Q&A – 7 November 2016

Wife reads old emails, wants divorce

My wife and I are happily married until recently when she started retrieving my pre marriage e mails where she found some romantic mails with my previous girlfriend. She says that I should have told her about this before marriage. I responded that she had never asked and that I have never communicated with the ex after marriage. She also had boyfriends whose details I never asked on the notion that the past is buried behind you. My wife is now seeking a divorce from me. What should I do?
QP, Dar

The Law of Marriage Act of Tanzania provides for specific grounds that can be adduced in a petition seeking divorce.  For example one cannot simply get a divorce in Tanzania by consent of the husband and wife. Some of the common grounds are cruelty, adultery and dessertation. It is quite clear that you do not fall under the category of adultery, assuming that you have told us the truth in that you have never met the ex after marriage. We find it hard to believe that your wife would just out of the blue decide to check your emails of many years before. If you are hiding anything from us, then please ignore this response. However we continue answering your question assuming you have not concealed anything from us.

The other common ground for divorce is dessertation which we also believe does not apply in this case. Cruelty which might apply is also quite remote. For example can your wife claim that you have been cruel by not disclosing your ex? We doubt it unless there are other extraordinary circumstances that are not known to us.

All in all, we do not see how your wife’s petition will succeed on the ground as stated in your question. We suggest that you both seek counseling as it seems there might be more to this than meets the eye.

Ignorance of the Law

Is Ignorance of the law a proper defence in a criminal case? If not, what are the other available defences that I may use?
LA, Mwanza

You have not told us what you are charged with but it is a general principle of law that ignorance of the law is not a defence unless the knowledge of the law is expressly declared to be an element of the offence. There are other defences which a person may use when charged with a criminal offence which are: bona fide claim of right, mistake of fact, insanity, intoxication, immature age, compulsion, defence of person or property, compulsion by husband, necessity etc.

These defences require extensive explanation and some lead to total acquittal and others  may simply reduce the sentence or may cause sympathy of the Court. Had you told us what you are charged with, we would have been able to advice you on which defence you should opt for. Kindly consult your attorney for further guidance.

Coming into force an Act

When does an Act come into force? I find it very hard to understand when an act is in force and when it isn’t. What about regulations under an Act? What if the regulations brings in new provisions not in the Act?
TU, Dar

The Interpretation of Laws Act has specified when an Act would come into force. In section 14 it states that every Act shall come into operation on the date of its publication in the Gazette or, if it is provided either in that Act or in any other written law, that it shall come into operation on some other date, on that date.

This Act further says where any written law, or portion of a written law, comes into operation on a particular day, it shall come into operation at the beginning of that day.

Where a date appearing on a copy of an Act printed, or purporting to be printed, by the Government Printer, purports to be the date on which the President assented to such Act or to a portion of it, that date as so appearing shall be evidence that such date was the date on which the President so assented, and shall be judicially noticed accordingly.

Hence to understand when an Act comes into force you would need to read the Act itself and see if there is any other date that is mentioned therein, otherwise it is the date of its publication in the Government gazette.

As for the regulations, the Interpretation of Laws Act clearly states that subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency.

Further where any subsidiary legislation purports to be made in exercise of a particular power or powers, it shall be deemed also to be made in exercise of all powers under which it may be made. It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed.

This Act also states that where a written law confers a power to make subsidiary legislation, it shall be deemed also to include a power exercisable in the like manner and subject to the like conditions (if any) to amend or repeal any such subsidiary legislation; and if the person on whom such power is conferred has been replaced wholly or in part by another person, the power conferred by this subsection upon the original person may be exercised by the replacing person concerning all matters or things within his jurisdiction as if he were the original person. And where a written law confers power on a person to make subsidiary legislation for any general purpose and also for any special purposes incidental thereto, the enumeration of the special purposes shall not derogate from the generality of the powers conferred with reference to the general purpose.