Q&A – 20 April 2020
Coughing with Coronavirus
If a person infected with Coronavirus jokingly coughs on the other and infects him, can that be an offence? What if that person dies, can the offence be murder?
GJ, Dar
We are not sure what you mean by jokingly. In any case infecting another person with Corona can be a crime under section 16(a) of the Public Health Act, 2009 or section 179 of the Penal Code, amongst other laws. In order to prefer a charge under section 16(a) of the Public Health Act, 2003 there must be evidence proving that the accused knew or had reasons to think that he is infected and he also knew that his conduct or act that caused Corona was likely to infect another. Even section 179 of the Penal Code requires proof of the same elements and provides that “any person who unlawfully or negligently does any act which is and which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to human life is guilty of an offence”
If the victim dies the offence will likely not be murder but may be manslaughter. However, in order to charge manslaughter it must be proved that the act causing infection was a negligence amounting to high degree of disregard for human life, which from the facts it would seem likely to be proven. It is not enough to merely prove that the accused was negligent. It must further be proved that he acted with recklessness amounting to a high degree of disregard for human life.
All in all, coughing and intentionally trying to infect someone is a serious offence and in this era, when the whole world is affected, will not be lightly taken in Tanzania.
Constitutional entitlement to luxuries
My parents had me when they knew or ought to know that they are poor and cannot provide me with the luxuries of life that I am constitutionally entitled to. I have been reading about the law and want to take them to task by suing them both so that other Tanzanians are scared of having children when they don’t have money. How do you suggest I take this forward? Also, do I have the choice of parents in that can I switch to richer parents?
TR, Dar
First and foremost, the luxuries of life are not provided by our or any other constitution that we are aware of. You are living in dreamland, not even Disneyland.
We don’t see any cause of action that arises from the facts you have provided. Most parents do, indeed, struggle to bring up their children, and unless there is something you have not disclosed to us, we believe you have no chance of succeeding in this case.
Unsuccessfully suing your parents will not scare Tanzanians from having children- we are a proud nation and will remain so.
On switching to parents, we are unfortunately not sure what you mean. Do you mean if you can switch to richer parents so that you have the luxuries that you want? You sound like you are willing to be displayed at a supermarket shelf waiting for a rich couple to take you with them. Apart from this being impossible, it is illegal. We suggest you work on enriching yourself by educating yourself. A very notable leader once said that ‘struggle is the meaning of life, defeat or victory is in the hands of God.’
No punctuation in legal drafting
I am a proponent of difficult and without punctuation legal drafting. The older documents really make a lawyer valued. With the current ease in drafting I believe the profession has gone backwards. I wish to embark on a campaign of change and request your opinion.
PO, Mwanza
Everyone has their views on this. However, with punctuation and simple plain English, it has made the law simpler to understand. After all, what is the use of a document if a normal person cannot understand it.
There was no punctuation in the olden times because people used to write with their hands, and having punctuation could result in someone inserting commas to change the meaning. This chance of potential forgery resulted in no punctuation at all. However, with technology this has changed.
The legal profession has changed drastically over the past decades and we believe it is in the right direction and you need not embark on a campaign, which, in any case might fail.
Take an example of the following without punctuation: This man said the Judge is a fool. There are two variations to this. The first which won’t please a judge is ‘This man said, the Judge is a fool! The second variation would be ‘This man, said the Judge, is a fool.’ By changing the position of the comma, you would know whether the judge or the man is the fool!
Same Court, two different judgments
There were two cases of different parties going on in two different Courts. The issues were more or less similar. One Court ruled exactly opposite of the other. How can the Courts do such a serious blunder? I have reported this to the Chief Justice. Please guide further.
YU, Dar
We are sorry for your disappointment but it is not uncommon for such an occurrence in many Court systems around the World, Tanzania being one of them. That is the reason there is normally one Appellate Court in the country and the parties can appeal to this Court where one judgment will ultimately be issued.
There is a principle of stare decisis by which judges are obliged to respect the precedent established by prior decisions. Generally speaking, higher Courts do not have direct oversight over the lower Court of record, in that they normally do not reach out on their own initiative at any time to overrule judgments of the lower Courts.
Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher Courts. If a judge acts against precedent and the case is not appealed, the decision will likely stand.