Q&A – 2 November 2020

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Smoking in entertainment facilities

There are people who smoke in bars without considering that they are affecting heath of non-smokers who drink beside them. Is this not a crime? In other countries smoking is strictly dealt with.
UT, Dar

Tanzania also has strong anti-smoking laws, maybe not strictly enforced but they do exist.

Smoking in public is an offence under section 12(1) of the Tobacco Production (Regulation) Act, 2003. Further section 33(3) of the Act imposes a penalty of a fine not exceeding TZS 500,000 or imprisonment for a term not exceeding one year for smoking in public.

The Act defines a public place to means a heath care establishment, library, place of worship, enclosed premises intended for social cultural meetings, sporting or recreational activities, public eating places, office buildings, public transport on air, land, sea, pavilion, enclosed environment such as markets, malls and any other place to which public has admittance. Our opinion is that bars fall within this definition because it is an enclosed place to which public has admittance.

Moreover section 13(1) and 14(1) of the Act requires the owners, occupiers or operators of entertainment facilities, restaurants and hotels to set aside rooms or places for smoking to ensure maximum protection of non-smokers. We have noted that this may not be strictly adhered to but such an offence is imprisonable as stated above.

Marital rape

If my wife refuses to give me my conjugal right will it amount to rape if I force her to have sexual intercourse with me?
TT, Mwanza

Marital rape is generally defined as forced intercourse with your spouse without her consent. Most countries criminalized marital rape from the late 1970s. Newer laws, improved laws and redrafted laws assisted bring in the concept of marital rape which many countries have now adopted. Criminalization in these countries has occurred through various ways, including removal of statutory exemptions from the definitions of rape, judicial decisions, explicit legislative reference in statutory law preventing the use of marriage as a defence, or creation of a specific offence of marital rape.

Our penal laws pertaining to newer offences have not been updated and unfortunately under section 130(2)(a) of the Penal Code [Cap.16 R.E 2019] a man does not require consent of his wife in order to have sexual intercourse with her unless the two are separated at the time of sexual intercourse.

Hence if you are not separated with your wife, and you forcefully have intercourse with her, that cannot amount to rape in Tanzania.

Loud music in residential area

My neighbour owns a social hall and during weekends rents it for weddings and other social entertainments. We get disturbed by the loud music that comes from the hall. What can I do in law?
PP, Moshi

Under section 42(1) of the Police Force and Auxiliary Service Act [Cap.322 R.E 2002] Police are vested with power to regulate the extent to which music may be played or to which music or human speech or other sound may be amplified, broadcast, relayed or otherwise reproduced by artificial means in public. Neglect or failure to obey Police order amounts to an offence punishable by a fine not exceeding TZS 500,000 or imprisonment for a term not exceeding 3 months.

Having said that, there are permits issued area wise for music to be played usually till midnight. If the neighbour’s hall does not have a permit, or goes beyond the time stated on the permit, then that may amount to an offence.

Your lawyer can guide you further after getting further facts from you.

Appeal from conviction on a plea of guilt

My uncle pleaded guilty to an offence of unlawful possession of a tail of wildebeest. In our tradition old men like him walk with wildebeest tails to chase away flies. Can he appeal his conviction?
GP, Dar

Section 360(1) of the Criminal Procedure Act gives a person convicted on his own plea of guilty a limited right of appeal to challenge the extent or legality of the sentence imposed on him.

Through case laws, conviction founded on plea of guilty can now be overturned on appeal where it is shown or it appears to the appellate Court that: the appellant’s plea of guilty was imperfect, ambiguous, or unfinished and for that reason the trial Court erred in treating it as a plea of guilty; the appellant pleaded guilty as result of mistake or misapprehension; the charge on which the appellant was convicted was a defective charge or facts adduced by the prosecution in support of the plea of guilty did not establish the essential elements of the offence to which the appellant pleaded guilty; lack of jurisdiction; lack of proper consent of the DPP where the prosecution of the offence charged requires prior consent of the DPP to try it. Some of the cases that explain the position above that you can refer to are Lawrence Mpinga v. R [1983] TLR 166; Msafiri Mganga v. R, Criminal Appeal No. 57 of 2012 at p.3; Said Omari Kombo v. R [2000] TLR 315

For your reference, unlawful possession of government trophy is one of such offences whose prosecution requires consent of the DPP. In any case you can try the grounds stated above to challenge the conviction.