Q&A – 28 February 2022

Insulting a barmaid after drinking excessive beer

I insulted a barmaid after being intoxicated with beer I consumed at the bar. I am now being charged in the primary Court with the offence of using insulting language. Can you guide me if I can plead intoxication as an excuse for committing this offence? 
KL, Arusha

Section 14 of the Penal Code [Cap.16 R.E 2019] generally states that self-induced intoxication is not a defence to a criminal charge. However, in order to successfully plead the defence of intoxication in specific circumstances, especially where the intoxication is self-induced, there must be evidence showing that the offender was so drunk to the extent that he could not form the intention to commit the offence charged.

Unfortunately, the offence of use of insulting or abusive language contrary to section 89(1)(a) of the Penal Code does not demand proof of intention to commit it so intoxication cannot be a defence. Therefore, intoxication to a charge of use of insulting language can only be a mitigating factor when the Court assesses the appropriate punishment to be imposed on the offender after conviction. In short, even if you use intoxication as a defence, you will still be found guilty but when you are being sentenced, the fact that you were intoxicated may be taken into account in reducing your sentence. Of course, such sentence reduction is at the discretion of the Court.

Boss refusing to fasten safety belt 

My boss does not like fastening his safety belt when he sits in the front when I am driving. Every time I drive, I get stopped by the traffic police who punish me by making me pay a fine for driving while a front seat passenger has not fastened the safety seat belt. How does the law protect an innocent driver who advises his boss to fasten a safety seat belt but the boss refuses?
PP, Moshi

A driver commits a traffic offence under section 39(1) of the Road Traffic Act [Cap.168 R.E 2002] if he drives a motor vehicle while a person sitting in the front- seat has not fastened the safety belt. Unfortunately, the law does not give any excuse to a driver whose boss refuses to fasten the safety seat belt. Where the boss refuses to fasten the seat belt, the driver should not drive because if he does, he will be committing a traffic offence. Moreover, your boss cannot fire you for not driving in such circumstances.

Labour dispute by child employee

We are a non-governmental organisation dealing with child protection and have been approached by a child who was employed on a two-year contract as a gardener but his contract has been terminated on account of what the employer called laziness. We would like to get your opinion whether under law, a child employee can lodge a labour dispute against the employer directly or he is required to use a next friend. 
PN, Dar

Rule 21 of the Law of the Child (Child Employment) Regulations, 2012 provides guidance for institution of employment disputes by a child employee. The Regulations require a child who is aggrieved with termination of his employment to refer the dispute to the Commission for Mediation and Arbitration in accordance with the procedure prescribed under the labour laws. Although the Commission does not sit as a juvenile Court, the Regulations demand that the procedure for institution and settlement of employment disputes by a child employee be modified in order to guarantee child protection. In that regard, a child is required to refer an employment dispute to the Commission through a parent or guardian or anybody who signed the employment contract on his behalf at the time of taking the job as a next friend.

In the absence of such a person, the child may refer the dispute to the Commission through any person he chooses to be his next friend for the purpose of referring the dispute to the Commission. At the time of taking the child’s evidence during the arbitration hearing, the procedure used by the Commission should be friendly to the child as if the child is giving evidence in a juvenile Court. Only the child’s next friend, lawyer, the arbitrator and the opposing party will be allowed to be present in the arbitration during the hearing session.

Managing Director of public corporation neglecting to satisfy decree

I won a commercial case against a public corporation and granted a decree which I took to the managing director, It has been five months now since I submitted the decree to him and he has neglected to pay. What can I do to enforce the decree against the corporation? 
AH, Dodoma

In 2020 the Parliament amended section 16(4) of the Government Proceedings Act [Cap.5 R.E 2019] by the Written Laws (Miscellaneous Amendments) Act, No.1 of 2020 by adding decree against public corporations, parastatal organisations and public companies to which the Government is the majority shareholders to the list of decrees against the Government. Section 16(3) of the Government Proceedings Act bars issuance of warrant of attachment or garnishee orders against the Government, hence Courts now cannot issue attachment warrants or garnishee orders against public corporations as was the case before.

Now execution of monetary decree against a public corporation is carried out in the same way as execution against a ministry or Government department. After judgment, a decree holder is issued with the decree and a certificate which he is required to take to the Permanent Secretary Treasury (PST) for payment. If the PST refuses or neglects to pay, the decree holder can lodge an application for contempt of Court against the PST. The Court will summon the PST to show cause why he should not be punished for civil contempt of Court. In proving the civil contempt of Court, the decree holder should show that he served the PST with the decree and certificate to satisfy the monetary decree but he has deliberately neglected to pay. Courts have held that the standard of proving a civil contempt of Court is beyond reasonable doubt.