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Q&A – 19 September 2016

Kleptomania as a legal defence for stealing

My friend suffers from an irresistible impulse to steal. It is a condition that he seems to have inherited. Can he use this as a defence if he is caught stealing?
GL, Morogoro

Kleptomania is the inability to refrain from the urge to steal items and is done for reasons other than personal use or financial gain. One gets a release of pressure following the theft.

Our research reveals that in states or countries folowing the M’Naghten rule, proving kleptomania would normally be no defence. To prove the insanity defense under M’Naghten, you have to show that you had a mental defect that either prevented you from understanding the nature and quality of your act, or that prevented you from understanding that it was wrong. Kleptomaniacs generally understand perfectly well what they’re doing, and that it’s criminal and indeed, many suffer overwhelming guilt, or at least fear of arrest. Hence it is unlikely that this defence will work.

Having stated the above, we must state that a number of American states follow the A.L.I. (American Law Institute) definition of insanity, which also allows for a not guilty verdict if the defendant “lacks substantial capacity . . . to conform his conduct to the requirements of the law.”  This is also like the “irresistible impulse” test for insanity.  However we don’t think a court would take judicial notice that all kleptomaniacs are inherently unable to resist stealing at all times and places, so simply proving that you were a kleptomaniac would probably not be enough to get one off.

We strongly suggest that instead of looking for defences for this condition you should look at trying to treat it. You need to consult a psychiatrist.

Change of law, breach of agreement

We have a very strong agreement with the Government that the law shall not be changed in a certain project. Of recent the same law that we depended on that would protect us has been changed. We do not intend to apply this new law as the agreement is clear in that the law remains the same for us. Please guide.
PD, Dar

Article 62 of our Constitution states that (1) There shall be a Parliament of the Untied Republic which shall consist of two parts, that is to say, the President and the National Assembly.

(2) The National Assembly shall consist of all categories of members specified in Article 66 of this Constitution, who shall all be designated as Members of Parliament. (3) Whenever any matter requires to be decided or done by both parts of Parliament in accordance with the provisions of this Constitution, or of any other law, then that matter shall not be taken to have been duly decided or done unless it is decided or done by the Members of Parliament and also by the President in accordance with their respective authority in relation to that matter.

The parliament therefore constitutes of the National Assembly that you see on TV debating in Dodoma. However the parliament also constitutes of the President on the other part and this fact is forgotten by many. Therefore you will see that even if the national assembly passes a bill it must get presidential assent without which it cannot become law.

Further article 64 of the Constitution provides that (1) Legislative power in relation to all Union Matters and also in relation to all other matters concerning Mainland Tanzania is hereby vested in Parliament.

Therefore it is the Parliament that makes or changes the law and nothing can stop the Parliament from making new laws or changing current laws. This power cannot be taken from the parliament under any circumstances as it is provided for by the Constitution.

What your agreement likely provides is that the change of law shall not apply to your project to the extent possible, and if it indeed changes, you have no choice but to follow the law and claim for damages under the agreement. Your agreement doesn’t and cannot freeze the law, but would likely allow you to claim against the government in case the law is changed to your detriment.

We do realise that there have been recent changes to the laws in tax and the petroleum industry. However these new laws have tried, to an extent, to carve out and protect investors like yourselves.

For example section 100(3) of the Tax Administration Act 2015 provides protection to investors by stating that any international agreement made by the Government of the United Republic that is effective under the respective tax laws at the time this Act comes into effect shall continue to have effect under this Act.

Infact international agreements like bilateral treaties between governments are also given precedence over tax laws as provided for in section 7(1) that states that the provisions of an international agreement which the United Republic is a party shall to the extent that the provisions of the agreement are inconsistent with the provisions of any tax law, prevail over the provisions of the tax laws.

Another example is the recently enacted Petroleum Act 2015 in section 260(3) states that all existing licences granted or agreements entered for the purpose of carrying out petroleum operations or petroleum supply by a person to whom the licence was issued under the Petroleum (Exploration and Production) Act or the Petroleum Act shall be deemed to have been granted or made for the purpose of this Act and shall remain in force and effect until lawfully determined.

We believe that the Government and the Tanzania Revenue Authority are doing everything possible to carve out the effect of such change in laws to existing agreements that the Government realises were entered into in different circumstances when times were different. We believe that the intentions of the Government is to attract investment and create a stable fiscal and tax regime.