Q&A – 6 February 2023

Request for extradition of gay person

I am gay and have been living in Tanzania for a few months now. I ran away from my country because the law enforcement officers were looking for me in order to charge me with the offence of being gay. In my country it is an offence to be gay. I suspect the law enforcement agents of my country may make a request to the Tanzanian authorities to arrest me and surrender me to my country for prosecution for a gay offence. Can I know if the laws of Tanzania allow the surrender of a foreigner suspected of a gay offence in his home country?
BF, Dar es Salaam

Generally, the Schedule to the Extradition Act [Cap.368 R.E 2019] allows arrest and surrender of a person accused or convicted by a foreign state of an offence similar to the offences specified in the Schedule. One of the offences prescribed in the Schedule to the Extradition Act for which extradition is allowed is carnal knowledge against the order of nature. If the evidence from a foreign jurisdiction shows that the fugitive offender in committing the offence called gay offence had carnal knowledge of another against the order of nature, the Courts of Tanzania may allow extradition of such an offender. Hence whether or not our Court will grant the request for extradition for gay offence or not will depend on the evidence proving carnal knowledge against the order of nature. We have not come across such a precedent.

In Tanzania having carnal knowledge against the order of nature is prohibited by section 154(1) of the Penal Code. Section 157 of the Penal Code also prohibits indecent practice between males whether the act is done in private or in public. If the evidence in support of the request for extradition of a gay proves any of the two conducts, the Courts of Tanzania are likely to grant a request for arrest and order the surrender to the competent authorities of a foreign country accusing a gay of such offence. If you believe the investigators in your country have the evidence of carnal knowledge against the order of nature then there is a likelihood of you being arrested and surrendered to the authorities of your country for prosecution. We have not seen any such precedents here but normally those seeking a safe haven would go to a jurisdiction where such type of conduct is not an offence.

Disclosure to PCCB, TRA of commission paid for contract 

Last year one Government Agency advertised a competitive tender for supply of goods. We applied and were selected to supply the goods effective from October last year. However last week we received a summons from a law enforcement agent commanding our managing director to report to their offices with a document showing whether within 30 days after the execution of the contract with the Government Agency we filed a statement to the TRA and PCCB stating any commission we paid to any person who helped us to get the tender. We don’t understand what actually our fault is as we have not paid any commission. Can you enlighten us?
ER, Dodoma

It is a mandatory requirement under section 85 of the Public Procurement Act [Cap.410 R.E 2022] that within 30 days after signing a procurement contract with any Government agency, department, ministry, authority or company, the tenderer must furnish to the TRA and PCCB a written statement stating the person and amount of commission the tenderer paid or is planning to pay to such a person as a commission for assisting the tenderer to get the contract. This statement must be furnished to the TRA and PCCB even where no middleman was used by the tenderer or no commission was paid by the tenderer to any middleman for assisting the tenderer to get the tender. Hence even if there was no commission paid, you should have furnished such a document. A tenderer’s failure to furnish a written statement to PCCB and TRA within 30 days after the execution of the procurement contract with the Government entities constitutes a criminal offence and that may be the reason for the summons.

Surety wants to relocate

I am a surety for my neighbor who is charged with an economic offence. I deposited my title deed with the Court as one of the bail conditions imposed on the accused by the Court. I have been transferred by my employer to a foreign country as my new working station. What can I do to be discharged from duties as a surety because I feel I will not be able to ensure the accused’s appearance before the Court which is part of my duty as a surety? I am really worried as some individuals say that I cannot remove myself as a surety at this stage until trial is over.    
LK, Mwanza

The core duty of the surety is to ensure and guarantee the appearance of the accused released on bail. Section 155 of the Criminal Procedure Act states that a surety who wants her/his bond to be discharged is required to apply to the magistrate who admitted the accused to bail for discharge of her/his bond. The magistrate upon receiving the surety’s application for discharge from the bond will issue a summons to the accused to appear before the Court for him to be informed that one of his sureties has requested for discharge of her/his bond. Upon so informing the accused and upon discharging the surety from the bond, the Court shall require the accused to look for another surety and if she/he fails to secure another surety, she/he will be remanded in prison.

It is important that you inform your neighbor before you formally make an application for discharge from the bond so that the accused will be able to look for another surety with another title deed in order to meet the bail conditions imposed on him by the Court. Once you are discharged from the bond, your title deed will also be released by the Court as you will no longer be a surety.