Q&A – 19 February 2018

Imprisonment for failure to pay a loan

If I have borrowed money from a bank and unable to pay for genuine reasons can I be sentenced to prison if found guilty? The bank knows that I lost the money due to a fraud and am not party to it, but the bank lawyer is trying to threaten me with imprisonment of up to 10 years, as I own no other asset. Please guide me as it is stressing me out. 
PP, Mwanza

The bank lawyer is right that if you lose the case against the bank, you could be faced with what is called a civil imprisonment of up to 6 months, not 10 years. Notwithstanding that this is not a criminal offence, such arrest as a civil prisoner is provided for under our laws. During the period that you are in prison, the person who requested you to be arrested must feed you food that you would have normally eaten when you were not in prison.

Legality of abortion

There is a well-known clinic that I know specializes in abortions? I am not sure what is meant by legal and an illegal abortion. Please educate me.
YU, Dar 

Abortions, unless to save the mother or for other medical reasons, are illegal in Tanzania. Our law states that any person who with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony, and is liable to imprisonment for fourteen years.

Hence the doctors in the clinic that you are referring to can face 14 years imprisonment for carrying out illegal abortions.

Law Reform Commission reports unavailable, not acted upon

I have been trying to get reports from the Law Reform Commission of Tanzania which sadly have not been forthcoming. Why would you have such a commission if their reports are not shared with the public. After all it is the public for whom such organisations exist. Further, with the few reports I have read, I do not see action being taken on such reports.
YT, Morogoro

The Law Reform Commission Act, which establishes the Law Reform Commission of Tanzania states that (1) the Minister shall, as soon as practicable, but not later than twelve months, after receiving it, cause every report submitted to him by the Commission to be tabled before the National Assembly and its contents to be brought to the attention of the public. (2) The Minister may, either upon tabling any report pursuant to the provisions of subsection (1), or on a subsequent occasion, as the case may be, make a statement in the National Assembly indicating what action the Government proposes to take in respect of any of the recommendations of the Commission made in the report in question.

From the above, you can see that the reports that the Law Reform Commission submits to the Minister, are public documents. In fact a number of them are available online as well and we are unsure which report has not been availed to you.

On action not being taken on such reports, generally among the legal fraternity, there is concern that the Law Reform Commission recommendations are generally not acted upon expeditiously. Acting on such reports requires funding and generally this, amongst other reasons, remains the biggest bottleneck to implementation of change in law, which everyone seems to hide behind. One saddest example is the total failure to change the Law of Marriage Act which still allows young girls who are even 14 years of age to get married.

Security for costs order by Court

If there is a foreign Plaintiff who sues a local party, can the Court, without being moved by the Defendant order that security for costs be deposited in Court before the suit proceeds?
PM, Dar 

When we got this question we were about to answer no in that a Court cannot move itself to make sure an order without the Defendant filing an application to that effect. However upon further research we found out that a Court can, in fact, move itself suo motu and make such an order.

This is stated in Order XXV Rule 1 of the Civil Procedure Code which says the following: 1.-(1) Where, at any stage of a suit, it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiff are residing out of Tanzania, and that such plaintiffs do not, or that no one of such plaintiffs does, possess any sufficient immovable property within Tanzania other than the property in suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant. (2) Whoever leaves Tanzania under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of Tanzania within the meaning of sub-rule (1).

This rule further states that (1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom. (2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside, and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court, shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.