Q&A – 3 April 2017
Sex with under 18 is rape
I have been reading about rape in Tanzania which is quite prevalent but which goes unreported, and when reported the accused is only sentenced to 5 years imprisonment. I am informed that the Government is going to amend the Penal Code to make it a more serious offence with a wider definition. Is the above true and when is this new act going to be enacted? What is the legal age to have a sexual relationship?
MT, Mwanza
The Penal Code of Tanzania has already been amended to make rape a very serious offence, which all readers of this column should take note of. Section 130 of the Penal Code has been amended by the Sexual Offences Special Provisions Act and states that a male person commits the offence of rape if he has sexual intercourse with a girl or woman under circumstances falling, under any of the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; (b) with her consent where, the consent has been obtained by the use of force, threats or intimidation or by putting her in fear of death or of hurting her while she is in unlawful detention; (c) with her consent when her consent has been obtained at a time when she was of unsound state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two; (d) with her consent when the man knows that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married; (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.
The Penal Code has been further amended and states that for the purposes of proving the offence of rape penetration, however slight, is sufficient to constitute the sexual intercourse necessary for the offence. Resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent, which makes it easier to prove rape. Whilst rape, as is the case elsewhere, goes unreported because of fear and stigma (amongst others), with increased women’s rights and awareness, there are more cases that are nowadays reported compared to previous years.
What is very important to note is the fact that sexual intercourse with a girl below 18 years of age, even with her consent, is rape. It does not matter that she consented- a man will still be convicted. The offence of rape attracts a minimum 30 years imprisonment with corporal punishment and not 5 years as you have indicated. The amendment to the law also provides that in addition to the above, the person will be ordered to pay compensation of an amount to be determined by the Court for the injuries caused to such person. You can thus see that rape is severely punished in Tanzania.
Finally, for the interest of readers, with the increase in rape cases, the law in India has gone a step further and now defined rape very broadly as follows: a man is said to commit rape if without her consent he: (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.
7 days notices by TRA
Does TRA have powers to come and search taxpayers premises? Can this be a fishing expedition for them? If the answer is yes, is this provision not unconstitutional? Can TRA give me only 7 days to pay up after they issue assessments or demand notices?
UY, Dar
Under the Tax Administration Act and other tax laws, including the East Africa Community Customs Management Act, the Tanzania Revenue Authority has wide powers to search premises of taxpayers. This is similar to other jurisdictions where tax revenue collection must be protected. We do not see anything unconstitutional about this provision. Of course, the search needs to be for tax related matters and not a general fishing expedition; however the taxpayer cannot stop a tax official from doing his/her job.
As for the 7 days notices, we have indeed seen such deadlines being given and opine that the taxpayer has 30 days to object to any decision by the commissioner, or if an objection has been determined by the TRA, the taxpayer has 30 days to go to the Tax Revenue Appeals Board (Board) on an appeal. Hence the 7 days are, in our opinion, not justified as they fall within the objections or appeals period that is clearly provided by our tax laws.
If you are issued with such a deadline, it is prudent that you inform TRA about your rights existing for 30 days and TRA cannot enforce collection measures when the time frame for you to object or appeal have not expired. Notwithstanding the above, if all objection and appeals periods have lapsed, and you have neither objected nor appealed, then TRA may proceed with recovery measures as there are no proceedings pending before them or the Board.