Q&A – 28 June 2021

Cheating that unmarried for sex

Two years ago I was approached by a man who told me that he wanted to marry me assuring me that he is unmarried. Believing him I agreed to start a relationship and we have been living together in one house as husband and wife for two years now though we don’t have a marriage certificate. It is only recently that I learnt that the man I am living with is married though he left his wife and children in his home village. Is this not rape because I gave my consent on belief that he is single and is my husband.
HM, Mtwara

A man who procures sexual intercourse or cohabits with a woman by obtaining woman’s consent fraudulently by cheating her that he is single commits a crime called fraudulence pretence of marriage contrary to section 163 of the Penal Code [Cap.16 R.E 2019] and is liable to imprisonment for 10 years. For your information, in this offence there is no option of a fine and if you pursue this, he could be imprisoned for 10 years.

Watching porn from a laptop computer

I am a Tanzanian living abroad where people are allowed to watch porn. All my porn videos are in my laptop computer and I want to visit Tanzania soon. Is it a crime to have porn in my computer? I know many of my Tanzanian friends secretly watch porn and there are latest videos I’d also like to share with them when there. Kindly guide.
AL, Europe

Section 14 of the Cybercrimes Act, 2015 prohibits publication of pornography in the computer system or other modes of information and communication technology. The Act defines publish quite widely as distributing, transmitting, disseminating, circulating, delivering, exhibit, exchanging, barter, printing, copying, selling or offering sell, letting on hire or offering to let on hire, offering in any way or making available in any way. Doing any of the above acts amount to publishing porno and if you do it you are committing a crime and you shall be liable to a fine not less than 30M shillings or imprisonment for a term not less than 10 years or to both. A mere possession of a computer containing porno or mere watching porno alone on a computer without doing any of the mentioned acts can be argued as not committing this offence (law enforcement might think otherwise), but sharing porn with your friends is certainly an offence.

Pension benefits upon dismissal from public service

In 2017 I was dismissed from public service on the ground that I was employed without having form four education qualification contrary to the Government circulars that imposed form four education as the minimum education qualification for joining public service. Before dismissal I had already made pension contributions to the Public Service Pension Fund for 15 years. Some people are telling me that I cannot be paid my pension benefits because I was dismissed from employment but others are telling me that dismissal is not a bar to pension benefits. What does the law say?
II, Dar

Regulation 40(1) of the Public Service Regulations, 2003 gives a right to a lump sum pension to a public servant dismissed from employment if at the time of dismissal, the employee was qualified for the pension or gratuity under the provisions of the Pension Scheme. This means regulation 40(1) of the Public Service Regulations, 2003 should be read together with other written laws that prescribes qualifications for the grant of lump sum pension to a public employee whose employment has been terminated.

In view of section 26(1)(d)(e) of the Public Service Social Security Pension Act, 2018 and regulation 6 of the Social Security Schemes (Benefits) Regulations, 2018, which prescribes qualifications for pension benefits, it is only an employee in public service whose employment is terminated on public or due to abolition of the office who qualifies for the payment of special lump sum pension. Unfortunately, a public servant dismissed from employment for whatever other reasons is not entitled to a pension benefit. Since you were dismissed from public service for not having form four education, you will likely not be entitled to this benefit. However, you should consult both the pension fund and your lawyers for further clarifications.

Notice to sue the Government in employment matters

I was working for a public corporation before my employment was terminated for what the employer alleged to be a misconduct. I am aggrieved with termination and intend to challenge it. Am I required to give 90 days notice to challenge my employment termination simply because my employer is a public corporation?
JH, Arusha

An action intended to challenge the decision of a public parastatal as an employer is not a suit that requires issuing 90 days notice prior to the institution of the proceedings by the public employee to claim his employment right. The Government Proceedings Act [Cap.5 R.E 2019] does not apply in employment disputes involving public parastatals or any government department, ministry or local authority. It is applicable in civil disputes other than employment disputes. Hence the 90 days notice doesn’t apply to you.

Powers of sungusungu

Few months ago the sungusungu stormed into my shop and took away my shop items to the office of the Ward Executive Officer on allegation that I was doing business without a licence. Are sungusungu vested with powers to storm into peoples’ shops or houses and seize articles for regulatory offences that have nothing to do with security and peace keeping in their local areas?
MM, Shinyanga

The Peoples’ Militia Act [Cap.111 R.E 2002] extends definition of peoples’ militia to cover the traditional security group known as sungusungu or wasalama. Section 4(1) of the Peoples’ Militia Act equates sungusungu with a police officer of the rank of constable and gives them power to arrest and conduct search when they suspect there is breach of any provision of any law of the land whether the law suspected to have been breached is a regulatory law or penal law. The law does not limit the power of sungusungu to offences that have bearing on peace and security only. They can exercise all the powers of arrest and search vested on a police constable.