Q&A – 14 June 2021

Selling HIV self-testing kits to under 18 year old

My son aged 16 went to a pharmacy and bought a HIV self-testing kit. After undertaking self-test he confirmed himself positive and attempted to commit suicide. I am upset with the seller. Does the law allow selling such kits to children below the age of 18?
MK, Iringa

Section 16A(3) of the HIV (Prevention and Control) Act, 2008 as amended by Act 14 of 2019 prohibits selling HIV self-testing kits to a person who is under the age 18 years making it an offence to do so. This offence is punishable by a fine of not less than TZS 200,000 or imprisonment for a term not less than 3 months. Since the seller committed the offence by supplying the kit to an underaged boy, this incident can be reported to the Police for them to commence investigation and take appropriate action against the seller.

Presentation of forged certificate

Three months ago our company advertised vacancies for drivers. In the advertisement we listed qualifications for the position, one being a form four graduate with a valid form four academic certificate. In the course of shortlisting the applicants we have realised that there are applicants who presented to us forged certificates purporting to have been issued by the National Examinations Council of Tanzania. This is the second time we are receiving forged academic certificates presented by job seekers. Is this not a crime here in Tanzania?
MT, Dar

Presentation of forged academic certificate purporting to have been issued by the National Examination Council of Tanzania to a prospective employer for the purpose of getting employment or admission to a learning institution is a crime under section 17E of the National Examinations Council of Tanzania Act [Cap107 R.E 2002] as amended by Act No.12 of 2019.

This punishment for this offence of presentation of forged certificate or diploma purporting to have been issued by the National Examination Council of Tanzania is a fine of not less than TZS 10M or imprisonment for a term of not less than 3 years. This offence was created in 2019 by Act No 12 of 2019 after the government at the time sacked public servants with forged form four or form six certificates.

Prior to this amendment, the offenders presenting forged school certificates to their employers or to learning institutions were charged with uttering false documents contrary to section 342 of the Penal Code. However, proving this offence posed challenges to the prosecutors because this offence requires proof of intention to defraud the victim, which is not easy. Ordinarily a person presenting a forged certificate to the employer or a learning institution intends to get a job or admission and not to defraud the employer or the learning institution and hence the difficulty in getting a conviction.

Cancellation of death certificate

I left my home town 7 years ago to go overseas to look for employment. When I came back in January this year I was informed that last year my brother filed an application in court for a declaratory order that I was presumed dead. After the Court had granted him the declaratory order that I was presumed dead due to absence for 6 years, he approached the Registrar of deaths to register my name in the register of deaths. Based on the death certificate he was given by the Registrar of deaths, he also went to Court and successfully lodged an application to be appointed administrator of my estate. How can I now remove my name from the register of deaths and have the appointment of the administrator of my estates revoked? In short I am well and alive and back in Tanzania!
JL, Arusha

Section 26A (3) of the Births and Deaths Registration Act [Cap.108 R.E 2002] as recently amended bestows on the Registrar General of Births and Deaths power to delete from the register of deaths any entry entered thereto on the presumption of death and he can cancel any death certificate issued on such presumption if the person presumed dead is later found alive.

Registrar General may exercise his powers of deleting the entry and cancelling death certificate irrespective of the Court’s order that declared the death. However, the person applying for deletion of entry of death from the register and cancellation of death certificate has the duty to satisfy the Registrar General that the person presumed dead and registered in the deaths’ register is indeed alive. If you show up, and are able to prove that it is you, then you should be able to succeed.

After deletion of the entry of death from the register and cancellation of death certificate, the person presumed dead can file an application in Court for revocation of the appointment of his administrator of estate.

Powers of ward executive officers as justices of peace

My cousin was arrested for rape 3 weeks ago. After he made a cautioned statement to the Police, he was taken to the Ward Executive Officer to record an extra-judicial statement. How can a ward executive officer who is the executive arm of the state be allowed to record extra-judicial statement of a suspect?
CM, Tabora

Ward executive officers were appointed justices of peace through Government Notice No. 369 of 2004 by the Minister for Justice in exercise of his power under section 51(2) of the Magistrates’ Courts Act, 1984. According to section 52 of the MCA, a justice of peace may be assigned to a Primary Court or District Court house. However, in view of section 57 of the Magistrates’ Court Act, only justices of peace assigned to the District Court houses have the power to record extra-judicial statement of the suspects who are under Police custody. Section 58 of the Magistrates’ Court Act assigns Primary Court magistrates and resident magistrates in Primary Court as justices of peace in the District Court houses within the district in which they are stationed.

GN No.369 of 2004 which appointed the ward executive officers as justices of peace does not assign them to a District Court house. For that reason, ward executive officers can only exercise other powers of the justice of peace but not power to take extra judicial statement of the suspect. Extra-judicial statement recorded by a ward executive officer is therefore objectionable and might not be admitted by a Court.