Q&A – 27 February 2017
Prosecution of MPs
I have seen many Members of Parliament being prosecuted in Courts of law. Is that legal? Do they now have immunity like in other countries? It is tantamount to prosecuting a judge is it not?
TY, Dar
Generally speaking, a MP cannot be prosecuted for any opinion in the National Assembly. Article 100 of our Constitution provides that protection and states that (1) There shall be freedom of opinion, debate 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. (2) 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 any thing 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.
This immunity is limited to that in the National Assembly. Hence a MP can be questioned by police and taken to Court for anything that is not as a result of the MPs freedom of expression in the National Assembly.
For example a MP can be charged with a traffic offence or any other criminal charge under the Penal Code. There is no absolute immunity that a MP enjoys the way the President enjoys under Article 46 which states that during the President’s tenure of office in accordance with this Constitution it shall be prohibited to institute or continue in court any criminal proceedings whatsoever against him.
We believe that in other countries, the MPs do not enjoy immunity outside of their parliament for actions that are not related to their opinions and actions in parliament.
Nuremberg principles applicability
I am a law student and have read with great interest about the Nuremberg trials and the principles that were extracted from it. Are these principles still in use today?
JK, Dar
The Nuremberg trials led to the conviction of the people most responsible for the crimes committed in the Holocaust. The trial led to the seven Nuremberg Principles, which list the legal principles that were recognised by the Charter for the International Military Tribunal and its judgments. The principles include individual responsibility, that Heads of State or Government can be held liable under international law, orders by a superior is no defence and the list of crimes punishable under international law.
These principles were adopted by the United Nations General Assembly and are today widely considered to represent customary international law (that is, laws that have developed through custom rather than by formal agreement or legislation).
Since this is a topic of wide interest, we list the 7 principles in further detail below. Principle 1-Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment; Principle 2- The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law; Principle 3- The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law; Principle 4- The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. This principle can be paraphrased as follows: “It is not an acceptable excuse to say ‘I was just following my superior’s orders. Principle 5- Any person charged with a crime under international law has the right to a fair trial on the facts and law; Principle 6- The crimes hereinafter set out are punishable as crimes under international law: (a) crimes against peace, (b) war crimes and (c) crimes against humanity; Principle 7- Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle 6 is a crime under international law.”
These 7 principles are still used today and ensure that even if under internal or domestic law an action might not be a crime, under international law one can still be charged.
Lying under oath
One person has sworn an affidavit in Court that is such a lie that it is hard to believe the extent people will go to cheat. Is it not an offence in Tanzania to lie under oath?
II, Moshi
Section 102 of the Penal Code addresses this and states that (1) Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed “perjury”. It is immaterial whether the testimony is given on oath or otherwise.
The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used. It is immaterial whether the false testimony is given orally or in writing. It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place, or not if it actually acts a court or tribunal in the proceeding in which the testimony is given. It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceedings or not. (2) Any person who aids, abets, counsels, procures, or suborns another person to commit perjury is guilty of the misdemeanour termed “subornation of perjury”
Although the law states that anyone commiting perjury is liable to imprisonment for seven years, we have not seen this offence being seriously pursued in Tanzania.