Q&A – 4 January 2021
Corporal punishment by Court
What is the procedure for imposition and infliction of corporal punishment imposed by the Court? Can a woman offender be sentenced to corporal punishment and undergo strokes on her bottom? Does the law limit the maximum number of strokes that can be imposed by the Court? Can corporal punishment be imposed for any offence? Is it legal to impose this primitive punishment in this era?
PP, Tanga
The Procedure for imposition and infliction of corporal punishment is provided for under the Corporal Punishment Act [Cap.17 R.E 2002] and the Corporal Punishment Order [Cap.17 (S.L) R.E 2002].
Although corporal punishment can be imposed as an additional or alternate sentence, it cannot be imposed for any offence. Corporal punishment can only be imposed where the offender is convicted of an offence specified in the Schedules to the Corporal Punishment Act. To mention a few, offences specified in the Schedule include armed robbery, cattle theft, sexual offences, trophy offences, drug offences, witchcraft, theft, and assault.
Corporal punishment may be imposed in lieu of or in addition to any other form of punishment to which the offender may be liable for the offence. Children are usually sentenced to corporal punishment in lieu of other forms of punishment to which the child offender is liable for the offence. Adults are normally sentenced to corporal punishment as an additional sentence to other forms of sentence to which the adult offender is liable for the offence.
Corporal punishment has to be inflicted within six months from the date such sentence was passed or six months from the date the appeal was disposed of, if the offender appealed. Ordinarily the strokes are inflicted once except where the offender is undergoing corporal punishment following a conviction of robbery, armed robbery or trophy offences in which case the strokes can be inflicted in two equal instalments at the commencement of the prison term and immediately before the prisoner is finally released.
The maximum number of strokes the Court can impose to an offender is 24 strokes for an adult and 12 strokes for a child. Before the offender undergoes corporal punishment he/she should be examined by a medical officer to find if he/she is physically fit to undergo the punishment. Where the offender is certified to be physically fit to undergo corporal punishment, the punishment has to be executed in the presence of a medical officer, the magistrate and a prison officer whose rank is not below assistant superintendent.
The medical officer may direct the infliction of the strokes to stop if the physical condition of the offender at the time of executing the sentence does not allow infliction of corporal punishment for instance where the offender starts bleeding at the time of inflicting the strokes.
Where the medical officer certifies that the offender is unfit for corporal punishment, the Court may substitute that penalty for other forms of sentence like fine or custodial sentence. However, where the Court substitutes corporal punishment for custodial sentence, the length of prison term should not exceed 3 months imprisonment.
Corporal punishment to an adult is inflicted on bare buttocks with a light rattan cane which is free from knots. This means the person undergoing corporal punishment imposed by the Court has to undress his or her clothes including underpants. Corporal punishment imposed by the Court is a sentence so it is imposed by a prison officer appointed by the prison authority. Where corporal punishment is inflicted on a child, the cane should be not less than one-quarter of an inch and not more than three-eighths of an inch in diameter but should not exceed thirty six inches in length. During infliction of corporal punishment, the person undergoing the punishment should be secured so that he/she cannot, by reason of movement of his/her body cause the strokes to fall on other parts of his/her body other than the buttocks. When corporal punishment is inflicted, a piece of thin cloth soaked in an antiseptic solution should be kept spread over the buttocks of the person undergoing the punishment.
The law does not exempt women from undergoing corporal punishment on their buttocks as it does for female pupils or students when corporal punishment is administered by a teacher. However, because corporal punishment is degrading, the law prohibits carrying it out in public.
There is a Global Initiative to end legalised violence against children through universal prohibition and elimination of all corporal punishment. Many countries still have this practice which a number experts argue is outdated and should hence be outlawed. You can login to endcorporalpunishment.org
Severance pay on fixed term contract
I am an expatriate working for the past 5 years in a manufacturing company in Tanzania. My contract expired a few months ago and I did not want to renew it. I then approached the head of HR for my severance pay and was shocked to be told that I am not entitled to severance allowance. What is the legal position?
The Head of HR is correct. In terms of section 42(3)(c) of the Employment and Labour Relations Act, an employee who is leaving his job because his fixed term contract has expired or because he/she has attained the retirement age is not entitled to a severance pay. Severance pay is given to an employee whose contract has been terminated by the employer and not to an employee whose contract has terminated automatically or an employee who has resigned.
Basis of minimum salary in private sector
I am employed in the hospitality industry as a cleaner and want to know if the salary I am paid is lawful. What is the current minimum salary in the hospitality sector in Tanzania?
KU, Morogoro
According to the Labour Institutions Wage Order, 2013, [GN No.196 of 2013] the minimum monthly salary for employees working in bars, restaurants and guests is TZS. 130,000; for medium hotels the minimum monthly salary is TZS 150,000 and for potential and tourists hotels it is TZS 250,000. The minimum wage is reviewed by the Wage Board. We are not aware of any review done after the issuance of GN No.196 of 2013.