Trafficking narcotics

Two years ago, police officers raided my brother’s house in a village after an informer told them he was hiding bhangi. They found two sacks of dried leaves inside. He was later charged with trafficking in narcotic drugs and sentenced to thirty years in prison. What confuses our family is that my brother has no vehicle or motorbike, and the police never claimed he was selling or exporting the drugs, only that they found them at his house. He kept saying he was innocent and that the charge did not make sense because ‘trafficking’ means transporting. My brother was convicted of drug trafficking, but he never transported anything. Was his conviction justified? Please guide me.

EM, Pwani

We are sorry to hear about your brother’s story. This is a criminal case, and sometimes it may be difficult to comment without knowing all the facts. Nonetheless, we will comment based on what you have stated. Under section 2 of the Drug Control and Enforcement Act, Cap. 95 [R.E. 2023] trafficking means the importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of narcotic drug or psychotropic substance, precursor chemicals, substances with drug related effects and substances used in the process of manufacturing drugs any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making of any offer. By saying the accused was ‘found trafficking,’ the charge should explain that the accused’s action fell within the scope of the definition of trafficking and where and when the same occurred.

In a recent decision of the Court of Appeal of Tanzania concerning trafficking, the Court emphasised that in trafficking cases, the charge must specify how the accused trafficked narcotics, whether by storing, possessing, selling, transporting, producing, or distributing, as required in the Drug Control and Enforcement Act. The Court further reaffirmed that a charge lacking particulars of the mode of trafficking is incurably defective and renders the trial a nullity. This case aligns with the principle that in criminal law, doubt must always be resolved in favour of the accused, and a person cannot be convicted on a vague or incomplete charge.

According to section 135 of the Criminal Procedure Act, Cap. 20 [R.E. 2023], every charge must include particulars giving reasonable information as to the nature of the offence. If the charge does not state what exactly the accused did wrong, it is incurably defective. In your brother’s situation, the fact that he has no vehicle or motorbike is not relevant. However, if the charge also failed to describe how the trafficking occurred, there may indeed be legal grounds to challenge the conviction. His advocate can review the record and if similar defects are found, apply for an appeal based on the same reasoning used by the Court of Appeal. Consult your lawyer for further guidance.

Implied consent in medical emergencies

I’m a university student in Dodoma. Last month, I fainted during a football match and was rushed to a nearby hospital. When I woke up, I learned that the doctors had performed a minor surgical procedure to stop internal bleeding. I was shocked because I had never signed a consent form or spoken to anyone. How could they operate on me without my permission? Isn’t that a violation of my rights? Please enlighten me.

KN, Dodoma

The doctors may have saved your life, but it seems you are still not satisfied.

Your experience is deeply personal, and it raises an important legal question regarding the nature of consent in medical emergencies. What happened to you falls under a legal doctrine known as ‘implied consent by necessity.’ In situations where a patient is unconscious, incapacitated, or otherwise unable to give informed consent, and where immediate medical intervention is necessary to prevent serious harm or death, the law assumes that a reasonable person would consent to treatment. This assumption allows healthcare providers to act swiftly without waiting for formal authorisation.

Under Tanzanian law and medical ethics, the doctrine of implied consent is recognised in emergencies. The key conditions are urgency (where delay would risk serious harm or death), incapacity (where the patient cannot give informed consent), and the absence of a surrogate decision-maker (such as a guardian or next of kin). However, once you regain consciousness, any further treatment would require your explicit consent. Your lawyer can guide you further on this.

ARIPO registration

I am a Ugandan entrepreneur expanding my skincare brand across East Africa. I registered my brand ‘GlowRoot’ under ARIPO, thinking it would protect me in all member countries. I recently discovered that a Tanzanian company is using the same name for its products. When I tried to stop them, I was told my ARIPO registration doesn’t count in Tanzania. But I thought ARIPO covered the whole region. Isn’t that the point of a regional registration? Please guide me on the Tanzanian law.

GH, Dar es Salaam

This is a common and costly misunderstanding concerning ARIPO registration and its enforcement in Tanzania. Trade-mark protection is not automatic across borders. Even if countries are members of ARIPO, for dualist countries, they must domesticate the relevant Trademark protection protocols into their national law. A dualist country treats international law and domestic law as separate systems.
Tanzania is a dualist country, meaning international treaties must be incorporated into national law by Parliament before they have legal effect domestically. Article 63(3)(e) of the Constitution of the United Republic of Tanzania, 1977, is clear that the National Assembly shall have the authority to ratify treaties and agreements concluded by the Government of the United Republic and to enact legislation for implementing such treaties. Tanzania has not domesticated the Banjul Protocol, so ARIPO registrations do not have legal weight in this country. According to the Trade and Service Marks Act, Cap [R.E 2023], it is clear that the first person to register a mark in Tanzania obtains exclusive rights. If someone else registers your brand locally before you do, even if you have an ARIPO certificate, they will likely win. Consult your lawyer for further guidance.