Q&A – 15 February 2021

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Aiding and abetting 

What constitutes aiding and abetting in criminal law? Can one aid and abet the commission of an offence after the primary offence has been committed?
YT, Dar

The offences of aiding and abetting confuse not only prosecutors and law enforcement but lawyers as well. In criminal law aiding and abetting means helping, inducing, encouraging, assisting or counseling another person to commit a crime. Under section 22 of the Penal Code [Cap.16 R.E 2019], an aider or abettor is regarded as the actual or primary offender and shares the same culpability with the actual perpetrator of the offence. The reason for treating aider and abettor like the actual offender is that the two share the same unlawful purpose to commit the offence. Liability of aider and abettor is not dependent on the conviction of the actual offender. The aider may be charged and convicted without charging or convicting the actual offender. Acquittal of the actual offender does not necessarily absolve the aider from liability.

Under the Penal Code aider or abettor and the actual offender are charged with the same offence and sentenced to the same penalty. However, over the recent the Parliament has enacted some written laws like section 30 of the Prevention and Combating of Corruption Act [Cap. 329 R.E 2019] and section 12(e) of the Anti-Money Laundering Act [Cap. 423 R.E 2019] which create an independent offence of aiding and abetting as a secondary offence, with its independent penalty different from the penalty prescribed for in the primary offences.

Aiding and abetting is normally proved by circumstantial evidence, which must be very strong. It is hard to get direct evidence of aiding and abetting because the aider or abettor does not necessarily need to be physically present at the scene at the time of committing the offence or offer physical help to the actual offender. Proof of aiding and abetting is done by drawing inference from the available facts to arrive at a conclusion that the accused aided or abetted the commission of the offence.

Aiding and abetting is committed by doing or omitting to an act for the purpose of facilitating or enabling the commission of an offence. Passivity or omission to prevent a crime may only constitute aiding and abetting if: (i) the omission or failure to prevent the crime was calculated to aid its commission; (ii) the accused was present at the scene when the offence was committed and his presence was voluntary; (iii) the law or circumstances of the case imposed a duty on the aider and abettor to intervene or at least to express his dissent or dissociate herself/himself from what was being done or about to be done; (iv) the aider and abettor had the power to prevent the commission of the offence and (v) the passivity or acquiescence was such that the actual perpetrator could interpret it as approval or encouragement to commit an offence.

Aiding and abetting is done pre-commission of the primary offence. Formerly it was called accessory before the fact and it constituted an independent offence. The act or omission constituting aiding and abetting must precede the act or omission constituting the primary offence. Once the offence has been committed, there is no aiding or abetting because helping the offender to escape arrest or conviction does not amount to aiding and abetting since the crime has already been committed. Any act or omission calculated to help the offender to escape arrest or prosecution after commission of the primary offence does not amount to aiding and abetting but may constitute other crimes like accessory after the fact to murder if the primary offence is murder.

Cancellation of work permit

In what circumstances can a work permit be cancelled? If a work permit is cancelled before the expiry of the contractual term, can the expatriate continue to work until the expiration of his contractual term which is what brought him here in the first place?
KG, Mwanza

Section 14(1) of the Non-Citizens (Employment Regulation) Act, 2015 gives the Commissioner for Labour power to cancel a work permit if the expatriate: (i) has failed to comply with the conditions prescribed in the work permit; (ii) has ceased to engage in the employment or occupation for which the permit was issued; (iii) obtained the permit by misrepresentation of the information in the application; (iv) may jeopardise the interest of the Republic if he continues to stay in Tanzania.

Once a work permit is cancelled, any subsequent engagement in any occupation is illegal and both the expatriate and the employer may be charged with an offence under section 9 of the Non-Citizens (Employment Regulation) Act, 2015. The employer may be charged with an offence of engaging a non-citizen in an occupation without a valid work permit. An expatriate may also be charged with engagement in occupation for reward without a work permit. The penalty for these two offences is a fine not less than TZS 3 million or imprisonment for a term not less than 2 years. The contract of employment cannot override the laws of the land.

Evidence against employer

I have been summoned by the Court to give evidence for the opposite party against my employer. I am afraid I will be fired if I testify against my employer? Can you guide what to do?
GG, Dodoma

Dismissing an employee because he or she has given evidence on behalf of the opposite party is a crime. Such conduct amounts to contempt of Court contrary to section 114(1)(g) of the Penal Code [Cap. 16 R.E 2019]. If you are dismissed for giving evidence against your employer, you will have a valid reason to challenge your dismissal. Summons is a lawful order and disobedience of it is a crime. Hence, you must attend Court without fail and speak the truth.