Q&A – 22 February 2021

Committing a child to prison

I would like to know if the principle of the best interest of the child allows admitting a child to bail if the child is charged with an unbailable offence. What rules of procedure are applicable where a child is tried for a criminal offence by the High Court either alone or jointly with adults? 
YU, Dodoma

Bail for children in Tanzania is governed by the Law of the Child Act [Cap.13 R.E 2002], the Law of the Child (Juvenile Court Procedure) Rules, 2016, the Criminal Procedure Act and other criminal legislations. The principle of the best interest of the child does not warrant granting a child to bail where the offence charged is statutorily unbailable. Rule 28(1) of the Law of the Child (Juvenile Court Procedure) Rules, 2016 precludes children charged with unbailable offences from getting bail. However, section 104(1) of the Law of the Child Act vests a Juvenile Court with power to order a child offender who is charged with an unbailable offence to be handed over to a care of the Commissioner for Social Welfare or a fit person or an institution named in the order instead of committing the child to a remand prison. During that period, if the child is under care of the Commissioner for Social Welfare or a fit person or the institution named in the order, he/she is deemed to be in legal custody.

Where a child is charged with an offence triable by the High Court, whether he/she is charged alone or jointly with adults, the procedural law applicable to the trial of such a child is the Law of the Child (Juvenile Court Procedure) Rules, 2016 and the Criminal Procedure Act [Cap.20 R.E 2019]. Although the High Court is not a juvenile Court, the Chief Justice in 2019 made Judicature and Application of Laws (Adoption of the Juvenile Court Rules in the High Court of Tanzania) Rules, 2019 to allow the Juvenile Court Procedure Rules, 2016 to be applied in criminal proceedings against children in trial before the High Court. The application of the Juvenile Court Procedure Rules in the High Court is done with necessary modifications to suit the criminal trial procedure in the High Court.

According to section 99(1)(b) of the Law of the Child Act and rule 11(1) of the Law of the Child (Juvenile Court Procedure) Rules, criminal proceedings against a child should be held in a Magistrates’ or Judge’s chamber or in a closed courtroom. A Social welfare officer must be present when the proceedings are conducted. Rule 34(1) of the Juvenile Court Procedure Rules, require the trial involving a child offender to be concluded within 6 months from the date the child makes his first appearance before the Court. If the Court is unable to conclude the proceedings within six months, it can extend the time for 3 months which will make a total of 9 months.

Rule 36 of the Juvenile Court Procedure Rules, imposes obligation on the prosecutor to fully disclose the prosecution evidence to the child offender or the advocate of the child offender. Things to be disclosed includes the charge sheet, documents intended to be used in the proving the prosecution case and the statements of witnesses taken during the investigation.

Section 119(1) prohibits sentencing a child to imprisonment. A child can only be given alternative sentences like a fine, compensation or order to pay cost. Where a Court orders a child to pay a fine, compensation or cost, such fine, compensation or cost should be borne by the parent, guardian or relative staying with the child. However, before the Court gives that order, the Court should be satisfied that the parent, guardian or relative contributed to the commission of the offence by neglecting to exercise due care of the child. Secondly, the parent, guardian or relative cannot be ordered to pay a fine, compensation or cost unless he/she has been heard. Compensation or cost may be recovered by way of distress as provided under the Criminal Procedure Act.

In extreme cases a child may be committed to custody at an approved school. But the Court cannot make an order committing a child to custody at an approved school unless it has got the approval of the matron or patron of the approved school and that there is vacancy to accommodate the child offender. According to section 26 of the Penal Code, where a child is found guilty of murder, instead of being sentencing to suffer death, he/she is ordered to be detained at an approved school until the Minister for Justice directs the release of the child from the confinement or directs otherwise.

Mentally challenged wife

I celebrated a Christian marriage with a girl 5 years ago. Recently my wife fell sick with malaria and was mis-diagnosed and treated with wrong medication. She then fell into a coma and was hospitalized for 3 months before being discharged. Ever since her discharge she is mentally challenged and cannot eat, take a bath or walk on her own. I have tried very hard to adjust, but have failed to keep up with this. I wish to support her for life but wish to divorce her. Is this a good ground for divorce? What ground of divorce can I come up with to be successful?
JL, Mwanza

We are sorry to hear about your wife. We will take you down memory lane and remind you of the vows you made during your wedding ceremony when you undertook to live with your wife in any situation be it during happiness or sadness, sickness or good health. The same applies in law in that sickness is not a ground for divorce, separation or annulment of a marriage.

The case would have been different if your wife had this problem before you contracted your marriage and this was concealed from you. Had this been the case, your marriage would have been voidable and we could have advised you to go to Court for its annulment. Your lawyer can guide you further.