Q&A – 1 July 2024

Marital rape in Tanzania

I was watching the news last week when I heard a case concerning marital rape from an Asian Country. In this news segment, the husband had forced his wife to have sexual intercourse and in some instances used violence. This was surprising to me. How can a husband commit rape against his wife while they are legally married? What does the Tanzania law say about marital rape? Please enlighten me on this.
LM, Shinyanga

It is true that the concept of marital rape can be confusing to many people. In simple terms, marital rape or also known as spousal rape is the act of sexual intercourse without one of spouses’s consent. This crime is not recognized in every country. For countries that recognize marital rape as a crime, the elements of the crime may be very different. It is therefore important to know what the law says.

In Tanzania, the concept of marital rape is not defined by law. However rape is criminalised in the Penal Code [Cap. 16 R.E 2022] (Penal Code). Section 130(1) of the Penal Code states that it is an offence for a male person to rape a girl or a woman. Further, section 130(2) states that a male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; (b) with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; (c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two; (d) with her consent when the man knows that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married; (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.

From the above you will note that our Penal Code recognises rape within marriage in cases where a husband has sexual intercourse with his wife who is separated from him without her consenting to it at the time of the sexual intercourse or with his wife when she is 14 years or younger and is separated from the man. Other circumstances which are not stated in the law will not amount to marital rape even though in other countries it may be regarded as so. In the United Kingdom, for example, there are strict requirements as to consent for sexual intercourse within a marriage. Our research here has noted that there are calls from various stakeholders to amend our Penal Code and include stricter prohibitions on unconsented sexual intercourse within a marriage. You may consider consulting a lawyer for further explanation.

Employer and employee relationship

I am a resident of Morogoro and work for a small business firm as a logistics officer. While I have worked for this firm for 3 years, we never signed a contract. Everything was agreed orally including my working hours, salaries and other benefits.  My young brother who is currently studying law at a University in Morogoro, recently told me that no person can be regarded as an employee unless there is a written contract with the employer. Is this true? I am afraid to be in a situation where my rights are lost because of my current work situation. Please guide me.
ZF, Morogoro.

We understand your concern. The form of the contract does not matter in determining whether a person is an employee. The issue for determination is whether an employer-employee relationship existed. Before answering your question, it is necessary to explain in brief a contract of employment. Simply put, a contract of employment is an agreement that is entered into by a company or an individual with an individual for availing his/her services. The person in this situation is an employee of the business or individual and will be regarded as an employee during the course of their employment.

There are several Court cases that have explained the employer and employee relationship. Usually, Courts rely on several established tests to determine the existence of this relationship. Nonetheless, to protect employees, section 61 of the Labour Institutions Act [Cap. 300 R.E 2019] states that for the purposes of a labour law, a person who works for, or renders services to, any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present: (a) the manner in which the person works is subject to the control or direction of another person;(b) the person’s hours of work are subject to the control or direction of another person; (c) in the case of a person who works for an organisation, the person is a part of that organization; (d) the person has worked for that other person for an average of at least 45 hours per month over the last 3 months; (e) the person is economically dependent on the other person for whom that person works or renders services; (f) the person is provided with tools of trade or work equipment by the other person; or (g) the person only works for or renders services to one person. All in all, it seems highly likely that you are indeed employed. Your lawyer can guide you further.