Q&A – 30 November 2020

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Kissing a woman without consent

After having too many drinks, I ended up lip kissing a woman in a bar. I did apologise but it seems like she intends to report this to the police. Is being drunk a defence to this? This is the third time this has happened to me whilst drunk and I think I might need medical help.
FU, Dar

Before you get into further serious trouble you might want to consider keeping your lips to yourself and, indeed, get a medical check done.

Kissing a woman in a bar without her consent amounts to an offence of sexual harassment. Under section 138D(1) of the Penal Code [Cap. 16 R.E 2002], sexual harassment attracts a penalty of imprisonment for a term not exceeding 5 years or a fine not exceeding TZS 200,000.

However, section 138D(2) of the Penal Code requires a complaint of sexual harassment to be concluded within 60 days from the date of event. This means that if investigation and prosecution takes longer than 60 days, the suspect or the accused has the right to demand that investigation be stopped if it is still underway, or if the case has been taken to Court the accused will have the right to ask the Court to terminate the charges against him on the grounds the charge has expired since it has taken more than 60 days since the alleged crime of sexual harassment was committed. Sexual harassment is one of the few offences that have such an expiration period. Many offences do not expire and you will see many investigations going on for months and even years.

According to section 16 of the Penal Code, intoxication can be used as a defence to a charge of sexual harassment where it is proved that the offender was so drunk that he was unable to know that what he was doing is prohibited by the law. If the offender seems to recall all what happened at the time of committing the crime, then his defence of intoxication cannot stand. In any case, this defence cannot stand on its own and it depends on other surrounding facts. Your lawyers can guide you further.

Consumption of traditional liquor called Gongo

I live in the UK but am Tanzanian by birth. There is one drink that I miss the most and it is called Gongo. I intend to visit Tanzania soon and want to make sure I introduce this drink to my friends. However some of my English friends googled this and found out that it might be illegal to consume Gongo. Kindly guide me as it is a liquor that we need to market to the world.
GO, London

Under section 31 of the Traditional Liquor (Control and Distillation) Act [Cap.384 R.E 2002] it is a crime to consume traditional liquor commonly known as gongo, machozi ya simba, umeme, chahng’aa, supu ya mawe. The offence of consumption of traditional liquor attracts a penalty of up to five years in jail. It is interesting to note that while the law allows distillation or supply of gongo if the distiller or supplier is licenced, the same law does not exempt from liability the offenders who have consumed traditional liquor sold to them by licenced distillers or suppliers.

Gongo is considered harmful to the body because of the chemicals used to make it. From the little research we did, we learnt that consumption of heavy doses of gongo can also lead to blindness. All in all, it is illegal to consume gongo and your English friends are right. Your vision of marketing gongo to the world will first require it to be legalized in Tanzania and that can only be achieved by changing the law.

Residence permit of divorced wife

What happens to the immigration status of a married woman who was living on the residence permit of her husband, in the event she gets divorced? Is she forced to leave Tanzania?
UF, Tanga

Section 39(2) of the Immigration Act [Cap.54 R.E 2016] allows a divorced wife living in Tanzania on a residence permit of her husband to continue staying for a period of one month after her divorce. Staying beyond one month after the divorce is illegal. However, the Commissioner General of Immigration has powers to extend the duration of stay of the divorced wife for a period he may specify. The Minister for Home Affairs also has the powers to direct that the divorced wife living on the residence permit of her husband be allowed to stay in Tanzania beyond the prescribed period of one month after the divorce.

Time for selling intoxicating local liquor

Every December I go back to my home village. I get quite surprised when I see the village leaders arresting people who sell intoxicating local liquor for reason that it is not the time for selling the local liquor. Does the law provide the time for selling local liquor?
UK, Dar

Section 33 of the Intoxicating Liquors Act [Cap.77 R.E 2002] prescribes hours for selling local liquors. In urban areas local liquors can be sold from the evening upto 11 pm from Monday to Friday. On Saturdays, Sundays and public holidays there are two authorised drinking sessions. Morning session starts from 11 am to 2 pm and evening session which starts from 6 pm to 12 midnight.

In rural areas the local liquor bars may be open to the public from 3 pm to 8 pm on Monday to Friday. On Saturdays, Sundays and public holidays local liquor bars in the villages may be open from 2 pm to 11 pm.

It is a crime selling local liquors before or after the prescribed hours. Punishment for selling local liquor before or after the prescribed hours is a fine not exceeding TZS 2,000 or imprisonment for a term not exceeding one year. Drinking hours are controlled in order to give indigenous time to work and rest instead of spending much time drinking local brew.