Q&A – 11 December 2023

Drink laced in nightclub

I went to a night club in Masaki where someone laced my drink with alcohol. I have never had alcohol in my life and not being in a proper state ended up having a fight with the bouncers, misbehaving on the dance floor with several women and was ultimately taken to Oysterbay police where I was charged with indecent assault. Is intoxication a defence I can use? I am very worried as I am in the last semester of my university.
OM, Dar

It is saddening to hear what happened to you. We shall discuss some basic principles under our Penal Code before we specifically respond.

Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved.

Our law further states that a person shall not be criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind (a) incapable of understanding what he is doing; (b) incapable of appreciating that he ought not to do the act or omission; or (c) does not have control of the act or omission. However, a person may be criminally responsible for an act or omission although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects referred to above to that act or omission.

Generally, intoxication does not constitute a defence to any criminal charge. However, intoxication may be a defence to a criminal charge if by reason thereof the person charged at the time of the act or omission complained of, he did not understand what he was doing and (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

Where one of the above defences is established, which we believe applies in your case, then the law states that you should be discharged. Moreover, intoxication must be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

Most night clubs in Dar have CCTVs and if you can get some footage to show lacing, we believe the police will not proceed to charge you. Your lawyer can guide you further.

I love 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 and not ban. It can be a big export from Tanzania.
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 5 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.

Smoking in aircraft

I chartered an aircraft and the pilot announced that during the flight smoking is not permitted. As soon as we landed, I lit my cigarette and started smoking. I assumed that we were not in flight since we had already landed and were taxing to the arrival gate. The pilot was very specific that during the flight and not in the aircraft is when I could not smoke. Did I commit an offence?
PP, Mwanza

Your reasoning is very good in that you never smoked during the flight but only when you were taxing. However, your thinking is not in line with our laws.

The Civil Aviation (Security) Regulations, 2018 (Regulations) clearly states that an aircraft is deemed to be ‘in flight’ at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation; and in the case of forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board. Hence since the doors were not opened for you to disembark, you were still in flight and were required to adhere to the pilots instructions. In short, in flight doesn’t only mean when you are in the air.

Moreover regulation 74 of the Regulations tightens this even further and states that a person who, on board an aircraft (a) smokes in a lavatory, or elsewhere in an aircraft; (b) tampers with a smoke detector or any other safety- related device on board the aircraft; or (c) operates a portable electronic device when such act is prohibited, commits an offence.

A person who commits an offence is liable, on conviction, to a fine not less than the equivalent in Tanzanian Shillings of USD 200 or to imprisonment for a term not exceeding 1 year, or both.