Q&A – 16 September 2013

Obtaining mobile information

I think my wife is cheating because she is always so busy with her phone. I attempted to get her text and call history from the mobile company that she is using but they refused on the grounds that such information is confidential and they can’t divulge the same to me. How can I get that information from the mobile company? Please note I wish to obtain them without her knowing. Also is kissing adultery? Can the person who my wife is committing adultery with made a party in the divorce case?
KL, Arusha

The Tanzania Communications (Consumer Protection) Regulations states that a licensee shall not monitor or disclose the content of any information of any customer transmitted through the licensed systems, except as required or permitted by any written laws in force. Hence the mobile company is right to prevent you from obtaining your wife’s phone records.
You should also note that the right of privacy is protected under the constitution of the United Republic of Tanzania.

Legally, the mobile company will be under obligation to divulge that information if the owner of the number requests for the same or under the order of the court with requisite jurisdiction or if the police require the same for investigation purposes.

If it is necessary for you to prove whether your wife is faithful or not, we advise you to communicate with your wife to request the mobile company to provide her with the required information to which you can take a look at, otherwise it is unlikely that any court will give you such order based on cheating allegations alone. Your next remark will be that a cheating wife (or husband for that matter) will not cooperate with the other half. That is true and unfortunately a man and wife are treated separately in as far as personal privacy is concerned.

We now turn to your second question on whether kissing is adultery. Fortunately or unfortunately adultery is not defined in the Law of Marriage Act of Tanzania. Kissing is also not defined as you could have a lip kiss, cheek kiss and other forms of kissing, some of which depending on the type of tradition and culture one dwells from might be very common and unlikely to be deemed adulterous. For example a lip kiss that lasts a little longer might be clear signs that an adulterous relation exists whereas a cheek kiss is quite standard these days. It is hard to respond to your question without knowing the type of kiss, the duration, the frequency, the parties involved to mention a few but generally any form of sex is what constitutes adultery.

Lastly on whether the person with whom your wife is suspected be joined in the divorce petition, the answer is yes but subject to the directions of the Court you may join such a person as a co respondent. You may also claim damages from such a person. We recommend you consult your lawyer for further guidance.

Fat man, small seat

I took a flight out of Dar to an overseas destination and was made to sit next to a man who was extremely fat. He was easily over 160 kgs. I am not sure how he managed to actually sit in economy class. When he slept he snored and his hands would touch mine. Is there no weight restriction for economy class. I must confess that it was a really bad experience for me. Whilst I feel sorry for the fat passenger, I think the airline should have a fat man’s cabin somewhere. After the plane ride, whenever I see even a thin air hostess, she looks fat to me! What can I do?
YE, Dar

You have not disclosed us what airline this was but generally speaking there is no rule that requires a fat person to buy two tickets or upgrade to business class. However quite a few airlines now require such passengers, in the interest of safety and comfort of the passenger and others, to buy two tickets and if the plane is not full, the second ticket is reimbursed. In fact some airlines have stricter policies in that you would not be able to board if you have an economy class ticket but the size of the seat does not fit you.

In view of the above, and since you had a contract of carriage with the airline, we suggest you ask for a refund from the airline due to the discomfort you suffered. Likely the airline will give you a free ticket. Your lawyer can guide you further.

Intoxication as a defence

I went to a kitchen party of a friend, had too many drinks and committed an offence that I cannot tell you about. I feel very bad about it but this was due to the drinks I had. Is it a crime if I committed it when I was drunk? What should I do?
WL, Dar

The Penal Code is quite clear about this in that (1) intoxication shall not constitute a defence to any criminal charge and (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know what he was doing and— (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under the preceding subsection is established, then in a case falling under paragraph (a) thereof the accused shall be discharged and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.

From reading the above clearly intoxication is no ground for you to be held not guilty otherwise many crimes will go unpunished. Your lawyers can guide you further.