? Can a religious service still be held for me?
EO, Dar

A Will is the legal declaration of a man’s intention, which he wishes to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death. Section 2 of the Probate and Administration of Estates Act, defines a will to mean a legal declaration of the intentions of a testator with respect to his property, which he desires to be carried into effect after his death.

A person making a Will is not restricted to indicate whatever he or she wishes to be done when he passes away unless it is contrary to the laws. Since there is no law in Tanzania which bars people from donating their organs and bodies for medical research, and since this is not against public policy, you are allowed to do so.

In response to whether or not your family can challenge your Will, whilst challenging a Will is not easy, it leads to delays in the granting of probates. If such a challenge is launched than you may not be able to donate any of your organs as we believe the organs must be donated within a few hours of ones death for them to be effectively used. Thus, taking the conservative side, we recommend that you inform your loved ones at the outset of your intentions and perhaps even have them sign on a piece of paper consenting to this and confirming that they will not challenge your wish. We believe a funeral service for you can still be held, although there will be no body to bury.

We recommend you check this with your religious leader to confirm. Donor donations are really helpful for persons in need and whilst conducting our research we came across the following myths which we share with you: (a) Qs: I’m too old to be a donor, you wouldn’t want my organs! Answer: you are never to old and infact most organ donors are older people. (b) Qs: I’ve got long term health problems, so there’s no way I can donate. Answer: having a medical condition does not necessarily prevent a person becoming an organ or tissue donor. (c) Qs: They won’t want my organs!

Doctors won’t do enough to save me if I they know I am a donor. They’ll be more interested in taking my organs to save someone else. Answer: there is no connection between the doctor who is saving your life and the one who will do the transplant. (d) Qs: It’s against my religion to be a donor. Answer: most major religions of the world do not object to organ donation. (e) I don’t need to tell my family that I want to be a donor because I have it written in my will. Answer: by the time your Will is opened you will already be buried hence recommended to inform your family prior.

Plea bargaining in Tanzania

My brother is accused of armed robbery. Whilst I must admit that he is guilty, he was not armed at all. Are there any provisions of law that allow an accused person in a criminal case to plead guilty and the prosecutor or magistrate reduces the charge or sentence?
DF, Mwanza

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement between the prosecutor and accused whereby the accused agrees to plead guilty to a particular charge in return for some reduction of sentence or a sort of concession from the prosecutor. This may mean that the accused will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges. It may also mean that the accused will plead guilty to the original criminal charge in return for a more lenient sentence.

A plea bargain allows both parties to avoid a lengthy criminal trial and allows the accused to avoid the risk of conviction at trial on a more serious charge. For example, in the U.S. legal system, an accused charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry a custodial sentence but a community service sentence.

Plea bargaining is a controversial subject in many jurisdictions. In Tanzania, our penal statute or the criminal procedure act do not have a provision for plea bargains. However we are informed that the office of the DPP was proposing to introduce this, but any such proposal will require the blessing of the parliament by amending and/or inserting such a provision in our penal statutes.

It must be stated that there are various such provisions in our tax statutes where the TRA can compound offences, which effectively means that they convert (by compounding) tax evasion or other serious noncompliance issues that are criminal in nature for which you one can be imprisoned, to a fine and/or penalty.

Intoxication in criminal law

I have recently moved to Tanzania and want to know to what extent is intoxication a defence in Tanzanian laws? Is this taken up as seriously as in the Western world?
EF, Mtwara

Intoxication is usually no defence in criminal law unless the intoxication is not self-induced, or the person intoxicated was insane at the time of committing such an offence. Section 14 of the Penal Code specifically deals with this.

We must point out that under our laws, Intoxication is taken up seriously, although the implementation of such provision is weaker than in the western hemisphere.

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