Q&A – 14 January 2019

Hiding HIV status from partner

If one is found to have HIV, is it obligatory to inform your spouse or you can continue in the relationship so long as you are using protection?
OR, Mwanza

The HIV and AIDS (Prevention and Control) Act makes it mandatory for you to inform your spouse. Section 21 of this Act states that (1) Any person who has knowledge of being infected with HIV after being tested shall- (a) immediately inform his spouse or sexual partner of the fact; and (b) take all reasonable measures and precautions to prevent the transmission of HIV to others.

Further this law states that the person referred to under subsection (1) shall inform his spouse or his sexual partner of the risk of becoming infected if he has sex with such person unless that other person knows that fact. Any person who abuse his spouse or sexual partner either verbally, physically or by conduct in connection with compliance with the provisions of this Act commits an offence and shall upon conviction be liable to a fine of not less than five hundred thousand shillings and not exceeding one million shillings or to imprisonment for a term of not less than three months and not more than six months or to both.

You have no choice but to inform your partner about your HIV status. Your partner also has the right to refuse sex with you. Furthermore, your HIV status, assuming you acquired it from another woman, is a ground of divorce.

Suicide still a crime

I am aware of a doctor who has been assisting patients with terminal diseases to die. He does so by injecting them with some medicine. Is it true that this is illegal even though the patient consents to die?
FV, Arusha

The issue of physician assisted suicide has been heavily debated in foreign Courts and many countries have now made it legal to do so, whereby a physician under certain conditions is allowed to assist the patient to die. In Tanzania, under our Penal Code, such assisted suicide is illegal and a serious offence that can send the doctor to life imprisonment.

A foreign case that comes to mind is a landmark decision by the Supreme Court of Canada in 2015 that held that a total prohibition of physician-assisted death is unconstitutional. The Court’s ruling however limits such physician-assisted death to hard cases of ‘a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.’

Specifically, the Canadian Supreme Court held that the current legislation was overboard in that it prohibits “physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” However the Canadian Apex Court decision includes a requirement that there must be stringent limits that are ‘scrupulously monitored.’ This requires the death certificate to be completed by an independent medical examiner, not the treating physician, to ensure the accuracy of reporting the cause of death. On whether a Physician is forced to proceed with such assisted suicide is not yet tested in Canada, but it seems likelier than not that a Physician can withdraw himself from not wanting to proceed with assisted suicide on personal grounds.

Subsidiary legislation goes beyond the Act itself

There are various subsidiary legislation that have been issued that are much beyond the Act itself, in that they are stricter than the law itself, bringing in Ministerial self-made laws that even the Parliament did not intend. Is this legal, and if not, what can one do? What if a law says that subsidiary legislation will be made but doesn’t specify which Minister?
JF, Dar

The Interpretation of Laws Act addresses this and states that (1) subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency. (2) Where any subsidiary legislation purports to be made in exercise of a particular power or powers, it shall be deemed also to be made in exercise of all powers under which it may be made. (3) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed.

Should the regulations be beyond what is provided for in the Act, you can challenge this in a Court of law which can strike down such regulations. In fact, under the Interpretation of Laws Act, all regulations shall be laid before the National Assembly within 6 sitting days of the National Assembly next following publication of the regulations in the Gazette, and the National Assembly, if it feels the regulations are ultra vires, can disallow these regulations.

To answer your last question, if a written law provides that subsidiary legislation may or shall be made and does not provide by whom, such subsidiary legislation made under such a provision shall be made by the President.