Q&A – 14 March 2022

Woman charged with gang rape

My sister with two men are charged with gang rape of a woman. It is alleged that my sister called the victim who is her friend to go to her home which she did and when the victim was on her way back home from my sister’s place, she was attacked by two men who raped her in rotation. We are getting two different opinions regarding this offence, some do tell us a woman cannot rape but some tell us that a woman can commit gang rape if it is proved that she aided or abetted men to rape the victim. Can you clear this confusion for us? 
CA, Iringa

Section 130(1) of the Penal Code [Cap.16 R.E 2019] which creates the offence of rape expressly excludes a woman from the offence of rape. It is a male person who is capable of committing rape not a female person. Section 131A (1) of the Penal Code which defines the offence does not as such create an independent offence of gang rape. Gang rape is just an aggravated category of rape which cannot be charged alone without citing the provisions of section 130(1) of the Penal Code which create the offence of rape. Since a woman cannot commit the offence of offence, she cannot as well commit the aggravated category of rape which is gang rape. Aider or abettor stands on the footing like the actual perpetrator of the offence. A woman cannot be jointly charged with gang rape for aiding or abetting the actual offender because she is, under the law, incapable of committing the offence of rape or gang rape.

Recovery of stolen money from employee’s pension benefits

Our accountant stole money from the Company, was convicted and sentenced to pay a fine which he paid, and subsequently was discharged. In addition to paying the fine, he was ordered to restitute the stolen money to the Company which he has not done. It is now a year since he was convicted by the Court and such orders made. We have discovered that he never appealed the decision of the Court and has no assets to attach to recover the stolen money. This employee is attaining a compulsory retirement age in May this year and will be getting his retirement benefits. Is it possible to recover the stolen money from his pension benefits? Please guide us. 
KL, Dar

As a general rule, pension contribution is the property of the Pension Fund and does not form part of the employee’s assets or estate capable of attachment to satisfy Court orders until such time when the benefit is paid to the insured employee. Section 76 of the National Social Security Pension Fund Act [Cap.50 R.E 2018] allows the pension contribution to be used only as a collateral for home mortgage in which case the mortgagee shall have the right to attach the portion of the contribution used as collateral to secure the home mortgage. Section 20(1) of the Act declares void any pledge, security or assignment which purports to include pension contribution or benefits other than a security for home mortgage which is allowed by section 76 of the Act.

However, where the insured employee is convicted of an offence involving dishonesty and the convicting Court is satisfied that there is a material loss suffered by the employer as a result of the offence for which the employee has been convicted, the Court may invoke section 20(3) of the Act to order restitution of the stolen property to be made out of the pension contribution or benefit due to the employee. But this recovery from the employee’s pension contribution is subject to the condition that the aggregate amount to be recovered from the employee pension benefit or contribution should not exceed the total amount of employer’s share he contributed for the employee. The Company can therefore ask the prosecutor to make an application to the Court to direct that the stolen money be recovered from the employee’s pension contribution or benefit.

Division of property obtained through adultery

I have petitioned the Court for divorce and division of matrimonial properties because I suspect my wife has had an extramarital affair with another man she met when she went abroad for studies. There are properties which she acquired when she was abroad pursuing studies. Initially she claimed those properties were given to her as gifts by her friends but I have recently discovered that the properties were given to her by this man. In this petition, can I include these properties my wife acquired from an adulterous association with another man as part of matrimonial properties jointly acquired during the subsistence of our marriage?
AL, Tabora

As a general rule, marriage does not disentitle one spouse from having a property in exclusion of another. A property acquired in the name of one spouse is presumed to belong to that spouse unless the presumption is rebutted. However, a property acquired during marriage by joint effort is a matrimonial asset that belongs to both spouses and liable to be distributed to both spouses upon divorce.

The High Court of Tanzania in a recent case has widened the scope of matrimonial assets to cover even a property acquired by adultery during marriage. The Court was of the view that when it is proved that a party who cheated, obtained advantage in the process while the other party maintained the family at that time, the accruing benefit is nothing but a matrimonial property because the efforts the honest party puts in caring for the family is enough contribution towards acquisition of that property. Based on that reasoning, the Court awarded half of the value of the property obtained through adultery to the honest party. If this decision isn’t overturned, the Court can order the division of the properties acquired by your wife through adultery if at the time of the acquisition of those property you were taking care of the family.