Q&A – 9 April 2018
Beyond reasonable doubt
I hear about proving a case beyond reasonable doubt. What does that mean and what are its consequences?
HY, Dar
Reasonable doubt is a term used in jurisdiction of common law countries inclusive of Tanzania. Evidence that is beyond reasonable doubt is also the standard of evidence required to validate a criminal conviction in most systems where the Courts adopt an adversarial approach.
Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person’s belief regarding whether or not the defendant is guilty.
Hence if the prosecution cannot prove its case beyond a reasonable doubt, then the accused is entitled to be discharged since there is a reasonable chance that she/he did not commit a crime.
Courts have stated that “It is better that ten guilty persons escape than that one innocent suffer”. The judicial systems want to make sure that no innocent man is convicted of an offence, even if it means that the guilty are sometimes let free due to this very high standard of evidence.
As a defence attorney, your job is thus to bring in some doubt in the Judges and assessors minds that the accused is not guilty, even if there is a chance that he is; so long as there is some doubt that he might not be guilty, he cannot be convicted.
Whatsapp obscene, pornographic messages
I am a father of three and my daughters have cell phones which I proudly bought for them. Sadly there are so many obscene and pornographic messages flying around on WhatsApp, text and email including video clips of disgusting nature. Isn’t there a law which provide for these things?
AL, Dar
The Electronic and Postal Communications Act of 2010 states that any person who by means of any network services or applications service provides any obscene communication to any person commits an offence and shall, on conviction, be liable to a fine not less than five million Tanzanian shillings or to imprisonment for a term not less than twelve months, or to both and shall also be liable to fine of seven hundred and fifty thousand Tanzanian shillings for every day during which the offence is continued after conviction.
As per the said provision, the penalty for such communication is serious with hefty fines and possible imprisonment. If you can pin point the persons who sends such messages to your daughters, you can report the matter to the relevant authorities and proper measures can be taken against them. Even if you cannot pinpoint such a person, this is reportable as all mobile phone numbers are registered. Your lawyer can guide you further.
Pornography is also illegal under our penal statutes- very few people seem to remember that. It is an offence that is imprisonable. Furthermore, under the newly passed Cyber Crimes Act 2015, publishing pornography attracts a fine of between twenty to thirty million shillings with a custodial sentence of 7 years.
English law for Tanzanian contract
I executed a contract to be performed in Tanzania but the choice of law is English and English courts have jurisdiction to resolve the disputes. Now the other party has breached the agreement and I don’t see the necessity of filing a case in the chosen jurisdiction, can’t I sue locally? Can I be forced to perform a local contract with a foreign clause such as this? Is there no law to protect me?
JK, Arusha
Courts always endeavor to observe the exact word of the contract as agreed by the parties because the intention of the parties at the time of contracting must be respected unless the Court has reasons to depart from the intention of the parties, which is quite rare. It is unlikely that the Courts will agree to entertain the dispute in Tanzania while both of you expressly agreed to apply English law and chose English Courts. The best available option for you is to request the other party to agree to apply Tanzanian law and Tanzanian Courts to have jurisdiction which we doubt they will agree to.
Such contracts are not uncommon and even if a Tanzanian Court had jurisdiction, such a Court would not know the English laws and hence would not in any case be able to entertain this here.
As for being forced to stick to English Courts, please note that this was the clause both of you agreed to by signing on the contract. You cannot now turn around and say that it should not apply. The four corners of a contract are to be respected. Your lawyer can guide you further.
Attending burial of mother whilst in prison
My uncle has been in prison for the past 5 years and has a good disciplinary record with the prison authorities. His mother passed away few months ago and he was informed of this in a timely manner. His application to go for last respects was denied. Is that legal? This has really disturbed me especially considering that all he asked for was to go to Church in Dar where he is imprisoned.
RE, Dar
Unfortunately the law and the rules governing detention of prisoners are very strict, not only in Tanzania but in many other developing countries. Facilities of providing escorts to attend funerals are not easily available, and for the sake of safety there is a standard provision that a prisoner cannot go for funerals of their loved ones. It is indeed very sad but the circumstances seem to dictate so. To change this, you can suggest so to the Law Reform Commission of Tanzania to take this up.