Q&A – 3 September 2018

Shooting an intruder in self defence

If an intruder enters my house and shoots my wife, and I shoot dead the intruder dead can I be charged with murder? How sympathetically does the law look at intruders in Tanzania? I am informed that in other jurisdictions intruders have their rights. Kindly guide.
TU, Dar

You might be a law student and have come up with a good question.

If the intruder breaks into someone’s house with a gun, and shoots ones wife dead, and the husband fires back otherwise the intruder would also kill the husband, then it is reasonable force that the husband has used, in self defence, and he will unlikely be charged with murder as his force is not disproportionate.

However, if an intruder comes and shoots ones wife, and then the intruder is running away from your house, and you intentionally shoot him in the head to kill him when he is no more a threat to you, that may amount to murder.

In another scenario, the intruder shoots your wife, and then runs out of bullets, and hence no more a threat, and you knowing that he tried shooting you and failed, then shoot at him in the head and kill him, might amount to murder. It all depends on the facts of each case.

As for rights, we are not aware of what rights intruders have in other countries. In Tanzania you cannot use unreasonable force in self defence. What is reasonable and what is not, again, depends on the facts of each individual case.

TRA communications in Kiswahili

We are a foreign company and do not understand Kiswahili. The TRA have started writing to us in Kiswahili. Is this allowed and how can we change this?
UR, Morogoro

Under the Tax Administration Act 2015, the TRA have the option of writing to you in either English or Kiswahili. It is perfectly okay. There is no provision of the law that states the TRA must write to you in English. You can request the TRA but they can still continue writing in any of the two languages. In some countries the language adopted by statutory authorities is only the national language. In Tanzania, English is still commonly used as our laws are mostly still in English.

Liability of managers in tax law

I am CEO of a large company and am of the opinion that my company cannot, and will not, meet its tax obligations. Infact, although there is a tax manager in place, I am worried that the company is not tax compliant. I am only an expatriate so fully protected but is there something I should be aware of? 
OP, Dar

Under the old tax regimes there was confusion in different tax laws as to the personal liability of managers like yourselves. However with the new Tax Administration Act 2015 in place, there is no more any ambiguity. Section 65 of this newly enacted law states that where an entity fails to pay tax on time, a manager of a person who was the manager of that entity within a period of twelve months prior to the entity default shall be jointly and severally liable with the entity for the payment of tax.

The law however states that such liability on managers shall not apply where the manager has exercised the degree of care, diligence, and skill to prevent failure of tax.

You can see that you will be personally liable to the tax authority for payment of such taxes. The Act allows you then to hold any asset of the company to the amount not exceeding the amount you will have paid on behalf of the company.

Being an expatriate does not mean you have extra protection as the Tax Administration Act does not distinguish managers who are local and those who are expatriates. Infact, the Act allows the Commissioner General to order the Director of Immigration Services to stop you from leaving the country for a period of 14 days after which the Commissioner General must have a Court order in place to restrain you from leaving.

It is important you contact your tax consultants and auditors to discuss how your company can become tax compliant.

Pornographic material on e-mail

We have some managers in our office who forward very obnoxious and pornographic material on e-mail. It is against company policy but they use their private e-mails to forward these. I have also started receiving these ridiculous e-mails. Is this not an offence?
EE, Moshio

Apart from other penal statutes that address pornography, the recently enacted Cyber Crimes Act provides under section 14 that (1) a person shall not publish or cause to be published through a computer system or through any other information and communication technology: (a) pornography; or (b) pornography which is lascivious or obscene. (2) A person who contravenes subsection (1) commits an offence and is liable on conviction, in the case of publication of- (a) pornography, to a fine of not less than twenty million shillings or to imprisonment for a term of not less than seven years or to both; and (b) pornography which is lascivious or obscene, to a fine of not less than thirty million shillings or to imprisonment for a term of not less than ten years or to both.

Section 23 of the same Act further adds that (1) a person shall not initiate or send any electronic communication using a computer system to another person with intent to coerce, intimidate, harass or cause emotional distress. (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

It does not matter whether these employees are the originators of the pornographic and other e-mails or not. Simply forwarding such material is an offence and one that can attract both a fine and imprisonment. We suggest you inform them of the above and if the e mails and behavior does not stop, report them to the police who can take appropriate action. They must be reminded that pornography in Tanzania is prohibited.