Q&A – 15 March 2021

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Intercourse as a form of treatment

If a traditional healer prescribes sexual intercourse with a client as a form of examination or treatment for an ailment and the client consents on belief that she will get healed, does that constitute rape?
PO, Dar

It is an unethical and an offence for a traditional healer to have sexual intercourse with a client. Regulation 9 of the Traditional and Alternative Medicine (Code of Ethics, Conduct and Practice) Regulations, 2008 (GN No. 409 of 2008) as amended by GN No. 425 of 2017 prohibits traditional healers from engaging in any sexual relationship with a client. A traditional healer has a duty to protect his client against any form of sexual abuse. He is not allowed to prescribe or administer sexual intercourse as a form of treatment of any ailment be it physical or spiritual. Even where the client requests to pay cost of treatment in form of sexual intercourse, the traditional healer should not accept it.

Where a male traditional healer is examining or treating a girl under the age of 18 years, he should do so in the presence of a parent or relative of the client. A traditional healer is required by regulation 15(a) to keep record of every client he attends. The record kept includes the name, address, age and ailment of the client as well as the medicine dispensed or administered to the client.

A traditional healer who takes advantage of his position to have sexual intercourse with a girl or woman he is attending, commits a serious offence of rape contrary to section 130(3)(d) of the Penal Code and he becomes liable to a minimum term of 30 years imprisonment.

Alternate job refusal, applicability of severance

We are carrying out restructuring of our company and have decided to phase out some of the positions in the new organisational structure. One of our employees whose position has been phased out in the new structure has refused an alternative job we offered him in another company of ours. She is arguing that she was not employed by the sister company so cannot be offered an alternative position there? How strong is this employees position? In the circumstance what do we do? Will the employee be entitled to severance pay if we decide to terminate her? 
GG, Moshi

According to rule 23(2) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 restructuring rendering some of the positions redundant is a reason for retrenchment. However, rule 23(4)(b) requires the employer, before resorting to retrenchment, to look for alternative jobs within or outside the company. It is not necessary that the alternative job offered in lieu of retrenchment must be given within the employer’s organisation.

In the circumstances where an employee refuses an alternative job with the sister company, the employer has a right to proceed with the retrenchment. Section 42(3)(b) of the Employment and Labour Relations Act and Rule 26(2)(c) of the Rules are very clear that where the employment is terminated by way of retrenchment after the employee has refused an alternative job with the same employer or another employer, such employee will not be entitled to severance pay. This means the employer may proceed with the retrenchment and not be bound to pay severance. The employee will only be entitled to notice pay, untaken leave pay, remuneration for days worked before termination and transport to the place of recruitment if she has working in a place different from where recruited.

Time limit for interrogation

I was taken in for police interview and spent the entire day from 9am to 7pm, and then admitted to bail after having to plead with the officer that I did not want to be held in custody as it was a minor bailable offence which i was denying in any case. I was told that the police in charge who could allow bail was attending a function but I finally managed to get hold of him and get bail. My question is on how long can an officer interview me because by the end of the interview I was extremely tired and stressed. The officer kept on asking the same question over and over again, slowly writing on his notepad. Is there no time limit under the law?
CC, Moshi

The Criminal Procedure Act has provided under section 50 that (1) for the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is– (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence. Paragraph (b) in principle excludes time when you are waiting for your lawyer, or the time when you are not being interviewed.

However, the basic time frame for the interview is 4 hours, which however can be extended to another four hours as provided under section 51. Section 51 states that (1) where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge of investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period. (2) A police officer shall not frivolously or vexatiously extend the basic period available for interviewing a person, but any person in respect of whose interview the basic period is extended pursuant to paragraph (a) of subsection (1), may petition for damages or compensation against frivolous or vexatious extension of the basic period, the burden of proof of which shall lie upon him.