Q&A – 9 January 2017
Implementation of law leading to absurdity
I am a law student and have come across an old statute in Tanzania whose interpretation leads to a totally irrational and illogical result. How could the legislature have made such a mistake and why is this not changed till today. Can this provision of the law be held illegal?
OP, Dar
Unfortunately you have not provided us with this law so that we can also assist interprete it and understand better on whether it requires to be changed or not. Notwithstanding that, we can still answer your question. As is the case elsewhere, there are a number of old statutes in Tanzania that might still be in existence but are not implemented or may not be implementable in todays era.
These laws have yet to be repealed and theoretically would have legal force. Hence we need to look at the legislatures thinking at the time of making of the law before we can conclude that it made a mistake.
Having said that, most if not all parliaments around the world, Tanzania including, have made mistakes when formulating, debating or drafting the law. The legislators work under intense pressure and mistakes can happen, as they do in all other areas and professions. Some countries also have made mistakes in the drafting of their constitution. If there is indeed a law that leads to absurdity, Judges do have some flexibility under the golden rule of interpretation which dictates that a judge can depart from a word’s meaning if it leads to a irrational result. Where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.
On whether a provision of the law can be held illegal, the answer is yes. Infact only recently a certain provision of the Cyber Crimes Act was held by the High Court in Tanzania to contravene the Constitution and the Judge ordered that the provision be corrected within 12 months or the provision would automatically be scrapped off.
Arrest for non payment of debt
I lost a case against an individual for a substantial amount and have have failed to pay. I have now been summoned in Court on why I should not be imprisoned as a civil prisoner. I have committed no crime and have genuinely gone under and find it hard to understand how the judgment creditor will benefit by my imprisonment. What should I do?
FR, Mwanza
Our Civil Procedure Code (CPC) has a provision that states that a judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and the Court may order his detention. And provided further that where the decree in execution of which a judgment-debtor is arrested is a decree for the payment of money, and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such, officer shall at once release him.
The CPC further states that where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he will be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.
The CPC adds that where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court shall release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him as a civil prisoner in execution of the decree.
Based on the above provisions you therefore have the choice of either paying up the debt when you appear in Court, or apply to be declared an insolvent and furnish security to the Court’s satisfaction or end up being sentenced to six months imprisonment. If you end up being imprisoned, the requires that the judgment creditor, person whom you have to pay, must supply you with your food and ensure it is at the same standard as what you are currently having.
Hence this is another expense he will have to incur and perhaps can be persuaded to withdraw his application.
Sexual favours and corruption
There is a big man in a big post who has been stalking me and wants me, in return for continued business support from his institution. I have no interest in such a barter and wish to get guidance from you. What do you recommend?
PO, Mwanza
The Prevention and Combatting of Corruption Act states that any person being in a position of power or authority, who in the exercise of his authority, demands or imposes sexual favours or any other favour on any person as a condition for giving employment, a promotion, a right, a privilege or any preferential treatment, commits an offence and shall be liable on conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years or to both.
This is a form of corruption and a criminal offence and you can report this to the PCCB who can investigate.