Q&A – 4 March 2019
Inheritance rights when getting remarried
I was married for 10 years before my husband died two years ago. We jointly acquired properties during our marriage as both of us were working in very good positions. I have met someone who has an interest in me and we intend to get married. My in laws are trying to stop me from getting married saying it was not allowed and that they would automatically have a claim on my properties. Please guide.
PV, Dar
Section 68 of the Law of Marriage Act does not restrict a woman to re marry and states that notwithstanding any custom to the contrary, a woman whose husband has died shall be free- (a) To reside wherever she may please; and (b) To remain unmarried or, subject to the provisions of section 17, to marry again any man of her own choosing: Provided that where the parties were married in the Islamic form the widow shall not be entitled to re marry until after the expiration of the customary period of iddat.
As for your in laws, if you acquired the properties as joint tenants, then upon the death of your husband the property vested, automatically with you, as the other surviving joint occupier. However if you acquired the properties as tenants in common, then your portion under the title remains with you and your husband’s portion will be transferred to whoever he mentioned under his Will. The distinction between joint tenants and tenants in common is critical and most property owners don’t know the difference. You should check this in your title deed.
New manager charged with old manager’s wrongs
The former manager of our company had not complied with a certain law and has been summoned to appear before one of the authorities to show cause. I am the new manager having just started my job and the summons only reads the manager. However at the time of the issue, it was him he was in charge not me. Unfortunately he was an expat and has left the country. Who should attend this show cause summons?
RL, Mwanza
What you would like to hear is that it is the manager who was here at the time of the offence who should appear. Unfortunately, unless the law under which the title manager is charged states so, the summons is made out on the title. It does indeed sound very unfair but section 66 of the Interpretation of Laws Act makes it very clear that any civil or criminal proceedings taken by or against any person by virtue of his office shall not be discontinued or abate by his death, resignation or absence or removal from office, but may be carried on by or against, as the case may be, the person for the time being holding that office.
Provocation as a defence
I am a law student and find the defence of provocation somehow too far fetched and unfair for the victim. Is this a defence that has recognition in our law or is it a common law import?
GO, Mtwara
The penal code in section 201 states that when a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only. We also invite you to read section 202 which is too long to reproduce here but defines provocation.
The defense of provocation was first developed in English courts in the 16th and 17th centuries. During that period, a conviction of murder carried a mandatory death sentence. As such, the need for a lesser offense arose. At that time, not only was it seen as acceptable, but it was socially required that a man respond with controlled violence if his honor or dignity were insulted or threatened. It was therefore considered understandable that sometimes the violence might be excessive and end with a killing.
During the end of the 20th century and the beginning of the 21st century, the defense of provocation, and the situations in which it should apply, have led to significant controversies, with many condemning the whole concept as an anachronism, and arguing that it contradicts contemporary social norms that people are expected to control their behavior, even when angry.
Today, the defense is generally controversial especially in murder cases, because it appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked. Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability. This is usually tested by reference to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did. Thus, if the majority view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, then to walk away, that will set the threshold for the defense.
A controversial UK case that you should read is R v Ahluwalia which came to international attention after an Indian woman married to a British man of Indian origin burned her husband to death in 1989. She claimed it was in response to ten years of physical, psychological, and sexual abuse. After initially being convicted of murder and sentenced to life in prison, Ahluwalia’s conviction was later overturned on grounds of inadequate counsel and replaced with manslaughter. The case changed the definition of the word ‘provocation’ in cases of battered women and brought in the defence of battered wife syndrome in criminal law.
The phrase “sudden and temporary loss of self-control” encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind.
All in all, the defence has recognition in our statutes and is further reinforced by case law from around the world.