Q&A – 11 October 2021

Storing pornography in mobile phone

I had a boil near my private parts and sent a photo of it to my husband. A few months’ later my husband’s office was raided by law enforcement officers who took the employees phones for investigation. My husband is now charged for the offence of possession of pornography extracted from his phone. Does he have any defence to raise?
PP, Moshi

The law does prohibit possession of pornography if such possession was not meant for the purpose of making the pornography available for use by others. Section 14 of the Cybercrimes Act, 2015 only prohibits publishing pornography through computer system or through information and communication technology. Section 2 defines the term “publish” to mean distributing, transmitting, disseminating, circulating, delivering, exhibit, exchanging, barter, printing, copying, selling or offering for sale, letting on hire, offering in any other way or making available in any way. Possession is not covered by the definition of the term ‘publish’. If the pornography was stored in the phone to make it available for use third parties, the accused can be prosecuted for the offence of publishing pornography for keeping the pornography available for use by third parties. Mere possession does not constitute a crime especially in this case of yours.

Lastly, we hope your boil has now healed. 

Suspect’s right to write out a statement himself

I am suspected of committing an offence and have been summoned by the investigator to appear before him for the purpose of recording my statement. I don’t want the investigator to record my statement instead I want to write the statement myself. Does the law allow me to ask the investigator to furnish me with writing materials to write my statement without being interrogated by him or without him recording my statement?
UP, Dar

There are three ways of recording a suspect’s statement under the Criminal Procedure Act [Cap.20 R.E 2019]. The investigator can interrogate a suspect and keep the record of interview in writing or electronic form in the form of questions asked and answers given. This is done under section 57 of the CPA. The second way is by asking the suspect to tell his story and the investigator records the suspect story without interrogating him. Narrative suspect’s statement is taken under section 58(4) of the CPA. The third way is by furnishing the suspect with writing materials for him to write out his own story in his own words and by his own hand. The suspect’s right to write out his own statement is provided under section 58(1) of the CPA.

One common condition before recording the suspect statement or furnishing the suspect with writing materials for him to write a statement is that the investigator should caution the suspect by telling him that whatever he says or writes in his statement may be used against him in Court if he inculpates himself.

The Criminal Procedure Act gives, among other rights, the right to refuse to make a statement to a law enforcement officer and, as demonstrated above, the right to demand to be furnished with writing materials to write out a statement without being interviewed or interrogated. If the suspect chooses to write the statement himself, a law enforcement officer cannot force the suspect that he wants to interrogate him. However, the right to write one’s own statement does not flow naturally. It is only available where the suspect demands it.

Dual full time employment

Is it lawful for a person to work full time for two employers at the same time, one being Government and the other being a private company?
CK, Mwanza

The law does not bar an employee from serving two masters provided the employee is able to efficiently discharge his or her duties. The possibility to serve two masters will undoubtedly depend on the nature of work and hours of work agreed in the contract of employment or employer’s policy. Absence from work during working hours without leave of the employer constitutes a disciplinary offence under both, the Public Service Regulations, 2003 and the Employment and Labour Relations (Code of Good Practice) Rules, 2007 and may warrant termination of employment.

If the duality of the employment causes an employee absence from a workplace when he is needed by any of the two employers or by both employers, that absence from work is what will be regarded by the law as a wrongful act which warrants initiation of disciplinary proceedings against the employee. So what is wrong is not working for two employers full time rather it is the absence from a workplace attributed to serving masters. Further, most employment contracts also include clauses where the employee is not supposed to work full time anywhere else.

Time frame for submitting information to a law enforcement agent

Our telecom company received a letter from a law enforcement agent requiring the managing director to submit to it certain information within 24 hours. We find this time to be unreasonably short for us to be able to comply. Is it the law which provides such a short time to furnish a law enforcement agent with information it requires? What is the consequence of failure to furnish the information within the time prescribed in the letter?
YU, Dar

Regulation 3(1) of the Cybercrimes (General) Regulations, 2016 imposes on telecommunication companies an obligation to furnish a enforcement agent with information requested for investigation. The time within which a telecom company should furnish information to the law enforcement agent depends on the urgency or emergency of the situation and the nature of the offence being investigated or the reason for which the information is sought. Under normal circumstances, regulation 3(1)(c) requires information to be furnished to the law enforcement agent within 24 hours. However, where the crime under investigation threatens public safety and human life, the information has to be furnished to the law enforcement agent within 1 hour. If the information sought pertains to investigation of an offence affecting national security, the telecommunication company has to furnish to the law enforcement with the requested information within 4 hours.

It is an offence under section 10(2A) of the Criminal Procedure Act to refuse or to decline to furnish the information to the law enforcement without a good cause. If you find the time given to be too short, you can seek extension from the law enforcement agent by telling them your inability to comply and the reasons for inability to comply within the given timeframe.