Q&A – 1 August 2016

WhatsApp messages defamatory

We own multiple companies in different sectors of the economy. For the last few months, people have been sending out false and defamatory messages on WhatsApp about our products and personally attacking our families, to the extent that some are spreading rumours that we are tax evaders and should be prosecuted. This WhatsApp program on phones is very dangerous. Is there no law that controls it? People receive messages and resend messages on basis of ‘sent as received’ and then claim that they are not the authors of the messages. Is secondary transmission not an offence under our laws? Someone must contain these programs and devices otherwise there will be one rumour spread after another.
YU, Dar

One of our most controversial and heavily criticized laws, The Cyber Crimes Act 2015, comes to your rescue. Section 16 states that any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defame, threaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

Further, it is not only the originator of the WhatsApp message that you can take to task, but also all those who are forwarding the messages, as they are republishing the information. We have also learnt that there are many agencies and companies, locally and overseas, who can track the originator of the WhatsApp as a digital footprint is left every time a message is sent.

WhatsApp has some excellent uses but it is true that it is a platform that is being utilised to defame, insult, pressurize, coerce people and any such messages can lead to criminal prosecution. People do post messages in groups and such persons can be reported to the police who can take appropriate action. It is very hard for a phone user, who has posted something offending section 16, to deny this and convicting such an offender should not be very difficult. We are aware that the WhatsApp sent also receives commentary from the group members, who can also be prosecuted if they offend the above section.

In short, whether it is the primary sender of the message, or those who forward the message, both such persons can be prosecuted. Anyone else who comments in a manner that is false, deceptive, misleading or inaccurate can also be prosecuted. The group administrator who creates the group can equally be held liable as it her/him who has created the platform for such remarks.

We suggest you report this to the police who can start making some mass arrests of all those who are spreading these false messages. Persons who are guilty may be sentenced to a minimum of 3 years in jail.

MP remarks in parliament

There is a particular Member of Parliament who is against our company and does whatever he can to make sure policies are made against our interests. Can I sue such a MP?
OP, Moshi

Article 100 of our Constitution guarantees freedom and immunity from proceedings for MPs. The article states that (1) there shall be freedom of opinion, debate in the National Assembly, and that freedom shall not be breached or questioned by any organ in the United Republic or in any court or elsewhere outside the National Assembly. (2) Subject to this Constitution or to the provisions of any other relevant law, a Member of Parliament shall not be prosecuted and no civil proceedings may be instituted against him in a court in relation to anything which he has said or done in the National Assembly or has submitted to the National Assembly by way of a petition, bill, motion or otherwise.

Bearing the above in mind, there is no scope for you to sue the MP for anything he has said in parliament.

Marriage not recognized after 26 years

I have been married for the last 26 years and went to get a copy of my marriage certificate only to be told my marriage file had an issue. Apparently when I got married, no notice of intention to marry was published which is supposed to be statutorily given. I was asked by the officer to show proof of it being given before my marriage could be recognised. The officer said that if I cannot produce this notice, he will not recognise my marriage and no copy of my marriage certificate would be issued to me. Please guide as I am confused.
HH, Dar

This is the first time we are hearing of such a problem. Whilst it is mandatory for a notice of marriage to be given, being questioned about it after 26 years is not only surprising but hard to believe.

Notwithstanding the above, the Law of Marriage Act states that there are matters that cannot affect the validity of marriages. This law states that a marriage which in all other respects complies with the express requirements of this Act shall be valid for all purposes, notwithstanding- (a) any non-compliance with any custom relating to dowry or the giving or exchanging of gifts before or after marriage; (b) failure to give notice of intention to marry as required by this Act; (c) notice of objection to the intended marriage having been given and not discharged; (d) the fact that any person officiating thereat was not lawfully entitled to do so, unless that fact was known to both parties at the time of the ceremony; (e) any procedural irregularity; or (f) failure to register the marriage.

You should inform the officer attending you of the provision above otherwise escalate the matter to her/his supervisor. Please inform your wife not to worry- you are legally married and continue to be so.