Archives

Q&A – 20 June 2016

Exchange of spousal blows

In an argument my husband hit me in the face that caused some serious bruises. I did not take this forward or report the matter. Few months ago, after an argument, I threw a wheel spanner at my husband and injured his shoulder. I was kind enough to take him to hospital where another argument erupted and he ended reporting me to the police. The police are now after me wanting to charge me in Court. I told them about my incident and they are reluctant to offset what happened to me against what I did to my husband. Can I be charged?
OP, Dar

It seems you assaulted your husband and you may be charged. Depending on the type of assault, if convicted you can be imprisoned for upto 5 years. In criminal law, an eye for an eye is no defence in the circumstances you have mentioned.

The police are therefore right in charging you. You should also formally report your husband hitting you to the police as that is an offence although with the time having lapsed the police may be less inclined to charge him. Husbands and wives attacking each other are offences under our Penal Code, and both of you may end up in jail.

Since this hate has come after your love, we strongly suggest you find a mediator or counsellor to assist resolve your differences. It would be unfortunate if both of you end up in jail. As for “offsetting” this is not an accounting debit-credit where the two hits neutralize each other- they don’t, and the state takes such assaults seriously.

Upstream operations dispute

We are unable to understand the provisions of dispute resolution on block boundaries under the Petroleum Act 2015, where it says such decisions are not appealable. Also how can the fair competition authority decide upstream petroleum disputes? Can you provide further insight?
FE, Dar

Section 242 of the Petroleum Act states that (1) PURA (Petroleum Upstream Regulatory Authority) may inquire and decide all disputes between a person engaged in exploration or development operations, either among themselves or in relation to themselves and third parties other than the Government not so engaged, in connection with- (a) the boundaries of any exploration area or development area; (b) any act committed or omitted, or alleged to have been committed or omitted, in the course of, or ancillary to, exploration or development operations; (c) the assessment and payment of compensation pursuant to this Act; or (d) any other matters in relation to exploration and development operations. (2) PURA may, refuse to decide any dispute referred to under this Part and, if it does so, shall notify the parties to the dispute in writing accordingly. (3) No appeal lies to a Court against a refusal of PURA made under subsection (2) to determine matters. (4) PURA may make any decree or order which may be necessary for the purpose of giving effect to its decision in proceedings pursuant to this Part, and may order the payment, by any party to a dispute, of such compensation as may be reasonable, to any other party to the dispute.

Section 244 further states that any person aggrieved by a decision, decree or order

of PURA made or given pursuant to this Part, may appeal to the Fair Competition Tribunal within the period of thirty days after the decision, decree, or order is given or made.

Section 245 states that a person shall not commence proceedings in a Court

in respect of any dispute of a kind referred to in section 240 unless PURA has refused pursuant to subsection (2) of that section to decide the dispute.

Hence PURA has a right to determine a dispute unless it refuses to entertain it. If PURA proceeds to decide a matter, that decision can be appealed to the Fair Competition Tribunal which is established under the Fair Competition Act 2003. In the event PURA decides not to determine the dispute, parties are free to go to Court. What is not appealable is the decision of PURA not to entertain a dispute. You can still go to Court to determine the dispute.

Notwithstanding the above, the Petroleum Act is a very recent law, and fully respects agreements entered into under the older legislation. Hence if a compant has a PSA in place,  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.

Living above income level

There are public officials living above their income levels. Is there no law that calls for them to be investigated?
YU, Mwanza

Section 27 of the Prevention and Combating of Corruption Act addresses this that (1) A person commits an offence who, being or having been a public official- (a) maintains a standard of living above that which is commensurate with his present or past lawful income; (b) owns property disproportionate to his present or past lawful income, unless he gives a satisfactory explanation to the Court as to how he was able to maintain such a standard of living or how such property came under his ownership.

Where a person is convicted of the above offence, he or she shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding seven years or to both. The Court may additionally order the confiscation of any pecuniary gain or property- (a) found to be in the ownership of the accused; and (b) of an amount or money value not exceeding the amount or value of pecuniary gain or property the acquisition of which was not explained to the satisfaction of the Court.