Q&A – 21 October 2019
Affair with boss
I work for a big company and am in love with my boss. He is the best person I have ever met. He also likes me and we have spent some time together. The only problem is that he says since he is the boss, and I am his secretary, it is illegal for him to get involved with me. Does the law stop him from doing so? How do I get him to date me?
IR, Dar
We are not aware of any law that disallows a boss to date his secretary. In fact there are many fairytale stories whereby the boss actually marries the secretary. The problem is that some companies have internal regulations where such a relationship is considered inappropriate and the companies own regulations disallow it. For example if you and your boss are dating, it might affect your performance at work and you might not be able to stay focused on your job to mention a few. In answering this, we assume both of you are single.
Unfortunately, as lawyers we are not qualified to answer your second question on how we can assist you in getting him to date you.
Court increased sentence on appeal
My uncle was charged with cattle theft in the Primary Court and was convicted and sentenced to 6 months imprisonment. He appealed to the District Court but his appeal was dismissed and surprisingly his sentence was enhanced to 2 years imprisonment. Is this proper? Please advise me what to do.
FH, Moshi
Section 21(1)(b) of the Magistrates Courts Act gives the District Court power to enhance the sentence when it is exercising its appellate power. However, the power of the District Court to enhance sentence has its restrictions. The District Court when exercising its appellate jurisdiction cannot enhance the sentence beyond the sentencing power of the Primary Court sitting as a Court of first instance. Under the Primary Courts Criminal Procedure Code which is the Third Schedule to the Magistrates Courts Act, the maximum sentence that a Primary Court can impose is 12 months imprisonment and where it decides to impose a sentence exceeding six months imprisonment the sentence should be confirmed by the District Court before the convict starts to serve the sentence. Therefore, the sentence of two years imprisonment enhanced by the District Court is excessive and illegal. The second restriction is that before the District Court decides to enhance the sentence, it has to give the convict an opportunity to be heard as to why the sentence should not be enhanced.
You can ask your uncle to appeal to the High Court within 30 days from the date of the decision that enhanced the sentence.
False document misleading employer
I was charged with use of a false document with intent to mislead my employer under the Prevention and Combating of Corruption Act. It was claimed by the prosecution that I acted upon a false invoice brought to me by an accountant to pay a fictitious claim. After a full trial I was acquitted. The magistrate reasoned that there was no proof that I knew that the receipt I acted upon to authorize payment was forged. After my acquittal I was subsequently re-arrested and charged with uttering a false document under the Penal Code. It is the same invoice that I am being accused of uttering to the accounts department. Is this permitted by law?
PO, Dar
The offence of use of false document to mislead principal and uttering false document are kindred but different offences. They are created by different laws. Therefore, you cannot raise a defence of autrefois acquittal under section 137 of the Criminal Procedure Act because you were not acquitted of the offence of uttering false document in a former trial.
However, there is one common issue in both offences which must have been expressly or impliedly decided in the former trial which is whether you had the knowledge of the falsity of the invoice. Since the same issue was impliedly or expressly determined in the former trial in your favour, in our opinion the prosecution is stopped from charging you with any offence which attracts the same issue that was determined in your favour by the Court in the former trial in respect of the same invoice. The doctrine of estoppel was meant to promote fairness and guard against unfair retrials in disguise.
MP claims immunity
I was at a bar where a Member of Parliament misbehaved with my girlfriend. I confronted him and we ended up in an argument. He hit me with a chair and I ended up in hospital. The MP now claims that he has immunity and cannot be arrested or reported against. What should I do?
II, Morogoro
It is true that Members of Parliament have immunity under Article 100 of our constitution which states that there shall be freedom of opinion, debate in the National Assembly, and that freedom shall not be breached or questioned by any organ in the United Republic or in any Court or elsewhere outside the National Assembly.
The article states further that subject to this Constitution or to the provisions of any other relevant law, a Member of Parliament shall not be prosecuted and no civil proceedings may be instituted against him in a Court in relation to anything which he has said or done in the National Assembly or has submitted to the National Assembly by way of a petition, bill, motion or otherwise.
However, having cited the above, the fighting did not take place in the National Assembly based on anything he has said therein and hence there is no immunity to protect this MP. You can proceed and report this to the police.