Q&A – 15 October 2012
General rules in criminal law
Are there any general rules that one must know that apply in criminal law? Sometimes the law can be very weird. How do I protect myself from going to jail?
There is no blanket formula from staying out of trouble. Sometimes one might be doing an act without knowing that it is a criminal offence. In any case, the Penal Code which is one of the main laws that oversees criminal law in Tanzania has a special section devoted to general rules. We briefly sum them for you but the summary is not exhaustive.
Generally, ignorance of the law does not afford any excuse for any act or omission. The Penal code also states that unless specifically provided for a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Also every person is presumed to be of sound mind, and to have been of sound mind at any time in question, until the contrary is proved. Further a person is not criminally responsible for an act or omission if at the time of doing the act or omission he has any disease affecting his mind and incapable of understanding what he is doing, or of knowing that he ought not to do.
When it comes to intoxication, the law is very strict in that voluntary intoxication shall not constitute a defence to any criminal charge.
Intoxication shall however be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
When it comes to age, the Penal Code states that a person under the age of seven years cannot commit a criminal offence. A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or omission he had capacity to know that he ought not to do the act or the omission.
Also a person is not criminally responsible for an offence if it is compulsion committed by two or more offenders.
The Penal Code also cover self defence in that a person is not criminally liable to an act done in the exercise of the right to self defence or the defence of another or the defence of property, as long as the amount of force used in self defence is reasonable. Any excessive force used may bring the person into criminal law territory. The law is also clear that a person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law.
Soliciting another person into witchcraft
I have financial difficulties which have made me miserable. Hoping to change things, I have turned to God and am now a born again. My best friend is however persuading me to visit his old mzee (old man) who is ready to change things for me his way. My friend keeps on insisting that if I don’t visit this old man, I will end up in more problems. This is now scaring me. Is this allowed?
The Witchcraft Act is a special legislation to provide for the punishment of witchcraft and of certain acts connected to it. In this Act, witchcraft is defined to include sorcery, enchantment, bewitching, the use of instrument of witchcraft, the purported exercise of any occult power and the purported possession of any occult knowledge. In short witchcraft is illegal in Tanzania.
Under this Act, it is an offence for any person who advises any other person upon the use of witchcraft or any instrument of witchcraft.
Moreover any person who employs or solicits any other person to resort to the use of witchcraft or any instrument of witchcraft for any purpose whatsoever commits an offence. Hence what your friend is doing is illegal under the law and you may opt to report this to your local police station.
Mother neglecting children
There is a particular woman who has atleast four children but does not take care of them. They are seen hanging around the Gymkhana area and sleep somewhere around there. Is there no law that protects such children notwithstanding that it is the mother who is mistreating them?
The Law of Child Act has provisions that come to the rescue of such children. This law also defines a child as one who is below the age of eighteen and states that the best interest of a child shall be the primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, courts or administrative bodies.
The Act states unambiguously that a child shall be entitled to live with his parents or guardians and that a person shall not deny a child the right to live with his parents, guardian or family and to grow up in a caring and peaceful environment unless it is decided by the court that living with his parents or family shall (a) lead a significant harm to the child; (b) subject the child to serious abuse; or (c) not be in the best interest of the child. Subject to the provisions of the above, where a competent authority or a court determines in accordance with the laws and procedures applicable that it is in the best interests of the child to separate him from his parent, the best substitute care available shall be provided for the child.
The Law of Child Act further states that it shall be the duty of a parent, guardian or any other person having custody of a child to maintain that child in particular that duty gives the child the right to food, shelter, clothing, medical care including immunization, education and guidance, liberty and right to play and leisure.
From the above, we recommend that you report this to the social welfare officer of the area who can make appropriate inquiry and if necessary make an appropriate application in Court for necessary orders.