Q&A – 24 May 2021

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Impregnating a schoolgirl

My son aged 17 years is charged with an offence of impregnating a schoolgirl who is apparently aged 19 years. I wonder why my son is being charged while the girl consented, and why the girl is not charged for having sexual intercourse with someone below the age of 18 years? Why does the law protect only female students and not male students below 18 years? What is the sentence for this offence of impregnating a schoolgirl?
SK, Dodoma

Impregnating a schoolgirl is an offence under section 60A (3) of the Education Act [Cap. 353 R.E 2002] as amended by the Written Laws (Miscellaneous Amendments) Act, No.1 of 2020. The minimum penalty for impregnating a schoolgirl is 30 years imprisonment. Consent of the schoolgirl to sexual intercourse is not a defence to a charge of impregnating a schoolgirl. Consent of a girl is a defence to a charge of rape if the victim of the offence was 18 years or above at the time of commission of the offence. Even age of the schoolgirl in that she was 18 years at the time she was impregnated by the accused is not a defence to a charge of impregnating a schoolgirl.

The offence of impregnating a schoolgirl is proved by two facts: the fact that the girl impregnated was attending a primary or secondary school at the time she was impregnated and the fact that the schoolgirl was impregnated by the accused. Consent and age of the victim are immaterial considerations.

A female having sexual intercourse with a male who is under the age of 18 years is committing an offence termed ‘grave sexual abuse’ contrary to section 138C(1)(d) of the Penal Code [Cap.16 R.E 2019] as amended by the Written Laws (Miscellaneous Amendments) Act, No.1 of 2020. Therefore, the schoolgirl can also be charged with the offence of grave sexual abuse for having sexual intercourse with a boy who is under 18 years of age. It doesn’t matter whether the boy is a school going boy or not. The law prohibits having sexual intercourse with boys under the age of 18 years whether he is in school or not. The minimum penalty for having sexual intercourse with a boy under 18 years is also 30 years imprisonment.

Although the minimum penalty for impregnating a schoolgirl is 30 years imprisonment, in view of section 60A(6) of the Education Act as amended by Act No.1 of 2020, where the offender is a boy under the age of 18 years, he cannot be sentenced to 30 years imprisonment. A boy under the age of 18 years is a child so he would be sentenced according to section 119(1) of the Law of the Child Act [Cap 13 R.E 2019] which prohibits the imposition of custodial punishment to a child under the age 18 years.

Selling of prescription medicine

During this time of COVID-19 some people have been buying Azithromycin and other drugs without any form of prescription for self-medication in case they are symptomatic. Don’t we have any law that regulates the business of selling medicine to final consumers? In other countries a pharmacist cannot sell certain types of drugs to the final consumer unless the buyer has a prescription from a doctor. Please guide.
IJ Moshi

It is against section 39(2) of the Pharmacy Act, 2011 and Regulation 3 of the Pharmacy (Prescription, Handling and Control of Medicine) Regulations, 2020 (GN No.266 of 2020) to sell or dispense a prescription medicine without a buyer producing a valid prescription issued by a registered medical or allied science practitioner.

The Pharmacy Act, 2011 defines a prescription medicine as a medicine product required to be dispensed only upon a prescription given by a registered medical or allied practitioner. Medicines other than prescription medicines can be sold or dispensed without a prescription issued by a registered medical or allied practitioner. Azithromycin is one of the prescription medicines which should not be sold without a valid prescription of a medical practitioner, and it is an imprisonable offence of upto 12 months to do so.

First right of refusal, tenant in property

I have been a tenant in a property for the past many years. Three months ago I was served with a notice to vacate the premises on grounds that the property had been sold. Is there no law that the landlord should have offered it to me before selling it in the market?
MV, Mwanza

As per the Land laws in Tanzania, there is no legal provision which puts the landlord under obligation to sell his/her property to the existing tenant unless that has been specifically provided for in the tenancy agreement, which is rare. If your tenancy agreement has a right to buy, or right to refusal clause, then depending on the wording of the clause, you may be able to challenge the sale of the property and not otherwise.

If your landlord is a public body, the requirements of advertising and tendering must be met. If that condition has not been met, you may be able to challenge the sale. Furthermore, though the property has been sold, your right to stay remains as per the terms and conditions in the tenancy agreement. You should read the termination clause of the tenancy agreement for further guidance.