Q&A – 9 March 2015
Rights on my farm
I own a very large farm which has its own roads inside. Do I need to wear a seatbelt on my farm roads? Can I make my own rules for my roads? I want to get the feel of being home- can I drive on the right hand of the road. Are the police allowed into my private property? Are there any offences in the traffic laws that provide strictly for imprisonment?
You must be reminded that you own a farm not a country and hence bound by the laws of Tanzania. The Road Traffic Act and the various traffic regulations dictate that one must wear a seatbelt at all times when driving on a road. Road is defined as any road, highway, way, street, bridge, culvert, wharf, car park, footpath or bridle path on which vehicles are capable of travelling and to which the public has access whether or not such access is restricted and whether subject to any condition, but does not include any road within the curtilage of a dwelling house.
Bearing the above in mind, although you own the farm, you are still bound by the Road Traffic Act and cannot have your own rules or drive on the right hand side of the farm roads. Furthermore the police are allowed in any property, be it a farm or otherwise.
To answer your last question, section 40 of the Road Traffic Act is one of the sections that only provides, as a punishment, only a custodial sentence of a minimum of 3 years (without an option of a fine). It states that (1) Any person who causes bodily injury to, or the death of, any person by the driving of a motor vehicle or trailer recklessly or at a speed or in a manner which having regard to all the circumstances of the case, is dangerous to the public or to any other person shall be guilty of an offence.
(2) Any person who, while under the influence of drink or drugs to such an extent as to be incapable of having
proper control of the vehicle, is in charge of a motor vehicle or trailer and by an act or omission in relation thereto causes bodily injury to, or the death of, any person shall be guilty of an offence.
Defence of provocation
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?
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.