Q&A – 15 April 2019

Deciding number of babies before marriage

I don’t want to get into issues with my husband after marriage and as a pre-condition to marrying, I want to agree on a number of issues especially how he will maintain me and the number of children I will bear for him, otherwise I will not want to continue the relationship. I also want to make it clear that I will not accept being beaten up, which is what many women endure. Can you guide me on what steps I should take and how the agreement can be drafted?
GY, Dar

The Law of Marriage Act does provide for maintenance of a spouse, but taking into consideration your to be husband’s means. Hence if he lives in a small shack, your entitlement is to the same accommodation and you cannot then expect to be living in a mansion. This law states that expect where the parties are separated by agreement or by decree of the court and subject to any subsisting order of the court (a) it shall be the duty of every husband to maintain his wife or wives and to provide them with such accommodation, clothing and food as may be reasonable having regard to his means and station in life; (b) it shall be the duty of every wife who has the means to do so, to provide in similar manner for her husband if he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health.

On being beaten up, the law states that for the avoidance of doubt, it is declared that, notwithstanding any custom to the contrary, no person has any right to inflict corporal punishment on his or her spouse. Hence the law provides you against being hit or flogged, canned and the like. You do not need to provide this in a separate agreement as the law automatically protects you.

On the number of children, we have not seen any provisions to this effect. In fact we are unsure if you can provide this in an agreement without offending the underlying basis of marriage. Having said that, if you end up delivering more children then you expected or agreed to, under our law, that is not a ground for divorce so any agreement to that effect will be illegal to that extent.

Before getting married we suggest you have an open dialogue and also involve a marriage counselor. Marriage agreements are not like normal agreements where there are warranties and representations, termination clauses without cause and the like. We wish you all the best.

Wearing a military style uniform

Is it true that one cannot wear a military style uniform in Tanzania even if I wear it in the jungles away from people?
YU, Mtwara

It is true that people who are not in the military force are prohibited from wearing military uniforms. The Penal Code Cap makes it an offence for any person not serving in the defence forces of the United Republic or in any police force established by law, to wear any of those forces attire without the permission of the President.

Further, section 106 of the National Defence Act stipulates that “every person who without lawful authority, the proof of which lies on him; wears uniform of the defence forces or any other uniform that is so similar to the uniform of any of the defence forces that is likely to be mistaken for it commits an offence and upon conviction is liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding three months or to both.”

In addition, the National Security Act cements on the above by criminalizing unauthorized uses/wearing of the defence forces uniforms for purpose of gaining or assisting any other person to gain admission to a protected place or for any other purpose prejudicial to the safety or interests of the United Republic. The Act also prohibits the uses/wearing of any uniform so closely resembling the same as to be likely to deceive, or falsely represent someone to be a person who is entitled to wear or use any such uniform.

However, the Penal Code recognize the uses/wearing of the defence forces uniforms in the course of a stage play performed in any place in which stage plays may lawfully be publicly performed, or in the course of a music hall or circus performance, or in the course of any bona fide military representation.

It should be understood that the rationale behind the above prohibition is mainly for identification and protection purposes. Military uniforms are intended to demonstrate that their wearers belong to the armed forces of a state and distinguishes them from civilians. This principle of distinction originates from the international humanitarian law and customs of wars.

Article 48 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol) provides for the protection of civilians against effects of hostilities. It reads that, “In order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

Since the customs of wars allow members of the armed forces to be attacked, the state protects its people from such occasions by prohibiting unauthorized use/wears of military uniforms.