Q&A – 15 January 2024

Posting photos of dead bodies on WhatsApp group

One of our WhatsApp group members posted on our group photos of dead bodies of people who died in an accident in a neighboring country when a motor vehicle was attempting to cross a bridge which was over flooded and caused deaths of dozens of people. Our colleague who posted these photos was recently arrested for posting such photos in the group and is still held under police custody. What is the crime of posting such photos when the accident did not occur in Tanzania, neither are the victims from Tanzania? I would think that such photos help to educate Tanzanians not to make the same mistake that has cost the lives of people in other countries. Kindly guide.
PP, Mwanza  

Section 162(1)(a) of the Penal Code [Cap.16 R.E 2022] prohibits taking photos, pictures, video or images of corpses, dead persons, victims of crime and gruesome incidents. Legally in order to charge a person under this provision it must first be proved that the photos were taken by the accused and secondly that taking of the photos, images, picture or video was done within the geographical limits of the Court before which the accused is being prosecuted. Since the photos posted by your colleague in the WhatsApp group were not taken by him and were also not taken within the geographical limits of any Court of Tanzania, he cannot be charged for unlawful taking of photos of dead persons.

However, your colleague can be prosecuted under section 162(1)(b) of the Penal Code for the offence of unlawfully sharing the photos of dead persons. That provision prohibits sharing of images, photos or video of corpses, dead persons, victims of crimes or gruesome incidents by use of any form of communication unless the person sharing the photos, images, pictures or video has the authorization from Police to do so. Unlike section 162(1)(a) where the unlawful act is taking of the photos, images, pictures or video, under section 162(1)(b) the offence is unlawful sharing of photos, images, pictures or video, so it does not matter where the photos, images, picture or videos shared were taken from. Since your colleague shared the photos of the dead bodies within Tanzania, he can be prosecuted for the offence of unlawful sharing photos of the dead bodies within the local limits of a competent Court where he was at the time he was posting the photos in the WhatsApp group.

Taking of photos, video, images or pictures of victims of crime, corpses, dead persons or gruesome incidents is allowed only where the person doing so intends to assist criminal investigation or he is doing so for the purpose of burial ceremony in case of corpses or for any purpose permitted by the Police Force or authorized officer of the Government. This common offence of sharing the photos, images, pictures or video of victims of crime, dead bodies or gruesome incidents attracts a fine of not less than TZS 1M or imprisonment for a term of a year or both jail term and the fine.

Boss forcing driver to overspeed

My boss normally forces me to overspeed when we are travelling in the company official car. He does not want to respect the road speed limits or stop at traffic lights. If I get arrested by the Traffic Police for breach of the road traffic rules due to compulsion from my boss, can I raise a defence that it is my boss who forced me to disobey the road traffic rules?  What if I disobey the order of the boss to over speed, can he fire me for insubordination? I am very upset with my bosses’ behaviour as it compromises both mine and his security.
PP, Dar

We are sorry that you have such a boss who is always in a rush and ignores our laws.

It is an offence under section 51 of the Road Traffic Act [Cap.168 R.E 2002] to drive a motor vehicle in excess of the speed limit lawfully allowed in relation to an area. A driver has to obey speed limits prescribed under the law or posted in the traffic signs or road markings erected along the roads. The speed of a motor vehicle depends on the type of the vehicle, condition of the road, time of driving, weather and nature of the place. The speed of a vehicle in a built-up area should not exceed 50 kilometres per hour. Outside the built-up area the speed is regulated by the traffic road signs and road markings erected along the roads by road engineers. For vehicles weighing more than 3,500 kilograms the maximum permissible speed limit outside the built-up areas is 80 kilometres per hour.

A boss who incites or forces his driver to over speed or violate a road traffic rule commits an offence under section 51 and 111 of the Road Traffic Act. The aforementioned provisions state in express terms that a person who aids, abets, counsels, incites or procures a driver to drive in excess of the permissible speed limits or forces or incites a driver to commit any other traffic offence is also guilty of an offence. The driver and the boss who incites or forces the driver to over speed or break the road traffic rules commit the offence and both are liable to be punished.

The defence of compulsion to over speed cannot stand because such defence is applicable only where the person raising it was in a danger of being killed or sustaining grievous harm had he refused to obey the order. Moreover, legally an employee is taken to have committed insubordination if he refuses or disobeys a lawful instruction of his superior; not unlawful instructions like the instruction to break road traffic laws.

It is interesting to know that in view of section 111 of the Road Traffic Act, if a person charged with the offence of inciting or forcing a driver to over speed is convicted of that offence, the Court shall disqualify him from obtaining or holding a driving licence just like it will do for the driver. This means that the boss and the driver will not be allowed to obtain or hold a driving licence for them to be able to legally drive for a certain period of time to be prescribed by the Court in its sentencing order. You might want to explain this to your boss and hopefully it will change his behaviour.