Q&A – 16 January 2019

In remand for 5 years

My son is charged with an economic offence and has been in remand prison for the past five years. Every time he goes to Court the prosecutor informs the Magistrate that investigation is still under way. Is there any time limit within which investigation of an economic offence should be completed? What if they don’t complete investigation? What judicial remedy can I seek? This system is very unfair and presumes guilt ahead of innocence.
IF, Mwanza

It is unfortunate that neither the Criminal Procedure Act nor the Economic and Organised Crime Control Act sets a time limit within which investigation of an economic offence should be concluded. Section 225(6) of the Criminal Procedure Act excludes economic offences from the list of offences whose investigation should be completed within a period of sixty days from the date of incarceration or arraignment. But this does not mean that investigation of an economic offence can be endless. Timely justice is a fundamental right which forms part of fair hearing protected by article 13(6) of the Constitution of the United Republic of Tanzania. Further article 7(1)(d) of the African Charter on Human and Peoples Rights, which Tanzania has ratified, also guarantees the right to a timely trial.

In the case of Kondo v Republic, Criminal Appeal No 322 of 2015, the Court of Appeal said that Courts have inherent powers to control the proceedings before them. In the event of an inordinate delay to prosecute or commit the accused for trial by the Corruption and Economic Crime Court for an economic offence, a subordinate Court before which the accused appears can dismiss the charge and discharge the accused. However, and unfortunately so, dismissal of charges for want of committal or prosecution will not be a bar to a re-arrest and re-charge of the accused on the same facts. But where one is re arrested and recharged but thinks that there is a clear evidence of abuse of the discretion to re-arrest and re-charge the accused, such abuse of power can be challenged in Court.

There are two schools of thought on how the abuse of prosecutorial powers can be challenged in Court. One school of thought is of the view that abuse of prosecutorial powers can be challenged by judicial review or constitutional petition before the High Court. Such a view was expressed in the case of Makombanya v DPP, Misc Civil Cause No 29 of 1989, High Court at Mwanza.

The second school of thought is of the view that since judicial review or constitutional petitions are civil in nature, such remedies cannot be invoked to terminate malicious charges because criminal and civil proceedings are two different forms of proceedings. The second view was expressed by the Court of Appeal in the case of Patel and others v AG and others, Civil Appeal No 59 of 2012. In the case of DPP v Haji, Criminal Appeal No 28 of 1992 the abuse of prosecutorial powers was challenged within the same criminal proceedings.

In short, endless investigation of an economic offence when the accused is in custody can be checked by Courts, but at present are not closely monitored and indeed there are many accused in remand prison for many years awaiting trial. Committal Courts too have power to check the abuse of endless adjournments of economic cases by dismissing the charges and discharging the accused.

The standard of proving the abuse of prosecutorial powers is a balance of probability. Unfortunately, the Courts and advocates have not been aggressive enough to push for dismissal of charges, with Courts being blamed for delays in criminal cases when the brunt of the blame should go to the prosecutor and investigator.

Updating TRA when receiver appointed

I was appointed as a Receiver in a company few months back and have been informed by the Tanzania Revenue Authority that I should have notified them of my appointment. Is that a legal requirement as the Companies Act is silent on this?
RK, Dar

The newly enacted Tax Administration Act in section 66 makes it mandatory to inform the TRA of your appointment within 14 days of such appointment.

The TRA may also then serve you a notice specifying an amount that appears to be sufficient to provide for any tax due or that will become due by the company.

As Receiver, and after liquidating the company, you must ensure that subject to any debts having priority over the tax referred to in the TRA notice, the tax amount is remitted to the TRA.

Should you fail to set aside an amount as required by the TRA, you will be personally liable to pay to the TRA on account of the company, although you can then claim this back from the company.

HIV status to spouse

Must a husband inform his wife of the results of a positive HIV test? Is that not breach of his privacy?
IO, Mwanza

The HIV & AIDS (Prevention and Control) Act 2008 unambiguously states that (1) Any person who has knowledge of being infected with HIV after being tested shall- (a) immediately inform his spouse or sexual partner of the fact; and (b) take all reasonable measures and precautions to prevent the transmission of HIV to others. (2) The person referred to under subsection (1) shall inform his spouse or his sexual partner of the risk of becoming infected if he has sex with such person unless that other person knows that fact.

It is therefore mandatory for such a person to inform his spouse or sexual partner of his HIV positive status and if he does not, he could be held as trying to intentionally transmit the disease and be liable to imprisonment of between 5 to 10 years.