Q&A – 23 March 2020

Price hikes during corona virus
There are shops and other businessman who are hiking prices of sanitizer and other disinfectants during the corona virus crisis. Is this legal and who has authority to stop them?
TY, Dar

This is indeed a cause for concern. The Fair Competition Commission of Tanzania oversees the Fair Competition Act and has already started acting on this. Section of this Act states that (I) A person shall not make or give effect to an agreement if the object, effect or likely effect of the agreement is: (a) price fixing between competitors; (b)a collective boycott by competitors; or (c) collusive bidding or tendering. (2) In this section (a) ”price fixing between competitors” means to fix, restrict or control the prices, tariffs, surcharges or other charges for, or the terms or conditions upon which, a party to an agreement supplies or acquires, or offers to supply or acquire, goods or services, in competition with any other party to the agreement;

The Act further states that (b) ”collective boycott by competitors” means:(i) to prevent a party to an agreement from supplying goods or services to particular persons, or acquiring goods or services from particular persons, in competition with any other party to the agreement; (c) ”output restrictions between competitors” means to prevent, restrict or control the production by a party to an agreement of goods or services to be supplied in competition with any other party to the agreement;

Under the Act, offences such as those above can result in compliance orders being issued and/or hefty penalties imposed up to 10% of the entities turnover. Such penalties can be imposed up to 6 years from the commissioning of the offence and past experience has shown that the FCC does not shy away from taking stern action.

If you believe there is anyone who is hiking prices and taking advantage of consumers, you can report them to the FCC. However, FCC will also look at all the circumstances and give the sellers a chance to respond before taking any action. There is always the possibility that retailers are buying goods whose prices have already been hiked by the wholesalers or manufacturers and hence one cannot entirely the retailers.

17 year old charged with sexual offence
My neighbour’s son aged 17 years was charged with an unnatural offence that he had sexual intercourse with a girl aged 9 years against the order of nature. He was sentenced to life imprisonment. The magistrate reasoned that since the victim is below the age of ten years, the statutory minimum sentence is only life imprisonment. Was it correct for the Court to consider the age of the victim in disregard of the age of the offender? I hear that in India in a famous rape trial, one of the rapists was a person under 18 yet he was sentenced to death.
GH, Mwanza

This is a very sad state of affairs. Our response below is based on the law as it stands now. It may not be what the reader or us approve of. As lawyers we cannot answer it any other way.

Under section 154(2) of the Penal Code [Cap.16 R.E 2002], the statutory minimum penalty for an unnatural offence committed against a child who is under the age of 10 years is life imprisonment. However, and unfortunately so, that statutory minimum custodial sentence cannot apply to an offender who is also a child. The sentencing law and policy in Tanzania has been to exempt children from cruel or severe sentences even where the sentence is mandatory and the victim is a child. Before the Penal Code was amended by the Sexual Offences (Special Provisions) Act, 1998, section 2 of the Minimum Sentences Act [Cap.90 R.E 2002] prohibited Courts from imposing minimum sentences to children in conflict with the law. Courts retained their discretion to impose appropriate sentences to children despite there being a mandatory minimum sentence provided by the law for the offence which the child is convicted.

The Sexual Offences (Special Provisions) Act, 1998 failed to reconcile the conflict between the interest to promote and protect a child offender and the child victim. The law did not consider a situation where both the offender and the victim are children. In 2007, section 160B of the Penal Code was introduced by amendment through Act No. 19 of 2007 to reconcile the interest of both the child offender and the child victim. The amendment exempted children offenders from statutory minimum sentences provided for sexual offences even where the victim is a child. The amendment gave the Courts discretion to impose any sentence they deem appropriate in the circumstances of the case and the offender including a corporal punishment. Section 160B of the Penal Code extended exemption from the minimum sentences for sexual offences to both offenders who are 18 years and those who below the age of 18 years.

In 2009 the Law of Child Act, 2009 was enacted. Section 119(1) of this law as amended by Act No. 4 of 2016 prohibits Courts from imposing custodial sentence on children offenders for all offences irrespective of the nature of the offence and the penalty provided for that offence by a written law. In our opinion the Court might have imposed the life imprisonment to under 18 years for failure to consider other laws and other provisions protecting children offenders. There seems to be an issue with how the 17 year old was sentenced. He can seek an appeal if he wants.

From our research on the 2012 Indian rape case of Nirbhaya (not her real name), there were 6 people on the bus that raped the young college student resulting in her death. 1 apparently committed suicide in jail, the other 4 were convicted of rape and murder, and given the death sentence which was carried out by hanging on 20 March 2020. The sixth was a juvenile (under 18) and he was convicted of rape and murder, but because of his age, he was not sentenced to death. Instead he was given a 3 year sentence and has already been released from jail since December 2015.