Q&A – 19 October 2020

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Plea bargaining of a drug offence

My friend is incarcerated in prison and charged with trafficking in narcotic drug namely bhang. He has asked me to seek your opinion if it is possible for him to initiate a plea bargaining. He would also like to know the possible penalty that the Court is likely to impose on him if he enters into a plea bargaining agreement with the prosecution. Kindly guide.
GF, Morogoro

Section 194F of the Criminal Procedure Act makes the scope of plea bargaining limited. It makes some offences unfit for plea bargaining. Trafficking in narcotic drugs whose market value is above TZS 20M is one of such offences for which the law restricts plea bargaining.

Although section 194F restricts plea bargaining for drug offences on the basis of the market value of the drug, it is important to note that the Drug Control and Enforcement Act does not test the seriousness of the drug offence by using the market value of the drug involved in the charge. The use of market value to determine the seriousness of the drug offences was abolished by the repealed Drugs and Illicit Traffic in Drugs Act and currently there is no authority vested with power to assess the market value of narcotic drugs.

Hence you will note that under the new law, seriousness of a drug offence is assessed according to the weight of the drug. Under the repealed drug law the power to assess the market value of the drug seized was vested on the Director General of the Drug Control Commission. Also under the repealed drug law bail and sentences were given depending on the market value of the drug charged. Now bail and sentence for a drug offence is dependent on the weight and type of the drug and not its market value.

Secondly, plea bargaining does not allow the Court to impose a sentence that is lower than the statutory minimum sentence imposed by the law. The Drug Control and Enforcement Act prescribes minimum sentences for offence of trafficking in narcotic drug depending on the nature and the weight of the drug. The minimum sentence for a drug offence irrespective of its nature and weight is 20 years imprisonment. So even if your cousin is allowed to enter into a plea bargaining he will be sentenced to a minimum of 20 years imprisonment and his plea bargaining cannot give a discount below 20 years in jail.

Leave to appeal to the Court of Appeal

Last year I lodged my land appeal in the High Court against the decision of the District Land and Housing Tribunal. The High Court transferred my appeal to the Resident Magistrate with extended jurisdiction under section 41A of the Land Disputes Courts Act. The Resident Magistrate with extended jurisdiction dismissed my appeal. I have been told that since the case originated from the District Land and Housing Tribunal, I cannot appeal to the Court of Appeal without leave of the High Court or Court of Appeal. Since the decision was made by the Resident Magistrate’s Court with extended jurisdiction, can I lodge my application for leave to appeal there or do I have to lodge it in the High Court?  
KK, Dar

A Resident Magistrate Court cannot exercise extended jurisdiction to grant leave to appeal to the Court of Appeal without formal order of the Judge in-charge of the High Court transferring the application to a specific resident magistrate with extended jurisdiction. You cannot directly file an application for leave to appeal in the Resident Magistrate’s Court. You should file it in the High Court first but the High Court shall have to transfer it to the Resident Magistrates’ Court by order of the judge in-charge to a specific magistrate with extended jurisdiction.

Recently the Court of Appeal in Civil Application No. 121/03 of 2019 explained that the High Court has no power to entertain application for leave to appeal to the Court of Appeal in a matter arising from the Resident Magistrate’s Court in exercise of its extended jurisdiction. However, the Court of Appeal expounded that such application for leave to appeal should first be lodged in the High Court before it is transferred to the Resident Magistrate Court to a specific magistrate with extended jurisdiction.

Procedure for terminating an employee under probation

We have an employee who is still under probation and he persistently comes to the work place late despite several written and verbal warnings given to him by the management. Do we need to form a disciplinary inquiry committee to probe into his conduct before we terminate his employment?
LK, Dar

No such procedure is required. Section 35 of the Employment and Labour Relations Act exempts the employers from the requirement to form a disciplinary inquiry committee to probe into the conduct of a probationer before terminating his employment. Although the said section refers to employees with less than six months in employment, the Court of Appeal has interpreted it in Civil Appeal No. 61 of 2016 to cover even employees who have worked for the employer for more than six months but have not been confirmed.

The purpose of probation is to assess if the employee possesses the skills and competency required to perform the job for which he/she was recruited. It also gives the employee time to make up his/her mind if he/she can enjoy working for the employer. Expiry of probation period does automatically constitute confirmation to the position. Confirmation should be express and the employees should press for it after the expiration of the probation period.

In short, the procedure for terminating employment of a probationer is to give him/her contractual notice or salary in lieu of notice and repatriation allowance to the place of recruitment if the place of work and place of recruitment are different. You need not go through the process of disciplinary hearing.