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Dieser Forschungsdatensatz entstand im Rahmen des vom DAAD geförderten Drittmittelprojekts „African-German Research Network for Transnational Criminal Justice".Tanzanian Criminal Law is a pioneering textbook that presents the general principles and specific offences of Tanzanian criminal law based on a systematic approach and consistent methodology. Chapters on the sources and history as well as the international dimension of criminal law in Tanzania are included. Current case law is extensively incorporated and explained. Definitions, examples, and discussion questions make the book an essential reading for both students and scholars of criminal law, as well as practitioners and judges working in the field.

The volume forms part of the African Criminal Law Series (eds. G. Werle & F. Jeßberger). The Series publishes peer-reviewed monographs open access and aims to create a hub for criminal law in Africa. It emerged in the context of the African German Research Network for Transnational Criminal Justice which is based at Humboldt-Universität zu Berlin (Germany).Peer Reviewe

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I 	AFRICAN CRIMINAL LAW SERIES    NICKSONI FILBERT   JABA SHADRACK  VOLUME 1  TANZANIAN CRIMINAL LAW 	 II NICKSONI FILBERT JABA SHADRACK 		TANZANIAN CRIMINAL LAW 									 III AFRICAN CRIMINAL LAW SERIES  Volume 1    Series Editors  Professor Dr. Gerhard Werle Humboldt-Universität zu Berlin, Germany  Professor Dr. Florian Jeßberger Humboldt-Universität zu Berlin, Germany   	 IV The German National Library lists this publication in the German National Bibliography; detailed bibliographic data is available on the Internet at http://dnb.d-nb.de.  First Edition published in 2024   © the authors.    Published on the edoc-Server (Open Access Publication Server)  of the Humboldt-Universität zu Berlin Unter den Linden 6, 10117 Berlin, Germany https://edoc.hu-berlin.de   Editorial office:  African German Research Network c/o Lehrstuhl Prof. Jeßberger Unter den Linden 6 10099 Berlin, Germany www.transcrim.org transcrim.rewi@hu-berlin.de   URN: urn:nbn:de:kobv:11-110-18452/29760-9 DOI: https://doi.org/10.18452/28701 ISSN: 2943-9558   This work is licensed under Creative Commons  Attribution-NonCommercial-NoDerivatives 4.0 International.  	 V Dr. Nicksoni Filbert Lecturer in the Private Law Department  University of Dar es Salaam, School of Law Dar es Salaam, Tanzania E-mail: nicksonfilbert@gmail.com  Dr. Jaba Shadrack Lecturer in the Public Law Department University of Dar es Salaam, School of Law Dar es Salaam, Tanzania E-mail: jabashadrack@gmail.com  Dr. Nicksoni Filbert is a graduate of the Universities of Dar es Salaam (Tanzania), Western Cape (South Africa) and Humboldt-Universität zu Berlin (Germany). He lectures on international law and policy at the University of Dar es Salaam School of Law. He researches on international and transnational criminal law, transitional justice and legal ethics.   Dr. Jaba Shadrack is a graduate of the Universities of Dar es Salaam (Tanzania) and Warwick (United Kingdom). He teaches public law and policy at the University of Dar es Salaam School of Law. His research interests include criminal law, juvenile justice, criminology and penology.     	 VI PREFACE OF THE SERIES EDITORS   Founded in 2023, the African Criminal Law Series aims to create a hub for criminal law in Africa. It publishes peer-reviewed monographs open access.  The idea for this series emerged in the context of the African German Research Network for Transnational Criminal Justice which is based at Humboldt-Universität zu Berlin (Germany). The Network was established in 2019 as a forum to continue exchange and cooperation of the more than 120 Alumnae and Alumni from more than 20 African countries of the South African-German Centre for Transnational Criminal Justice (2008-2018) which was one of seven Centres of African Excellence funded by the German Academic Exchange Service (DAAD).   The present volume forms part of an initial set of three textbooks on criminal law in Tanzania, Ethiopia and Kenya respectively. The comprehensive, systematic presentation of these legal considerations is a pioneering work in the respective states, as the authors confirm. A draft of the present monograph was presented by the authors at a workshop in Berlin in 2023 and reviewed by a panel of distinguished scholars, including Prof. Dr. Gerhard Kemp (University of the West of England, United Kingdom) and Dr. Juliet Okoth (Humboldt-Universität zu Berlin, Germany). Authors and series editors are grateful to Leon Trampe, Dr. Nella Sayatz and Timur Aksu who thoroughly copy-edited the final manuscripts. While style and format were adjusted to increase readability, local traditions, e.g. regarding referencing literature and case law, were maintained.   Berlin, June 2024  Prof. Dr. Gerhard Werle      Prof. Dr. Florian Jeßberger Humboldt-Universität zu Berlin        Humboldt-Universität zu Berlin Director Emeritus of the Network        Director of the Network    	 VII ACKNOWLEDGMENTS  In the development of this teaching concept on Tanzanian criminal law, we would like to convey our sincerest gratitude to the German Academic Exchange Service (DAAD) and the African-German Research Network for Transnational Criminal Justice (AGRN). While there has always been an ongoing discussion on the possibility of this project, it is the generous funding of DAAD under the able leadership of AGRN that made this project successful. The teaching concept provides the first comprehensive and up-to date manual on the criminal law of Tanzania.   We primarily thank Prof. Dr. Gerhard Werle for his leadership and overall guidance in the implementation of the project. We equally appreciate the roles that Dr. Nella Sayatz and Leon Trampe have played in terms of the daily communication and clarification of several aspects in the course of writing up the manual. We would also like to thank all researchers, especially Mr. Chacha Mairo Wansaku, for the time and able research that has produced valuable inputs in the completion of this manual.   Dr. Nicksoni Filbert         Dr. Jaba Shadrack Dar es Salaam, Tanzania                                Dar es Salaam, Tanzania January 2024                  January 2024   	 VIII SUMMARY CONTENTS  SUMMARY CONTENTS .................................................................................. VIII TABLE OF CONTENTS ...................................................................................... X TABLE OF LEGAL INSTRUMENTS ............................................................ XVII TABLE OF CASES ............................................................................................. XXI LIST OF ABBREVIATIONS ......................................................................... XXVII PART 1: GENERAL INTRODUCTION ................................................................ 1 SECTION 1: INTRODUCTION ............................................................................................... 1 SECTION 2: SOURCES OF CRIMINAL LAW ................................................................... 13 SECTION 3:  HISTORICAL BACKGROUND TO CRIMINAL LAW ......................... 16 SECTION 4: A SNAPSHOT VIEW OF THE TANZANIAN CRIMINAL PROCEDURE .............................................................................................................................. 22 SECTION 5: CONCLUSION ................................................................................................... 29 PART 2: GENERAL PRINCIPLES OF CRIMINAL LAW .................................. 30 SECTION 1: INTRODUCTION ............................................................................................. 30 SECTION 2: UNLAWFUL CONDUCT ................................................................................ 30 SECTION 3: FAULT “MENS REA” – UNLAWFUL INTENTION ............................. 40 SECTION 4: CRIMINAL CAPACITY ................................................................................... 51 SECTION 5: DEGREES OF PARTICIPATION IN CRIME/PARTIES TO OFFENCES .................................................................................................................................. 71 SECTION 6: INCOMPLETE CRIMES ................................................................................. 80 SECTION 7: CONCLUSION ................................................................................................... 87 PART 3: SPECIFIC CRIMES ................................................................................ 88 SECTION 1: INTRODUCTION ............................................................................................. 88 SECTION 2: CRIMES AGAINST HUMAN LIFE, THE PERSON AND THE FAMILY......................................................................................................................................... 88 SECTION 3: PROPERTY CRIMES .................................................................................... 106 SECTION 4: CRIMES AGAINST THE COMMUNITY ................................................ 125 SECTION 5: CRIMES AGAINST THE STATE AND ADMINISTRATION OF JUSTICE ..................................................................................................................................... 135 SECTION 6: ORGANISED AND COMMERCIAL CRIMES ...................................... 149 SECTION 7: CONCLUSION ................................................................................................ 158 PART 4: INTERNATIONAL CRIMINAL LAW AND ITS APPLICATION IN TANZANIA .......................................................................................................... 159 	 IX SECTION 1: INTRODUCTION, ORIGIN AND RATIONALE ................................ 159 SECTION 2: CONCLUSION ................................................................................................ 167 REFERENCES ......................................................................................................................... 168 ANNEX: UNION MATTERS ............................................................................. 171        	 X TABLE OF CONTENTS SUMMARY CONTENTS .................................................................................. VIII TABLE OF CONTENTS ...................................................................................... X TABLE OF LEGAL INSTRUMENTS ............................................................ XVII TABLE OF CASES ............................................................................................. XXI LIST OF ABBREVIATIONS ......................................................................... XXVII PART 1: GENERAL INTRODUCTION ................................................................ 1 SECTION 1: INTRODUCTION ............................................................................ 1 1.1 THE RATIONALE OF CRIMINAL LAW AND STRUCTURE OF THE PENAL CODE ........... 1 1.2 PENAL LEGISLATION AS A UNION AND A NON-UNION MATTER: TERRITORIAL APPLICATION AND COURT STRUCTURE .................................................................................. 3 1.3 CRIMINAL LEGAL SYSTEM AND CRIMINAL LAW ............................................................. 5 1.4 DELICTS (TORTS) AND CRIMES .......................................................................................... 5 1.5 MORALITY AND CRIME ....................................................................................................... 7 1.6 GENERAL CONCEPTS OF THE PENAL CODE .................................................................... 8 1.6.1 Legality and Due Process ............................................................................................ 8 1.6.2 Retrospectivity in Legislative Process ....................................................................... 8 1.6.3 Humanity ....................................................................................................................... 8 1.6.4 Culpability ..................................................................................................................... 9 1.6.5 Proportionality .............................................................................................................. 9 1.7 PUBLIC AND SEMI-PUBLIC CRIMES .................................................................................... 9 1.8 PENALTIES AND LIABILITY ............................................................................................... 10 1.8.1 Penalties ....................................................................................................................... 10 1.8.2 Liability ........................................................................................................................ 11 1.9 CRIMINAL AND CIVIL LAWS’ BRANCHES – DISTINCTION ............................................ 11 SECTION 2: SOURCES OF CRIMINAL LAW .................................................... 13 2.1 CONSTITUTION ................................................................................................................... 13 2.2 LEGISLATION ...................................................................................................................... 13 2.3 CASE LAWS .......................................................................................................................... 14 2.4 RECEIVED LAWS ................................................................................................................. 14 2.5 INTERNATIONAL LAW ....................................................................................................... 14 SECTION 3:  HISTORICAL BACKGROUND TO CRIMINAL LAW ............... 16 3.1 TRACES OF THE STATE’S COERCIVE POWER IN TANZANIA ........................................ 16 3.1.1 Criminal Code during the German Era .................................................................. 16 	 XI 3.1.2 Criminal Code during the British Colonialism ...................................................... 17 3.1.3 Customary Criminal Law .......................................................................................... 17 3.1.4 Penal Code and Related Penal Statutes .................................................................. 18 3.1.5 Administration of Justice .......................................................................................... 18 3.1.6 Criminal Law in the Post-independence Era ......................................................... 19 3.2 SELECTED POSTCOLONIAL PENAL LAWS AND OFFENCES .......................................... 19 3.2.1 Criminal Code ............................................................................................................. 19 3.2.2 Minimum Sentences .................................................................................................. 20 3.2.3 Vagrancy Laws ............................................................................................................ 20 3.2.4 Laws against Corruption ........................................................................................... 20 3.2.5 Control of Economic and Organized Crime ......................................................... 20 3.2.6 Criminal Law Used for Developmental Goals ...................................................... 21 SECTION 4: A SNAPSHOT VIEW OF THE TANZANIAN CRIMINAL PROCEDURE ........................................................................................................ 22 4.1 KEY ACTORS ....................................................................................................................... 22 4.1.1 Complaint Mechanisms ............................................................................................. 23 4.1.2 Detection ..................................................................................................................... 23 4.1.3 Apprehension ............................................................................................................. 23 4.1.4 Search and Seizure ..................................................................................................... 23 4.1.5 Interrogation ............................................................................................................... 23 4.1.6 Eyewitness Identification .......................................................................................... 24 4.1.7 Admission or Confession ......................................................................................... 24 4.1.8 Physical Identification ............................................................................................... 24 4.1.9 Medical Examination ................................................................................................. 25 4.2 BAIL AND PRE-TRIAL DETENTION ................................................................................. 25 4.3 PROSECUTION AND DEFENCE ......................................................................................... 25 4.3.1 Charge sheet ................................................................................................................ 25 a) Arraignment and plea taking ..................................................................................... 26 b) Preliminary hearing .................................................................................................... 26 c) Trial ............................................................................................................................... 26 d) Prosecution, examination and proof ....................................................................... 26 aa) Case to Answer /No Case to Answer ............................................................... 26 bb) Defence Case ....................................................................................................... 27 cc) Closing argument ................................................................................................. 27 	 XII 4.3.2 Adjudication ................................................................................................................ 27 a) Acquit or Convict ....................................................................................................... 27 b) Mitigating and aggravating factors ........................................................................... 27 c) Judgment and sentence .............................................................................................. 27 d) Appeal .......................................................................................................................... 28 4.3.3 Miscellaneous Issues .................................................................................................. 28 a) Committal Proceedings .............................................................................................. 28 b) Plea Bargaining ........................................................................................................... 28 c) Nolle prosequi and withdrawal of criminal cases .................................................. 28 SECTION 5: CONCLUSION ................................................................................ 29 PART 2: GENERAL PRINCIPLES OF CRIMINAL LAW .................................. 30 SECTION 1: INTRODUCTION .......................................................................... 30 SECTION 2: UNLAWFUL CONDUCT ............................................................... 30 2.1 UNLAWFUL CONDUCT ....................................................................................................... 31 2.1.1 Positive and Negative Conduct ............................................................................... 33 2.1.2 Voluntary Acts (Voluntariness) ................................................................................ 35 2.1.3 Actus Reus and Causation ........................................................................................ 36 a) Factual Causation ........................................................................................................ 37 b) Legal Causation ........................................................................................................... 37 2.1.4 Actus Reus as ‘State of Affairs’ ................................................................................ 38 2.2 PROOF OF UNLAWFUL CONDUCT .................................................................................... 38 SECTION 3: FAULT “MENS REA” – UNLAWFUL INTENTION ................. 40 3.1 INTRODUCTION ........................................................................................................... 40 3.2 INTENTION .......................................................................................................................... 41 3.3 RELEVANCE OF MOTIVE ................................................................................................... 42 3.4 KNOWLEDGE ...................................................................................................................... 43 3.5 RECKLESSNESS .................................................................................................................... 44 3.6 NEGLIGENCE ...................................................................................................................... 46 3.7 EXCEPTIONS TO MENS REA ............................................................................................. 47 3.8 LIABILITY ............................................................................................................................. 47 3.8.1 Strict Liability .............................................................................................................. 47 3.8.2 Vicarious Liability ...................................................................................................... 49 3.8.3 Corporate Liability ..................................................................................................... 50 3.8.4 Collective Liability ...................................................................................................... 50 	 XIII SECTION 4: CRIMINAL CAPACITY .................................................................. 51 4.1 AGE/INFANCY/IMMATURITY .......................................................................................... 51 4.1.1 Below Ten Years ........................................................................................................ 52 4.1.2 Above Ten Years but Below Twelve Years ........................................................... 52 4.1.3 A Male Person Incapable of Sexual Intercourse Under Twelve Years ............. 53 4.1.4 Ascertaining the Age of the Child Offender/Determination of the Age of the Offender ................................................................................................................................ 54 4.1.5 Procedure of Dealing with Children Offenders .................................................... 54 4.2 INSANITY ............................................................................................................................. 55 4.3 JUSTIFICATIONS/DEFENCES AGAINST CRIMINAL RESPONSIBILITY ........................... 58 4.3.1 Ignorance of Law ....................................................................................................... 58 4.3.2 Bona fide Claim of Right .......................................................................................... 59 4.3.3 Mistake of Fact ........................................................................................................... 60 4.3.4 Intoxication ................................................................................................................. 61 4.3.5 Immunity for Judicial Officers/Judicial Privilege ................................................. 62 4.3.6 Compulsion ................................................................................................................. 63 4.3.7 Defence of Person or Property (“Self-Defence”) ................................................. 64 4.3.8 Double Jeopardy (ne bis in idem) ............................................................................ 66 4.3.9 Provocation ................................................................................................................. 67 4.3.10 Abandonment or Withdrawal ................................................................................ 68 4.3.11 Necessity .................................................................................................................... 69 SECTION 5: DEGREES OF PARTICIPATION IN CRIME/PARTIES TO OFFENCES ............................................................................................................ 71 5.1 PRINCIPAL OFFENDERS ..................................................................................................... 71 5.1.1 Principal Offenders in the First Alternative .......................................................... 72 5.1.2 Principal Offender in the Second Alternative ....................................................... 73 5.1.3 Principal Offender in the Third Alternative .......................................................... 74 5.1.4 Principal Offender in the Fourth Alternative ........................................................ 76 5.2 ACCESSORY AFTER THE FACT .......................................................................................... 76 5.3 COMMON INTENTION BY JOINT OFFENDERS ............................................................... 78 5.4 ACCESSORY BEFORE THE FACT ....................................................................................... 79 SECTION 6: INCOMPLETE CRIMES ............................................................... 80 6.1 ATTEMPTS ............................................................................................................................ 80 6.2 CONSPIRACY ....................................................................................................................... 82 	 XIV 6.3 INCITEMENT ....................................................................................................................... 84 SECTION 7: CONCLUSION ................................................................................ 87 PART 3: SPECIFIC CRIMES ................................................................................ 88 SECTION 1: INTRODUCTION .......................................................................... 88 SECTION 2: CRIMES AGAINST HUMAN LIFE, THE PERSON AND THE FAMILY .................................................................................................................. 88 2.1 HOMICIDES ......................................................................................................................... 88 2.2 SPECIFIC CRIMES UNDER UNLAWFUL KILLINGS ............................................................. 90 2.2.1 Murder ......................................................................................................................... 90 2.2.2 Manslaughter ............................................................................................................... 90 2.2.3 Infanticide ................................................................................................................... 92 2.2.4 Assisted Suicide .......................................................................................................... 93 2.3 ASSAULT ............................................................................................................................... 93 2.3.1 Narrative explanations on assault ............................................................................ 95 2.3.2 Assault with the Intent to Murder? ......................................................................... 95 2.3.3 Assault with the intent to cause grievous bodily harm ......................................... 96 2.4 SEXUAL OFFENCES ............................................................................................................. 96 2.4.1 Rape .............................................................................................................................. 96 2.4.2 A husband defiling a wife under eighteen .............................................................. 98 2.4.3 Defiling of Idiots and Imbeciles .............................................................................. 99 2.4.4 Incest ............................................................................................................................ 99 a) Male Incest ................................................................................................................... 99 b) Female Incest ........................................................................................................... 100 2.4.5 Abduction ................................................................................................................. 100 2.5 MARRIAGE CEREMONY FRAUDULENTLY GONE THROUGH WITHOUT LAWFUL MARRIAGE .............................................................................................................................. 102 2.6 FORCED LABOUR ............................................................................................................ 102 2.7 DEFAMATION .................................................................................................................. 103 SECTION 3: PROPERTY CRIMES ................................................................... 106 3.1 THEFT ............................................................................................................................... 106 3.2 APPROPRIATION OF ELECTRICITY ................................................................................ 110 3.3 ROBBERY .......................................................................................................................... 111 3.4 HOUSEBREAKING ............................................................................................................ 113 3.5 BURGLARY ........................................................................................................................ 114 	 XV 3.6 OTHER PROPERTY OFFENCES ...................................................................................... 116 3.6.1 Entering a dwelling house with the intent to commit a crime ......................... 116 3.6.2 Entering a building without permission and committing a crime ................... 116 3.6.3 Breaking into a building with the intent to commit an offence ....................... 116 3.6.4 A person found armed with intent to commit an offence ............................... 116 3.6.5 Criminal trespass ..................................................................................................... 116 3.6.6 Malicious damage to property ............................................................................... 117 3.6.7 Arson ......................................................................................................................... 118 3.6.8 Setting fire to crops and growing plants .............................................................. 119 3.6.9 Injury to animals ...................................................................................................... 119 3.7 FALSE PRETENCES ........................................................................................................... 119 3.8 EXTORTION ..................................................................................................................... 121 3.9 FORGERY .......................................................................................................................... 122 SECTION 4: CRIMES AGAINST THE COMMUNITY ................................... 125 4.1 DISTURBING PUBLIC TRANQUILLITY/PUBLIC VIOLENCE .......................................... 125 4.2 CORRUPTION ................................................................................................................... 126 4.3 TRAFFIC OFFENCES ......................................................................................................... 129 4.4 PROSTITUTION ................................................................................................................. 130 4.5 OFFENCES REGARDING FIREARMS AND AMMUNITION ............................................. 130 4.6 OFFENCES REGARDING DRUGS AND DRUG TRAFFICKING ....................................... 131 4.7 FALSE ASSUMPTION OF AUTHORITY ............................................................................ 132 SECTION 5: CRIMES AGAINST THE STATE AND ADMINISTRATION OF JUSTICE ............................................................................................................... 135 5.1 CRIMES AGAINST THE ADMINISTRATION OF JUSTICE ................................................ 135 5.1.1 Perjury ....................................................................................................................... 135 5.1.2 Subornation of perjury ........................................................................................... 136 5.1.3 Defeating and Obstructing the Course of Justice .............................................. 137 5.1.4 Contempt of Court ................................................................................................. 139 5.1.5 Fabricating Evidence .............................................................................................. 141 5.1.6 Escape from Lawful Custody ................................................................................ 142 5.2 CRIMES AGAINST THE STATE ......................................................................................... 143 5.2.1 High treason ............................................................................................................. 143 5.2.2 Sedition ..................................................................................................................... 145 5.2.3 Differences between Treason and Sedition ........................................................ 148 	 XVI SECTION 6: ORGANISED AND COMMERCIAL CRIMES ........................... 149 6.1 COMMERCIAL CRIMES ..................................................................................................... 151 6.1.1 Money laundering ................................................................................................... 151 6.1.2 Cybercrime ............................................................................................................... 153 6.2 ORGANISED CRIMES ....................................................................................................... 153 6.3 HUMAN TRAFFICKING .................................................................................................... 154 6.4 KILLINGS FOR HIRE AND KIDNAPPING ........................................................................ 155 6.4.1 Killings for hire ....................................................................................................... 155 6.4.2 Kidnapping ............................................................................................................... 155 SECTION 7: CONCLUSION .............................................................................. 158 PART 4: INTERNATIONAL CRIMINAL LAW AND ITS APPLICATION IN TANZANIA .......................................................................................................... 159 SECTION 1: INTRODUCTION, ORIGIN AND RATIONALE ...................... 159 1.1 DOMESTIC APPLICABILITY ............................................................................................. 161 1.2 DIRECTOR OF PUBLIC PROSECUTIONS AND NATIONAL PROSECUTIONS SERVICES .................................................................................................................................................. 163 1.3 GENOCIDE ....................................................................................................................... 164 1.4 CRIMES AGAINST HUMANITY ........................................................................................ 164 1.5 WAR CRIMES .................................................................................................................... 166 SECTION 2: CONCLUSION .............................................................................. 167 REFERENCES .................................................................................................... 168 ANNEX: UNION MATTERS ............................................................................. 171           	 XVII TABLE OF LEGAL INSTRUMENTS  Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 2056 UNTS 211(1997) Charter of the International Military Tribunal at Nuremberg, in 39 AJIL (1945), suppl. 257 Civil Procedure Code, Cap. 33 [R.E. 2022] Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction, 1975 UNTS 45 (1993) Criminal Procedure Act, Cap. 20 [R.E. 2022] Cyber Crime Act, No. 14 of 2015.  Extradition Act, Cap. 368 [R.E. 2022] (Geneva Convention I) Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (Geneva Convention II) Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (1949) (Geneva Convention III) Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (1949) (Geneva Convention IV) Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (1949) Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 215 (1954) House and Poll Tax Ordinances, 1912 Human Resources Deployment Act, No. 6 of 1983 Interpretation of Laws Act, Cap. 1 [R.E. 2019] Media Services Act, No. 12 of 2016 Mutual Legal Assistance in Criminal Matters Act, Cap. 254 [R.E. 2008] National Security Act, R.E. 2002 Newspapers Act, R.E. 2002 OAU Convention on Mercenaries, Organisation of African Unity, CM/817 (XXIX), Annex II Rev. I (1977) Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict, 2173 UNTS 222 (2000) Penal Act, No. 6 of 2018 (Zanzibar) Penal Code, Cap. 16 [R.E. 2022]  Penal Decree, 1963 (Zanzibar) Political Parties (Amendment) Act, No. 4E of 2018 (Additional Protocol I) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict of 8 June 1977, 1125 UNTS 3 (1977) 	 XVIII (Additional Protocol II) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609 (1977) Regulations for Peace and Good Order, GN. No. 6 of 1920 [R.E. 1923] Societies Ordinance, 1954 Stock Theft (Prevention) Act, 1960 Tanzania Intelligence and Security Service Act, [R.E. 2002] Tanzania National Security Council Act, Act No. 8 of 2010 Anti-Money Laundering Act, Cap. 423 [R.E. 2022] Anti-Trafficking in Persons (Prevention, Protection and Treatment) Regulations, GN. No. 28 of 2015 Anti-Trafficking in Persons Act, No. 6 of 2008 Appellate Jurisdiction Act, Cap. 141[R.E. 2019] Armaments Control Act, Cap. 246 Attorney General (Discharge of Duties) Act, Cap. 268 Bank of Tanzania Act, Cap. 197 Banking and Financial Institutions Act, Cap. 342 Children and Young Persons Ordinance, 1937 Companies Act, Cap. 212 (R.E. 2002) Constitution of the United Republic of Tanzania, 1977, Cap. 2 [R.E. 2008] Control Council Law No. 10, Official Gazette of the Control Council for Germany No. 3 of 31 January 1945, 50. Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (1948) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin and on their Destruction, 1015, UNTS 163, (1972) Copyright and Neighbouring Rights Act, Cap. 218 [R.E. 2002] Criminal Procedure Act, Cap. 20 [R.E. 2022] Cyber Crimes Act, Cap. 443 Destitute Persons Ordinance, 1944 Drug Control and Enforcement Act, Cap. 95 [R.E 2019] East African Customs Management Act, 2004, Rev. 2009 Economic and Organised Crime Control (The Corruption and Economic Crimes Division) (Procedure) Rules, GN. No. 267 of 2016 Economic and Organised Crime Control Act, Cap. 200 [R.E. 2019] Economic Sabotage (Special Provisions) Act, 1983 Electronic and Postal Communications Act, Cap. 306 Employment and Labour Relations Act of 2004 Evidence Act, Cap 6 [R.E 2022] 	 XIX Export Processing Zones Act, Cap. 373 Extradition Act, Cap. 368 Firearms and Ammunition Control Act, Cap. 223 Fisheries Act, Cap. 279 Foreign Exchange Control Act, Cap. 271 Forest Act, Cap. 323 Fugitive Offenders (Pursuit) Act, Cap. 57 Gaming Act, Cap. 41 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods, 94 UNTS 65 (1925) Immigration Act, Cap. 54 Income Tax Act, Cap. 332 Agreement on the Privileges and Immunities of the International Criminal Court, ICC -ASP/1/3 (Part. II-E) bis Rules of Procedure and Evidence of the International Criminal Court, ICC-ASP/1/3 and Corr. 1, Part. II.A Judicature and Application of Laws Act, Cap. 358 [R.E. 2019] Judicature and Application of Laws Ordinance, 1961 Law of Child Act, Cap. 13 [R.E 2019] The Local Court Ordinance, 1951 Magistrates’ Courts Act, 1963 Magistrates’ Courts Act, 1984, Cap. 11 Merchandise Marks Act, Cap. 85 Minimum Sentence Act, 1972 Mining Act, Cap. 123 Mutual Assistance in Criminal Matters Act, Cap. 254 National Intelligence Service Act, Cap. 47 National Prosecutions Service Act, Cap. 430 Native Courts Ordinance, 1929 Non-governmental Organizations Act, Cap. 56 Patents (Registration) Act, Cap. 217 [R.E 2002] Police Force and Auxiliary Services Act, Cap. 322 [R.E. 2002] Police General Orders [R.E. 2006] Prevention and Combating of Corruption Act, 2007, Cap. 329 Prevention of Corruption Act, 1971 Prevention of Corruption Ordinance, 1958  Prevention of Terrorism Act, Cap. 19 Proceeds of Crime Act, Cap. 256 	 XX The Protocol to Combat Trafficking, Commercial Exploitation and Sexual Abuse of Women and Child in South Asia  Public Leadership Code of Ethics Act, Cap. 398 The Public Order Ordinance, 1951  Public Procurement Act, Cap. 410 Reciprocal Enforcement of Foreign Judgements Act, Cap. 8 Rome Statute of the International Criminal Court of 17 July 1998, 37 ILM (1998), 999 Sexual Offences Special Provisions Act, 1998 Societies Act, Cap. 337 Stamp Duty Act, Cap. 189 Standards Act, Cap. 130 Tanganyika Order-in Council, 1920 Tanzania Investments Act, Cap. 38 Tanzania Medicines and Medical Devices Act, Cap. 219 Tanzanian Collective Punishment Act Tax Administration Act, Cap. 438 Township (Removable of Undesirable Persons) Ordinance/Act [R.E. 2002] Trade and Service Marks Act, Cap. 326 United Nations Convention against Transnational Organized Crime, 2225 UNTS 209 (2000) Charter of the United Nations and Statute of the International Court of Justice, 1UNTS XVI (1945) United Nations Convention against Corruption, 2349 UNTS 41 (2003) Value Added Tax Act, Cap. 148 Versailles Peace Treaty, Paris Peace Conference XIII, 55, 74 473 (1919) Whistleblower and Witness Protection Act, 2015 Wildlife Conservation Act, Cap. 283 Witness Summonses (Reciprocal Enforcement) Act, Cap. 67 Written Laws (Miscellaneous Amendments) (No. 4) Act, 2019 Written Laws (Miscellaneous Amendments) Act, 2016 Transfer of Prisoners Act, 2004 United Nations Convention on the Rights of the Child, 1577 UNTS 3 (1989) Witchcraft Act, 1928       	 XXI TABLE OF CASES  Abbasi Mohamed v. Republic (1969) HCD 113 Abdi Ahmed v. Republic [1981] TLR 174 Agnes Doris Liundi v. Republic [1980] TLR 46 Airedale NHS Trust v. Bland [1993] AC 789 Alfred Bazila v. R. [1967-1968] HCD 309 Ali Mohammed Osman v. Republic (1952) 1 TLR 391 Ally Athumani v. R. [1991] TLR 59 Aloyce Maana v. R., Criminal Appeal No. 110 of 2017, High Court of Tanzania at Arusha Aloyce Maridadi, Applicant v. Republic, Criminal Application No. 28/7of 2018, Court of Appeal of Tanzania at Mtwara Alphonce Philibert v. Republic, Criminal Appeal No. 27 of 197, Court of Appeal of Tanzania  Anatheo Paulo v. R., Criminal Appeal No. 119 of 2020, High Court of Tanzania at Arusha Anthony Mhikwa v. Republic (1968) HCD 460 Athuman Musa v. R, Criminal Appeal No. 38 of 2019, Court of Appeal of Tanzania at Kigoma Attorney General for Northern Ireland v. Gallagher [1961] 3 All ER 299 Attorney General v. Mugesi Anthony and 2 Others, Criminal Appeal No. 220 of 2011, Court of Appeal of Tanzania at Mwanza Aziz Mohamed & Hamza Mohamed Madai v. R., Criminal Appeals Nos. 78-79 of 2006, Court of Appeal of Tanzania at Mtwara Benedicto Ndalo v. R. [1981] TLR 8   Bonifas Fidelis @ Abel v. R., Criminal Appeal No. 301 of 2014, Court of Appeal of Tanzania at Arusha.  Bratty v. the Attorney General for Northern Ireland [1963] AC 386 Buyigo Yusuph Mvuyekule v. Republic, Criminal Appeal No. 16 of 2021, High Court of Tanzaniaat Bukoba Chacha Range and Mahinda Range v. Matinde Nyabite, Criminal Appeal No. 21 of 2021  Damian Petro & Jackson Abraham v. R., Criminal Appeal No. 57 of 1979, Court of Appeal of Tanzania at Arusha Dickson Paulo Sanga v. Attorney General, Miscellaneous Civil Cause 29 of 2019 [2020] TZHC 653 Director of Public Prosecution v. Harry Msamire Kitilya and Others,Criminal Appeal No.105 of 2016  Director of Public Prosecutions v. Abdi Sharif Hassan@ Msomali & Mohamed Ibrahim Juma @ Lunga,Miscellaneous Criminal Application No. 19 of 2020, High Court of Tanzania at Mwanza Director of Public Prosecutions v. Elizabeth Michael Kimemeta @ Lulu, Criminal Appeal 6 of 2012 [2012] TZCA 3 	 XXII Director of Public Prosecutions v. Yahya Twahiru Mpemba & 15 Others, Miscellaneous Criminal Application No. 88 of 2021, High Court of Tanzania at Arusha Director of Public Prosecutions v. Yahya Twahiru Mpemba and 15 Others, Miscellaneous Criminal Application No. 88 of 2021, High Court of Tanzania at Arusha Director of Public Prosecutions v. Yusuph Ally Huta @ Hussein & 7 Others,Miscellaneous Criminal Application No. 25 of 2022, High Court of Tanzania at Arusha Doris Liundi, Hilda Abel v. Republic [1993] TLR 246 DPP v. Juma Juma Muhidini, Criminal Appeal Nos. 27 & 45 of 2020 Dure v. R. [1974] 1 EA 266 Edgington v. FitzMaurice (1885) 29, ChD 459 Edward Michael v. R., Criminal Appeal No. 268 of 2015 [2016] TZCA 65 Elizabeth Michael Kimemeta alias Lulu v. R., Miscellaneous Criminal Application 46 of 2012, High Court of Tanzania at Dar es Salaam Ernest P. Agalla v. The Attorney General and Another [2012] TZHC 37 Festo Komba v. Republic [2015] TZCA 200 Freeman Aikael Mbowe and Others v. Republic [2021] TZHC 3705 Gabriel v. Republic (1971) HCD No. 299 Gammon (Hong Kong) Ltd v. AG for Hong Kong [1984] AC 1 Gaudence Sangu v. Republic, Criminal Appeal 88 of 2020 [2022] TZCA 784 Gift Abdallah v. The Republic, Criminal Case No. 127 of 2018 same Godlisten Raymond & Adam Shaban Hole v. R., Criminal Appeal No. 363 of 2014, Court of Appeal of Tanzania at Dodoma Gray Likungu Mattaka & Others v. R., Criminal Appeal No. 32 of 1971 same Gwagilo v. Attorney General [2002] 2 EA 381 Gwao Bin Kilimo v. Kisunda Bin Ifuti 1 T.L.R. (R) 403  H.L Polton (Engineering) Co. Ltd v. T.J Graham (1957) QRD 159 Halima Rashid Mdaha v. Joseph Laurent Fundi [2020] TZHC 2252 Hamis v. Akilimali (1971) HCD No. 111   Hassan Idd Shindo & Mashaka Juma v. R., Criminal Appeal No. 324 of 2018, Court of Appeal of Tanzania at Mbeya Hatibu Gandhi & Others v. Republic [1987] TZCA 18 or [1996] TLR 12 Henry Rimisho Mtenga v. Airtel Tanzania Limited, Civil Appeal No. 145 of 2020 Hilda Abel v. Republic [1993] TLR 246 Hill v. Baxter [1958] 1 QB 277 Hobbs v. Winchester Corporation [1910] 2 KB 471 Hussein Kasanga v. Republic [1978] LRT 16 Imerimaleva and Other v. Dima Nhorongo [1991] TLR 1 James @ Shadrack Mkungilwa & Lazaro Mkungilwa v. R., Criminal Appeal No. 214 of 2010, Court of Appeal of Tanzania at Iringa 	 XXIII  Jemes Burchard Rugemalira v. R., Criminal Appeal No. 391 of 2019  Jenesia Philemon v. Republic [2011] TZCA 109  Jida Rashid v. Saidi Hassani, Miscellaneous Criminal Revision No. 4 of 2022  John Mburu Kinyanjui v. R., Criminal Appeal No. 141 of 1986, Court of Appeal of Kenya at Nakuru Joseph Hawksworth v. Republic (1970) HCD No. 271 Joseph Marwa Chacha v. Republic [1980] TLR 232 Joshua Sonko v. Republic (1972) HCD No. 60 Josiah v. Republic [1972] EA 157 Josiah v. Republic [1972] EA 157 Kimangare Abdalla v. James Valence (As the Attorney of Grace Mapunda), Land Case Appeal 21 of 2022  Knuller L.T.D. v. D.P.P.  (1973) A.C 435 Kubilo Komanya v. Republic, Criminal Appeal No. 136 of 2019  Lenderito Laidosoli v. Republic (1970) H.C.D No. 169 Leonard Ghatti Peter Magana v. Managing Director National Insurance Corporation (T) Ltd., Civil Case No. 25 of 2013  Lim Chin Aik v. Republic [1963] A.C 160 Liningushu and Others v. R. [2005] 2 EA 234 MA v. R, Miscellaneous Criminal Application No. 95 of 1999, High Court of Tanzania at Mwanza Magesa Chacha Nyakibali & Another v. Republic, Court of Appeal of Tanzania at Mwanza, Criminal Appeal No. 307 of 2013  Magesa Chacha Nyakibali and Another v. Republic, Criminal Appeal No. 307 of 2013, Court of Appeal of Tanzania at Mwanza Manzi Mengi v. Republic [1964] EA 289 Masanja Mwinamila @ Gimbui v. Republic [2021] TZHC 2441 Masemu Butili v. R. (1971) HCD No. 81 Mathias Mhyenyi and Another v. Republic, [1980] TLR 290 Media Council of Tanzania v. the Attorney General, Reference No. 2 of 2017 [EACJ 2019]  Mkombozi Commercial PLC v. Joseph Richard Masolwa, Civil Case No. 10 of 2021 MMN (Child) v. R., Criminal Appeal 173 of 2019 High Court of Tanzania at Musoma Mohamed Ally v. Republic (1969) HCD No. 54 Mohamed Mshauri v. Gerald Amandi. PC, Criminal Appeal No. 12 of 2019  Mohamed Ramadhani v. R. [1976] LRT No. 51 Mohammed Hassan v. Republic (1969) HCD No. 71 Mustapha Darajani v. Republic [2012] TZCA 232 Mzee Selemani v. Republic (1968) HCD No. 364 Ndugulile Mandago v. Republic, Criminal Appeal No. 58 of 2019  	 XXIV Nyinge Siwatu v. Republic (1959) EACA 974 Ogodia and Erima v. Uganda [1967] EA 137 Paul Kajuna v. R. (1967) H.C.D. No. 318 Paulo Madukwa and 4 Others v. Republic, Criminal Appeal No. 110 of 2007 (CA)  People v. Brown, 90 III. App. 3d 742  Prosecutor v. William Samoei Ruto and Joshua Arab Sang, ICC-01/09-01/11 R (a Child) v. Whitty  R v. Dudley and Stephens [1884] 14 QB 273 R v. White [1910] 2 KB 124 R v. M’ Naghten (1843) 10 Col.  & F. 200 R. v. ACP. Abdallah Zombe & 12 Others, Criminal Sessions Case No. 26 of 2006, High Court of Tanzania at Dar es Salaam R. v. Anyambilile [1970] HCD 285 R. v. Benjamin Oroserian, Criminal Session Case No. 7 of 2017, High Court of Tanzania at Moshi R. v. Damas Herman [1961] I EA 591 R. v. F. 2 N.R.L.R. 185 R. v. Maulddi Yusufu [1967-1968] HCD 70 R. v. Miller [1983] 2 AC 161  R. v. Mugisha Katulebe & 5 Others, Criminal Sessions Case No. 126 of 2016, High Court of Tanzania at Bukoba  R. v. Muruga Isaro & Marwa Makuri, Criminal Sessions Case No. 30 of 2017, High Court of Tanzania at Tarime R. v. Musua Shumbi [1967-1968] HCD 222 R. v. Mwita Cornel Philimon, Criminal Sessions Case No. 64 of 2019, High Court of Tanzania at Tarime R. v. Ntibilanti (1972) HCD No. 106 R. v. Omari Usumail [1970] HCD 341 R. v. Said Hassan Ng’itu & Aziz Hassan Mkoto, Criminal Session No. 9 of 2020, High Court of Tanzania at Mtwara R. v. Selemani Hassani [1969] HCD 250 R. v. Thobias Chacha Gaini & 3 Others, Criminal Sessions Case No. 43 of 2020, High Court of Tanzania at Tarime R. v. Wallace [1958] 1 EA 582 Rajabu Hassan Mfaume, Hamisi Abdallah Seif, Moshi Hamisi Mbelenje and Appellant Dadi Hassan Shamte v. Republic, Criminal Appeal No. 30 of 2020  Republic v. Abdul Issa Nsembo and Another [2021] TZHCCED 7 Republic v. Chikokonya (1938) S.R 122 Republic v. Duffy [1949] 1 All ER 932 	 XXV Republic v. Elineema Oscar O. Mwandry, Criminal Case No. 40 of 2022  Republic v. Israel [1968] EA 609 Republic v. Juma S/O Ndele, Criminal Session Case No. 24 of 2016  Republic v. Juma Tagambaga [2022] TZHC 833 Republic v. Kemp [1952] 1 QB 299 Republic v. Nakulinga D/o Ndangali [2020] TZHC 370 Republic v. Nyakabo (1970) HCD No. 344 Republic v. Sultan Maginga (1969) HCD No. 33 Republic v. Thompson Msumali (1969) HCD No. 26 Republic v. Windle [1952] 2 QB 826 Richard Mtolela & Another v. Republic [2017] TZHCCED 10 Richard Kombola v. TANESCO, Complaint No. EWURA133/1/185   Salum Mbegu v. Republic [1981] TLR 38 Samwel Marwa Roswe @ Masaba v. R., Criminal Appeal No. 220 of 2014, Court of Appeal of Tanzania at Mwanza  Selemani Ussi v. Republic [1963] E.A 442 Selestian Magalama v. R. [1969] HCD 219 Serikali ya Mapinduzi ya Zanzibar (Revolutionary Government of Zanzibar) v. Machano Khamis Ali & Others [2000] TZCA 1 Sharifu S/O Bakari @ Mdee v. Republic, Criminal Appeal No. 30 of 2020 Shaw v. D.P.P [1962] A.C 220 Sherras v. De Rutzen [1895] Q.B 918 Simon Yared Mdakilwa v. Republic [2019] TZHC 24 Sita Zatio and 2 Others v. R. [1957] 1 EA 308 Solomon Mungai and Others v. R. [1965] 1 EA 782 SP Christopher Bageni v. Director of Public Prosecutions, Criminal Appeal No. 63/01 of 2016, Court of Appeal of Tanzania at Dar es Salaam SP Mwageni v. R. [1982] TLR 223 Stone v. Dobinson [1977] QB 354 The Prosecutor v. Nansamba Robinah, Criminal Case No. 0152 of 2015 High Court of the Republic of Uganda at Luwero  The Queen v. Instan [1893) 1 QB 450 Thomas Emmanuel v. R. [1996] TLR 373 Tunda s/o Hakimu @ Makoba v. Republic [2020] TZHC 4172 Valerian Michael, Alois Nabaku and Matei Kwayi v. R., Criminal Appeal No. 21 of 1981, Court of Appeal of Tanzania at Dar es Salaam Wanja Kanyoro Kamau v. R. [1965] 1 EA 501 William Ernest Nturo v. Republic [2018] TZHCCED 56 	 XXVI William Kundete v. R., Criminal Appeal No. 186 of 2021, High Court of Tanzania at Dar es Salaam Yusuph Hussein v. Republic (1969) HCD No. 36                       	 XXVII LIST OF ABBREVIATIONS  AC Appeal Case/Court AG Attorney General All ER All England Law Report Cap. Chapter ChD Chancellor Division  DPP/D.P.P. Director of Public Prosecutions EA/E.A. East Africa (Law Report) EACA East Africa Court of Appeal (Report) G.N./GN Government Notice HC High Court HCD/H.C.D High Court Digest LRT/L.R.T Law Report of Tanzania QB Queen’s Bench  R Republic R.E. Revised Edition/Law S/O Son of  TLR/ T.L.R Tanzania/Tanganyika Law Report TPC Tanzania’s Penal Code TZCA Tanzania’s Court of Appeal TZHC Tanzania’s High Court TZHCCED Tanzania’s High Court (Corruption and Economic Crimes Division) v. Versus              	 1 PART 1: GENERAL INTRODUCTION  SECTION 1: INTRODUCTION This course manual (divided into four parts) orients readers on Tanzanian penal law. The first part introduces and lays a foundation for understanding Tanzanian criminal law. It focuses on the meaning of crime and criminal law vis-à-vis civil wrong and civil law, sources of the Tanzanian criminal law, the origin of criminal law and related justice systems as legal transplants of the colonial State, the criminal law in the post-independence era, and a snapshot view of the Tanzanian criminal procedure. The second part discusses the general principles of criminal law. It revolves around key aspects such as unlawful conduct, criminal capacity, fault, degrees of participation in crime, and incomplete crimes. The third part classifies crimes into five groups and analyses them. These include crimes against human life, the person and the family, property crimes, crimes against the community, crimes against the State and administration of justice, and organised and commercial crimes. The last part is a snapshot of international criminal law from the Tanzanian perspective.  1.1 The Rationale of Criminal Law and Structure of the Penal Code The primary purpose of criminal law is to define, prohibit, sanction, penalise and exempt certain conducts as crimes. In particular, it describes the act and intent (factual elements) required for a criminal offence; protects individuals and society by outlawing conducts that harm them personally/collectively, physically and financially; guides expectations by warning individuals about behaviours that are crimes; imposes appropriate punishments that satisfy the demands for retribution (revenge), rehabilitation, restoration, incapacitation, and deterrence; distinguishes between serious and minor offences; justifies exoneration of certain conducts from liability; and protects interests of a victim, family or the community. In Tanzania, the Penal Code is the main legislation that provides for and punishes criminal conducts. The Penal Code has two main parts with headings, subheadings, and marginal notes. Each Part contains Divisions, Chapters, Sections, SubSections and Paragraphs, as per the Table below. Part I, which focuses on the structure, definition, and general principles and punishments, has six chapters and thirty-eight Sections. Part II, which describes crimes, elements of crimes and specific penalties, has eight divisions, forty chapters and three hundred fifty-two Sections. Some Sections or subSections are divided further into paragraphs or items numbered in numeric (Western-Arabic numerals, Roman numerals and English alphabet).     	 2 Table: Structure of Tanzania’s Penal Code  Parts Chapters | Divisions Sections Contents | Classification of Crimes Part I: General Provisions Chapters I-VI:  Preliminary provisions 1-38B Part I discontinues the application of the Indian Penal Code and contains interpretations; saving of certain laws; short titles; general rules of construction and criminal responsibility (exceptions); territorial application; parties to the offence; and punishments. Part II: Crimes Division I (Chaps. VII-IX): Offences against public order  39-90   Division I covers treason and other offences against the Republic; offences affecting relations with foreign states and external tranquillity; and unlawful assemblies, riots, and other offences against public tranquillity. Division II (Chapters X-XIII): Offences against the administration of lawful authority. 91-124A    Division II deals with offences relating to abuse of office; the administration of justice; rescues, escapes and obstructing officers of the court of law; and miscellaneous offences against public authority. Division III (Chapters XIV- XIX): Offences injurious to the public in general 125-194B Division III focuses on offences relating to religion and burials; offences against morality/sexual offences; marriage and domestic obligations; nuisances and offences against health and convenience; and hoarding and allied offences.  Division IV (Chapters XX- XXVI): Offences against the person 195-256 Division IV addresses murder and manslaughter; duties relating to preserving life and health; offences connected with murder and suicide; offences endangering life or health; criminal recklessness and negligence; assaults; and offences against liberty. Division V (Chapters XXVII-XXXIV): Offences relating to the property 257-318A Division V covers theft; offences allied with stealing; robbery and extortion; burglary, housebreaking and similar offences; false pretences; receiving property stolen or unlawfully obtained and like offences; frauds by trustees and persons in a position of trust, and false accounting; and offences against the safety of aviation. Division VI (Chapter XXXV): Malicious 319-332B  Division VI focuses on offences causing injury to property, such as arson, injuring animals, communicating infectious diseases to animals, removing boundary marks with intent to defraud, 	 3 Injuries to Property causing damage to railway works, defacing a banknote and kite-flying. Division VII (Chapters XXXVI-XLI): Forgery, Coining Counterfeiting and Similar Offences 333-374   Division VII revolves around offences relating to forgery; coin; counterfeit stamps; counterfeiting trademarks; and personation. Division VIII (Chapters XLII- XLVI): Attempts, Conspiracies to Commit Crimes, Accessories after the Fact, and Solicitation and Incitement. 375-390   Division VIII covers incomplete offences (attempts and conspiracies); accessories after the fact; and solicitation and incitement.  1.2 Penal Legislation as a Union and a Non-Union Matter: Territorial Application and Court Structure The United Republic of Tanzania (“Tanzania”) is a union of two formerly sovereign states in 1964, Tanganyika and Zanzibar. Zanzibar retains a semi-autonomous status within the union structure while the legal mandates of the then Tanganyika are subsumed into the Union government. As such, the Union Structure creates union and non-union matters.1 Regarding criminal law, Zanzibar harbours her Penal Act/Decree as opposed to Tanzania’s Penal Code (“TPC”), which binds Tanganyika (Mainland Tanzania). Nonetheless, the application of the penal law on either side of the union has never been a straightforward question, as evidenced in the case law and descriptions below.  Case Law: Serikali ya Mapinduzi ya Zanzibar (Revolutionary Government of Zanzibar) v. Machano Khamis Ali & Others, Criminal Application 8 of 2000 [2000] TZCA 1 Facts The 18 defendants were charged with treason under Section 26 of Zanzibar’s Penal Decree. The accused claimed that Zanzibar is not a sovereign state, so the accusation of treason against Zanzibar’s government cannot be upheld. The issue on trial was whether treason could be committed against Zanzibar’s Government. The Zanzibar’s High Court (non-union body) dismissed the charges on the ground that an indictment for treason must establish: first, that a crime has been committed; second, that the crime is treasonable; third, that the crime was committed against a sovereign or State; and fourth, that the crime  1 See the Annexure (Union Matters). 	 4 was committed by a person who owed the sovereign or state allegiance. The Zanzibar Government filed this appeal to the Court of Appeal of Tanzania (union body).  Held The Court dismissed the appeal because: (i) Based on the principle of duality and the exclusive jurisdiction of the Revolutionary Government of Zanzibar over all non-union matters in Zanzibar, sovereignty is divisible within the United Republic. (ii) On an indictment for treason, the following matters have to be proved: that the act was treasonable, that the act is against a sovereign or State, and that the act was done by a person who owes allegiance to the sovereign or State. (iii) Tanganyika and Zanzibar ceased to exist on 26 April 1964. The United Republic of Tanzania is one country and one State. (iv) Treason is a breach of security under Tanzania’s Constitution and is a Union Matter. Hence, treason can only be committed against a sovereign. The sovereign is the United Republic and not the Zanzibar’s Government or the President of Zanzibar. (v) Treason is defined by Article 28(4) of the Union Constitution as the gravest offence against the United Republic; thus, the offence of treason is a Union Matter. (vi) The combined effect of Article 28(4) and Article 64(5) of the Tanzania Constitution is to repeal Section 26 of the Penal Decree.   Even though the Machano’s decision (above) watered down Section 26 (treason) of the Penal Decree, Zanzibar’s Government has re-enacted the treason offence under Section 27 of the new ‘Penal Act’ of 2018. In addition, some Union laws incorporate provisions that define their scope of application, as shown below. However, for such laws to apply or bind Zanzibar, they must be tabled and sanctioned by the House of Representatives (Zanzibar’s legislative body). In practice, the House of Representatives has almost always distanced itself from debating or endorsing laws that claim to have nationwide application.   Section 2 of the Anti-Money Laundering Act, Cap. 423 [R.E. 2022]:  (1) This Act shall, subject to subSection (2), apply to Mainland Tanzania.   (2) This Act shall apply to Tanzania Zanzibar in respect of Part II which relates to Financial Intelligence Unit and the National Multidisciplinary Committee on Anti-Money Laundering, Counter Terrorist Financing and Counter Proliferation Financing.  Section 2 of the Anti-Trafficking in Persons Act, 2008: (1) This Act shall apply to Mainland Tanzania as well as to Tanzania Zanzibar.  The above challenges aside, most criminal laws (Zanzibar and Mainland Tanzania/Union laws) originate in Indian Penal Code and international legal framework on criminal matters, thus in pari materia. Consequently, penal legislation enacted in Zanzibar tends to mirror those of Mainland Tanzania cum Union Laws and vice versa.  Concerning penal institutions, as evidenced in Machano’s case (above), Zanzibar and Mainland Tanzania share the Court of Appeal but not the hierarchical setup of the High 	 5 Court2 and its Subordinate Courts. Courts subordinate to the High Court includes Resident Magistrates Courts, District Courts, Primary Courts and Juvenile Courts. Quasi-judicial bodies that handle criminal matters are Ward Tribunals, Court Martials, Tax Tribunals, and Fair Competition Tribunal. Apart from the correctional institutions and departures noted above about the Court System, other law enforcement organs or armed forces (Police Force and Army) are union institutions. Therefore, this course manual focuses on the Union’s criminal law and Mainland Tanzania’s criminal law.  1.3 Criminal Legal System and Criminal Law Public law and private law are typically the two main divisions of law. Public law generally deals with the relationships between the State as an authoritative force and its citizens and the relationships between the various state authorities (such as the various state ministries).3 Contrarily, private law is claimed to govern interactions between people who are subjects of the legal system.4 The State is always a party to public law because it is authoritative. Like private law, public law can be broken up into constitutional, administrative, and criminal law. It can also be broken down into categories like the law of obligations, the law of succession, and the law of goods. Law can be split in another way by distinguishing between substantive and formal law.5 While formal law consists of rules defining the technique or means by which the norms of substantive law are enforced, substantive (or material) law consists of substantive legal rules outlining the rights and obligations of subjects or the state.6 Formal or procedural law can be further broken down into the law of criminal procedure, the law of civil procedure, and the law of evidence, according to this subdivision. Public and private law are both considered to be components of substantive law. A component of substantive law is criminal law. From a criminal law point of view, criminal procedure is a significant part of the law. It outlines how suspects are presented to the court and imprisoned for their claimed offences. Criminal law may also affect or be affected by the law of torts, the law of evidence, criminology, and penology, all essential legal disciplines and related fields of study.  1.4 Delicts (Torts) and Crimes Although crimes and delicts have many similarities, they are also fundamentally different. A crime's essential elements only become apparent when contrasted with a delict.7 Delicts and crimes both refer to brazen, blameworthy acts or omissions.8 A delict is an unlawful, blameworthy act or omission that harms another and gives the victim a compensation  2 The High Court has several Special Divisions, one of which is the Economic, Corruption and Organised Crime High Court's Division.   3 Prado, M.M. and Trebilcock, M.J., Advanced Introduction to Law and Development, Cheltenham: Edward Elgar Publishing, 2021. 4 Ibid.  5 Craig, P., “Formal and Substantive Conceptions of the Rule of Law: an Analytical Framework”, The Rule of Law and the Separation of Powers, London: Routledge, 2017, pp. 95-115. 6 Ibid.  7 Neethling, J., Potgieter, J.M. and Visser, P.J., “Law of Delict”, JS Afr. L., 1994, p. 600. 8 Riggsby, A., “Public and Private Criminal Law”, The Oxford Handbook of Roman Law and Society, 2016, p. 310. 	 6 claim.9 If the victim desires, they may file a claim for damages against the wrongdoer. Contrarily, criminal behaviour is wrong and deserving of punishment from the State.  A single act might be both criminal and civil. If X attacks Y, Y may sue X for damages on the theory of delict. He can also report X to the police for assault, which could result in a conviction and penalties for X for the assault charge. However, this does not imply that all delicts are crimes. The negligent infliction of harm and seduction are two instances of behaviour that qualify as a delict but not as a criminal. Again, most crimes, including high treason, perjury, bigamy, and illegal drug use, are not delicts. A crime almost always harms the public interest, which refers to the interests of the State or the society, but a delict typically solely harms private or individual interests.10 This distinction can be made in theory. The law of delict is a subset of private law, specifically that subset of private law known as the law of duties, while criminal law is a subset of public law. It is not the responsibility of the individual harmed or injured as a result of a crime to decide whether or not the offender should face criminal charges.11 Even if the complainant pleads with the police not to file a criminal charge, the police may opt to do so. In a delict case, on the other hand, the person who was hurt must decide if they want to ask the offender for money back. The most important difference between a crime and a delict may be the punishments given. When a delict is committed, the responsible party must compensate the complaint to restore him to the situation he would have been in had the delict not been committed. On the other side, when someone is found guilty of a crime, a penalty is imposed on him to exact punitive measures, deter future criminal behaviour, or promote the offender's rehabilitation. 12  In general, a person found guilty will experience some suffering or punishment, such as jail time or a fine. In addition, the State typically brings charges in criminal cases. Even though Tanzanian criminal law allows for such provisions, private prosecutions are relatively uncommon. The power to prosecute privately is merely a "safety valve" available to the wronged party in cases where the State declines to prosecute. When someone is accused of committing a crime in court, the rules of criminal procedure are used to decide what should happen. However, the norms of civil procedure apply to a trial when someone seeks damages based on delict.13 In conclusion, the characteristics of a crime can be summed up as follows: It is behaviour that is prohibited by law, which, in theory, can only be prosecuted by the government, and which is always punished.  Crimes and Delicts can be summarized as follows  Crimes  Delicts 1. Against public interests  Against private interests 2. Public law  Private law   9 Ibid.  10 Meares, T.L. “Signalling, Legitimacy, and Compliance: A Comment on Posner's Law and Social Norms and Criminal Law Policy”, U. Rich. L. Rev., 36, 2002, p. 407. 11 Stahn, C., A Critical Introduction to International Criminal Law, Cambridge: Cambridge University Press, 2019. 12 Forsberg, L. and Douglas, T., “What is Criminal Rehabilitation?” Criminal Law and Philosophy, 2020, pp. 1-24. 13 Yeazell, S.C., Schwartz, J.C. and Carroll, M., Civil Procedure, Boston: Aspen Publishing, 2022. 	 7 3. Faces state prosecution  The private party demands restitution  4. State imposes punishment  The guilty party pays damages  5. State prosecution is not bound to private interests  Private parties can choose not to claim damages  6. Rules and laws of criminal procedure govern the process  Rules and laws of civil procedure govern the process  1.5 Morality and Crime There is a distinction between morality and crime. Every community has its morals, as you are aware. However, you might discover that morality and criminality occasionally coincide. Morality came into existence before the State and law.14 Morals and conventions governed people's interactions during the preindustrial era of production. Where there is a class structure, the ruling class' moral code predominates.15 This is true because the dominant class wants to force its morals on everyone else by using political, legal, and intellectual influence systems. The aspect of morality is reflected in several but not all crimes, especially murder, theft, child abuse, domestic violence and sexual assault. According to Fuller, a person’s action may deviate from a social norm, thus branded as quirky, impolite, highly unsuitable and morally repugnant, but it is not illegal behaviour unless it also violates the state's penal law.16 Some actions that are treated as illegal under the penal law do not offend the moral conscience, for example, traffic, liquor and gambling law violations.17 As a result, any attempt to enforce an unlegislated moral code has resulted in certain legal issues.   In Shaw v. D.P.P [1962] A.C 220, Shaw was accused, among other things, of conspiring to taint public morality by publishing a "Ladies Directory" to aid prostitutes in finding clients. He was found guilty of this crime, and both the House of Lords and the Court of Criminal Appeal maintained his conviction.18 "There remains in courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that they must guard against attacks which may be more insidious because they are morals," Lord Simonds wrote on page 267.19  We can see how this choice broadened the scope of criminal law to include morality. However, this choice did not hold up over time. The case of Knuller L.T.D. v. D.P.P. (1973) A.C 435 changed the situation. In this case, the House of Lords underlined that the courts lacked the authority to further the criminal code by enacting new offences and expanding  14 Schafer, S., The Political Criminal: The Problem of Morality and Crime, New York: Free Press, 1974, pp. 146-47. 15 Ibid.  16 Fuller, R.C. Morals and the Criminal Law, Journal of Criminal Law and Criminology, Vol. 32:6, 1941-2, p. 624. 17 Ibid, p. 625. 18 Dyer, A., “Criminal Law Reform and the Progressives – the case of Provocation”, Current Issues in Criminal Justice, 2022, pp. 1-16. 19 Shaw v. D.P.P [1962] A.C 220. 	 8 existing ones to uphold morality.20 You should be aware that many of the laws that are enforced by the criminal justice system have nothing to do with morality and vice versa. Law is made up of standards that have been formally created and enshrined in legal documents by the state. However, morals also encompass thoughts, views, and sentiments in addition to standards. The will of the class in power drives legal actions, while public opinion may also show this will in moral actions. In comparison to the realm of relationships governed by law, moral norms include a much wider range of interactions. Measures of coercion are also the foundation of law and morality, but these vary. Public opinion serves as a sort of moral coercion. Furthermore, moral standards do not pre-emptively prohibit particular tactics or types of compulsion. However, in the event of a breach of the law, the appropriate law enforcement agencies are required to take legal measures.  1.6 General Concepts of the Penal Code The TPC is founded on key ideas that will clarify how criminal laws are created and implemented. In its broadest sense, the TPC is based on the principle that the government should limit its intrusion on people's freedoms. The five basic principles that are followed in the United Republic of Tanzania are legality and due process, retrospectivity, culpability, proportionality and humanity.   1.6.1 Legality and Due Process According to the legality principle, an act or omission can only be classified as a crime (and punished accordingly) if it is allowed by law. This means that the government may not arbitrarily punish anyone. A person cannot be punished for a crime unless a Section of the TPC or another law prohibits their actions. 21  Regarding the due process, Tanzania’s Constitution requires state authorities to uphold the rule of law and ensures that an accused is given a fair hearing and has the right of appeal or other legal remedy.22  1.6.2 Retrospectivity in Legislative Process  In line with the principle of legality, the rule against retrospective penal legislation requires state authorities to refrain from punishing a person for any act or offence that was not an offence under the law at the time of its commission or enacting laws that punish past conduct.23  1.6.3 Humanity The principle of humanity emphasizes the value of every human life. The Constitution's Article 12 declares, "[a]ll human beings are born free, and are all equal".24 It means that rather than solely punishing offenders indefinitely, the criminal justice system will  20 Foster, S., “Fifty Years After Handyside: Restricting Free Speech on the Grounds of Public Morality”, Coventry Law Journal, 26(1), 2021. 21 The Constitution of the United Republic of Tanzania, Cap. 2, Art. 13(6).   22 Ibid., Art. 13(1)(3)(6) and Art. 26(1)(2). 23 Ibid., Art. 13(6). 24 The Constitution of the United Republic of Tanzania, Cap. 2, Art. 12(1). 	 9 emphasize rehabilitating offenders and assisting them in becoming contributing members of society.25 To preserve the right or equality of human beings, the Tanzanian Constitution under Article 13(6) requires human dignity to be protected in criminal investigations and process, detention and execution of a sentence. As such, a suspect or criminal shall not be tortured or subjected to inhuman or degrading punishment or treatment.26  1.6.4 Culpability  The notion of culpability holds that you cannot punish someone without guiltiness or blameworthiness.27 It also implies that some people in specific circumstances—such as someone who suffers from a psychological condition that makes it difficult to distinguish between right and wrong—may have reduced criminal liability because their conduct lacked culpability. The doctrine of presumption cum culpability is recognised under Article 13(6) of Tanzania’ Constitution, which provides: “no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence.”  1.6.5 Proportionality This means that the severity of a punishment can never be more than the degree of guilt. The rule of proportionality requires the criminal penalty to be scaled in such a way that fits the crime committed. In line with the rule against retrospective laws, Article 13(6) of Tanzania’s Constitution requires state authorities to refrain from imposing a punishment which is heavier than the penalty in force at the time the offence was committed. The law generally prefers punishments that do not rob people of their liberty through the remand system (preventive detention) or imprisonment (correctional services).  1.7 Public and Semi-Public Crimes The TPC draws a line between public and semi-public (private) crimes. The distinctions between the two is pegged on the reporting and complaint mechanisms.28 A victim must file a complaint against the perpetrator to the relevant authority for the government to prosecute a semi-public crime such as assault, simple theft, threats, criminal damage, defamation, libel or slander. Also, crimes that involve direct relatives, such as children and parents or husband and wife, are considered semi-public offences.  Regarding public offences, the State does not require the victim’s willingness or readiness to act upon an illegal act, i.e., it can prosecute against a perpetrator even without a victim directly lodging a formal complaint. This is due to the severity of public crimes being greater than private and semi-public offences. Below are a few illustrations of public and semi-public crimes.    25 The Constitution of the United Republic of Tanzania, Cap. 2, Art. 13(6).  26 Section 55 of the CPA. 27 Chapter IV of the TPC and Art. 13(6) of Tanzania’s Constitution provides the general rules on criminal responsibility. 28 A complaint is a formal allegation of a criminal offence made to the police, prosecutor, justice of the peace or court. 	 10 Examples of Public Crimes Examples of semi-public crimes Treason Simple offences against physical integrity  Manslaughter Abuse of office Homicide  Disturbing religious assemblies  Assault  Offences against morality  Offences against Public Tranquillity  Offences relating to the Administration of justice   1.8 Penalties and Liability The Tanzanian justice system's approach to punishing convicted criminals is examined in this Section. It also looks at scenarios where those penalties might be scaled back or removed entirely. Key questions to consider include: what happens if someone tries to commit a crime but is unsuccessful or partially successful? If several individuals collaborate to plan a crime, how come only some carry it out? What if someone murders someone else to protect his own life? How do judges decide which punishments to impose and how to do so? These queries are addressed in this Section.  1.8.1 Penalties The TPC lists a variety of punishments that can be inflicted on those who commit each offence. The punishment often consists of various fines, years in prison, or a mix of the two. How does a judge choose which punishment to administer from that range? Recalling the humane principle, which places a premium on the worth of every human life and their right to freedom, is where we should start responding to this query. Penalties are intended to not only teach and re-socialize the offender but also to punish and exact revenge. As a result of this rule, the TPC declares a general preference for sentences that do not take away a person's freedom. For instance, if it is legal and suitable, community service or fines should be given as punishment instead of a prison term. Prison sentences can be handed down only when other sanctions have failed to deter the crime. Another alternative for penalties of imprisonment of three years or less is a suspended sentence. The court has a variety of alternatives when deciding what punishment to impose. The TPC often includes fines and prison sentences as the most common forms of punishment. However, there are other sanctions besides fines and jail time. The TPC offers various alternative punishments that may be applied in specific situations. The TPC instructs the court to consider all the facts that show a higher or lesser degree of the act's illegality while deciding on a punishment. These are aggravating or mitigating circumstances affecting how we perceive illegal behaviour.29 The characteristics of the crime that make it seem worse or more serious are known as aggravating factors. Conditions that lessen the severity of the crime are referred to as mitigating considerations. A list of some general aggravating elements and mitigating conditions is provided in the penal law. Depending on the judge's judgment, these general situations could lead to harsher or more lenient sentencing if mitigating circumstance does exist per the TPC30 and  29 Roberts, J.V., “Sentencing Reform in Tanzania: Moving From Uhuru to Ubuntu?” 2021.  30 Sections 8-21 and 25-38B of the TPC. 	 11 sentencing guidelines.31 If any of these conditions exist, the maximum sentence is cut by a third and the minimum sentence is decreased by a fifth. The minimum fine goes down to the lowest amount allowed by law, and the maximum fine goes down by one-third. Additionally, jail punishment may be substituted with a penalty if the maximum sentence is three years or less. The court must consider all circumstances of the offence that may aggravate or mitigate, regardless of whether they appear on this list of aggravating or mitigating elements. It is also vital to remember that these circumstances can be avoided while the crime is committed. Conditions that occur before or after the incident may also be considered. The TPC allows for consideration of the perpetrator's criminal history and variables that contributed to the crime's actual conduct. The court should prioritize recurrence, habitual criminality, and exceptionally mitigating circumstances while determining the appropriate punishment. Furthermore, the court should consider further aggravating or mitigating circumstances after considering those. The court should decide the precise extent of the penalty deemed necessary to defend legal interests vital to life in society and to reintegrate the perpetrator into society after considering all these factors.  1.8.2 Liability Determining when someone is guilty of a crime can be challenging, even when the act and intent elements of the crime are clear-cut and accepted. Criminal responsibility can come in many different forms. Criminals occasionally begin to plot their crimes but never carry them through. Criminals occasionally plot their crimes and carry them out, but their stated objectives are not realized. Sometimes a group of people will collaborate to plan a crime, but only a select few will carry it out (either with or without the knowledge of the rest of the group).   1.9 Criminal and Civil Laws’ Branches – Distinction To begin with, ‘criminal law’ refers to the branch of public law that prohibits certain actions, conducts, omissions, or behaviours, creates procedures to establish violation or guilt, and sets punishments or penalties for those found guilty of a violation through proceedings in a court of law or tribunal. An action, conduct, omission, or behaviour that violates criminal law is a crime or an offence. Criminal law presumes that crimes are committed against the State, which has a vested interest in punishing them. Criminal law considers victims of crimes as witnesses against accused persons in criminal proceedings. Once the Court of law has established the violation, it can impose death, imprisonment, corporal punishment, fine, forfeiture, payment of compensation, costs, security for keeping the peace, and other punishments.32 Criminal law goals are to reform the offender, prevent further commission of crimes, and deter society from the commission of crimes.  This is unlike civil wrongs, which are actions, conducts, omissions or behaviours one individual commits against another. Only wronged individuals can prosecute civil wrongs against the offending individuals. The punishments are limited in civil law. Courts of law  31  The Judiciary of Tanzania, The Tanzania Sentencing Guidelines, Government Printers, Dodoma/Dar es Salaam, 2023. 32 The Penal Code, Cap. 16 [R.E. 2022], s. 25.  	 12 can mostly order compensation, payments, sale, restoration, restitution, and civil imprisonment at the plaintiff’s cost.33     33 Civil Procedure Code, Cap. 33 [R.E. 2019], Order XXI.  	 13 SECTION 2: SOURCES OF CRIMINAL LAW There are several sources, origins, and justifications for the existence and legitimacy of criminal law. Some of these include:   2.1 Constitution The Constitution of the United Republic of Tanzania provides the first source of criminal law.34 As supreme or mother law in Tanzania, the Constitution demands state authority to uphold human dignity in line with the Universal Declaration of Human Rights,35 equality and protection before the law,36 determination of persons’ rights before courts of law or properly and lawfully constituted forums,37  right to a fair hearing, right to a remedy, including the right to appeal,38 presumption of innocence,39nullum crimen sine lege and nulla poena sine lege,40 respecting human rights and dignity throughout criminal investigation and prosecution,41 observance of all laws of Tanzania,42 and access to justice.43 Specifically to the judiciary of Tanzania, the Constitution requires courts to dispense justice impartially, expedite the dispensation of justice, impose punishments or compensation contemplated by law, and dispensation of substantive justice without being tied up to unreasonable procedural technicalities.44 All these are some of the most elementary principles in any criminal legal system worldwide. Thus, laws the Parliament or delegated bodies enact must adhere to these minimum stipulations.   2.2 Legislation All laws the Parliament enacts in Tanzania are termed legislation, principal legislation, or statutes. These are the vehicles within which Tanzania expresses its criminal law. Legislation in criminal law could be sector-specific (enacted for a specific sector) with a limited aim of criminalisation and procedure or sector-general (enacted for general criminalisation and procedure). Thus, TPC 45  and the Criminal Procedure Code 46  are general cornerstones of Tanzanian criminal law. While TPC proscribes crimes and sets punishments, the Criminal Procedure Code sets out the procedures to determine the commission of a crime in a manner that upholds constitutional guarantees and fundamental freedoms. Sector-specific legislation includes, for example, the Anti-Trafficking in Persons Act, was enacted in 2008 to specifically criminalise the offence of human trafficking or trafficking in human beings in Tanzania; the Prevention and  34 Cap. 2 [R.E. 2002].  35 Arts. 9(f), 12(2).  36 Art. 13(1).  37 Art. 13(3).  38 Art. 13(6)(a).  39 Art. 13(6)(b).  40 Art. 13(6)(c).  41 Art. 13(6)(d).  42 Art. 26(1).  43 Art. 30(3).  44 Art. 107A.  45 Cap. 16 [R.E. 2022].  46 Cap. 20 [R.E. 2022].  	 14 Combating of Corruption Act47 criminalises corruption offences in Tanzania; and the Wildlife Conservation Act,48 specifically outlaws wild-life related crimes in Tanzania.  In addition to principal legislation, the Parliament has authorised other governmental bodies and agencies to enact subsidiary legislation.49 These are also known as delegated legislation. They can be styled as regulations, bylaws, orders, circulars, rules, proclamations, notices, or directives. 50  The Anti-Trafficking in Persons (Prevention, Protection and Treatment) Regulations51 are an example of subsidiary legislation promulgated under the Anti-Trafficking in Persons Act.  2.3 Case Laws Also known as precedents, the superior courts have developed decisions whose principles bind all lower courts in Tanzania. The superior courts in Tanzania, also known as courts of records, are the Court of Appeal of Tanzania and the High Court of Tanzania. The Court of Appeal's decisions and principles bind the High Court, Resident Magistrates’ Courts, District Courts, Primary Courts and Quasi-judicial bodies. The High Court, on the other hand, develops precedents (principles) that bind all courts except the Court of Appeal.   2.4 Received Laws These are laws imported into Tanzania from England whose purpose was to enable England to rule her colonies well. They were imported and received in Tanzania under the authority of Article 17(2) of the Tanganyika Order-in Council (Reception Clause).52 Under Section 2(3) of the Judicature and Application of Laws Act,53 Tanzania applies only laws that were in force in England up to 22 July 1920 (Reception Date). Received laws in Tanzania refer to common law, equity doctrines, and statutes of general application. Common law refers to common customs judges applied in the dispensation of justice and which the common people accepted as a reflection of their common, binding customs. Doctrines of equity contemplate the rules of fairness and justice the Court of Chancery developed in England to alleviate the harsh consequences of the judges applying the common law. Statutes of general application entail statutes or legislation used in England and exported to colonies to help with the general administration.   2.5 International Law International law, understood as rules, laws, or customs recognised by nations as binding in their relations with another,54 is recognised and applicable in Tanzania. In the Director of Public Prosecutions v. Yahya Twahiru Mpemba and 15 Others, 55  the applicant brought an  47 Cap. 329 [R.E. 2002].  48 Act No. 5 of 2009.  49 Art. 97(5).  50 Sec. 4, Interpretation of Laws Act, Cap. 1 [R.E. 2019]. See, the Police General Orders [R.E. 2006]. 51 GN. No. 28 of 2015.  52 1920.  53 Cap. 358 [R.E. 2019].  54 Available at <https://www.britannica.com/topic/international-law> (accessed on 30 April 2024). 55 Miscellaneous Criminal Application No. 88 of 2021, High Court of Tanzania at Arusha.  	 15 application for witness protection, the Prevention of Terrorism Act, and the Criminal Procedure Code. In considering the application, the High Court assessed the applicability of international witness protection law in Tanzania. It observed that witnesses are accorded international protection in international and regional law, citing Arts. 64(7) and 68(5) of the Rome Statute of the International Criminal Court, Art. 32(1) of the United Nations Convention against Corruption, and Art. 11 of the Protocol to Combat Trafficking, Commercial Exploitation and Sexual Abuse of Women and Child in South Asia. Since Tanzania is a dualist state, international law can only be justiciable once the Parliament domesticates it through an Act of Parliament. 56  Otherwise, it remains an important persuasive or interpretative source in law courts.                 56 Art. 63(3)(e).  	 16 SECTION 3:  HISTORICAL BACKGROUND TO CRIMINAL LAW  3.1 Traces of the State’s Coercive Power in Tanzania As opposed to the origin of the State, state institution and criminal law in Western Europe, these are neither the by-product of social contract and evolution but colonial impositions on Tanzania’s communities. The family formed the first social group in pre-colonial Tanzania, followed by a clan. The clan had ties to the tribe, a more powerful group. There were tribal territories with a shared dialect, shared religious mythology, and political leadership under the direction of a monarch or a chief at the level of tribal organization.57 Customs in pre-state groups governed interpersonal interactions. A new law had to be created to defend the newly formed territory. Because of this, customary law came into being when the government transformed customs into laws.58 Disputes in tribal societies were settled amicably between families, clans, or even tribes. However, pre-colonial societies were not homogeneous – tribes such as Sukuma and Chagga had sophisticated customary rules and institutions that punished criminal conduct. For instance, treason and espionage were seen as severe crimes, thus punishable by death.59 Witchcraft was another offence that carried a death sentence. When the State, properly so called, came into being because of Western conquest, centralisation and colonisation, each person became fully and individually responsible for their actions.60 The State has taken over the power to punish people for doing and not doing things it said were wrong.   3.1.1 Criminal Code during the German Era The Germans viewed the non-European population as too primitive for the White man's rule. Due to this, officers in charge of military posts and district officers had jurisdiction over natives. The Germans used and upheld the authority of Native Chiefs because there was no legislation for the non-European populace. They adopted a ‘direct rule’ system and co-opted a few local collaborators, especially Arabs and natives (i.e., Akidas, Tarishi, Jumbe, and Liwali) were appointed in areas without chiefs. Rules of procedure and ‘established customs’ were changed to fit the needs of the German State.61 While Akidas favoured physical punishment, local chiefs usually used pre-colonial dispute resolution techniques. Local authorities handled minor cases; district officers were notified of the significant cases. The natives were typically not paid for their labour offered in public construction projects. In addition, labour law had harsh penalties for contract violations, such as a three-month prison sentence served in chains for breaking an employment contract in civil cases. Germany was the first nation to enact criminal penalties to spur development in Tanganyika. Another kind of legislation that included criminal penalties was taxation. The  57 Mchome, S.E., “The civilianisation of Prosecutorial Services in Tanzania”, Accountable Government in Africa, 2012, p. 127. 58 Goldstein, G., “The Legal System and Wildlife Conservation: History and the Law's Effect on Indigenous People and Community Conservation in Tanzania”, Geo. Int'l Envtl. L. Rev., 17, 2004, p. 481. 59 Burnham, M.A., “The Death Penalty in East Africa: Law and Transnational Advocacy”, Human Rights NGOs in East Africa, pp. 263-282, Pennsylvania: University of Pennsylvania Press, 2013, Chapter Thirteen. 60 State monopoly of coercive powers (Thomas Hobbes and Marx Weber’s state). 61 Dougherty, M.I., “Tanganyika During the ‘twenties: a Study of the Social and Economic Development of Tanganyika under British Mandate”, African Studies, 25(4), 1966, pp. 197-226. 	 17 taxation law was first proposed in 1898.62 A thorough House and Poll Tax Ordinance was passed in 1912. The government used the non-payment of these taxes as justification to enlist defaulters in private farms and public works projects. Additionally, subsidiary laws were passed, creating municipalities in Tanga and Dar es Salaam, for example. They were given the authority to create bylaws, which included the requirement to grow cotton, the ban on killing specific species, and the prohibition on mining certain minerals.63  3.1.2 Criminal Code during the British Colonialism German East Africa was transferred to the British in 1919 after World War One, thus the name ‘Tanganyika’64. After the formal end of the mandate in July 1922, Britain was given full power to make laws and run the government. Horace Byatt was the first person to hold the governorship when the Order in Council made official the position of governor in 1920. Until the end of 1926, when the legislative council was founded, the governor made ordinances, rules, and regulations on his own, subject to His Majesty's permission.65 At that point, the Governor in Council assumed control of the situation.66 Besides, the British introduced the ‘indirect rule’ system whereby the ‘district officers’ and ‘hereditary chiefs’ replaced the Akida, Jumbe, Tarishi and Liwali that the Germans had left behind. The British issued a constitution-equivalent Tanganyika Order in Council (TOC) in 1920.67 Article 17 of the Order stated that "such civil and criminal jurisdiction should, subject to the other provisions of this order, be exercised, to the extent circumstances permit, in accordance with the civil procedure, criminal procedure, and Indian penal law, and other Indian Acts and laws, which are in force in the territory at the date of the commencement of this order or which may hereafter be applied or enacted.”   The significant development focusing primarily on crimes can be deduced from the ‘reception clause’: the recognised customary law, Indian Penal Code, Criminal Procedure Code, Oaths Act, and Evidence Act.  3.1.3 Customary Criminal Law68 The TOC also approved using the indigenous' traditional criminal code in any legal disputes as long as it did not violate morals or justice or conflict with any Order in Council or Ordinance.69 However, it should be noted that the local and British definitions of "justice and morality" were not the same. The repulsive clause was typically meant to stop  62 Sunseri, T., “Labour Migration in Colonial Tanzania and the Hegemony of South African Historiography”, African Affairs, 95(381), 1996, pp.5 81-598. 63 Seimu, S.M., “The Growth and Development of Coffee and Cotton marketing Co-operatives in Tanzania, c. 1932-1982”, Doctoral Dissertation, University of Central Lancashire, 2015. 64 Aminzade, R., “The Politics of Race and Nation: Citizenship and Africanization in Tanganyika” In Political Power and Social Theory. Emerald Group Publishing Limited, 2001. 65 Ibid.  66 Ruled by proclamations. 67  McAuslan, J.P.W.B., “The Republican Constitution of Tanganyika”, International & Comparative Law Quarterly, 13(2), 1964, pp. 502-573. 68 Currently, the Magistrates’ Courts Act outlaws the application of the customary criminal law in Tanzania. 69 Mkutu, K.A., “Mitigation of Armed Criminality Through an African Indigenous Approach”, Crime, Law and Social Change, 53(2), 2010, pp. 183-204. 	 18 situations like trial by ordeal, the random slaughter of witches, and the extension of criminal liability to the next of kin.70 One of the Court’s decision dating to the colonial epoch (1938), the High Court stated that the conventional principle that held a parent liable to pay a portion of the compensation for his son is opposed to justice and morality.71 The son alone was accountable for his deed. The judge applied the British justice principles.  3.1.4 Penal Code and Related Penal Statutes TPC72 served as Tanganyika's primary source of criminal law in addition to the Regulations for Peace and Good Order 73 , Witchcraft Act 74 , Stock Theft (Prevention) Act75 , and customary criminal law. The influence of the TPC was not immediately seen in the early 1920s since most people in rural areas still used traditional conflict resolution techniques.76 Additionally, offences codified by the Code initially reflected the State of society. The armed robbery was not expected until it was reported to the police for the first time in 1931. 77  As a result, the Code was entirely imported, designating several actions and omissions as crimes even before proof existed in the region.  A notable example is a rise in vagrancy in Dar es Salaam in the 1930s due to the global economic downturn. Several laws were already in place to address this issue, including those on "idle and unruly person ordinance" and "rogue and vagrants". The Township (Removable of Undesirable Persons) Ordinance and the Destitute Persons Ordinance (1944). 78  Slums and drinking contributed to several additional crimes, including prostitution, assault, and rape. The Public Order Ordinance79 and Societies Ordinance80 were introduced in the 1950s to crackdown political dissidents during the decolonisation period.   3.1.5 Administration of Justice The British regime established the first civilian Police Force and Prison Service in 1919.81 In 1929, the Native Courts Ordinance was promulgated, removing it from the High Court's purview and placing it under the control of the district and provincial governments, with  70 Ibid. 71 Gwao Bin Kilimo v. Kisunda Bin Ifuti 1 T.L.R. (R) 403. See also Kyando, L.A. and Peter, C.M., “Lay People in the Administration of Criminal Justice: the Law and Practice in Tanzania” Afr. J. Int'l & Comp. L., 5, 1993, p. 661. 72 Introduced in the 1930s. 73 GN. 6/1920, revised in 1923. 74 28 December 1928. 75 13 May 1960. 76 Boehringer, G.H., “Aspects of Penal Policy in Africa with Special Reference to Tanzania”, Journal of African Law, 15(2), 1971, pp. 182-212. 77 Ibid. 78 Greg Hofmeyr, G.J. and Amir, O.A., “Vagrant Subantarctic Fur seal on the Coast of Tanzania”, African Zoology, 45(1), 2010, pp. 144-146. 79 Ordinance No. 21 of 6th July 1951 (Cap. 304, now Cap. 385). Cf. Political Parties (Amendment) Act of 2018. 80 Ordinance No. 11 of 1st June 1954 (Cap. 337, now Cap. 337). 81 GN. 21-2583, Vol.1 (25/8/1919). See, CHRI (2006), Ibid. p. 3. 	 19 the governor being the last appeal.82 The Local Court Ordinance was passed in 1951. Native Courts were renamed Local Courts, and appeals were now made directly to the Native Court of Appeal from the District Commissioner. 83  In reality, minor crimes committed in rural regions were handled by Native Courts using customary law, while significant crimes were handled by Subordinate Courts using received law. Also, they introduced separate laws and institutions to deal with juvenile offenders under the Children and Young Persons Ordinance, 1930s (now the Law of the Child Act, 2009). These arrangements persisted in the independent Tanganyika in 1961.  3.1.6 Criminal Law in the Post-independence Era The Judicature and Application of Laws Ordinance (JALO) No. 57 of 1961 (Cap. 452) was passed shortly after independence. The 1920 reception clause, which was reproduced in Section 2(2) of the JALO (the reception clause), stated that the High Court's jurisdiction would be:  exercised in accordance with the written laws which are in force […] in accordance with the substance of common law, doctrine of equity, and the Statutes of General Application in force in England with the powers vested in and according to the procedure and practice observed by and before courts of justice of the peace in England.84  The independent government cemented and built upon the British legal system, i.e., penal law and criminal justice system. The JALO adopted the same stance as the 1920 reception provision regarding customary law.85 This indicates that civil and criminal customary law continued to exist, subject to the restrictions outlined in Section 9 of the JALO. However, Section 66 of the 1963 (now 1984) Magistrates’ Courts Act (Cap. 537) discontinued the customary criminal law. This statute united the Courts, creating a one-tier structure from the Primary Court at the bottom to the Court of Appeal. Administrative officers no longer carried out judiciary duties.  3.2 Selected Postcolonial Penal Laws and Offences  3.2.1 Criminal Code Even though almost every law in Tanzania has a bearing on crimes, TPC remains the primary source of criminal law. Several revisions have been affected to TPC to account for the political and economic developments following independence. Act No. 61 of 1962, for instance, made it illegal to discourage others from cooperating with self-help schemes by  82 Zaaruka, B.B.P., “Indicators of Political and Economic Institutions in Tanzania: 1884–2008”, Journal of Development Perspectives, 1(1-2), 2017, pp. 213-237. 83 Ibid. 84 Wanitzek, U., “Legally Unrepresented Women Petitioners in the Lower Courts of Tanzania: a Case of Justice Denied?” The Journal of Legal Pluralism and Unofficial Law, 23(30-31), 1990, pp. 255-271. 85 Ibid.  	 20 adding Section 89C to TPC. The Minimum Sentence Act, No. 2 of 1972, was passed in response to the 1967 Arusha Declaration and increased the penalties under TPC for theft from public institutions. Following the hoarding of goods and trading on the black market in the 1970s, the government added Section 194A to TPC to ban such conduct.86 Likewise, in 1998, the Sexual Offences Special Provisions Act (SOSPA) scaled-up punishments for sexual offences. In short, TPC has not changed much since the country became independent.  3.2.2 Minimum Sentences This is allegedly the government's worst or most draconian piece of legislation.87 The government was concerned about the rise in theft from government buildings, stock theft, home invasions and burglaries, robberies, and corruption. This Act authorized the use of corporal punishment. In 1972, corporal punishment was outlawed by Act No. 1/2, but Act No. 2 of 1989 brought it back.  3.2.3 Vagrancy Laws Regarding the idle and disorderly persons, Act No. 11 of 1983 expanded the definition of "idle and unruly persons" in Section 176 of the TPC to cover unemployed people and those who skip work. These could be drafted by the State authorities under the Human Resources Deployment Act No. 6 of 1983 as manpower in public projects.  3.2.4 Laws against Corruption In the 1970s, corrupt practices became rampant; thus, the government repealed the Prevention of Corruption Ordinance of 1958 and replaced it with the Prevention of Corruption Act, No. 16 of 1971. The Act’s provisions included a sharp rise in the penalties for corruption offences and the extension of the definition of corruption offences to include public officials discovered living off assets other than their known sources of income. The 1971 law has been repealed and replaced by the Prevention and Combating of Corruption Act of 2007 to capture new dimensions of corrupt practices.  3.2.5 Control of Economic and Organized Crime In 1983, the government launched a severe crackdown on what it referred to as "racketeers and economic saboteurs".88 The crackdown was directed at persons caught stockpiling goods, dealing in illegal foreign exchange, possessing unauthorized firearms and ammunition, and possessing official awards. The government passed the Economic Sabotage (Special Provisions) Act No. 9 of 1983.89 This Act established a special tribunal with exclusive jurisdiction over all cases of economic sabotage, which is not susceptible to review by any court or other authority. Act No. 13 of 1984, however, fixed some of the  86 Shivji, I.G., “The Rule of Law and Ujamaa in the Ideological Formation of Tanzania”, Social & Legal Studies, 4(2), 1995, pp. 147-174. 87 Act No. 29 of 1963. 88 Mniwasa, E.E., “The Anti-money Laundering Law in Tanzania: Whither the Ongoing “war” Against Economic Crimes?”, Journal of Money Laundering Control, 2020. 89 Ibid. See also Act No. 13 of 1984. 	 21 anomalies of this Act. In 2016, the government introduced the High Court Corruption and Economic Crimes Division to handle corruption and economic crimes, especially economic sabotage and money laundering.90  3.2.6 Criminal Law Used for Developmental Goals After independence, the new government continued to use colonial penal law. 91  For instance, tax and development levy laws adopted and continue to adopt penal strategies to ensure compliance.92 Subsidiary criminal legislation has shown us that local governments, including district councils, municipalities, and cities, have broad authority to establish laws with harsh penalties. These cover everything from laws governing public order to that governing agriculture, education, trade, health, food production, storage, and sale. These bylaws only take effect in the territories under their purview. Other institutions, such as crop authority, also make some laws. Some statutes grant the minister the authority to enact bylaws for the same purpose, such as the Anti-Trafficking in Persons Act.        90 The Written Laws (Miscellaneous Amendments) Act, 2016. See also Economic and Organised Crime Control (The Corruption and Economic Crimes Division) (Procedure) Rules, GN. No. 267 of 2016. 91 Morris, H.F., “A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935”, Journal of African Law, 18(1), 1974, pp. 6-23. 92 Bukurura, L.H., “Public Participation in Financing Local Development: The Case of Tanzanian Development Levy”, Africa Development/Afrique et Developpement, 1991, pp. 75-99. 	 22 SECTION 4: A SNAPSHOT VIEW OF THE TANZANIAN CRIMINAL PROCEDURE  This Section briefly covers the Tanzanian criminal procedure, which is worth a book or study manual of its own. Key actors, complaint mechanisms, detection, bail and pre-trial detention, prosecution and defence, and adjudication are areas under consideration. Also, the Section discusses other miscellaneous issues regarding the administration of criminal justice, such as committal proceedings, plea bargaining, nolle prosequi, and withdrawal of criminal cases.  4.1 Key Actors  The Tanzanian criminal justice system has six actors whose key function is to consider the interests of the victim, accused, convict, and ex-convict. These are police officers, prosecutors, advocates, judicial officers, corrections officers, the President and the community. The police officers preserve peace, maintain law and order, prevent and detect crime, apprehend and guard offenders, and protect property.93 Prosecutors defend the interests of the Republic, victims and witnesses of a crime; decide whether to prosecute or not to prosecute an offence; institute, conduct and control prosecutions of any offence; take over and continue prosecution of any criminal case instituted by another person or authority; endorse private prosecution; discontinue any criminal proceeding pending before any Court; direct investigation of criminal matters; object any bail application; and issue a certificate to confer pecuniary jurisdiction to subordinate Courts concerning economic and organised crimes.94 Advocates are court officers who represent the interests of the accused in the Court or any investigative organ and may also play the role of private prosecutors or further interest of a victim of a crime.95  Judicial officers96  have the final decision to dispense justice in Tanzania.97 Corrections officers98 manage the country's correctional services; preserve and promote a just, peaceful and safe society; place convicts and remandees in a secure, safe and humane environment; provide needs-based rehabilitation; and reintegrate ex-convicts into the community.99 The President of Tanzania appoints top officials of all criminal justice institutions, assents penal laws to come into force, endorses the execution of death row convicts, and commutes prison terms. The community plays a vital role in restorative justice, reporting and investigating crimes, testifying in Court, and helping ex-convicts to adjust to community life (schooling, finding accommodation and employment, and rebuilding social capital through rehabilitation and reintegration programmes).100  93 Section 5(1) of the Police Force and Auxiliary Services Act, R.E. 2019.  94 Article 59B of the Constitution of the United Republic of Tanzania; Section 9 of the National Prosecutions Service Act of 2008, Sections 12(3)(4), 26 and 36(2) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2019; and Section 148(4) of the CPA. 95 See the Advocates Act (as amended from time to time) and related Regulations.  96 E.g., Judge's Assistants, Registrars, Magistrates, Judges and Justices of Appeal (Section 3 of the Judiciary Administration Act, 2011).  97 Article 107A (1) of Tanzania’s Constitution.  98 Prisons; special institutions for juvenile offenders; social welfare; and community services, probation, parole and extra-mural penal labour systems.  99 See the Prisons Act, R.E. 2002 and the Law of the Child Act, 2009.  100 Ibid.  	 23 4.1.1 Complaint Mechanisms  Law enforcement agencies can act suo motu or be moved by a complaint lodged by a Good Samaritan or a concerned citizen to make an arrest, seize property, or initiate criminal investigations. The Penal Code requires everyone to report criminal activity or related plans (conspiracy) to commit a crime to a state authority. Tanzania's Constitution, Penal Code, and Whistleblower and Witness Protection Act (2015) protect the identity and interests of a person who lodges such complaints.  4.1.2 Detection  A criminal investigation is the most important step after a report of any criminal offence because it is the only thing that will help the prosecution to have the basis for their case in Court through an accumulation of evidence. Apprehension can be done at the crime scene; if not, detection work of various kinds may occur until the police have a suspect. Tanzania's criminal procedure recognises several methods of criminal investigation: arrest and detention, search and seizure of a person and property with or without a warrant; interrogation; eyewitness identification; admission or confession; and medical examination; physical identification through forensic science (e.g., fingerprints and DNA analysis).  4.1.3 Apprehension A police officer has powers to arrest with or without a warrant depending on the circumstances provided under Section 14 of the Criminal Procedure Act, which includes when a commission of an offence is done in his presence. An arrest can be made by a private person without a warrant when involving injury to property by the owner of the property or his servants or a person authorised by the property owner and other circumstances provided by Section 14 of the CPA. The Magistrate can also make an arrest when the commission of an offence is within the local limits of his jurisdiction, as per Section 17 of the CPA. Please note that the law requires a police officer to inform a suspect about the reason for arrest and his right to remain silent.   4.1.4 Search and Seizure  A search must be carried out per the law and procedures because it interferes with one's privacy, liberty and freedom. Hence you must seek a search warrant from the appropriate authority. Two types of searches; the first is a warrant from the person in charge of a police station under Section 38 of the CPA. This may be issued to any person, including police officers. The second one is search warrants by the Court. On the other hand, a seizure means taking by legal process or forcing someone to surrender possession of a property, document, or item to the government or its agent, such as the seizure of evidence found at the crime scene.    4.1.5 Interrogation  A police officer or relevant authority can summon or arrest a person suspected of committing a crime to question or interview him and learn more about the alleged crimes regarding facts, evidence, witness, crime scene, and co-accused. The law requires the 	 24 interrogator to disclose his name and rank, use familiar language, inform the suspect about his right to remain silent and communicate with a lawyer, relative or friend. 101  The interrogator can take the suspect's biometric data, such as age, height, fingerprints, photos, facial structure and DNA sequencing.  4.1.6 Eyewitness Identification The law allows a person who witnessed the commission of a crime, either as a bystander or victim, to testify in Court against the suspect. An eyewitness usually provides testimony orally by standing in a witness box. Also, this could be done in writing or in camera (behind closed doors) or through any other mechanism provided under the Whistleblower and Witness Protection Act, 2015. Please note that under Sections 144-147 of the CPA, the Court can compel a witness to attend a trial and testify. It is also common for a person investigating an offence to hold an identification parade and require anyone whose participation is necessary to attend and participate. The rationale is to establish whether a witness can identify a person suspected of committing an offence.102  4.1.7 Admission or Confession If an accused unequivocally and freely admits or confesses without retracting his statement afterwards about the commission of an offence, whether in writing or orally before an officer of the Court or a justice of the peace or a law enforcer, such admission or confession serves as a plea of guilty. Therefore, the Trial Court is entitled to act upon it and result in a conviction without requiring the prosecutor to prove his case beyond a reasonable doubt.103  4.1.8 Physical Identification  Physical identification aims to establish how and where a crime was committed, to identify the offender, and to exonerate an innocent person from liability. Usually, a forensic scientist or expert from the Police's Forensic Bureau visits a crime scene to collect and analyse tangible or physical objects/evidence and write a report to be tabled before the Court.104 The physical identification focuses on fingerprints (palm print, toe print and foot impression),  imprints, bite marks, hair, drug particles, fibres, debris and soil, glass pieces, nail paints, tool marks, firearms, obliterated serial numbers, blood and body fluids, forged documents, and voice.105 Samples collected from a crime scene are sent to the Government Chemist Laboratory Authority (GCLA) or designated laboratory or expert for analysis.    101 Sections 46-58 of the CPA. 102 Section 60 of the CPA. 103 See the CPA and the Evidence Act.  104 Section 202-205A of the CPA. 105 Lee, H.C. et al., (1991) Physical Evidence in Criminal Investigation (survey), available at <https://www.ojp.gov/ncjrs/virtual-library/abstracts/physical-evidence-criminal-investigation> (accessed  on 30 April 2024); and Jilala, W. and Lwoga, N. (2022) A brief history of forensic services in Tanzania: Current challenges and mitigation efforts, Forensic Science International: Synergy, Vol. 4:100227, pp. 1-8.  	 25 4.1.9 Medical Examination On the application of an investigator or party to a proceeding or acting suo motu, the Court can order a medical officer to examine an accused or a victim of a crime and submit a medical report if the believes that the examination would provide evidence relating to the offence. The medical report shall have a corroborative value, while the medical officer involved shall appear in Court as an expert witness.106  4.2 Bail and Pre-Trial Detention  Most of the time, if the accused pleads guilty and the plea is entered, bail does not apply. After a plea, a person is remanded or bailed. Based on the presumption of innocence under Article 13(6)(b) of Tanzania's Constitution, bail is a constitutional right. Section 148(5) of its CPA provides an automatic denial of bail for certain offences like treason, armed robbery, defilement and murder.107 The police can grant bail before the matter is set to Court; court bail is when the matter is set in Court. Please note that the DPP can successfully object to any bail application108  or issue a certificate to confer pecuniary jurisdiction to a Court that initially does not have the power to entertain certain economic offences.109 Pre-trial detention intends to secure the accused's appearance at a trial or protect the community from his criminal conduct, especially sabotaging the prosecution’s case. In Tanzania, pre-trial detainees may take the form of individuals who are yet to be arraigned before the Court and denied bail, and their cases are still pending in the Court. Thus, these detainees are secured in a police lockup or remand prison. The law requires any person arrested without a warrant concerning any criminal offence to be arraigned before the Court as soon as practicable or within 24 hours.110 Also, the High Court acting suo motu or moved by any interested party may issue a writ of habeas corpus to obligate the detaining authority to release the detainee or bring him before the Court to be dealt with according to law.111  4.3 Prosecution and Defence  4.3.1 Charge sheet This stage follows after the investigator or prosecutor has decided that there is prima facie evidence to that effect. Criminal proceedings against an accused are instituted in Court based on a charge. A charge or information sheet states the offences, the offence's elements, and the penal law's provisions that the accused has violated. The prosecution will draw a charge if the case is triable by subordinate courts or an information sheet if the offences are triable only by High Court. Please note that there is no pre-trial discovery process in Tanzania in which both sides exchange and release the evidence they have to each other.   106 Section 63 of the CPA. 107 See also Section 36(2) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2019. 108 Section 148(4) of the CPA. 109 Section 12(3)(4) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2019. 110 Section 32 of the CPA.  111 Sections 390 and 391 of the CPA.  	 26  a) Arraignment and plea taking The accused will be required to plead for the charges read to him. The accused will be asked by the Court to give a plea of guilty or not guilty. If the accused pleads guilty, the plea must be unequivocal, which means a clear plea. If the plea is unclear, the Court enters a plea of not guilty. If the Court enters a plea of not guilty, the prosecution will be allowed to proceed to present their case. If postponed, the accused can ask for bail if it is a bailable offence. If the guilty plea is entered, the procedure will skip to acquit/convict until the end.  b) Preliminary hearing  This is a critical stage where the parties meet to draft a memorandum of agreed facts to expedite the case speed. The parties have to meet and decide on what matters are not in dispute, and those matters are not supposed to be brought during trials; neither party is required to prove any of those facts except the facts in dispute only.  c) Trial  This is when the case is set for hearing or mention, and the prosecution has to prove whether they have a case against the accused before the Court.  d) Prosecution, examination and proof  The prosecution side presents its case at this stage by summoning witnesses to give their testimonies and present any other evidence that supports their case for the Court to decide whether there is a case to answer. In this stage, the prosecutor examines the witness first (examination in chief), followed by the defence team (cross-examination). Lastly, witnesses are re-examined by the prosecution (re-examination). The burden of proof lies on the prosecution. To get a conviction, the prosecutor must prove the criminal act, intent, and resulting harm beyond a reasonable doubt. Please note that one would require the consent of the DPP to prosecute offences under the Economic and Organised Crime Control Act112 and Prevention and Combating of Corruption Act113.   aa) Case to Answer /No Case to Answer This is a stage where the Court has to decide whether there is a case to answer or not based on the evidence provided by the prosecution. The Court acquits the accused if there is no case to answer. If there is a case to answer, an accused must be allowed to present evidence in his support.   112 Section 26 of Cap. 200 R.E. 2019. 113 Cap. 329 R.E. 2022. 	 27 bb) Defence Case The defence team will present their evidence, witnesses will be examined in chief, cross-examined by the prosecution and re-examined by the defence.  cc) Closing argument  This is a final submission made by either side to a criminal trial. The parties sum up their presentation. The defence will be the first to make their final submission, followed by the prosecution. Parties can submit their closing argument orally or in writing, depending on the leave of the Court.  4.3.2 Adjudication At this stage, the judicial officer must pronounce his judgment and determine and impose a legal sanction on a person found guilty of an offence.  a) Acquit or Convict The Court will rule depending on the submission by the prosecution and defence if the accused is found guilty or not. Therefore, the accused can be found not guilty. If found not guilty, the accused will be acquitted and set free. If found guilty, the next step will follow. Please note that under the common law's doctrine of autrefois convict or autrefois acquit (i.e. the rule against double jeopardy), a person who has been 'previously' tried and convicted or acquitted by a court of competent jurisdiction in or outside Tanzania may not be tried again for the same crime.  b) Mitigating and aggravating factors The Court will allow the defence side to present factors favouring a lenient sentence in case of conviction. Likewise, the Court will allow the prosecution side to argue in favour of severe punishment.  c) Judgment and sentence The Court will read the sentence in the judgment, and there is a rule in the law that it shall be within ninety days under Section 311 of the CPA. The law provides the contents of the judgment under Section 312 of CPA. The Court is likely to impose custodial and non-custodial penalties, such as absolute and conditional release/discharge, community service order, finding security to keep the peace and being of good behaviour, probation order, and probation with bond, extra-mural penal labour, imprisonment, death penalty, fine/compensation, reconciliation, restitution, costs, mandatory treatments, forfeiture, suspended sentence, supervision order, and corporal punishment.114  114  The Corporal Punishment Act, Cap. 17; Article 45 of Tanzania’s Constitution; Section 3 of the Presidential Affairs Act, Cap. 9; Sections 52 & 72 of the Prisons Act, Cap. 58; Section 14 of the Immigration Act, No. 7 of 1995 (RE: 2002); the Deportation Act, Cap. 380 (RE: 2002); Section 25 of the Penal Code, Cap. 16; Sections 101, 116 and 119 of the Law of the Child Act, No. 21 of 2009; Sections 4, 5, 6 & 8 of the Resettlement of Offenders Act, No. 8 of 1969 (RE: 2002); the Probation of Offender’s Act, Cap. 247; the Community Service Act, Cap. 291; the Parole Boards Act, Cap. 400; Sections 12 & 13 of the Transfer of 	 28 d) Appeal  The presiding Court official must explain the right to appeal to any party aggrieved with his decision. Section 225 of CPA requires criminal prosecution to be finalised within 60 days from their commencement, subject to certain exceptions like serious offences such as treason, whose investigation is likely to be delayed.   4.3.3 Miscellaneous Issues  a) Committal Proceedings  Section 2 of the Criminal Procedure Act defines committal proceedings as the procedure conducted in the District or Resident magistrate Court after which the suspect is tried in the High Court. It happens when a person is charged with an offence not triable by courts subordinate to the High Court, such as incest, murder, arson and treason.  b) Plea Bargaining  According to the Written Laws (Miscellaneous Amendment) Act No. 4 of 2019 (now Sections 194A-194G of the CPA), the Criminal Procedure (Plea Bargaining Agreement) Rules (2021) and Plea Bargaining Guidelines (2020), a plea bargain is a negotiation in a criminal case whereby the accused agrees to plead guilty to a lesser offence, or in the case of multiple offences, to one or more of the offences charged, in exchange for a concession from the prosecutor to reduce the charge or drop some charges. The public prosecutor, the accused person or representative, or the parent (guardian or social welfare officer), if it is a juvenile offender, can initiate plea bargaining. Plea bargaining can only be initiated if there is a pending case before the Court; the prosecution has not closed its case; or the prosecution has closed its case; and/or at any time before judgment is delivered, provided that written approval has been obtained from the DPP. Plea bargaining cannot be entered against serious sexual and narcotic drug offences, terrorism, treason and treasonable offences, or possessing a government trophy.   c) Nolle prosequi and withdrawal of criminal cases  The DPP plays a significant part in administering criminal justice in Tanzania. Section 91 of the CPA allows the DPP to terminate proceedings or withdraw offences and refile charges at any stage of criminal proceedings. Therefore, at any stage of a criminal proceeding before the Court delivers the judgment or verdict, the DPP may, at his discretion, inform the Court that s/he does not wish to prosecute a case anymore. Under Section 98 of the CPA, if a case is withdrawn when the accused has not raised his defence, the discharge shall not operate as an acquittal to restrain the prosecutor from filing subsequent proceedings on the same facts and vice versa.115   Prisoners Act, No. 10 of 2004; the Criminal Procedure Act (Sections 9, 152, & 390); the Extradition Act, No. 15 of 1965 (RE: 2002); and the Criminal Procedure (Police Supervision) Rules. 115 See Mkami, B. and Longopa, E. (2021) The DPP’s Supremacy in the Criminal Justice of Tanzania: Analysis of the Exercise of Nolle Prosequi, EALR, Vol. 48:2, pp. 1-26. 	 29 SECTION 5: CONCLUSION This part introduced and laid a foundation for understanding Tanzanian criminal law. It focused on the meaning of crime and criminal law vis-à-vis civil wrong and civil law, sources of the Tanzanian criminal law, the origin of criminal law and related justice system as legal transplants of the colonial State, criminal law in the post-independence era, and a snapshot view of the Tanzanian criminal procedure. The next part explores the general principles of criminal law in Tanzania.          	 30 PART 2: GENERAL PRINCIPLES OF CRIMINAL LAW  SECTION 1: INTRODUCTION The purpose of Part 2 is to expose students to the basic principles underlying criminal law in Tanzania. Thus, students will learn in Section two the concept of unlawful conduct and what it entails. They will learn in Section three the idea of a fault element and what makes it a fundamental requirement in criminal law together with its exceptions. In Section four, students will have an understanding of criminal capacity as it relates to criminal law in Tanzania. The purpose is to explain to students what age or factors or defences the courts of law consider for an offender to bear responsibility for the commission of a crime. Section five will cover parties to offences or degrees of participation in the commission of crimes in Tanzania. Students are expected to understand the unitary mode of participation Tanzania takes as opposed to other jurisdictions like the International Criminal Court. In Section six, students will study the essence of incomplete crimes. The purposes of their criminalisation, the nuances they present and their growing jurisprudence in Tanzania will be prioritized.   SECTION 2: UNLAWFUL CONDUCT Section two of Part 2 exposes students to the concept of unlawful conduct. The purpose is to inform students and readers what actions, behaviours or omissions the law considers unlawful, and which criminal law prohibits. The first Subsection describes what constitutes unlawful conduct, the principles embodying unlawful conduct and concludes with a consideration of voluntariness as it relates to unlawful conduct. Criminal law defines, prohibits, and punishes crimes. Crimes can be actions (doing an act) or omissions (not doing an act) that are unlawful or criminal. Generally, the criminal code or penal legislation will define and penalise conducts that amount to crimes. In Latin, the physical element of unlawful conduct is termed “actus reus.” The mental element evidencing the person's state of mind is called “mens rea” or the fault element. These two elements constitute the core of a crime. In most penal and criminal codes, crimes are punishable when there is evidence of actus reus and mens rea. This is consistent with the principle of legality, which requires that a crime be defined and provided for in the law.116 The Latin maxim “Actus non facit reum nisi mens sit rea” traditionally expresses the essence of these two elements. The maxim simply means an act does not make a person guilty of committing an offence unless the mind is legally blameworthy. Lord Diplock, a prominent English Judge, is quoted to have criticised such terms in R v. Miller117:   “[I]t would […] be conducive for clarity of analysis of the ingredients of a  crime that is created by statute […] if we were to avoid bad Latin and  instead to think and speak […] about the conduct of the accused and his  [or her] state of mind at the time of the conduct, instead of speaking of  actus reus and mens rea.”  116 Two Rules of Legality in Criminal Law, Law and Philosophy, 2007, 26(3) 229-305 at p. 229-231. See also Article 13(6)(c) of the Constitution of the United Republic of Tanzania, Cap. 2 [R.E 2010]. 117 [1983] 2 AC 161 at 174. 	 31  Lord Diplock fronts his critics to use the Latin terms of actus reus and mens rea when analysing ingredients/elements of a crime. He proposes the use of unlawful conduct of the accused person and his state of mind at the time of the conduct. In Tanzania, criminal laws do not expressly refer to actus reus and mens rea or similar terms. The Statute generally determines the nature and definition of the crime under consideration. The prosecution has to bring evidence in a court of law showing the existence of the two elements for the crime against which they are prosecuting or charging an accused person.  Case Law: Magesa Chacha Nyakibali & Another v. Republic, Court of Appeal of Tanzania at Mwanza, Criminal Appeal No. 307 of 2013 (Unreported) Held “It is now trite law that the particulars of the charge shall disclose the essential elements or ingredients of the offence. This requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence with the necessary mens rea. Accordingly, the particulars of the crime, in order to give the accused a fair trial and enabling him to prepare his defence. The prosecution must allege the essential facts of the offence and any intent specifically required by law.”  The prosecution has to successfully prove that the offender committed unlawful conduct, with a culpable state of mind and without lawful justification or defence. Subsection 1 of this Part provides a comprehensive discussion on unlawful conduct as the first ingredient of a crime. It examines the law, case law and relevant literature on the subject.   Scenario 1: Triche and Alice are a married couple. Juma informed Triche that his wife was cheating on him with Khalid. When Triche verified these facts as true, he went to buy a pistol. He also hacked his wife’s WhatsApp chats with Khalid from which he learnt their secret meeting hotel. He is determined to kill Khalid and grievously maim his wife. He secretly took the room next to theirs in the hotel. Ten minutes after his wife and Khalid entered, Triche stormed into their room forcefully and caught them in the act. He shot Khalid in the head and maimed his wife’s leg.   Pointers:  In this scenario, the actus reus is shooting and killing Khalid and    grievously maiming Alice.   Mens rea will be his predetermined intention (malice aforethought) to    kill Khalid and the intention to grievously maim his wife.   2.1 Unlawful Conduct Unlawful conduct refers to conduct that criminal law considers harmful. It consists of a range of facts constituting a criminal act or omission. The conduct can be a positive wrongdoing (act) such as killing a person by shooting or a negative wrong (omission) such as a watchman intentionally leaving the gate open, resulting in theft. Unlawful conduct 	 32 thus constitutes prohibited acts, omissions or state of affairs. For example, Section 196 of the TPC provides for the crime of murder that: “Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.”  In this provision, the actus reus is causing the death of another person by unlawful act (positive wrongdoing) or omission (negative wrongdoing). This is the physical element and the causation of death must be unlawful. Another example is Section 294 of the TPC. Here, a person is guilty of housebreaking if he breaks and enters a dwelling house (during the day). The actus reus is breaking into a dwelling house.  A conduct will not amount to a crime if its commission or omission is lawfully justified. This is consistent with the legality principle, which is considered one of the bedrock principles of criminal law.118 The principle requires that a crime (and punishment) exists only if it was well prescribed under the law. For example, the actus reus of the offence of murder in Section 196 of the TPC implies that where death is lawfully caused, such as when combatants kill in an armed conflict, their conduct can be deemed lawful. Clarkson notes that actus reus falls into two types of offences.119 First, there are conduct crimes involving the doing or owning unlawful substances. This can be unlawful possession of government trophies or human body parts. Secondly, there are result crimes, which involve causing results that are illegal, for example, causing death through unlawful act or omission in case of murder or manslaughter. The distinction serves the academic purpose and is not always an easy one to demarcate. Unlawful conduct should be viewed from the wording used in statutory provisions. For example, the physical act of theft is taking someone’s property and that of murder is causing the death of another person.120 As seen from these two examples, the types of unlawful conduct that constitute an ingredient of a crime vary between one crime and another. It is always advised that when making an analysis of actus reus, caution must be exercised by taking into account the circumstances in which a particular conduct is made. A particular conduct may be forbidden in certain circumstance as defined by a penal provision. For example, in theft, it is important to show that the thing capable of being stolen belongs to another person.121 Other scholars such as Herring argue that actus reus constitutes four elements.122 The first is the conduct of the actus reus that involves illegal behaviour – for example, perjury, a crime involving giving false evidence under oath in court. The second element relates to circumstances, involving behaviour done in a particular scenario that makes it illegal. For example, criminal damage involves damaging or destroying property belonging to someone else; so the key circumstance here is that the property belongs to another person. The third element, the context, includes an internal or ‘state of mind’ element, which makes the behaviour a criminal offence. For example, rape involves sexual intercourse without the victim’s consent, which makes it illegal. Fourth, consequences; the actus reus involves  118 Two Rules of Legality in Criminal Law, Law and Philosophy, 2007, 26(3) 229-305 at p. 229-231. See also Article 13(6)(c) of the Constitution of the United Republic of Tanzania, Cap. 2 [R.E 2010]. 119 Kyd, S, et al, Criminal Law: Text and Materials, 10 Edition, London: Sweet and Maxwell, 2020. 120 Section 258, and 196 of the TPC, Cap. 16 [R.E. 2022]. 121 Molan M, Lanser D, & Bloy, D, Principles of Criminal Law (4th Ed), London: Cavendish Publishing, 2000, p. 73. 122 Herring, J, Criminal Law: Texts, Cases and Materials, Oxford: Oxford University Press, 2022. 	 33 producing an illegal result through behaviour – for example, murder, where conduct causes the unlawful death of someone else.  This leads to a discussion on the key elements of unlawful conduct to understand the parameters in which conduct is found to be unlawful under the criminal code. These include positive conduct of the offender and voluntary acts.   2.1.1 Positive and Negative Conduct The offender must perform an act or omission. This is an external act (a physical act) that the criminal code prohibits. If an act is not unlawful or falls outside the purview of a criminal code, no matter what the consequences may be, it will fall outside the scope of unlawful conduct. A conduct is not unlawful if a person has no legal obligation to perform or to refrain from performing it. Often, a provision in the Criminal Code prohibits the commission of certain acts (physical conducts). For example, house breaking, stealing, forgery and assault.  These are positive conducts and are clearly proscribed under the Criminal Code. On the other hand, Criminal Codes provide for omissions (negative conducts), which is not performing an act legally expected or required to be performed. For example, failure to assist children in crossing the road, a consequence of which they are hit by a car and die, or failure to rescue a drowning person. Even though the consequence (death) is appalling, the conduct (specifically an omission not to rescue) is not unlawful because of the lack of legal obligation to do so.  Such omissions may be morally wrong (‘good Samaritans’) but not legally wrong. They will be legally wrong (unlawful conduct) if an individual is required to intervene, has a status/relationship, a contract, or assumes a duty. Other conducts though generally regarded as unlawful, may be legally justified. For example, when a law enforcement agency kills in the course of preventing a robbery where robbers have opened fire and are threatening the lives of innocent civilians. These justifications are exceptions in which conducts otherwise unlawful will be deemed lawful (justified) under a criminal code. It should be noted that positive conduct for this element includes omissions regarded as negative acts. In various instances, courts have held persons criminally responsible for omissions. Section 5 of the TPC extends the offence to include omissions. As such, most provisions include acts and omissions.   Let us consider the following examples:  • Where A voluntarily agrees to take care of B but fails to take reasonable steps to do so. As a consequence, B suffers an injury.123 • When A has public duties in public office (i.e. as a police officer) but omits to carry them out.  In some instances, given the nature of the crime and the circumstances under which it occurred, it may be difficult to differentiate between an act and an omission.     123Stone v. Dobinson [1977] QB 354. 	 34 Case Law: Airedale NHS Trust v. Bland [1993] AC 789. Held It would not amount to a deliberate killing (an act) when a victim of the ‘Hillsborough disaster’ who had been in a coma for three years without a chance of recovery and who died as a result of the medical personnel’s reluctance/refusal to feed or medicate him through tubes. Rather it would amount to an omission (which – in this case – would not lead to criminal responsibility for the murder).  This position spurs the challenges of drawing a line between an act or omission and criminal consequences. This is because removal of the food and medical supply to a patient who is not yet dead (in a coma) constitutes ‘causing the death of another person’ by hastening his death. This circumstance is provided under Section 203(d) of the TPC:   If by any act or omission he hastens the death of a person suffering under any disease or injury which, apart from that act or omission, would have caused death […].  While the UK position from the above case shows the omission would not amount to murder, the Tanzanian position treats both equally as amounting to an offence. In this sense, the removal of food and medical supply to a patient in a coma, who has no chance of recovery, amounts to causing death. Unless the removal is lawful or sanctioned by medical grounds or law, it would constitute ‘causing death’ (by hastening the death of a suffering person) which is the physical element/actus reus of the offence of murder and manslaughter under Tanzanian law. The Tanzanian position is different from the common law because Section 5 of the TPC includes omissions in the definition of offences. This also suggests that an omission will be punishable if the law permits it. It must be established that the offender was required to or was, in the circumstances, expected to act. For example, consider a group of people by the shores watching a child (whom they could save) getting hit by the waves and ultimately drowning. If there is no specific relationship with the child, then the people will be said to have committed no offence. However, if one is the parent or guardian of the child, a duty to save the child will ensue. The respective omission would amount to a breach of the penal legislation.  Case Law: The Queen v. Instan (1893) 1 QB 450. Facts The accused lived with the deceased. The deceased felt sick and could not support herself. The accused did not supply her with food or medical attention; as a consequence, the deceased suffered and died.    	 35 Held A duty was imposed upon the accused to supply the deceased with food to maintain her life, and that the neglect of such duty had accelerated the death. The accused was convicted of manslaughter.  2.1.2 Voluntary Acts (Voluntariness) This element qualifies the scope of unlawful conduct. Not all unlawful conducts can be punished. Only a voluntary conduct will be punished. 124  Involuntary conducts made reflexively by the person, or while the person is unconscious, do not satisfy the actus reus element of a crime. Involuntariness implies that the person has no control of his bodily movements at the time of the act.125  Case Law: Bratty v. the Attorney General for Northern Ireland [1963] AC 386. Held Lord Denning stated the voluntariness requirement as follows: “No act is punishable if it is done involuntary: and an involuntary act in this context-some people now days prefer to speak of it as ‘automatism’- means an act done by the muscles without any control by the mind such as spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussions or whilst sleeping.”  Thus, automatism or involuntariness renders unlawful acts or actus reus justified. The rationale is simple. There was no mind control of a person’s physical conduct. Section 10(1) of the TPC echoes this position. The provision says:   Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident.  Let us consider the following example to explain the question of ‘involuntariness’. A car driver will not be punished if he crashes another vehicle due to a heart attack or an attack by a swarm of bees.    Case Law: Hill v. Baxter [1958] 1 QB 277 Facts Baxter was charged with dangerous driving. He claimed to have no memory from an early point in his journey to immediately after the incident due to succumbing to a sudden illness  124 Molan M, Lanser D, & Bloy, D, Principles of Criminal Law (4th Edn), London: Cavendish Publishing, 2000, p. 86. 125 Ibid. 	 36 that exonerated him from criminal liability. He gave the following statement at the police: “I remember being in Preston Circus going to Withden. I don’t remember anything else until I was searching for my glasses. I don’t know what happened.” Held There is no evidence that Baxter was suffering from complete automatism. It appears he fell asleep or was not paying proper attention. It was established that he drove a considerable distance along a busy street between where his memory was alleged to have failed and where the offence occurred. He was held liable.  This means that where the offender alleges ‘involuntariness’ on grounds such as automatism, the burden of proof lies on him. A distinction of the evidential burden differs on how the plea for automatism is made. Suppose the offender pleads that automatism was derived from the disease of mental illness that affected his mind at the time of committing an offence (insanity). In that case, the offender must, on a balance of probabilities, establish the requirements for insanity under Sections 12 and 13 of the TPC as truncated from the M’Naughten rules. However, where the accused pleads that automatism was not derived from the disease of the mind, the prosecution must disprove automatism beyond a reasonable doubt to find a conviction. Let us consider the below Tanzanian case law on the question of voluntariness.  Case Law: Anthony Mhikwa v. Republic (1968) HCD 460 Facts The offender (Mhikwa) was convicted of contempt of court contrary to Section 114 of the TPC because he had shown disrespect to the Court by laughing and making peculiar noises during a trial. He appealed and stated that a fly had flown into his nose, causing him to snort and sneeze.  Held The reaction was instinctive and not subject to conscious control. It was an involuntary act, and the offender was acquitted.  2.1.3 Actus Reus and Causation As pointed out earlier (above),126 in order for the offender to be liable for an offence, the Prosecution is required to prove that the offender committed an unlawful conduct. It is also equally important for the Prosecution to establish that the accused person conduct was the cause of the harm.127 If causation is not established, it may lead to nullification of the actus reus, a case where there will not be any crime.  A person is said to have caused something to happen only if the thing would not have occurred at the time and in manner in which it did had the person not acted.  Scenario 2: A puts poison in B’s drink, intending thereby to kill him. However, before B drinks it, B dies of a heart attack. A cannot be guilty of murder because B’s death is not a consequence of A’s poisoning act.   126 See p. 22. 127 Bansal, D, “Causation in Criminal Law”, Ph. D Thesis, University of Birmingham, 2020, p.18. 	 37 Causation is divided into two categories: factual causation and legal causation.  a) Factual Causation This involves a ‘layman inquiry’ to be made to find out the cause of the harm. It is often known as ‘but for’ causation (Causa sine qua non).128 The question one needs to ask is whether “but for” the accused act, the harm would have occurred. For example, if a crime involves harm to a person, the person's action must be, the but for and proximate cause of the harm. If more than one cause exists (e.g. harm comes at the hands of more than one culprit), the act must have "more than a slight or trifling link" to the harm. As such, when the definition of an actus reus requires the occurrence of certain consequences, it is necessary to prove that it was the conduct of the accused, which caused those consequences to occur.129 A good example can be found in murder or manslaughter offences, where it is necessary to prove that the act of the accused caused the death. If the death came about solely through some other cause, then the crime is not committed, even though the other elements of the actus reus and mens rea are present. For instance, in R v White130, the accused mixed potassium cyanide in his mother’s drink. The mother died and the accused was charged with murder. But later on, it was found that the deceased only drank a small amount, and her death was of natural causes and was only coincidental to the defendant’s act. The accused was only found guilty of attempted murder.  In Gowans and Hillman131– D seriously injured V with the result that V went into a coma. While being treated in hospital, V’s wounds became infected, and V died. D caused V’s death. V would not have died but for D’s attack and nothing happened between D’s attack and V’s death to break the chain of causation. (And it is obviously not a coincidence that V died from an infection as a result of D’s attack as hospital patients are always vulnerable to infection.)  Scenario 3: D blocked the exit to a theatre and turned off the lights on a staircase leading to the exit. A number of theatregoers were seriously injured in the ensuing panic. D is liable for maliciously inflicting grievous bodily harm. The injuries would not have occurred but for D’s actions, and the theatregoers were not acting voluntarily in the ensuing panic so as to break the chain of causation.  b) Legal Causation It is a narrower and more subjective concept as compared to factual causation. Not every cause in fact can be said to be the cause in law. It is more of an inquiry made by a lawman rather than a layman and is often provided in the legislation. Section 203 of the TPC, provides for instances of “causation of death in law”. For example, an accused person may under Section 203(a) be adjudged not to have caused death (even though he inflicted  128 Cornell University, “But For Causation”, available at <https://www.law.cornell.edu/wex/but-for_test> (accessed on 30 April 2024). 129 Bansal, supra note 99, p. 28. 130 (1910) 2 KB 124. 131 R V Paul Robert Gowans: R V Barry Kenneth Hillman (2003). 	 38 injury), if the medical personnel did not employ good faith or administer treatment without observance to common knowledge and skill. Section 203(c) also provides that, involuntary acts of the victim may, if they lead to death, be attributed to the offender, even though the offender’s acts would not have caused death.132 This is different from the victims own voluntary acts, which may negate the offender’s causation. In R v. Blaue133 D stabs V and V dies of loss of blood, having refused a blood transfusion because of her religious beliefs (a Jehovah’s Witness). D is held to have caused V’s death. V would not have died but for D’s stabbing her, and V’s omission in failing to save herself cannot break the chain of causation between D’s stabbing her and V’s dying.134  Scenario 4: In offences falling under negligence,135 suppose a homeowner leaves the gate surrounding their backyard pool unlocked. A trespassing child opens the gate, falls into the pool, and drowns. The homeowner’s negligent action caused the accident. Therefore, causation could be established due to the duty of care imposed to the homeowner as the occupier of the premises. However, if a child climbed over the fence at the other end of the pool, fell into the pool and drowned, the homeowner would not be liable. There was no negligence on his part to warrant the causal link leading to the death.   2.1.4 Actus Reus as ‘State of Affairs’ Although no act exists, a crime may be so defined that it can be committed. There may be no necessity for ‘willed muscular movement’.136 Instead, it may be enough if a specified ‘state of affairs’ exists. Under the Road Traffic Act, for example, a person in charge of a motor vehicle is considered to commit an offence when he drives under the influence of alcohol or drugs.137 Thus, an offence may be committed by the accused being in a particular place, or owning something, or being in charge of something. It must be shown that the accused not only did not do an act or omitted to do an act, but also certain circumstances existed at the time of committing an act or omission.   2.2 Proof of Unlawful Conduct Being an essential ingredient of a crime, unlawful conduct must be proved for a crime to stand. In the absence of unlawful conduct, there can be no crime. The reasons are simple: a person cannot be convicted solely because of the state of his mind.138 For example, the mere intention to kill is not punishable. To manifest such intention, there must be a conduct (words, acts, or omissions). We understand, for example, one may (for various reasons) anticipate stealing money from a Bank. This is his/her state of mind; unless he  132 Abdi Ahmed v. Republic, [1981] TLR 174. 133 R v. Blaue [1975] 1WLR 1411. 134 Consider Section 203(b) of the Penal Code. 135 Section 233 and 234 of the Penal Code. 136  Hannan, J, “Responsibility for Actus Reus” New Zealand Legal Information Institute, available at <http://www.nzlii.org/nz/journals/NZLRFOP/1984/231.pdf> (accessed on 30 April 2024). 137 Sections 44 and 45 of the Road Traffic Act, Cap. 168 [R.E 2002]. 138 Magesa Chacha Nyakibali & Another v. Republic, Court of Appeal of Tanzania at Mwanza, Criminal Appeal No. 307 of 2013 (Unreported).   	 39 manifests his/her intention through conduct, we may not gauge a person’s intention as we cannot tell a person’s state of mind.    	 40 SECTION 3: FAULT “MENS REA” – UNLAWFUL INTENTION 3.1 INTRODUCTION Mens rea refers to criminal intent or guilty mind. It refers to a state of mind required under the criminal code to convict an offender. The prosecution must prove beyond reasonable doubt that the offender committed a crime with a ‘culpable state of mind’ at the time of the crime.139 Justice Holmes in Staples v. United States140 illustrated the concept of mens rea by stating that “even a dog knows the difference between being stumbled over and being kicked”. Thus, mens rea requires the offender to possess a guilty mind by being aware of his/her conduct. It is not material that the offender knows whether such conduct is unlawful or not but the fact that he/she calculated such deeds. The mens rea/fault element of a crime is embodied in the famous Latin Maxim “actus non facit reum nisi mens sit rea” which we discussed before in the unlawful conduct part. It reinforces the requirement of a blameworthy state of mind for an act to constitute a crime. The Tanzanian legal framework contemplates intention, recklessness and negligence as categories of mens rea. In other jurisdictions, mens rea is considered subjective and thus includes intention, knowledge and recklessness. They also consider mens rea as objective and thus include negligence. This is otherwise understood as a subjective and objective fault. 141  At common law, mens rea usually means intention or recklessness. Where negligence is proved, it amounts to a fault element broader than mens rea.142 Just like Lord Diplock, Nicola Lacey143 observes the following with respect to mens rea:  Mens rea is the (not entirely happy) umbrella term used by most criminal law scholars to refer to a range of practical attitudes or states of mind on the defendant’s part, which form part of the definition of many offences.  Lacey views the mens rea element as being narrow and, in some cases, it may not cover crimes that do not require mens rea, such as strict liability crimes, as we will see later.  It is important to underscore that a guilty state of mind is difficult to establish. It is reckoned from the holding of Bowen LJ that; “a state of a [person’s] mind is as much a fact as the state of his [or her] digestion”.144  This implies that it is very difficult to prove a persons’ state of mind. However, if it is ascertainable, it is as much a fact as anything. In that regard, attention must be paid to the  139 Satsi, A, “General Principles of Thai Criminal Law”, Singapore, Springer Nature Singapore Pte Limited, 2021, p. 27. 140 511, US 600 (1994). 141 Bronitt S., & McSherry B., Principles of Criminal Law (4th Edn), Toronto: Thomson Reuters (Professional) Australia Limited, 2017, p. 207.  142 Molan M., Lanser D., & Bloy, D., Principles of Criminal Law (4th Edn), London: Cavendish Publishing, 2000, p. 57. 143 Lacey, N., “A Clear Concept of Intention: Elusive or Illusory?”, The Modern Law Review, Vol. 56, 1993, pp. 621-642. 144 Edgington v. FitzMaurice (1885) 29, ChD 459. 	 41 crime in question to appreciate whether mens rea is an important element/ingredient of a crime and the relevant category of mens rea by looking at the words used in a statute.  In the first sphere, it is generally presumed that mens rea is an essential element of a crime. This is what is referred to as “the presumption of mens rea” and was stated by Sherras v. De Rutzen145: “There is a presumption that ‘mens rea’ or evil intention or knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence, or by the subject matter with which it deals, and both must be considered.”  The above statement of Wright J. means that mens rea is generally presumed to be an essential ingredient in every offence. This presumption should be viewed from the words in a statute which creates an offence. A provision in the criminal code may exclude a mens rea requirement and that presumption can be rebutted through strict liability offences that do not require a guilty mind (mens rea) for them to stand.146 Secondly, to establish whether a mental element is a requirement in a crime, one must closely look at the architecture of a provision that defines/creates an offence.147 The TPC uses words like intentionally, negligently, recklessly, wilfully, and knowingly in offence/crime-creating provisions. Such words are intended to import the “intention/ mens rea” or the state of mind of the offender at the time of committing a crime. We have indicated above that such words are covered under the three categories/degrees of mens rea (intention, recklessness and negligence) under Tanzanian law, which are discussed below.  3.2 Intention This refers to the state of mind the accused/offender had at the time of committing a crime or bringing about unlawful conduct (material/physical element of a crime). It is foreseeing the results of one’s conduct and desiring them to occur.  Section 10 of the TPC provides that unless the intention is a necessary element of the offence, the results intended to be caused by conduct are irrelevant. The provision also exonerates a person from criminal liability if his/her conduct occurred independently of his own free will.148 When intention relates to a conduct for a particular crime, intention means an accused's decision to perform the conduct. When intention relates to the consequences of a conduct, the intention to cause the consequences is referred to as the purpose. In this case, a material element is performed voluntarily and consciously.149 This difference in intention is sometimes understood as basic or general intent and specific intent. Here, general intent relates to doing the prohibited conduct while the bringing about of the specific results constitutes the specific or special intent (purpose). 150 Notwithstanding, these are also understood as direct intention – the accused committing  145 [1895] Q.B 918. 146 Ibid. 147 Sherras v. De Rutzen,[1895] Q.B 918. 148 Section 10(1) and 10(2) of the TPC, Cap. 16. [R.E 2022]. 149 Bronitt, S., 2017, p. 209.  150 Ibid, p. 209.  	 42 the actus reus of the crime or causing the results or consequence to occur. This is the opposite of oblique intention, which looks at the outcome of the conduct, which is not directly linked to intention but emerges obliquely as the result of the conduct.151 The reasoning underscoring oblique intention is that a man intends a consequence of his/her act when he foresees that it may result and desires that it should do so. On this basis, intention can be transferred.152 The transfer does not mean from one person to another but occurs when the accused person intending to commit a crime against one victim carries it on another victim he did not intend to. His intention to perform the conduct is transferred from one victim to another.   Scenario A forms an intention to kill B. Unfortunately, he kills C (another person he did not intend to kill). In such a situation, A cannot be exonerated from liability because he did not intend to kill C. His intention to kill B is transferred to the deceased (C), and he will be deemed to have intended to kill C.  Pointer: The TPC envisages this situation in Section 200(a) and (b) when defining mens rea for the crime of murder (‘malice aforethought’). The words used in this provision are “whether that person is the person killed or not”. This is referred to as transferred malice (intention) under the Tanzanian legal framework.  Case Law: Republic v. Chikokonya (1938) S.R 122 Facts Chikokonya’s wife was denying him sex. He made up his mind to kill her. He poisoned drinking water intending that his wife should drink it and die. Unfortunately, a guest came to their house and drank the water, and the guest died.  Held The court convicted Chikokonya of murdering the guest, although he did not intend to kill him. This was a case of transferred malice (intention to kill).  3.3 Relevance of Motive We understand that when a person commits a crime, he/she may generally have personal drives or motivation behind particular conduct. In law, motive does not amount to intention or purpose. At best, motive refers to the emotions or feelings forming the basis of the intention or purpose. Motive can be part of understanding the accused’s intention with a relevant role in sentencing.153 Motive is also relevant for evidential purposes to understand the facts that a person may be circumstantially connected to a crime.154 Section 10(3) of the TPC provides:   151 Bronitt, S., 2017, p. 210.  152 Ibid, p. 210. 153 Ibid, pp. 209-210.  154 Section 10 of the Evidence Act, Cap 6 [R.E 2022]. 	 43 Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility.  The provision provides a general rule of Tanzanian criminal law that motive does not affect criminal liability. Therefore, if a person causes unlawful conduct with a requisite fault element, he is guilty of a crime despite a good motive. For example, a man who kills his incapacitated and suffering wife out of a motive of compassion (to relieve the wife of pain) is guilty of murder – just like a man who kills for revenge because such an act is contrary to the law.155  Case Law: R. v. Anyambilile [1970] HCD 285 Facts The deceased, a notorious thief in the village, set fire at a close-by place to lure Anyambilie from his shop to rescue his neighbour. After Anyambilile has gone for the rescue, the deceased went into Anyambilile’s shop to steal. Anyambilile and others caught him and tied his hands and feet with a wire. Anyambilile then used his hoe to cut off the deceased’s hands unsuccessfully. He then placed the deceased’s hands on a big stone and chopped off the deceased’s hand. Then he went to his shop and took bread and soda to sit outside eating while watching the deceased bleed. He then went to inform the police. When the police came, the deceased had bled to death.  Held Anyambilile had a clear intention to kill the deceased. By the manner of his actions, he foresaw (knowledge of the circumstances) death would occur and desired it to occur. The court held further that provocation does not apply to property under the circumstances.   3.4 Knowledge An accused person has criminal responsibility for acting with knowledge about his conduct or concerning the results to ensue. In many jurisdictions, including Tanzania, knowledge plays a minor role as it easily slips into a defence. Few offences, thus, require knowledge as an element of intention to establish an offence. However, one must also show that the accused person had the intention. This is the case with knowingly aiding prisoners to escape,156 perjury and subordination of perjury,157 fabricating evidence which requires both intention and knowledge,158 deceiving witnesses where knowledge is taken as an alternative to intention,159  preventing or obstructing execution of a process where knowledge or intention are used in the alternatives,160 offences that require both knowledge and intention,  155 Republic v. Windle [1952] 2QB 826. 156 Section 48. 157 Section 102.  158 Section 106(b).  159 Section 108.  160 Section 114A.  	 44 such as the removal of property under lawful seizure,161 sexual exploitation of children,162 householder permitting the defilement of girls on his premises,163 a male or female person living on the earnings of prostitution164 or persistently harbouring common prostitutes,165 false account by public officer,166 uttering false documents,167  obliterating crossing on checks,168 making documents without authority,169 falsifying warrants for money payable under public authority,170 or false statements for public registers of births, deaths and marriages171 as well as the falsification of register which requires knowledge.172 The TPC defines the phrase “knowingly” when it is used in connection with any term to denote that the character of the thing uttered or used is known. Thus, where this phrase is used, it implies knowledge.  3.5 Recklessness This is a state of mind where the accused knows that risks will likely or probably arise from the conduct, still performs the act, even though he does not desire the risks to occur. Thus, recklessness is founded on the awareness of the risk (subjective) or failure on the accused to realise the risk that a prudent reasonable person would have realised (objective). There is knowledge, realisation, or understanding that a particular risk is likely to occur.173 One is reckless regarding the consequences he had the foresight of or about the existence of circumstances he disregards. The element of blameworthiness affords recklessness the same treatment as intention except that, recklessness leads to a lesser conviction than intention.174 Just as motive is not an element of liability in criminal law, indifference is not necessary for recklessness. 175  The High Court has indicated that recklessness is an important factor in sentencing.176 Recklessness involves foresight of the probable risks even though one does not intend their occurrence.177 A person may foresee the possible consequences of his conduct and not desire them to occur. Nonetheless, if he persists on his course, he knowingly risks bringing about the unwished result. In recklessness, the offender has some actual awareness of the risk he was taking, although he did not desire the consequences. The offender also may be reckless, if he fails to realise the risk that a prudent reasonable person  161 Section 118.  162 Section 138B (1).  163 Sections 141, 142.  164 Sections 145, 146.  165 Section 176A.  166 Section 318.  167 Section 342.  168 Section 345.  169 Section 346.  170 Section 349.  171 Section 352. 172 Section 350. 173 Bronitt, S., 2017, p. 215.  174 Ibid, p. 215.  175 Ibid, p. 216.  176 R. v. Said Hassan Ng’itu & Aziz Hassan Mkoto, Criminal Session No. 9 of 2020, High Court of Tanzania at Mtwara (Unreported).  177 Bronitt, S., 2017, p. 216. 	 45 would have realised. The degree of mens rea required under Chapter XXII of the TPC is that of recklessness.   Case Law: R. v. Selemani Hassani [1969] HCD 250 Facts Selemani went to his farm at night to chase away wild pigs destroying his crops. He then went to the deceased’s house, where the deceased’s wife informed Selemani that she had no idea where her husband was. Selemani took his gun and went to his farm the same night. Although he saw the wild pigs running, he also saw a shadow that appeared to be a person. Notwithstanding, Selemani fired his gun, and killed the deceased.  Held This was reckless, considering that it was dark, and he knew that his friend also had the habit of going to his farm to chase away wild pigs. He did not even care to ask. The court convicted him of manslaughter.  Comment It is important to note in this case that the court failed to distinguish between recklessness and negligence towards the end of its judgment.   The TPC conflates recklessness and negligence. This is when one examines Chapter XXIV, titled “Criminal Reckless and Negligence.” Section 233 criminalises a set of “reckless and negligent acts” through qualification that any particular act must be done in a “manner as rash or negligent as to endanger human life or to be likely to cause harm to any other person.” These acts include driving or riding a vehicle in any public way; navigation of any vessel; doing fireworks or dealing with the combustible matter without precaution against probable danger in one’s possession; omitting to take care of any animal in one’s possession; giving medical or surgical treatment; dispensing, giving away or administering medicine and any poisonous or dangerous matter; acting or omitting to take precaution against probable danger from operating a machine one is in charge; and failure to take precautions against probable danger from any explosives in one’s possession. Finally, Section 234 provides an umbrella provision for “other negligent acts causing harm” which are not listed under Section 233. Surprisingly, Section 234 only deals with negligence but criminalises these other acts while subsuming recklessness within it. The High Court has stated that failure to establish the qualification of endangering human life or causing harm renders the offence of negligence nugatory.178 The remaining provisions from Sections 235 to 239 continue with the same approach. Section 235 criminalises negligence arising from handling poisonous substances. Section 237 criminalises reckless exhibition of false light, mark, or buoy. Section 238 outlaws the negligent conveying of a person for hire in an unfit vessel. This provision also includes the element of “knowledge” as an alternative to negligence.179 Finally, Section 239 prohibits negligence or reckless obstruction of the public way against a person engaged in navigation.   178 Aloyce Maana v R, Criminal Appeal No. 110 of 2017, High Court of Tanzania at Arusha.  179 Section 5 defining the term “knowingly.” 	 46  3.6 Negligence Since negligence is measured objectively, it does not align well with a guilty mind. This basis causes it to be placed separately from intention, knowledge, and recklessness. The standard of examination is reasonableness or what “a reasonable person” would have done, foreseen, or known if placed in similar circumstances.180 A simple lack of care does not suffice. In criminal cases, negligence must generally be gross. The state of the accused person’s mind, a subjective test, is out of the equation. The approach, for example, was considered in the case below.   Case Law: R. v. Musua Shumbi [1967-1968] HCD 222 Facts The deceased child died from burns administered by Musua Shumbi, the witch doctor who was expected to heal the sick deceased. In her defence, Musua stated that she could not know that hot water or mixture could kill a child.  Held “An ordinary person that pours nearly boiling water over anyone, particularly a small child, must know this can result in grave injury.”   The practice of the High Court indicates that the court, based on TPC, conflates recklessness with negligence. The High Court has held that where a person is charged with reckless or dangerous driving, the prosecution has to show the actual act or omission leading to the offence. As such, it is crucial to show that a car crashed into another is not evidence of reckless or dangerous driving.181 One has to show that the act or omission was negligent based on the standard of driving expected of a reasonably prudent driver.182 Intention and not negligence is a legal requirement of certain offences such as grievous harm (Section 225 of the TPC)183, and wilful neglect by a person employed in public service to perform a duty under Section 121 TPC.184 As such, where negligence is shown for offences that require more, like the offence of “aiding the prisoner to escape or attempting to escape from lawful custody” under Section 117(1) of the TPC where positive assistance is needed, negligence will not suffice – no matter how gross it may be.185 The Tanzanian law treats negligence not only from the shoes of a reasonable man but also uses a duty under the statute, common law and custom as a basis for an objective test. The High Court has also noted that the level of negligence is important in ascertaining the punishment against the accused person.186  180 Bronitt, S., 2017, p219.  181 Mohamed Ramadhani v R [1976] LRT no. 51.  182 R v Wallace [1958] 1 EA 582.  183 R v Maulddi Yusufu [1967-1968] HCD 70.  184 Selestian Magalama v R [1969] HCD 219.  185 Alfred Bazila v R [1967-1968] HCD 309.  186 R v Omari Usumail [1970] HCD 341.  	 47  3.7 Exceptions to Mens Rea In this part, we will address a situation where a person may be held criminally responsible for his or her acts, even though there is no mens rea/fault element. As we have discussed, a crime consists of the physical and fault elements. For an offender to be convicted of the crime, the prosecution must (generally) prove the existence of the two elements. This general rule has exceptions which we will consider. It means that an offender may be criminally responsible for the strength of his unlawful conduct (the physical element/actus reus) alone without the presence of the fault element. Chiefly, these exceptional circumstances include: strict liability offences, vicarious liability, and corporate liability, which we will consider below.   3.8 Liability 3.8.1 Strict Liability In strict liability cases, an offender is held criminally responsible for the strength of his actus reus without proof of mens rea. Offences of this nature are called ‘strict liability offences’ or offences of absolute prohibition and do not require proof of knowledge, recklessness, or even negligence. What is important is that the offender committed unlawful conduct.187 To understand whether an offence is of strict liability, attention should be paid to a statute's wording, even though this is not a conclusive/decisive approach. In this regard, where a penal provision uses words such as ‘knowingly’, intentionally, recklessly, negligently, and maliciously implies that mens rea is an important ingredient of a crime. As such, the offence in question is not one of strict liability. Since this is not a decisive approach, it is generally left to the courts. As Smith and Hogan remark, strict liability offences are the creation of courts rather than the parliament.188  Lord Scarman provides a valuable analysis of the modern approach to strict liability offences in the Privy Council case of Gammon (Hong Kong) Ltd v AG for Hong Kong (1984)189 as follows: (i) There is a presumption of law that mens rea is required before a person can be guilty of a criminal offence; (ii) The presumption is particularly strong where the offence is ‘truly criminal’ in character; (iii) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (iv) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue; (v) Even where the statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to  187  Wasserstrom, R, A. “Strict Liability in the Criminal Law.” Stanford Law Review 12, no. 4 (1960): 731–45. https://doi.org/10.2307/1226524. 188 Smith and Hogan, Criminal Law, London: Butterworth, 1965, at p.56. 189 [1985] AC 1. 	 48 promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.  According to Lord Scarman, the presumption of mens rea should always stand unless the Court finds it consistent with public policy and the object of a statute to prevent the commission of the act. Where the Parliament, for example, omits the use of the mens rea indicators in the statute, the Court will take this as an intent to make the offence one of strict liability. This means that strict liability offences are justified generally on account of public policy and national security.190 To protect public morality, security and health, courts may treat unlawful conduct seriously even though the fault element is not established. Further, if in these cases mens rea had to be proven, some guilty offenders would escape punishment because of a lack of evidence on the existence of the fault element.  Case Laws: The Privy Council held in favour of public policy reasons in Lim Chin Aik v. Republic191: The wording of the statute is the regulation for the public welfare of a particular activity – statutes regarding the sale of food and drink are to be found among the earliest examples – it can be and frequently has been inferred that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities made responsible for seeing that they are complied with […] thus, sellers of meat may be made responsible for seeing that the meat is fit for human consumption, and it is no answer for them to say that they were not aware that it was polluted.  The Privy Council held that for public health reasons, a person may be found guilty of selling unfit meat, even if he or she did not know (mens rea) of its unsoundness. This obiter seems to have been derived from the case of Hobbs v. Winchester Corporation,192where the Court stated that it is the butcher and not the public who should take the risk of the meat being unsound. Similarly, in the Tanzanian case of Joseph Hawksworth v. Republic193the accused was convicted of unlawful entering in Tanzania. During his trial, he claimed to have been misled by customs officials. Nevertheless, the court convicted him because unlawful entry was a strict liability offence that did not require mens rea. It was a reinforcement of public security to prohibit people from entering in Tanzania.   In Tanzania, for public policy reasons, the following offences are regarded as strict liability offences: corruption and embezzlement of public funds,194 unlawful/illegal entry into the United Republic of Tanzania (Immigration offences),195 unlawful entry into national parks and protected areas,196 possession of fire arms and weapons in national parks and protected  190 Joseph Hawksworth v. Republic, (1970) HCD No. 271. 191 [1963] A.C 160. 192 (1910) 2KB 471. 193 (1970) HCD No. 271. 194 Section 20 and 28 of the Prevention and Combating of Corruption Act, Cap 329 [R.E 2019]. 195 Section 24 of the Immigration Act, Cap. 54 [R.E 2016]. 196 Section 21 of the National Parks Act, Cap 282, [R.E 2002] and Section 15 of the Wildlife Conservation Act, Cap. 283, [R.E 2022]. 	 49 areas, 197  unlawful possession of firearms and ammunition, 198  unlawful possession of prohibited drugs,199 unlawful possession of government trophies (wildlife offences)200 and unlawful possession of human being parts.201  3.8.2 Vicarious Liability Generally, criminal liability is personal, and every person should shoulder his burden. However, in certain circumstances, a person may assume criminal liability in respect of wrongful acts of other persons. One of those circumstances is a vicarious liability or employer vicarious liability. This is the employer or principal's liability for the acts committed by his employee or agent in the course of employment.202 Although the master did not do any wrong, he may be liable to be punished in respect of the wrongdoings of his servant. The reasons are that a statute will be rendered ineffective, and the legislative intent will be defeated if the employer is not punished for acts done or arising out of the employment relationship.203 Section 77 of the Interpretation of Laws Act provides that:   Where any offence under any Act is committed by a person as an agent or employee then, unless a contrary intention appears, as well as the agent or employee, the principal or employer shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves to the satisfaction of the court that he had no knowledge, and could not, by the exercise of reasonable diligence, have had knowledge, of the commission of the offence.   This rule means that an employer may be held responsible for the employees’ unlawful conduct unless he proves a lack of knowledge or, after exercise of reasonable diligence, has no knowledge. This rule generally applies to civil matters but in certain exceptional situations, it applies to criminal cases.204 In criminal cases, lack of mens rea then serves as a mitigating factor additional to criminal liability.   Case Law: In Ali Mohammed Osman v. Republic, 205  the appellant (the owner of the vehicle/employer) was found guilty of permitting a lorry to be used on the road with poor tyres. As a result, the tyre burst, and a turnboy was injured. The court ruled that the owner  197 Section 17 of the National Parks Act, Cap 282, [R.E 2002] and Section 17 of the Wildlife Conservation Act, Cap. 283, [R.E 2022]. 198 Section 20 and 21 of the Firearms and Ammunitions Control Act, Cap. 223 [R.E 2015]. 199 Part III of the Drug Control and Enforcement Act, Cap 95[R.E 2019]. 200 Section 86 of the Wildlife Conservation Act, Cap. 283, [R.E 2022]. 201 Section 222A of the Penal Code, Cap 16 [R.E 2022]. 202 Priya, V, “Vicarious Liability under Criminal Law in India” International Law of Legal and Jurisprudence Studies, 3(3), 2016 213-224 at p. 214. 203 Ibid, p. 215. 204 Priya, at p.213 and 215. 205 (1952) 1 TLR 391. 	 50 may have permitted the driver to drive the car with defective tyres and was held liable. Mostly vicarious liability applies to criminal traffic offences.   3.8.3 Corporate Liability The company is regarded as an independent legal person capable of suing and being sued for its wrongs.206 Since a company has no physical existence in the sense that a person cannot touch it, the conduct of its directors or employees will be attributable to it. Where natural persons in discharge of their duties on behalf of the company commit an offence, the company will be criminally responsible.207 Where the company fails to file its annual returns or its officers engage in criminal conduct such as money laundering, tax evasion and terrorism financing, the Company will be criminally responsible. The provision is recognized under Section 71 of the Interpretation of Laws Act.   Scenario: Company A operates and earns significant income in transport and logistics sector. The tax legislation imposes a 30% tax liability to this company from its income. The company prepares its books of accounts and reports a lower income which is subjected to taxation. After one year, tax authorities in conducting their audits discover this misreporting and the company is adjudged to have committed tax evasion which is a criminal offence in many jurisdictions’ criminal codes.  Case Law:  Lord Denning in H.L Polton (Engineering) Co. Ltd v.  T.J Graham208 supported this approach and opined that a state of mind of managers is the state of mind of the company and is treated by law as such. In these circumstances, the company, though incapable of forming an actus reus or the mental element, would still be criminally responsible.  3.8.4 Collective Liability The above constitute exceptions to the general principles of criminal law. In some jurisdictions, collective liability is also considered a form of vicarious liability and community members are punished for wrongdoings of certain persons in the society.209 Where this exceptional circumstance exists, the prosecution may establish either the physical element itself or the proven relationship between the offender and the other person to fall in the purview of vicarious or corporate liability.  Scenario 3: In Primary Schools in Tanzania in the old days, the teacher would adjudge the class to be noisy and would decide to impute liability to the entire class even covering those who were not making noise. The liability becomes collective than individual.   206 Salomon v. Salomon (1897) AC 22. 207 Salomon’s case. Also see Section 15 of the Companies Act, Cap 212 [R.E 2002]. 208 (1957) QRD 159. 209 See Section 2 of the Tanzanian Collective Punishment Act. 	 51 SECTION 4: CRIMINAL CAPACITY Criminal capacity is one of the fundamental requirements of a crime. We answer the question of who can commit a crime and subsequently assume criminal responsibility. For the accused person to be held criminally responsible, he/she must be of sufficient capacity. Criminal capacity refers to possessing a sufficiently sound mind to understand right and wrong when committing a crime. In Tanzania, criminal capacity is understood from the offender’s age (infancy) and the soundness of his/her mind (sanity). It is important to note that most penal legislation (including Tanzania), provides certain excuses/defences or justifications for criminal responsibility. These justifications in one way or another may vitiate criminal capacity or exonerate an offender from criminal liability and will be discussed later in this Section. They include mistake of fact, a bona fide claim of right, general immunity for judicial officers, defence of person and property (self-defence), intoxication, compulsion, necessity, provocation, and double jeopardy (ne bis in idem).210  4.1 Age/Infancy/Immaturity Age/infancy/immature age affects an offender's capacity to appreciate the conduct's nature and wrongfulness. The offender is incapable of understanding the moral significance of his behaviour and should not be blamed for his acts or omissions.211 Immature age excuses children of a certain age from criminal actions, even though those actions are wrongful/unlawful under the law. This is because children are generally not as capable as adults (because of age) of making intelligent, rational, reasonable and sound decisions.212  Immature age affects criminal capacity because children of a certain age (prescribed by law) lack the capacity to form the mens rea to commit an offence. Another reason is that young children should be protected from the harshness of the criminal justice system because, compared to adults, they are not as capable of making the rational choices required by criminal law.213 Consistent with the United Nations Convention on the Rights of the Child 214 , the Tanzanian Law of the Child Act provides that a child is a person under the age of eighteen years.215 This differentiates between the age of minority and the age of majority (eighteen years and above). This distinction is different for criminal law purposes. It does not mean that any person under eighteen years old will be acquitted on the grounds of infancy if he/she commits an offence in Tanzania. The TPC (criminal legislation) provides the age of criminality in Tanzania and does not exonerate all children when they commit an offence. The Code only exonerates from criminal liability children of certain age limits with or without certain specific conditions.  Section 15 of the TPC is the relevant provision for the age of criminality in Tanzania. It provides that:   210 Section 8 to 21 to, Section 201 and 202 of the TPC, Cap. 16 [R.E 2022]. 211 The Asia Foundation, “Introduction to Criminal Law in Timor-Leste”, p. 21.  212 Ibid. 213 The Asia Foundation, pp. 21-22. 214 United Nations Convention on the Rights of the Child, 1987. 215 The Law of Child Act, Cap. 13 [R.E 2019]. 	 52 (1) A person under the age of ten years is not criminally responsible for any act or omission. (2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission, he had capacity to know that he ought not to do the act or make the omission. (3) A male person under the age of twelve years is presumed to be incapable of having sexual intercourse.  4.1.1 Below Ten Years First, there is an irrefutable presumption that a person under the age of ten (a child) cannot commit criminal offences. The rule in Section 15(1) above is absolute and does not require proof of knowledge. Once it is established that a person under the age of ten years committed a crime, he should be immune from criminal prosecution or other criminal procedures.  Case Law: In MA v. R216, a person of nine years of age was charged and convicted of the offence of Rape. He appealed and the High Court held that: (i) The Law is very clear under Section 15(1) of the TPC [Cap. 16 R.E. 2002] that any person who is charged with any criminal offence and his/her age is proved to be under the age of ten years, the court of law should find him/her not criminally responsible for any act or omission.  (ii) The governing principle under Section 15(1) of the TPC is that once a trial court is satisfied on the evidence, or by a general observation of the person charged, that he/she is under 10 years of age, then it should immediately find the person charged not criminally responsible for the act or omission he/she is alleged to have committed. There should be no more proof, nor a waste of time even a minute, to ask whether or not the accused should proceed to stand the trial.  (iii) Where an accused person is under 10 years, a trial court should make a special finding to the effect that the accused by reason of his or her being under 10 years of age is not criminally responsible for the alleged act.  This means that, a person below ten years of age is not criminally responsible and should not be subjected to any criminal prosecution.  4.1.2 Above Ten Years but Below Twelve Years The rebuttable presumption is that a person under twelve years is generally not criminally responsible for a crime. The exception is if it is shown that at the time of committing a crime, the child had the capacity to know that he ought not to have done such conduct.  216 Miscellaneous Criminal Application No. 95 of 1999, High Court of Tanzania at Mwanza. 	 53 The burden rests on the prosecution to rebut the presumption of a child incapacity or “doli incapax” which means ‘incapable of wrong’. In addition to the ingredients of a given crime, the prosecution must also prove that the child knew that what she/he was doing was wrong in the criminal sense.217  Case Law: In R. v. F. 2 N.R.L.R.185, a ten-year-old boy found a wristwatch at a swimming bath and took it home. His mother told him to take it back to the bath. Instead of doing it the boy took it to a shop to sell it. The boy told the shopkeeper that he had been given the watch as a present, but he wanted to sell it as he had two watches already. When a shopkeeper demanded a note to authenticate his story, the accused juvenile got a friend of his, aged fourteen years, to forge a note, and on the strength of the forged note, the watch worth about eight pounds was sold for one pound. Because of the untruth told by the accused juvenile as well as the deceits practiced by him, the court had little difficulty in finding that the boy had the capacity to know what he was doing was wrong and was found guilty of theft.  4.1.3 A Male Person Incapable of Sexual Intercourse Under Twelve Years The law presumes that a male child under twelve years lacks the capacity for sexual intercourse. When a male person under the age of twelve years (ten to twelve) is prosecuted or alleged to have committed a sexual offence, then the law will presume his incapacity. Notwithstanding, the prosecution can rebut this presumption through evidence in a court of law that the sexual offender could have sexual intercourse. This third situation specifically applies to male persons under the age of twelve in respect of sexual offences. In addition, there must be knowledge that exhibits the capacity to understand one’s conduct. Lastly, a holistic reading of Section 15 of the TPC shows a person above the age of twelve is capable of committing a crime even when he is a child in terms of the Law of Child Act and other international instruments on the protection of children and their welfare. For criminal capacity, the relevant age is the one at the time of commission, and not at the time of trial. The minimum age of criminal responsibility differs from one jurisdiction to another. The international framework does not categorically provide a minimum age of criminality. Article 40(3) of the CRC encourages State Parties to establish a minimum age of criminality. Some jurisdictions have adopted 16 years or 18 years as the minimum age of criminality, such as Brazil.218 Notwithstanding, it remains that the Tanzania minimum age of criminality is generally ten years. Any person above ten years, to the extent provided under the law (even if he or she is a child under 18), is responsible for a crime, unless lawful justifications exist.   217 Mathew, J., “Doli Incapax-The Criminal Responsibility of Children”, p. 1. 218 Justice for Children, “The Minimum Age of Criminal Responsibility”, p. 2. 	 54 4.1.4 Ascertaining the Age of the Child Offender/Determination of the Age of the Offender In any criminal trial, the question of the age of the offender must be determined whether or not it is raised by the prosecution or by the accused. In such a case, the Court must halt proceedings and conduct an enquiry to determine the age of the offender.   Case Laws: In MMN (Child) v. R,219 the Court held that even where the issue of age is not raised by the prosecution or the accused person himself, the trial court is mandated to inquire the age of the accused person whenever the need arises. Further, in Elizabeth Michael Kimemeta alias Lulu v. R.,220 the offender alleged that she was 17 years of age and not 18 years, the age appearing on the charge. The offender moved the trial court to stay proceedings and determine the age. The trial court ruled that it had no jurisdiction. Hence, an application was placed before the High Court to determine the age of the offender. The High Court ruled that: Wherever a person is brought before any court for any legally acceptable purpose except for giving evidence, Section 113(1) of the Law of the Child Act 2009 can be invoked and present such a person in any court, at any time, requesting that an inquiry on the age of that person to be done, so long as the court is one of those envisaged by the Act. Therefore, it is important for the Court to determine the age of the offender. However, this decision was faulted by the Court of Appeal in the Director of Public Prosecutions v. Elizabeth Michael Kimemeta @ Lulu221on jurisdictional grounds. Notwithstanding, the ruling is important on the requirement to ascertain the age under Section 113 of the Law of Child Act.  4.1.5 Procedure of Dealing with Children Offenders Tanzanian criminal law recognizes that where knowledge of the conduct is proved, an offender below the age of twelve years but above ten years can be held criminally responsible. It also exhibits that an offender above the age of twelve years is criminally responsible for he/she has the capacity to form the requisite mens rea under the law. The two categories mean that children (within the meaning of international instruments and the Tanzanian Law of the Child, i.e., persons below the age of 18 years) can be subject to criminal jurisdiction, where they commit crimes within the age of ten to twelve years and twelve years and above. Tanzanian law does not, except with sexual offences when an offender is a male person, provide a separate age limit for different offences. As such, the age of criminality discussed above applies to all criminal offences.  Despite the above position, it does not mean that children within and above the age of criminality should be subjected to adult-formal-oriented criminal prosecutions. As Harper J., in R (a Child) v. Whitty, remarks that “‘[n]o civilized society’ regards children  219 Criminal Appeal 173 of 2019 High Court of Tanzania at Musoma. 220 Miscellaneous Criminal Application 46 of 2012, High Court of Tanzania at Dar es Salaam. 221 (Criminal Appeal 6 of 2012) [2012] TZCA 3 (17 September 2012). 	 55 accountable for their actions in the same way as adults.” Even international child law requires a separate criminal justice system for children based on rehabilitation and reintegration into society rather than punishment and retribution.  In the same vein, the Tanzania law has a separate ‘juvenile justice system’ which caters to children protection schemes and children in conflict with the law. Section 15(4) of the TPC provides that any person under the age of twelve who commits a crime will be dealt with under the Law of the Child Act. The Law of the Child Act is a special legislation that provides mechanisms in which child offenders are dealt separately. It provides for juvenile courts, relaxed criminal prosecution procedures, rules of evidence and, ultimately, correctional/rehabilitation centres. Such procedures and machinery differ to people of majority age. The differences are justifiable on legal and policy issues discussed above.  4.2 Insanity In a criminal trial, an offender will likely plead insanity to exonerate himself from criminal liability. The accused person's defence is that at the time of the commission of an offence, he was suffering from a disease of the mind which hindered his capacity to form a mental element/mens rea required under the law.222 A person is ‘legally insane’ if, at the time of committing a crime, he was incapable of understanding the unlawfulness of his/her actions.223 The rationale of the insanity rule is that it is wrong to punish a person who suffers from an illness that makes her unable to understand the immorality of her conduct. Instead of punishment, these individuals should receive treatment for their illnesses. It is also based on the criminal law reasoning that due to his mental illness, such a person lacks sufficient capacity to form mens rea.  The law relating to insanity in many common law jurisdictions (including Tanzania) is codified from the rules laid down (with minor adjustments) in the M’ Naghten case. In this case, Daniel M’ Naghten was suffering from a mental disease. He wanted to kill Sir Robert Peel (UK Prime Minister) but killed his secretary, Edward Drummond. He was charged but acquitted on the ground of insanity. His acquittal spurred widespread dissatisfaction. Consequently, the House of Lords asked a panel of Judges chaired by Tindal CJ to respond to a series of hypothetical questions on the defence of insanity. Responses to such questions developed the rules currently enshrined in Sections 12 and 13 of the TPC.  The rule in Section 12 of the TPC encompasses the “presumption of sanity”. Providing that every person is presumed to be of sound mind/sane (when his soundness of mind becomes an issue) until the contrary is proved. The rule is rooted in one of the questions at the House of Lords. Chief Justice Tindal stated/responded to the question:   222 Section 15 of the Penal Code, Cap 16 [R.E 2022]. 223 R v. M’ Naghten (1843) 10 Col.  & F. 200. 	 56 The Judges position that “we have to submit our opinion to be that the jurors ought to be told in all cases that every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to their satisfaction.”224  This rule underscores that insanity is not an absolute defence to criminal liability. A person is at all times presumed to be sane. The accused/offender can rebut this presumption by alleging that, he/she was suffering from a disease of mind (insane). Once the offender asserts insanity, he or she has rebutted the presumption of sanity and should provide evidence to that effect. This invites further criteria posed by Tindal CJ's responses: “To establish a defence on the ground of insanity, it must be proved that, at the time of committing the act, the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.”225 This implies that where an offender rebuts the presumption of sanity by pleading insanity, he should exhibit certain qualifications for the defence to stand. Section 13 mirrors the above rule/response by Tindal CJ. It provides for important criteria for insanity to stand. First, Section 13 exonerates a person from criminal responsibility if “at the time of doing an act or omission”, he is, through any “disease affecting his mind”:   (i) Incapable of understanding what he is doing;  (ii) Incapable of appreciating that he ought not to do the act or omission; or (iii) Does not have control of the act or omission.  The above conditions can be summarised as follows. First, a person must be suffering from a mental illness which affects his mind. Going through a disease of the mind is thus not sufficient. It should be proved that such a disease affected the person’s mind.   This requirement was discussed in Republic v. Kemp226 where it was held that “the law is not concerned with the brain but the mind, in the sense that mind is ordinarily used, the mental faculties of reason, memory and understanding.” The focus is on the disease of the mind and not the brain. The brain may not be affected, but what should be looked at is the defect of reason.  Second, such disease of mind must occur at the time of doing the act and omission. It should not have occurred before the commission of a crime or after the commission of a crime. A person may be suffering from a disease of mind before committing a crime, but at the time, he may not. The test here is that a disease of mind affecting the offender’s mind occurred when committing an act or omission.  224  “Chapman, F, The Presumption of Sanity, Automatism and R. v. H. (S.): Is it Insane to Have a Presumption of Insanity? Criminal Law Quarterly, (2015) 62, 149-180, p. 157. 225 Ibid. 226 [1952] 1 QB 299. 	 57 Third, at the time of committing a crime, he was/is incapable of understanding what he was doing. This criterion imports mental capacity/understanding of the offender's conduct.   In Republic v. Thompson Msumali227 an accused who suffered from epileptic fits, killed his father (whom he was sharing the same house with) thinking that he was an assailant. A medical report showed that he was killed under epilepsy as he was on good terms with his father. The Court believed that the accused person did not understand what he was doing at the time and could not realise that he ought not have done what he did.   Fourth, at the time of committing a crime, he did not know that he ought not do the act or make the omission, or he had no control over his act or omission. This condition imposes a knowledge or awareness requirement that a person ought not do a particular conduct or if he knew, then he had no control over the act or omission.   This is the effect caused by the disease affecting a person’s mind and can be demonstrated by the case of Nyinge Siwatu v. Republic,228 where the accused killed a police officer under the delusion that he was plotting his death. The accused thereafter surrendered himself to the police and stated, “I have come here to be killed because they wanted my head”. The court held that this statement indicated that the accused knew his actions were wrong, convicted the accused and rejected the applicability of the defence of insanity.  Further, in Agnes Doris Liundi v. Republic229, the accused was charged and convicted of murder after poisoning her four children and also taking poison herself. One child and herself survived. She alleged that she was insane at the time of committing the offence. This assertion was also confirmed by the report of a medical doctor. Her insanity was caused by the family trauma and difficulties she sustained in her life and the marriage.  The Court held the offender knew what she was doing. She went to the shop, purchased poison, mixed the poison with a drink, gave it to the children and drank it. She also wrote some letters before administering poison, explaining why she decided to take such action and calling upon the police not to hold her husband responsible. In the upshot, the Court observed that the Tanzanian law did not recognize the defence of ‘diminished responsibility’ and called upon the legislature to consider this development, since such case did not qualify under the legal insanity rules but would have fallen under diminished responsibility.  The above conditions are watertight and are referred to as “legal insanity” which is the opposite of “medical insanity”. Legal insanity demands more and poses the above legal questions rather than medical ones, which should be decided by a court of law and not medical experts. The medical report is an expert opinion and is not binding to courts.  227 (1969) HCD No. 26. 228 (1959) EACA 974. 229 [1980] TLR.   	 58 Courts of law may disregard it when there are good grounds.230 Once insanity is pleaded and proved to the satisfaction of the Court, an accused person is found to be incapacitated to commit a crime and is exonerated from criminal responsibility. Due to developments of law and difficulties of the legal insanity rules, other jurisdictions have expanded insanity to cover ‘diminished responsibility’. 231  Considering situations where a person is not insane, but his state of mind is unbalanced to enable him to be accountable for his acts. The courts have called for legislative intervention in several decisions starting from Doris Liundi, Hilda Abel v. Republic232 and Jenesia Philemon v. Republic.233 The rules in Sections 12 and 13 of the TPC remain unamended despite the Court’s call to factor in diminished responsibility.  4.3 Justifications/Defences against Criminal Responsibility Tanzanian law provides certain excuses/defences or justifications for criminal responsibility. These justifications, in one way or another may vitiate criminal capacity or exonerate an offender from criminal liability. Defences have the effect of justifying unlawful acts if they are done for specified reasons or circumstances. A defence may be partial, which mitigates but does not erase criminal liability, and complete/absolute-total defence, which eliminates/erases the offender’s criminal responsibility. These defences are provided under Sections 8 to 21 and 203 of the TPC. These include: ignorance of the law, mistake of fact, a bona fide claim of right, general immunity for judicial officers, defence of person and property (self-defence), intoxication, compulsion, necessity, provocation and double jeopardy (ne bis in idem).   4.3.1 Ignorance of Law Criminal law imports physical and mental elements to constitute a crime. One ingredients of the mental element or mens rea is knowledge (knowledge that a particular conduct is wrong) and not necessarily that such conduct is an offence under the law. The latter requirement would imply that many offenders are likely to escape criminal responsibility by pleading that they did not know (ignore) that their conduct amounted to a crime under the law. Due to this challenge, the general rule is that ignorance of the law does not afford an excuse for any act or omission that would otherwise constitute an offence. The rule is represented in the Latin Maxim, ignorantia juris, non excusat, which means that an offender cannot be excused on the assertion that he/she did not know that his conduct was a crime. The rationale of this general rule is based on the presumption that everybody knows all the laws of the land, although presumption is not reasonably practicable.234   230 See, Hilda Abel v. Republic [1993] TLR 246. 231 Such jurisdictions include, Australia, England, Scotland, US Office of Justice Programs, “Diminished Responsibility as a Defence of Murder” available at <https://www.ojp.gov/ncjrs/virtual-library/abstracts/diminished-responsibility-defence-murder> (accessed on 30 April 2024). 232 [1993] TLR 246. 233 Criminal Appeal 179 of 2009 [2011] TZCA 109 (16 November 2011). 234 Kohler, E, R, “Ignorance or Mistake of Law as a Defense in Criminal Cases”, 40 DICK. L. REV. 1936, 113.  	 59 This general rule is provided under Section 8 of the TPC. However, the rule has only one departure/exception. The exception is where the law requires knowledge by the offender as an element of the offence at the time of its commission or omission.  This means that for one to plead this defence successfully, he or she must prove that one of the elements of the offence which he is charged with is ‘knowledge of the law’ and that he does not know about such crime/law, a case that his conduct is justified. It is important to highlight that the Tanzania penal legislation provides no offence whose element is ‘knowledge of the law’. Most offences require both knowledge and intention in the alternative. As such, the provision is not realistic for an offender to benefit from the protection of this defence/justification. Further, proving that one did not know that such conduct was prohibited under the law remains a very subjective and factual issue to be decided by the court on case-to-case basis, having regard to the circumstances and nature of the offender.  4.3.2 Bona fide Claim of Right The offender asserts at the time of commission that he had an honest/genuine and reasonable belief that he had a right to do such conduct, which is found to be a crime. This defence is provided under Section 9 of the TPC and for the defence to succeed, the following criteria must be proved:  The offence/crime which one is charged with relates to property such as theft, robbery, etc. The defence is not available if a person is charged with other offences.   Consider the following these short scenarios:  Scenario:  A beats B’s child on the ground, and B injures A’s cow. In this example, the defence cannot be sustained because B’s retaliation was not in respect of a property but injury to a person.  Scenario:  A destroys B’s car because the car has crashed into his house. In this case, the defence can be sustained as the act of destroying the car is linked with the car destroying the property.  The defence of a bona fide claim of right can be raised in respect of property offences. In these two scenarios, the first example is an offence against the person (assault) where the defence is not applicable and the second is an offence against property (malicious property damage) where the defence is applicable. It should be noted that, the defence is not limited to the offence of theft only but to all property offences.235  (i) The conduct done by the person to the property must be done honestly and bona fide with no intention to defraud.   235 Yusuph Hussein v. Republic (1969) HCD No. 36. 	 60  The person who appropriates the property of another must do so in good faith, honestly, with no fraud in respect of that property. His intentions must be pure and genuine.236  Case Laws: Mohammed Hassan v. Republic (1969) HCD No. 71 The accused (Mohammed) was charged with burglary and stealing. He was a servant of the complainant and had not been paid wages. During the trial, he admitted that he opened the complainant's window and took the clothes by “pole fishing” them.  Held Due to outstanding demands on unpaid wages, the accused person took the clothes under an honest and reasonable belief that he had the right to do so.  In another case of Lenderito Laidosoli v. Republic,237 it was held that taking the tenant’s goods (two suitcases and a bed sheet) because the tenant refused to pay rent constituted a bona fide claim of right.  (ii) The claim is made with an honest belief that one is entitled in law as against the property.  The claim should refer to a belief in the existence of a legal right, not necessarily that his/her act is permitted by law.    In Salum Mbegu v. Republic238 the Court held that, in considering a claim of right, the court is not required to find that the right claimed is recognized in law. It is sufficient for the court to find that the person honestly believed that he had such right concerning the property. Once these conditions are satisfied, the offender can be exonerated from criminal liability.  4.3.3 Mistake of Fact Unlike ignorance of the law, a mistake of fact is a defence. Section 11 of the TPC provides that where a person was acting under an honest and reasonable mistake of fact at the time of committing a crime, that he believed a particular situation which turned out to be incorrect, he/she may be exonerated from criminal responsibility. The defence means that the offender must have acted with reasonable honesty such that any person in a similar situation would have acted similarly.  Case Law:  Republic v. Sultan Maginga (1969) HCD No. 33 Facts In this landmark case law, the deceased and a woman were in a rice/paddy field at night after having sexual intercourse. On his way to guard his rice farm against incursions of  236 See example Section 258 of the TPC. 237 (1970) H.C.D No. 169. 238 [1981] TLR 38. 	 61 warthogs, the accused (Sultan Maginga), saw a movement in the grass. He shone his torch in that direction, but the batteries were weak, and he could see little. He called out, asking whether it was an animal or people. There was no reply. The couple then ran off in different directions. The accused threw his spear at one of the shadows, hitting and fatally wounding the deceased. The accused was charged with murder. During his trial, the accused stated that he did not know he was throwing a spear at a man. The accused had called out, asking whether the object was human, and the torch had dim light. In any case, he reasonably assumed that it was a warthog.  Held The court agreed with the defence of mistake of fact and acquitted the accused of murder. The court further found that the charge of manslaughter could not be sustained because the accused was not reckless.  If proved, a mistake of fact may serve as a complete or partial defence, depending on the circumstances. To rely on this defence, the test is whether he would have been excused if facts remained according to what the accused believed them to be. Further, such a mistake must be honest and reasonable. Reasonableness is a factual matter and should be assessed on a case-to-case basis after having regard for the circumstances of each case.   4.3.4 Intoxication This refers to the person’s inability or lack of capacity to make rational decisions following the use of alcohol, drugs, or narcotic substances.239 An intoxicated person is generally said to be incapable of acting like an ordinarily prudent, and cautious person. Intoxication may also lead a person to do an act or omission which he believes to be lawful, which is not the case. A person who pleads the defence of intoxication asserts that he/she was not in a position to determine the gravity of his or her actions due to intoxication. In criminal law and policy, the defence of intoxication is recognized because it can impair the mental faculties necessary for the commission of criminal offences.240 Generally, intoxication is not considered an excuse for the commission of a crime, although it produces extensive alterations similar to that produced by insanity.241 The general rule that intoxication is not a defence to any criminal charge is provided under Section 14(1) of the TPC. Section 14(2) of the TPC provides a departure from this general rule. It provides that intoxication can be a defence, if the following conditions are fulfilled:  a) If at the time of committing the offence the accused did not understand what he was doing; and b) The state of intoxication was caused without his consent by the malicious or negligent act of another person or,  239  Justia, ‘Intoxication Defence in Criminal Law’ available at <https://www.justia.com/criminal/defenses/intoxication/> (accessed on 30 April 2024). 240 Ibid, p. 1. 241 Satsi, A, “General Principles of Thai Criminal Law”, Singapore, Springer Nature Singapore Pte Limited, 2021 	 62 c) The person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.  The law above requires the state of intoxication to exist at the time of commission, causing the accused not to understand what he was doing. This means that intoxication affected the person’s mental capacity to understand right and wrong. As such, his capacity to appreciate his wrongdoing was negligently or maliciously caused by another person. Where intoxication is caused by circumstance (b) above, the accused person should be acquitted as he had no mens rea. Where intoxication results from para (c) above, the provisions relating to insanity under the TPC and the Criminal Procedure Act will be applicable. It will not be a defence for an accused person who forms an intention to commit an offence and then goes to drink alcohol to get a “Dutch courage” to commit that offence.242  Case Law: A better example is the case of Attorney General for Northern Ireland v. Gallagher243 where the accused formed an intention to kill his wife when he was sober. He went to drink whisky and later stubbed his wife to death after drinking. The Court held that the intoxication defence was unavailable as he had already formed the intention to kill before he took whisky.  4.3.5 Immunity for Judicial Officers/Judicial Privilege Section 16 of the TPC protects judicial officers (judges, justices, Magistrates, and Registrars) against criminal prosecution for an act or omission performed in good faith in the exercise of judicial functions.   Case Law: It has been held in Mzee Selemani v. Republic244 that immunity for judicial officers extends only to those actions taken by the officer in the performance of judicial functions.   The rule is also provided under Section 65A of the Judiciary Administration Act 2011. The rationale for this rule is to protect judicial officers from prosecutions. Scenario: A magistrate in a trial court imposes a sentence of imprisonment to an accused person instead of imposing a fine as required under the law. As a consequence, a person is imprisoned. If on appeal the accused person is set free, he cannot institute tortuous proceedings against the magistrate for false imprisonment. This is also the case where a judge convicts a capital offender who is then sentenced to death by hanging. In any case, the offender cannot sue the judge that he violated or aided in curtailing his constitutional right to life.   242 R. v. Rotief (1941) E.A.C.A 71 243 [1961] 3 All ER 299. 244 (1968) H.C.D No. 364. 	 63 4.3.6 Compulsion The defence of compulsion aims at exonerating from liability a person forced (compelled) to commit a crime by another person. The compulsion results from threats to kill or seriously injure that person (the offender) throughout the commission of that offence. Section 17 of the TPC provides for the three requirements/elements for the defence of compulsion. All of these elements must exist for an offender to succeed:  a) The offence must be committed by two or more offenders; b) The compulsion must consist of threats to kill or to do grievous bodily harm; and c) The threats must be applied throughout the period of commission of the offence.  The offence must be committed by two or more offenders. The offender who seeks to rely on this defence must demonstrate that he/she was with another person at the time of committing the offence.   Case Law: In Josiah v. Republic [1972] EA 157, the accused was charged alone even though he committed an offence with another person. The Court held that, it is not necessary that two or more offenders are jointly charged to allow the accused to rely on the defence of compulsion. What is necessary is that the offence was committed by two or more persons.  The compulsion consists of threats to kill or do grievous bodily harm to the compelled person if he refuses from doing the acts. Mere threats will not amount to compulsion. Threats addressed to persons other than the accused, e.g. members of his family, injuring properties, or future threats, will be insufficient.245 The threats should not only be applied on one time or fewer occasions. They should be applied throughout the commission of a crime.   In Joshua Sonko v. Republic (1972) HCD No. 60, the Court believed that the defence is available only if the threat is present all the time. When the threat ceases to exist and a person commits an offence after that, he cannot justify his conduct under the defence of compulsion.  It is important to underscore that the above ingredients/requirements must all exist for the defence of compulsion to succeed. Further, Section 20 of the TPC provides special considerations to married women when they commit criminal offences (other than treason or murder) in the presence of their husbands and under their coercion. The provision provides that where married women commit such offences in the presence of their husbands, they can plead a defence of compulsion by the husband. This provision was  245 Josiah v Republic, [1972] EA 157. 	 64 enacted when men used to ‘control’ their wives.246 It holds no relevance under the current global developments regarding gender rights and equality before the laws.  4.3.7 Defence of Person or Property (“Self-Defence”) This defence allows individuals to use ‘reasonable force’ to defend themselves when their person, other persons or property are attacked.247 It would be challenging if a person would let himself or other persons or properties, whether the property is in his lawful possession, custody, or care and fails to retaliate and defend himself for fear of punishment. While his conduct can be unlawful, and even his mind blameworthy, acting in self-defence to a person or property should be protected by penal legislation. According to Kenny:248  If a felonious attack is made upon a man, he has the legal right to stand his ground and to resist, and if he kills his assailant the homicide will be justifiable, provided that the measure of resistance which he takes is reasonable in the circumstances. But if the attack is not felonious then the person attacked must if safely possible retreat and must not use force against his assailant unless he is placed in such a position that he cannot otherwise evade the attack, as it used to be said, he must flee until he is driven to the wall.  The right to self-defence thus encompasses defending oneself, other persons and properties. What is important is that he has to ensure that his/her defence is reasonable. Where the attack does not justify retaliation or use of force, then he should evade such attack as reasonably possible. The rule on defence is provided under Sections 18, 18A, 18B and 18C of the TPC. Under these Sections, a defence must be: first, bona fide and reasonable. The force applied against the assailant should be reasonable and proportionate to the force or action taken by the assailant to avoid injury or death. For example, if the assailant appears in the house unarmed for stealing, the defender cannot use a machine gun to protect his person or property. Such a measure is unreasonable; the force applied by the defender will be excessive and disproportionate to that of the assailant. As such, the defender must use reasonable and proportional force that is not excessive against that applied or intended to be applied by the assailant.   Case Laws: In Selemani Ussi v. Republic, [1963] E.A 442, the defunct Eastern Africa Court of Appeal held that a person against whom a forcible and violent felony is being attempted has no duty to retreat. In this case, the defender is justified to the use of reasonable force.   246 Enacted into the Penal Code in 1935 before rigorous women liberation movements of 1960’s. 247 Molan M., Lanser D., & Bloy, D., Principles of Criminal Law (4th Edn), London: Cavendish Publishing, 2000, p. 290. 248 Cecil, T., J Kenny's Outlines of Criminal Law. Cambridge: Cambridge University Press, 2013.  	 65 In another case of Manzi Mengi v. Republic [1964] E.A 289, the Court held that the accused had rightly defended himself after killing the assailant who had shot a missed arrow at the accused and struck the accused twice with a bow.  In a further case of Republic v. Nyakabo (1970) H.C.D No. 344, the Court held that the accused was right in defending herself (by killing a man) who wanted to rape her and throttled her not to shout. The Court stated that:  (i) There was no doubt whatsoever that the accused was in the circumstances entitled to defend herself against the assault on her by the deceased. The deceased misbehaved so grossly when he was a guest in his own son’s home where his own ill wife was being nursed. The accused exercised her right of self-defence when the deceased throttled her. If she did not do so, she would have been chocked to death. (ii) Under the law a woman is entitled to defend her chastity against a man who wants to have carnal knowledge of here forcibly. (iii) The accused had both the right to defend her chastity and also the right to defend her life when the deceased tried to throttle her in a bid to overcome her and be able to ravish her.  The law differentiates felonious acts – acts in that an accused person reasonably defends himself from death, grievous bodily harm, or rape. In such circumstances, the accused has a legal right to defend himself and his/her conduct is justified, provided the measure used is reasonable and proportionate. As we can note in the Manzi Mengi and Nyakabo cases (above), the acts were felonious, and the accused persons were acquitted. However, where the acts are not felonious (non-felonious), and the accused used unreasonable force the accused will be convicted of manslaughter if he causes the death of a person. In Seleman Ussi’s case (above), the Court ruled that.  If the force used is excessive, but if the other elements of self-defence are present, there may be a conviction of manslaughter.   This is provided under Section 18B of the TPC. In the event that excessive force leads to any crime, a person will be criminally responsible for such crime. Likewise, in defence of property, the test of lawfulness in defence of property is reasonableness. In English law, there is a saying that “an English man’s home is his castle” which reflects property defence. It is thus recognized that in protecting one’s house, members of the household may kill or injure a trespasser who forcibly dispenses them with the house and its peaceful enjoyment. Before force is applied, the trespasser should be requested to vacate the premises. If he refuses, the defenders may use reasonable force to expel him/her. If he fights/retaliates physically, then proper self-defence principles should apply. Courts insist that the use of a lethal weapon in defence of property should only be applied where the defender's life is threatened.   Case Law: Mohamed Ally v. Republic (1969) HCD No. 54 	 66 Facts The accused had shot the complainant after hearing sounds in the coconut farm where he formed an opinion that they were thieves. He was convicted of unlawful wounding. Held The Court stated, “[b]asically the common law does not favour the use of firearms in the defence of property unless the life of the defender himself is threatened.” The Court observed that the accused was entitled to arrest the offenders. If the offenders attempted to avoid the arrest, he would be entitled to use reasonable force as necessary, including firearms, to effect arrest under Section 19 of the TPC. Thus, what is material is that the resort to force and measures taken are reasonable and not excessive. It is a matter of fact and depends on the circumstances of each case.  4.3.8 Double Jeopardy (ne bis in idem) Double jeopardy is a criminal procedural law defence that prevents an offender from being tried twice in respect of the same (similar) offence from the same facts. It denotes a legal doctrine barring a legal action to be instituted twice out of the same facts. It is well understood from a Latin maxim, “non bis in idem or ne bis in idem” which means not twice in the same [thing].249 The defence is meant to protect the accused person who has already been convicted (punished) from being criminally punished out of the same offence which results from the same facts. If the accused person commits the same offence, but from different facts, the defence of double jeopardy cannot stand. Section 21 of the TPC provides:  A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence.   This provision is supported by Section 70 of the Interpretation of Laws Act250 which provides:  Where an act constitutes two or more offences, whether under the same written law or otherwise, the offender is liable to be prosecuted and punished for any or all such offences but is not liable to be punished twice for the same offence.  The ne bis in idem rule is consistent with public policy consideration and human rights, to the effect that one should not be punished again for the same offence, whether under the same written law or otherwise.251 It should be noted that the rule does not bar prosecution;  249 United Kingdom Law Commission, “Law Commission Consultation Paper No. 156 on Double Jeopardy” 1999, p. 12. 250 Cap 1, [R.E 2022]. 251 Section 70 of Cap 1, [R.E 2022]. 	 67 rather, it bars punishment. As such, a person can be prosecuted for more than one offence (which is similar) but cannot be punished twice for the same offence.252 However, it should be noted that in instances where an accused person is charged with a serious offence and the Court finds the evidence insufficient to convict him/her of such offence; the Court may convict and punish the offender of an offence lesser than the offence which he or she is charged with. The condition for this alternative verdict is that the alternative must be lesser than the offence the offender was charged with and must be of cognate/similar character.253 For example, if a person is charged with a robbery, he may be convicted of theft or attempted robbery. As such, an alternative verdict does not amount to double jeopardy since the offender has not been punished.  4.3.9 Provocation Provocation describes a legal and factual situation of a person whose words or actions affect the accused’s reason and self-control, resulting in him committing a crime impulsively.254 The defence of provocation is applied in respect of homicide offences to negate malice aforethought, which is mens rea of murder. It means that either by conducts or statements, the provoker (the deceased in murder cases) causes in the accused a sudden and temporary loss of self-control, rendering the accused subjected to the heat of passion as to make him or her for the moment not to master his mind or to make a sound judgment.255 Sections 201 and 202 of the TPC provide for the defence of provocation. The defence is available only in murder cases; thus, it cannot be raised in cases of assault or other cases. For the defence of provocation to succeed, the following ingredients must exist:   i) The offender caused death under the heat of passion and without cooling down. This means that the offender must promptly act as a result of provocative acts. This is because if time passes between the provocative acts and the killing, the defence will not be available since the offender has sufficient time for the passion to cool down.  ii) Provocation must be sudden; the offender must not have waited for time to pass or to plan the acts and later to seek refuge on the defence of provocation.   Case Law: In Gabriel v. Republic (1971) HCD No. 299, the accused had killed his wife because she was having an affair with another man. The Court ruled that the fact that the accused waited outside for the deceased wife to come so that he would kill her was not sudden and could not amount to provocation. The court also reasoned that the accused went to the man’s house where his wife was intending to kill or inflict grievous bodily harm to the deceased.   252 United Kingdom Law Commission at p.15. 253 See Section 300 of the Criminal Procedure Act, Cap 20 [R.E 2022]. 254 Black’s Law Dictionary, 8th Edition, BA Garner (eds). 255 Republic v. Duffy, [1949] 1 All ER 932. 	 68 iii) Provocation must consist of a wrongful act. A lawful act cannot amount to legal provocation. A thief whom a police officer pursues cannot successfully raise a defence of provocation if he attacks and kills a police officer, because the police officer was doing a lawful act of apprehending a criminal. A mere suspicion example that a person (a woman) is carrying an affair with a man is not recognized as a sufficient provocation.256  iv) The provocation must be such that an ordinary person of the class to which the accused belongs would lose his power of self-control.   Case Law: In Joseph Marwa Chacha v. Republic [1980] TLR 232, the Court held that an accused person who pleads provocation must stand in the same shoes of an ordinary person of the community to which the accused belongs and must thus be judged by the standard of such ordinary person. The courts have also gone further by stating that what may be regarded as provocative acts or a deadly insult to a member of one community might be a mere triviality to another community.257  Once the defence of provocation succeeds, it can mitigate the offence of murder to manslaughter. As such, provocation is regarded as a partial defence of homicide and not a complete defence in Tanzania. Recent developments have witnessed the abolition of provocation as the ‘partial defence of homicide’ in many jurisdictions in the world. These include Tasmania in 2003, Victoria in 2005 and Australia in 2007.258 The argument behind abolition is that people who kill by provocation have formed an intention to kill. All elements of murder exist, and they should not be excused because they could not control their anger/impulses to kill or injure others. Instead, provocation should be considered mitigation factors after conviction and sentencing.  4.3.10 Abandonment or Withdrawal Abandonment or withdrawal is a criminal defence where the offender contends that he or she was not involved in or never completed the crime.259 Abandonment or withdrawal is a defence that shifts the burden of proof to the offender to prove that he or she satisfied all requirements for a successful abandonment/withdrawal from the crime. In order to succeed, the offender must establish: • He or she successfully abandoned or withdrew from a crime. The offender may exhibit that he stopped participating in the crime before it was committed or  • He/she took further steps to disassociate him/herself from the crime by reporting the intended crime to the Police so that the crime is prevented and  256 Mathias Mhyenyi and Another v. Republic, [1980] TLR 290. 257 Alphonce Philibert v. Republic, Court of Appeal of Tanzania, Criminal Appeal No. 27 of 1979 (Unreported). 258 Tasmania Select Committee on the Partial Defence of Provocation, Report on the Partial Defence of Provocation, April 2013, p.23. 259  Justia, “The Abandonment Defence in Criminal Law”, available at <https://www.justia.com/criminal/defenses/abandonment/> (accessed 30 April 2024). 	 69 • The abandonment/ withdrawal action was involuntary. It should be exhibited that the offender had an honest bona fide change of heart and not as a result of calculating chances of being caught. • In event where an offence is committed by joint offenders, (such as “conspiracy”), the offender should inform the co-criminals of his intention to abandon and decides not to commit the crime before its commission and not during the commission.260  Case Law:  People v. Brown, 90 III. App. 3d 742 Facts The accused was found guilty of attempted burglary, the trial court sentenced the accused to a term of four years' imprisonment. On appeal, the defence argued that the conviction should be reversed because the evidence established that the accused voluntarily abandoned his criminal activity and purpose. The accused formed an idea to rob car dealership, and his friends agreed. The accused acted as the lookout while his friends kicked in door but had not gained entry. After kicking in door, at this point the accused and another became scared and notified the rest that they were abandoning the plan. As the group was leaving the parking lot of the service station next to the car dealership, the police arrived and stopped them.  Held On appeal, the court held that voluntary abandonment would have been an excuse to the substantive crime, but he was still guilty of attempt that occurred prior to it. Note The TPC does not provide for the defence of abandonment or withdrawal. There is no case law decided on this area too. As a consequence, Tanzania relies on principles provided by common law and other jurisdictions as persuasive.  4.3.11 Necessity The defence of necessity is available to an offender who commits a crime in order to or as part of avoiding an even greater evil or an irreparable loss on part of the offender in an emergency situation. The defence provides more of a legal excuse other than the justification to commit a crime. The rationale for the defence of necessity is that it is unjust to punish the offender for doing something that a reasonable person would have done if placed on similar circumstances. Also, public policy requires that the offender choose the lesser evil to avoid greater evil or irreparable loss. Example of the defence of necessity can be where the bus driver is forced to hit a pedestrian in order to save lives of passengers on the bus. Scenario: On a highway, a speeding heavy truck overtakes a saloon vehicle and is facing a bus with 60 passengers. A bus driver calculates that if she remains on her roadside, the heavy truck will hit the bus and may kill many passengers. She decides to stray the bus from the main road to the pedestrian’s strip, hitting and killing a pedestrian. In this case  260 See, The Prosecutor v. Nansamba Robinah, High Court of the Republic of Uganda at Luwero, Criminal Case No. 0152 of 2015. 	 70 (not malicious) the driver may plead necessity by choosing the lesser evil to the benefit of a greatest number. The defence of necessity is not provided for under the TPC. However, it is applied through common law principles established in the famous UK decision of R v. Dudley and Stephens261. In this case, three shipwrecked sea men, adrift in an open boat, with practically no food for twenty days, killed and ate a cabin boy who was with them. Upon arrival, they were tried of murder. The Jury found that the accused would have died of hunger, if they had not acted as they did and suffered a six-month imprisonment. Similarly, in Abbasi Mohamed v. Republic262, the Court held that, it is reasonably excusable for a competent driver to forget carrying his licence, when he is required on emergency to rush and pick a sick person. As such, he should not be punished for the offence of driving without a proper licence because he is saving life by rushing a very sick man.   261 (1884)14 Q.B 273. 262 (1969) HCD 113. 	 71 SECTION 5: DEGREES OF PARTICIPATION IN CRIME/PARTIES TO OFFENCES  In Tanzania, parties to offences is a phrase describing how the court determines the degree of participation in the commission of an offence to assess the criminal liability of each participant or offender. Sections 22, 387, 23 and 24 of the TPC encapsulate the basic principles of parties to offences or degrees of participation in the commission of an offence. In the ensuing discussion, each degree of participation is examined.  5.1 Principal Offenders Section 22 of the TPC introduces the concept of principal offenders. This concept in Tanzania means that all persons listed as principal offenders suffer the same liability for the crime committed. The categorisation serves to understand and apportion each perpetrator's role while the outcome is the same. Principal offenders suffer the same punishment, not because they all committed the same offence in equal measure. Rather, because each took some part in the commission of the crime. This also means that the way Section 22 categorises offenders should not be taken as a graduated list of participation with the physical perpetrator taking the highest blame rather than an aider or abettor.263 Sections 22(1)(b), (c) and (d) do not entail derivative forms of liability. All the participants are deemed to have committed the offence in question irrespective of the role played, provided participation is established. While the essence of these principles is clear, how the courts of law have interpreted Section 22(1), especially (b), (c) and (d), has been a subject of much uncertainty sometimes, as will be shown below. It is also necessary to insist that while liability is not graduated from these degrees of participation, the same is not necessarily the case in mitigation. It is important to stress that participation under Sections 22(1), (2), (3), (4) and 24 does not require one to be fully present at the scene of the crime. A person removed from the scene of the crime but who was part of the same common plan to commit a criminal offence, which is committed is also considered a principal offender depending on the level of participation and contribution in the commission of the crime.   Case Law In Aziz Mohamed & Hamza Mohamed Madai v. R.,264 the Court of Appeal found the first appellant, although absent from the scene of the crime, was (together with two others) a principal offender because all had a common plan to commit armed robbery.  It is worth noting that in Tanzania, the English criminal law principle of accessory before the fact does not apply. A person otherwise an accessory before the fact is considered the principal offender under Section 22(1) of the TPC.    263 R. v. Muruga Isaro & Marwa Makuri, Criminal Sessions Case No. 30 of 2017, High Court of Tanzania at Tarime, p. 29. 264 Criminal Appeals Nos. 78-79 of 2006, Court of Appeal of Tanzania at Mtwara, p. 15.  	 72 Case Law In Sita Zatio and 2 Others v. R. [1957] 1 EA 308, the person known as a keeper allowed a person known as the “lion-man” to be hired for a kill while he perfectly knew that death would ensue. The lion man killed the deceased child as a result. The Court of Appeal for Eastern Africa was clear that while TPC of Tanzania does not recognise accessory before the fact, the keeper, in this case, is responsible as a principal offender under either Section 22(1)(b) or (d) of the TPC.   Finally, it is relevant to observe that for principal offenders falling under Section 22(1)(b), (c) and (d), they all can evade or avoid responsibility for showing that they expressly countermanded or revoked the advising, counselling, procuring, aiding or abetting they had previously given. Passive revocation or countermanding does not suffice.265  Section 22 recognises as principal offenders the following group of persons, namely:   i) Persons who actually do an act or omission that constitutes an offence,  ii) Persons who aid or enable other persons to commit an offence,  iii) Persons who aid and abet other persons to commit an offence, and iv) Persons who counsel or procure other persons to commit an offence.   5.1.1 Principal Offenders in the First Alternative Principal offenders in the first alternative refer to persons who carry out an unlawful act or omission that constitutes an offence. A person with malice aforethought (mens rea), who causes the death of another person (actus reus) is a principal offender in the first alternative.266 Equally, a male person who penetrates a girl below 18 years of age or a woman above 18 years of age but without her consent commits the crime of rape as the principal offender in the first alternative.267 A person with a legal duty to protect the public and omits to discharge that duty, thereby causing injury, danger, or annoyance to the public, commits the crime of common nuisance.268 To constitute a principal offender in the first alternative, the accused person must possess the requisite mens rea and the actus reus constituting the specific crime in question. The crime in question must be committed; a mere attempt to commit the requisite crime is not sufficient. Principal offenders in the first alternative can be more than one person.  Section 22(1)(a) requires that each perpetrator of the crime should possess the mens rea or intention and the actus reus or the material element constituting the crime in question.       265 Dure v. R. [1974] 1 EA 266, pp. 267-268. 266 Section 196 of the TPC.  267 Section 130(1), 130(2) of the TPC.  268 Section 170(1) of the TPC.  	 73 Case Law In Valerian Michael, Alois Nabaku and Matei Kwayi v. R.,269 the Court of Appeal held that the three accused persons had a common intention (malice aforethought) to murder the deceased person and fully participated in beating the accused person to death (actus reus). In case there are more persons, but some did not carry out the material element or possess the requisite intention to commit the crime, the Court of Appeal in this case clearly indicated that such persons must be excluded from the ensuing liability under Section 22(1)(a). As such, they can fall under the remaining provisions.   Thus, only essential contribution elevates one to the position of a principal offender in the first alternative when the participation is joint. These possibilities are already contained within the chapeau of Section 22(1), which contemplates joint or individual criminal responsibility when a crime is committed.270 Lastly, the principal offender in the first alternative does not rule out the use of a person who, in law, lacks the capacity to commit a crime.   Scenario Where an adult A uses a child of ten years B to poison C, A cannot plead the defence that B was the one who committed the actual killing. A used B as a medium or means to commit murder.   Scenario: Kiti, Meza and Mkoba met at a bar to discuss their difficult financial situation. They agreed that if they steal Kiatu’s Volkswagen car, they will obtain a lot of money which could change their lives forever. They planned to lure Kiatu to join the three in their excursion to Bagamoyo where they intended to visit the famous Bagamoyo Ruins. According to the plan, if Kiatu agrees, they will stop him at gun point on the way to Bagamoyo, rob him of the car, disappear to an unknown place and sell it. They effectively managed to lure Kiatu, stole his car and sold it. However, one month after the incident, they were caught by the police and charged with the offence of stealing.  Pointers: In this scenario, relevant elements a student must consider to competently understand the degree of participation include (a) number of persons, whether as one or many, (b) mens rea is shared or individual, (c) the actus reus is committed by all or some, (d) the contribution each provides results into success or failure of execution, and (e) the crime is actually committed or attempted.  5.1.2 Principal Offenders in the Second Alternative Principal offenders in the second alternative comprise all persons who aid or enable other persons to commit offences the laws of Tanzania prohibit.      269 Criminal Appeal No. 21 of 1981, Court of Appeal of Tanzania at Dar es Salaam.  270 See further, R v Mwita Cornel Philimon, Criminal Sessions Case No. 64 pf 2019, High Court of Tanzania at Tarime, p. 28. 	 74 Case Laws: In R. v. ACP. Abdallah Zombe & 12 Others, the High Court hinted that the liability of principal offenders under Section 22(1)(b), (c) and (d) hinges upon the commission of the offence in Section 22(a).271 Thus, in the absence of the actual commission of the crime through participation in Section 22(1)(a), it is legally impossible to have participants in Section 22(1)(b), (c) and (d) of the TPC. Section 22(1)(b) contemplates aiding or enabling another person to commit the crime.  In Athuman Musa v. R, Athuman was charged with armed robbery contrary to Section 287A of the TPC. Evidence established that Athuman had driven the victim with his motorcycle or “bodaboda” to an unknown location where several other people beat and stole from the victim. Athuman, who himself did not actually beat the victim, demanded to not only finish the victim but also kill her to remove evidence. The Court of Appeal of Tanzania held that although Athuman does not fall within Section 22(1)(a) of the TPC because he was not armed to wound and beat the victim, he enabled and aided other persons to effect the wounding and beating leading to stealing from the victim with armed violence. It was Athuman who drove the victim to the location, he knew the location, he knew the assailants, and he wanted them to finish the accused quickly and destroy any incriminating evidence.272 In SP Christopher Bageni v. Director of Public Prosecutions,273 the Court of Appeal held that a person who orders others to kill and provides vehicles and means of execution of the order should be considered an enabler to the commission of an offence under Section 22(1)(b).  Thus, aiding or enabling requires one to be an accomplice who not only offers a substantial contribution to the commission of an offence, but also shares the mens rea with the persons committing the material element of an offence. If Athuman (above) did not deliver the victim to the location, the crime would not have been committed. Thus, Athuman could frustrate the actual commission of the crime by non-performance. While in this case the nature of the contribution was essential, such that its absence had the effect of frustrating the entire plan, it is not clear whether this would be the practice in all cases.   5.1.3 Principal Offenders in the Third Alternative The principal offender in the third alternative under Section 22(1)(c) contemplates a person who aids or abets another person in committing a crime. For aiding and abetting to be successful, the prosecution has to show the presence of these elements, namely, the existence of the actual crime and an actual or physical perpetrator, the presence of the person aiding or abetting the physical perpetrator, and contribution producing a substantial effect in the commission of the actual crime. The position of the Court over this aspect is somehow confusing per the decisions below.    271 R. v. ACP. Abdallah Zombe & 12 Others, Criminal Sessions Case No. 26 of 2006, High Court of Tanzania at Dar es Salaam, pp. 13-14. 272 DC Criminal Appeal No. 38 of 2019, Court of Appeal of Tanzania at Kigoma, pp. 14-16.  273 Criminal Appeal No. 63/01 of 2016, Court of Appeal of Tanzania at Dar es Salaam, p. 18.  	 75 Case Laws: In R. v. Benjamin Oroserian, the High Court has held that aiding and abetting only exist when there is an actual crime and the aider or abettor was present when the crime was committed. There is the participation of the aider or abettor in the act either by assisting the commission or sharing the intention to commit the crime with the physical perpetrator.274 The Court of Appeal in Damian Petro & Jackson Abraham v. R. ruled that an aider or abettor is not necessarily required to be present at the commission of the crime as an eye or ear witness. He just needs to be near enough to afford assistance intentionally. His presence is thus a legal construction. And mere presence is not enough. One must intentionally participate in one way or another in making the commission of the crime a possibility. Such participation could be by encouragement, countenance or actual assistance by word or action, all intending to instigate the commission of the crime by other persons. Unintentional encouragement, such as by presence, misinterpreted words or gestures, silence, and non-interference, do not amount to aiding or abetting. Again, failure to prevent the commission of the crime that one witnesses or failure to apprehend the person committing the crime cannot amount to aiding and abetting its commission. For this to amount to aiding or abetting, the law creating a particular crime must be expressive, especially for a person in a position to prevent the commission or apprehend the perpetrator.275  The Court of Appeal seems to suggest that an aider or abettor does not need to share the mens rea of the physical perpetrator. He just needs to understand the intention of the physical perpetrator to commit the crime in question and offer him a contribution producing a substantial effect in the commission of the crime. Since, in most cases, the person aiding or abetting is at the scene of the crime, the Court of Appeal has insisted that for one to deny being an aider or abettor successfully, he has to show that while at the scene of the crime, there was a clear dissociation of himself from the perpetrators of the crime.276 As already insisted, the law does not make it a legal requirement that a person aiding and abetting must be at the crime scene. One can be removed from the scene and still be held responsible.277 The person aiding or abetting must also understand that his role helps the physical perpetrator to commit the crime in question unless the intention is a specific requirement.   Case Law: In R. v. Thobias Chacha Gaini & 3 Others,278 the second, third and fourth accused persons stormed and entered a house at night. The third and fourth accused persons stabbed the deceased person. The second accused stopped the deceased person from going  274 R. v. Benjamin Oroserian, Criminal Session Case No. 7 of 2017, High Court of Tanzania at Moshi, pp. 21-22. 275 Damian Petro & Jackson Abraham v. R., Criminal Appeal No. 57 of 1979, Court of Appeal of Tanzania at Arusha, pp. 4-7. 276 James @ Shadrack Mkungilwa & Lazaro Mkungilwa v. R., Criminal Appeal No. 214 of 2010, Court of Appeal of Tanzania at Iringa, pp. 27-28. 277 Gwagilo v. Attorney General [2002] 2 EA 381, p. 387. 278 Criminal Sessions Case No. 43 of 2020, High Court of Tanzania at Tarime.  	 76 outside the house to seek help. The High Court was not hesitant to find that the third and fourth accused persons had committed the actus reus of the offence and had malice aforethought. They were charged with murder as the principal offenders in the first alternative. Concerning the second accused person, the High Court held that he was an aider or abettor in helping the third and fourth accused persons commit murder. It concluded that all three were principal offenders under Section 22(1)(a) and (b) of the TPC.279  5.1.4 Principal Offenders in the Fourth Alternative The principal offender in the fourth alternative under Section 22(1)(d) contemplates the action of a person who counsels or procures another person to commit the crime in question. According to Sections 22(2), (3), and 24, the counsellor or procurer is considered liable either for the same offence he counselled the other person to commit (substantive offence) or counselling its commission. What matters is that the actual offence must be committed. It is immaterial whether the offence is committed as counselled or differently or the offence committed is the same offence as counselled or a different one, provided the facts constituting the offence are a probable result of implementing the counsel. Where facts that constitute the offence are not the probable consequence of implementing the advice of the procurer or counsellor, liability as the principal offender in the fourth alternative does not arise.   Scenario:  A procures B to poison C. B decides to go to his previous lover D and rapes D. There is no liability for A as the facts constituting the rape of D are not a probable consequence of implementing the advice or counsel from A. However, if A procures B to poison C and B decides to take a machete and slice C, the liability of A as a principal offender in the fourth alternative is clear. Killing C entails facts constituting the implementation of the advice from A.   An important aspect is that the procurer or counsellor does his part before the crime is committed. However, his liability emanates only after the crime has been committed.   Case Law: In Liningushu and Others v. R., [2005] 2 EA 234, the Court of Appeal for Eastern Africa affirmed the principle that where the accused person procures and hires other persons to kill her husband and pays them, she should be considered the principal offender under Section 22(1)(d) even where she did not physically kill the husband.  5.2 Accessory After the Fact Section 387(1) of the TPC considers a person an accessory after the fact to an offence when he knowingly receives or assists a person guilty of an offence to escape the  279 At pp. 18-19.  	 77 punishment for his offence. This provision recognises some exceptions. The wife cannot become an accessory after the fact to an offence because she receives or assists her guilty husband in escaping the punishment for his offence. The wife also does not become an accessory after the fact to an offence when she receives or assists another person who is guilty with her husband to evade punishment when the wife does so under the presence and authority of her husband. Finally, the husband cannot become an accessory after the fact to an offence because he receives or assists his guilty wife in escaping the punishment for her offence. Where the offence for which a person became an accessory after the fact is punishable by a three-year term of imprisonment or more, the accessory is liable to imprisonment for seven years unless there is a different punishment from a specific provision.280 Where the offence for which a person becomes an accessory after the fact is less than 3 years for a term of imprisonment, the punishment is generally a term of imprisonment of not more than 5 years, fine, or both imprisonment and fine.281 The Tanzanian understanding from the Court of Appeal practice is that an offence of accessory after the fact depends on the existence and conviction of the main offence. This means that where the accused is acquitted of the main offence, accessory after the fact to that crime also fails. 282  The High Court has thus established these elements for the accessory after the fact to stand, namely that the crime must have been completed, the person assisting must know that the accused person committed the crime and the actions of the person assisting must help the accused person escape or avoid the consequence of the principal crime.283 The absence of any of these factors renders one impossible to be an accessory after the fact. Further, a person does not become an accessory after the fact by non-reporting a crime. Equally, a passive attitude after the crime was committed does not render one an accessory after the fact.284  Scenario: A commits armed robbery against B. The police chases A but A succeeds to hide in C’s house. C suspects that A might have committed a crime. However, C does not really care to know whether actually A committed any crime.   Pointers: C cannot become an accessory after the fact for his passive attitude towards A. C could become an accessory after the fact if C is aware of the crime A has committed and proceeds to assist him escape prosecution and punishment. If C was A’s wife and assists A to avoid the consequence of the crime under the authority of A, C is not an accessory after the fact. If the police catch A and successfully prosecute A for the crime of armed robbery and equally convicts C for being an accessory after the fact, if A appeals to a higher court and gets an acquittal, C is also acquitted as C’s crime depends on A being convicted. One cannot become an accessory after the fact to a crime that never happened.    280 Section 388.  281 Sections 389 and 35.  282 Godlisten Raymond & Adam Shaban Hole v R, Criminal Appeal No. 363 of 2014, Court of Appeal of Tanzania at Dodoma, pp. 20-21. 283 R v Mugisha Katulebe & 5 Others, Criminal Sessions Case No. 126 of 2016, High Court of Tanzania at Bukoba, pp. 22-23.  284 Wanja Kanyoro Kamau v R [1965] 1 EA 501, p. 504. 	 78 5.3 Common Intention by Joint Offenders Section 23 considers joint offenders criminally liable for an offence that is committed as a probable consequence of executing an offence they jointly intended to commit. This means there must be more than one person – persons acting jointly, these persons have a common or joint intention, the joint intention is for the commission of an offence, the execution of that offence results in the commission of another offence, the ensuing offence is a probable consequence of executing the first offence. Without this probability, the joint offenders are not liable for the ensuing crime. In such cases, the joint offender who commits the crime will be liable. The High Court has insisted that mere presence at the crime scene does not amount to a joint intention. It has stressed that joint intention is not only established by a previous presence of a well elaborated agreement. It can be inferred from the presence, actions, and omission of any of them to disassociate from the offence.285 In other words, a common intention or common agreement could develop “in the course of events though it might not have been present to start with.”286  Scenario:   A, B, C and D agree to steal from a particular house. In executing the plan, Mr. E, the house owner, resists them. B takes a gun and shoots E. The murder of Mr. E is the probable consequence of executing the plan to break into the house and steal therein. A, B, C and D are criminally responsible for the murder of Mr. E, in addition to the liability for breaking into the house to steal therein.   Scenario:   A, B, C and D agree to steal from a particular house. They successfully break into the house. Their stealing goes according to the plan. However, inside the house, D enters one room to steal and finds Ms. F sleeping naked. D decides to rape Ms. F. The raping of Ms. F is not a probable consequence of executing the plan to break into the house and steal. D is individually responsible for rape. However, A, B, C and D are liable for breaking and stealing.   Scenario:   A, B, C and D meet at a house. They came separately, but it was their intention to steal. They start breaking into the house and stealing. In the course of stealing, B kills Mr. E, who was resisting them. The killing was a probable consequence of breaking into the house to steal. The joint plan to break in and steal was formed at the crime scene.   285 R v ACP. Abdallah Zombe & 12 Others, Criminal Sessions Case No. 26 of 2006, High Court of Tanzania at Dar es Salaam, pp. 14-15.  286 Solomon Mungai and Others v R [1965] 1 EA 782, p. 787. 	 79  5.4 Accessory Before the Fact The Tanzanian framework contrasts with the common law position. The common law position considers accessory before the fact, principal offender in the first degree, principal offender in the second degree and accessory after the fact.287 An accessory before the fact refers to a person who procures or counsels another to commit an offence without actually or constructively being present at its commission.  The accessory before the fact must know the offence to be committed and approve its commission in a manner that encourages the principal to commit it. It does not matter the manner of the commission provided the same crime is committed. However, where the crime committed is different, one cannot become an accessory before the fact. In the current framework, this person is a principal offender in the fourth alternative under Section 22(1)(d) of the TPC.  A principal offender in the first degree is a person whose action is the immediate cause of actus reus and has mens rea. The principal offender in this degree also refers to a person who has the mens rea but uses a person incapable of committing a crime (innocent agent), such as a child or a person suffering from insanity, to commit the actus reus of the crime. In any case, it does not matter whether the principal offender is at the scene of the crime or not. Under the current regime, this falls within Section 22(1)(a) of the TPC, principal offender in the first alternative.  A principal offender in the second degree is a person who aids or abets the commission of a crime. He is not directly involved. However, he is actually or constructively present to render assistance at the commission of the crime. Additionally, when the intention is an element of the crime, the principal offender in the second degree must know the intention's existence on the offender's part even when he does not share it. This squarely falls within the provisions of Section 22(1)(b) and (c) of the TPC, principal offenders in the second and third alternative.        287 For an elaborate discussion over the matter, see R v ACP. Abdallah Zombe & 12 Others, Criminal Sessions Case No. 26 of 2006, High Court of Tanzania at Dar es Salaam, pp. 3-5. 	 80 SECTION 6: INCOMPLETE CRIMES Incomplete crimes are also known as inchoate or preparatory crimes. These are crimes committed without the actus reus constituting the crime (or without the crime being fully done or completed). Tanzania’s jurisprudence on inchoate crime is still at a nascent stage. Nonetheless, Sections 380-390 of the TPC provide for incomplete crimes. Generally, criminalisation of inchoate crimes serves the prevention purpose, assisting law enforcement authorities to deter crimes before they are committed.288 For this Section, we will cover attempts, conspiracy, and incitement which also includes solicitation.   6.1 Attempts Some scholars advance three arguments as a rationale in favour of attempts. First, attempts play a prevention function in which they help law enforcement prevent the crime before it is committed. Second, criminalisation of attempts intends to outlaw or focus on the offender's culpability rather than the outcomes. The rationale is that there should be no difference between a person who attempts to rape and succeeds and a person who attempts to rape and fails because they all intended to commit the prohibited crime and are thus guilty. This is moral blameworthiness or culpability function. Third, the desire to exercise risk management against potential harm. This is a risk management function.289 Like a completed offence, the crime of attempt requires both the fault element (mens rea) and the physical element (actus reus). Nonetheless, the law emphasises the fault element more than the physical element due to its incomplete nature.290 In Tanzania, an attempt to commit an offence requires: contemplation, preparation, and an attempt. Regarding mental contemplation, the accused plans in his mind to commit an offence; while in preparation the accused person prepares the means to execute his intention. Concerning the attempt, the accused person does an overt act, but which falls short of actual commission because of factors within or outside his control. To be guilty of an attempt, the prosecution must prove the existence of direct intention and an overt act without providing prior preparation or proximity of the overt act and actual commission. If the accused person did not desist or got prevented by factors outside his control, the actual crime would have been committed.  Section 380(1) defines “an attempt” to mean the putting into the execution of the accused’s intention by means calculated to achieve implementation through an overt act falling short of actual commission. For this offence to occur and conviction to stand, it is immaterial whether the offender does preparation to commit the crime or whether he is prevented by his own will or circumstances independent of his will. These issues only matter in effecting punishment for an attempt.291 The punishment is a two-year term in prison, fine or both.292 The punishment could be a seven-year term in prison depending on the gravity of the offence and its punishment.293  288 Bronitt, S., & McSherry B., Principles of Criminal Law, (4th Edn). Toronto: Thomson Reuters (Professional) Australia Limited, 2017, p. 457. 289 Bronitt, S., & McSherry B., 2017, p. 460.  290 Ibid, pp. 460-461.  291 Section 380(2), (3).  292 Section 381.  293 Section 382.  	 81 The High Court has noted that this offence requires three separate ingredients to stand. First, there must be intent to commit the requisite crime. Second, some conduct towards completion (overt act). Third, failure to commit the crime.294 In certain circumstances, the offence of an attempt can have its own ingredients. This is the case with attempted rape under Section 132 of the TPC. Here attempted rape occurs only when attempting to procure prohibited sexual intercourse with any girl or woman, the intention is manifested through threats, abuse of authority or influence through intimidation, and false representations to obtain consent for prohibited sex or misrepresentation as a husband. Under such circumstances, unless the specific actions are proven, the crime of attempted rape is not committed.295 The same is the case of attempted murder under Section 211 of the TPC. The prosecution has to prove the intention to kill as an element of attempted murder.296 Offences of attempts must always be read with the provision creating the offence or the attempted offence itself. This is because Section 380 of the TPC defines attempts but does not inform us of all the required elements.297 Thus, Sections 211(a) and 380 must be read together. However, an exception is noted. Crimes that can stand on themselves from Section 380 should be taken as such. Four elements stand out for the offence of attempted murder: intention to kill, evidence of means, overt act, and evidence of an intervening event.298 Section 380(3) makes it clear that factual impossibility rendering it impossible to commit the crime cannot be used as a defence against an attempted crime.   Case Law: Edward Michael v. R., Criminal Appeal No. 268 of 2015[2016] TZCA 65 Facts The accused was selling diamonds without a licence, and he believed them to be actual diamonds. He was charged with attempting to sell diamonds for which he was not licensed. When the charge was read, he pleaded guilty to the charge. However, it was later proven that the objects were pure glass, not a diamond. He was nevertheless convicted. He appealed.  Held The appellant not knowing the stones he was selling where pieces of glass is immaterial under Section 380(3) simply because of the circumstances not known to him that it was impossible to commit the crime in question. The Court also held that it is important to look at the intention of the accused person and what he was thinking.   Further, Section 380(2) in the first alternative provides that it is not a defence when the accused does everything within his power to complete the crime which is not committed. Thus, if the offender uses weaker tools to commit the crime in question and fails, the defence of insufficient means does not arise. The second alternative outlaws the defence of frustration from factors independent of personal will.   294 DPP v. Juma Juma Muhidini, Criminal Appeal Nos. 27 & 45 of 2020, pp. 12-13.  295 Anatheo Paulo v R, Criminal Appeal No. 119 of 2020, High Court of Tanzania at Arusha.  296 Bonifas Fidelis@Abel v R, Criminal Appeal No. 301 of 2014, Court of Appeal of Tanzania at Arusha, p. 10.  297 Ibid, p. 11.  298 Ibid, pp. 13-14.  	 82  Scenario I:  Where A attempts to steal from a shop and C and D prevent him from stealing, A cannot raise the defence of prevention or frustration from factors independent of himself. Similarly, the third alternative under Section 380(2) removes the defence based on personal forbearance or refraining from the actual commission. Thus, A cannot claim a defence that although he had intended to rape B before actual raping could be achieved, he was filled with remorse and decided to change his mind.   6.2 Conspiracy The criminalisation of conspiracy in general serves several functions. The first function is the prevention function which has been elaborated concerning crimes of attempts. The second is the supplemental function. It has been argued that criminalisation of conspiracy supplements the law of attempts due to its weaknesses, especially relating to establishing the physical element or actus reus. The third rationale is that it is crucial to punish group enterprises planning to engage in criminal activities rather than an individual deciding to commit a crime whose mere intention cannot be criminalised. Therefore, conspiracy as a crime plays an important role in curbing organised crime.299 In Tanzania, Section 384 does not define the term conspiracy. Instead, it criminalises the offence of conspiracy to commit a crime that:  “Any person who conspires with another to commit any offence, punishable with imprisonment for a  term of three years or more, or to do any act in any part of the world which if done in Tanzania would be an offence so punishable, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of an offence, and is liable if no other punishment is provided, to imprisonment for seven years or, if the greatest punishment to which a person convicted of the offence in question is liable is less than imprisonment for  seven years, then to a such lesser punishment.”  When the offence the conspirators conspire to commit can receive a punishment of a three-year term of imprisonment or more or is an offence in Tanzania and the country they plan to commit the crime in the absence of any specified punishment, the punishment is imprisonment for seven years or less punishment if the offence attracts a punishment of less than a seven-year term of imprisonment.300  Case Law:  In Gray Likungu Mattaka & Others v. R., Criminal Appeal No. 32 of 1971, the Court of Appeal for Eastern Africa brought three elements to prove the crime of conspiracy. First, an agreement of more than one person to do an unlawful act or lawful act by unlawful means. Second, unlawful agreement. Third, intention to have the offence committed. Thus, for there to be a conspiracy, there must be: (i) Two or more persons,  (ii) An agreement between them,   299 Bronitt S & McSherry B, 2017, p. 447. 300 Sections 384-385.  	 83 (iii) An agreement for the commission of a criminal offence,  (iv) Intention to be part of an agreement occasioning the commission of a criminal offence that is either punishable in Tanzania or another country in which it is to be executed.   The law also criminalises other conspiracies, such as conspiring to prevent or defeat the execution or enforcement of any written law; to cause injury to a person or his reputation or depreciate the value of his property; to prevent or obstruct the free and lawful execution by the owner at a fair value; to injure a person in his trade or profession; to injure or obstruct another person using any means which themselves constitute an offence from lawful exercise of his trade, profession or occupation; to effect any unlawful purpose; to use any unlawful means to effect unlawful purpose.301 Other specific crimes of conspiracy which TPC criminalises include conspiracy to defeat justice under Section 110; conspiracy to induce unlawful Section intercourse under Section 149; conspiracy to murder under Section 215; and conspiracy to defraud under Section 306. Also, Section 24 of the Prevention of Terrorism Act of Tanzania outlaws conspiracy concerning terrorism or terrorist acts. Section 12(e) of the Anti-Money Laundering Act of Tanzania also criminalises conspiracy to commit money laundering offences.  The commission of the crime of conspiracy does not depend on the actual execution of the agreement. Its commission occurs when two or more persons unlawfully agree to commit a criminal offence. Thus, one person cannot conspire to commit a crime. This is because the presence of an agreement and plurality of persons form the actus reus of the crime. Each person must agree to commit or execute the unlawful purpose. This is why a husband and wife are treated as two different persons for this crime. Conspiracy is a crime in its own right. The law in Tanzania makes it clear that husband and wife can be convicted of the crime of conspiracy, irrespective of whether their marriage is polygamous or monogamous.302 Again, mere negotiation or talking about committing an unlawful act is not a conspiracy. Each conspirator must agree to commit an unlawful act or implement the agreement. As such, it is not prosecuted as a cognate offence to other substantive charges. This is according to Freeman Aikael Mbowe & 7 Others v. R.303 One notes from Section 384 that the choice of the means of execution is not an agreement of conspiracy. The offence stands as far as the parties have settled and agreed to a plan or agreement. The provision also does not indicate that direct communication between conspirators is needed or that for a person to be a conspirator, he must have joined from the beginning or at inception of the agreement. The defining element is thus being aware of the existence of an agreement or scheme and intending or committing oneself to participate in the execution. The conspirator who joins in between is still responsible for acts before, during and after his participation.304 Further, in Tanzania, the offence of conspiracy cannot be charged where the actual offence has been committed. The practice of the Court of Appeal also indicates that where a charge of conspiracy is premised on an offence that the prosecution has failed to establish some  301 Sections 386(1) and 35 of the TPC.  302 Section 386(2).  303 Criminal Appeal No. 76 of 2020, High Court of Tanzania at Dar es Salaam, p. 17. 304 John Mburu Kinyanjui v R, Criminal Appeal No. 141 of 1986, Court of Appeal of Kenya at Nakuru.  	 84 of its elements, the offence of conspiracy itself cannot stand.305 The Court also suggests that in the absence of conspirators (if two persons are charged for conspiracy and one is acquitted), the charge of conspiracy cannot stand.306 This is the case even when one of the conspirators has been proven guilty of conspiracy charge. Notwithstanding, cases of conspiracy are complicated. Sometimes it is difficult to know “the others” in the agreement. They can be dead or hiding. Provided the prosecution adduces evidence of the existence of “the others”, one person can be convicted of conspiracy. The case of Ogodia and Erima v. Uganda is an authority here.307 Concerning the plan itself, it is not a legal requirement that an elaborate plan be written on paper or retrieved from a computer system evidencing its existence. The case of R. v. Karia308 sheds more light here. The Court held that the common agreement could be deduced from the acts of the conspirators and the accounts the prosecution witnesses narrate before the court of law. Subsequent actions can be used to prove the existence of the agreement. Thus, while overt acts are not an element of the agreement itself, they play an important evidential role in establishing its existence.   Scenario: Kentucky, Mbeya and Arusha met on 28 August 2021 for a drink at Club Mambosasa. They are very rich businessmen. They wanted to import in Tanzania refined oil without paying taxes as the law requires. However, two customs officers from Tanzania Revenue Authority (TRA) made their plan impossible. From this meeting, they agreed to do two things: either they bribe the two officers with a lot of money or if they resist, they kill them. Unknown to them, Mr Masikio was drinking also just behind their table and heard everything they were saying. He was a policeman. He realised they were conspiring to commit tax evasion, bribery, and murder. They were subsequently arrested and charged with the crime of conspiracy.   Pointers: First, the crime of conspiracy has been committed because all the ingredients of this crime are present. Second, if this case is prosecuted and the court finally finds Mbeya and Arusha not guilty of conspiracy as they were simply intoxicated and engaged in an unserious talk, Kentucky cannot be convicted of conspiracy to commit a crime alone. Third, if the prosecution charges the three with the crime of conspiracy to commit a crime, bribery and tax evasion and the court finds the crime of bribery and tax evasion have been committed, the crime of conspiracy cannot stand because the actual crimes the three persons had conspired have been committed.   6.3 Incitement TPC contains one provision that criminalises incitement and solicitation. Section 390 provides that any person who solicits or incites another person to commit an offence is  305 Hassan Idd Shindo & Mashaka Juma v R, Criminal Appeal No. 324 of 2018, Court of Appeal of Tanzania at Mbeya, p. 17. 306 Samwel Marwa Roswe@Masaba v R, Criminal Appeal No. 220 of 2014, Court of Appeal of Tanzania at Mwanza, p. 9; William Kundete v R, Criminal Appeal No. 186 of 2021, High Court of Tanzania at Dar es Salaam, pp. 9-10.  307 [1967] EA 137.  308 (1949) 16 EACA 116.  	 85 guilty of solicitation or incitement. Other specific provisions criminalising incitement in TPC include Section 45, which outlaws incitement to mutiny; Section 46, which prohibits incitement to sedition or disobedience of lawful orders given by law enforcement superiors; and Section 66 (1)(c), which outlaws incitement to piracy. Section 390 further states that it is immaterial whether the solicitation or incitement has the effect in the commission of the offence. It is immaterial whether the crime is committed or not. Apart from these provisions, TPC is completely silent on the criminal ingredient to establish this offence. Section 19(1) of the Cybercrimes Act also criminalises the act of a person who uses a computer system to publish or cause the publication of materials that, among others, incite the commission of acts constituting genocide or crimes against humanity.  While incitement seems analogous to aiding and abetting the commission of a crime as their liability emanates from doing something in furtherance of a crime, incitement is equally considered a form of primary liability as the accused person is responsible for what he does.309 In aiding and abetting under Section 22(1)(c), there must already be a physical perpetrator and a crime committed by the principal offender for the third alternative to arise. This is not the case for incitement, as there is no need to commit the offence after incitement. The Tanzanian law is not clear whether one can be convicted for incitement to commit an attempted offence. However, the criminal law’s rejection of double inchoate offences militates against this overstretch.310 The physical element or actus reus of this crime is a positive encouragement or persuasion as well as a negative threat or pressure which is communicated to the people who are supposed to commit the crime. This crime is not committed when this communication fails to reach other persons. It does not matter whether the accused person has a specific group in mind or intends to address the entire world.311 The fault element or mens rea under Section 390 is the intention that the crime should be committed. Recklessness or negligence is eliminated because this could amount to an unreasonable restriction of the right to freedom of expression.312  Case Law: In Freeman Aikael Mbowe & 7 Others v. R. (cited above), the High Court accepted that incitement to commit a crime is an inchoate offence in Tanzania for non-completion of the offence.313 It stated further that disclosure of actual words, whether written or spoken, is a necessary ingredient for the crime of incitement to succeed. The Court took this position after considering that incitement must intend to anger or excite people expressly or impliedly to commit an offence.   Scenario: Mwanza has always hated the foreigners working in the diamond mining sites in their region of Utajiri. He has always wanted them to be harmed, deported, their property destroyed or even killed. However, he was not willing to do that himself. When the president of Wachovu Republic appointed him the regional commissioner of Utajiri region,  309 Bronitt S & McSherry B, 2017, p. 500.  310 Ibid, p. 500.  311 Ibid, p. 502.  312 Ibid, p. 503.  313 p. 61.  	 86 Mwanza found this an ideal position to convince the population in the Utajiri region to commit these crimes. Every Monday he has been using Radio Utajiri to communicate his message to Utajiri residents, most of them being poor people. He has been doing this for 10 months now and the incidents of attacks against foreigners in the Utajiri region have increased according to recent statistics.  Pointers: First the crime of incitement has been committed in this scenario. All the elements recognised in the law and the case of Freeman Aikael Mbowe & 7 Others v. R are all present in this scenario. Second, the attacks on the lives of foreigners living in the Utajiri region are not an ingredient of the crime of incitement. Their presence only evidences the effect of communication. Third, if after the first speech through Radio Utajiri, the Radio owners deny him platform to communicate his message to the target audience, it is difficult to say the crime of incitement has been committed.    	 87 SECTION 7: CONCLUSION Part 2 of this concept was divided into five main Sections. Section two was dedicated to understanding the unlawful conduct in criminal law. The purpose was to allow students to understand what actions, omissions or behaviours amount to prohibited conducts in Tanzania and whether this recognises any exceptions. Section three touched on fault element. Its goal was to equip students with an understanding of the mental element that completes responsibility for the commission of a crime, an important element for the prosecution to establish as an ingredient of a crime. Section four discussed the concept of criminal capacity. It analysed the ages upon which persons are presumed capable or incapable of committing crimes and the legal exceptions to this concept. Section five centred on parties to offences. It informed students and readers how the law apportions degrees of participation to ascertain responsibility. The Section indicated that TPC places the same responsibility despite participation. Finally, Section six considered incomplete crimes and the rationale of their criminalisation in Tanzania and globally in general. The next part discusses specific crimes under the TPC and other penal laws.          	 88 PART 3: SPECIFIC CRIMES  SECTION 1: INTRODUCTION This part classifies crimes into five groups and analyses them. These include crimes against human life, persons and the family, property crimes, crimes against the community, crimes against the State and administration of justice, and organised and commercial crimes.   SECTION 2: CRIMES AGAINST HUMAN LIFE, THE PERSON AND THE FAMILY These crimes are typically committed out of malice that can lead to the unlawful death of another person or cause harm to another person. Some aspects have been raised as probable defences depending on the jurisdiction. The mental condition may set crimes such as murder apart from other types of assault, unlawful killings, abduction, and other crimes against human life. For retribution, deterrence, rehabilitation, or incapacitation, most societies view these crimes as exceedingly serious crimes, and those found guilty are subjected to severe penalties.   Crimes against human life, the person, and the family are covered under Chapters XV, XVI, XXII, XXIII, XXV and XXVI of the TPC. These include: murder, attempted murder, rape, attempted rape, infanticide, abduction, sexual assault, indecent assaults, defilement, acts of gross indecency, sexual exploitation of children, grave sexual abuse, sexual harassment, prostitution, incest, sharing indecent photos and videos, a fraudulent pretence of marriage, marriage ceremony fraudulently gone through without lawful marriage, desertion of children, neglecting to provide basic needs for children, child stealing, cruelty to children, child destruction, attempted or aiding suicide, concealing the birth of a child, possession of human being parts, endangering the safety of persons travelling by railway, attempting to injure by explosive substances, maliciously administering poison with intent to harm, responsibility as to the surgical operation, assaults, dealing in slaves, forced labour, kidnapping, and endangering the safety of aviation.   2.1 Homicides Homicide is the killing of a human being by another human being. This could take the form of ‘lawful killings’ (such as killing an enemy in the execution of the war, killing in the execution of lawful judgment, killing in self-defence, killing in the course of arresting or preventing a crime, and accidental killing) or ‘unlawful killings’ (such as murder, manslaughter, suicide, and born or unborn child destruction).   i. Who is a killer? A killer is a person who is accountable under the principles of criminal liability, meaning a man with good memory and sufficient maturity.  ii. Who are the homicide victims? 	 89 A person must be alive. When a child is considered a person capable of being killed is defined in Section 204 of the TPC.  iii. What time does life end? When a person's brain stops functioning, they are said to be dead.  iv. Concept of Causation Section 203 of the TPC provides the concept of causation in killings. This Section states that even if a person's behaviour is not the immediate or primary cause of another person's death, they can still be held responsible. The cases of complex homicides are covered in this Section.  v. Causation is part of the definite elements of a crime • Only relevant in criminal law for materially defined (consequential crimes) – mainly murder and culpable homicide.  • Causation does not play a role in a formally defined crime. • A formally defined crime (e.g. rape, possession) – there the sanction is officially defined on the ‘act’. • Apart from the other elements for liability (conduct, unlawfulness, and fault), it is required that there should be a causal link between the act and the result, e.g. with the crime of murder, it is required that the stab wound administered by X to Y’s body (unlawfully and intentionally) also caused Y’s death. • The problem for causation – if there are two or more possible causes of death, how do we decide which was the cause? Causal link. • Application: the state must prove causation = stabbing caused the death. • Criminal causation = factual causation + legal causation. • Factual causation (always start here) is a prerequisite for legal causation.  The stabbing of the deceased must be the factual cause and the legal cause. Factual causation is a prerequisite for legal causation: If there is neither factual nor legal causation, there is no criminal liability, even in the face of an unlawful and intentional act.  vi. Section 203(a) of the TPC Suppose, X attacks Y with a club, and Y sustains serious bodily harm, and is thus hospitalised. One week after receiving medical care, Y passes away. In that case, even if the injured individual obtains good or appropriate medical care provided in good faith and with common knowledge and skill, the person who caused the wound will still be held accountable. However, the individual will still be held accountable if the injured person receives incorrect treatment, whether delivered with good faith or bad faith, along with common knowledge or without common knowledge. The trial court would be right to assume that a skilled practitioner would only carry out an operation if he believed it necessary and wise. It was the thief’s fault.  	 90 The chain of causation is said to exist if there is no intervening superseding cause, or the injured person dies within a year and a day from the date of the injury.  2.2 Specific crimes under unlawful killings 2.2.1 Murder Murder is a crime punishable by the death penalty, which entails the unlawful and/or intentional causing of the death (“killing” is too narrow) of a living human being.  Under Section 196 of the TPC, ingredients of murder include: causing another person's death, with premeditated malice, through a prohibited deed or omission. Actus reus in homicide is found in causality (Section 203), while mens rea in homicide is found in malice aforethought. Express malice or inferred malice can both be used to demonstrate malice aforethought. According to TPC Section 200, malice aforethought must be proven and entails intention to kill (express) or to do grievous bodily harm (implied) or to commit an illegal act that led to death (constructive malice). It is immaterial whether the targeted person is the person killed or someone else.  Case Law: R. v. Juma Tagambaga, Criminal Session 47 of 2020 [2022] TZHC 833 Facts Mr. Elias was married to Tabiza James and Fatuma Paulo. Mr. Elias had two other children, Lucia Elias and Dotto Elias, from another woman. The defendant, in this case, was Lucia's husband. The accused's children are said to have inexplicably passed away on various dates. As a result, the accused was charged with murder in violation of Section 196 of the TPC and arraigned before this court. Held The Judge stated that “there is no doubt that the death of the deceased was done with a person who had an evil intention to kill. There is no shred of doubt the murderer had malice aforethought to kill. The prosecution evidence has further proved, beyond a reasonable doubt, that the accused was involved in the planning and murder of the deceased. He had malice aforethought to kill the deceased. Under the doctrine of common intention, the accused is guilty as the one who butchered the deceased. The prosecution evidence has exhausted the elements of the offence of murder as provided under Section 196 of the TPC, Cap. 16 R.E 2019. Also, all the honourable assessors who sat with me opined that the prosecution proved the case beyond a reasonable doubt. They unanimously opined that the accused should be found guilty of the murder of the deceased. Based on the analysis above, without any shred of doubt, I find the accused guilty of murder. I hereby convict the accused (Juma Tagambaga) of the offence of murder under Section 196 of the TPC.”  2.2.2 Manslaughter According to Section 195 of the TPC, manslaughter is defined as the act of intentionally causing another person's death. Manslaughter and murder vary in that – manslaughter does 	 91 not involve malice aforethought, while murder does. The actus reus component of murder and manslaughter is the actual killing. Manslaughter may be intentional or accidental. The term "voluntary" refers to homicides that would have been considered murder but are instead classified as manslaughter because the accused either provoked the crime or participated in it as part of a suicide pact. Simply put, an accused person commits an act with malice aforethought, but there exist mitigating circumstances (e.g., provocation or self-defence) that negate malice aforethought. Like other defences, provocation and self-defence reduce culpability to manslaughter. Therefore, as opposed to voluntary homicide, involuntary manslaughter is considered as an unintentional killing (resulting from recklessness and negligence) whereby the mens rea does not amount to malice aforethought. Anyone who violates Sections 206 to 210 of the TPC is guilty of manslaughter (unlawful acts).  Elements of manslaughter are unlawful or negligent acts causing the death of a living human being.  What is criminal negligence? It is essentially carelessness. The accused person fails to act like a reasonable person. In other words, he fails to foresee the reasonable possibility of death where the reasonable person would have taken logical steps. Therefore, the test for culpable homicide is the reasonable foreseeability and the reasonable preventability of death. Please note: • Reasonable foreseeability is linked with reasonable preventability. • The test is objective (use a reasonable person in the same circumstances). • It is also an ex post facto test (however, the test can become subjective concerning the profession or job, e.g. the reasonable doctor or reasonable petrol attendant).  Case Law: R. v. Juma s/o Ndele, Criminal Session Case No. 24 of 2016 Facts The accused person was earlier charged with murder, but in his plea, he admitted to having caused the deceased's death without malice. The prosecution had no objection to the accused admission to an offence of manslaughter. The prosecution read the facts on the charge of manslaughter, and the accused admitted the facts. The prosecution facts briefly show that the accused did murder the deceased. Since the accused had pleaded guilty to the charge of manslaughter and based on the charge and flanking facts from the prosecution, the accused was convicted of an offence of manslaughter c/s 195 of the TPC. Held It was stated by the court that taking into consideration the time spent by the accused at remand prison (eight years) and based on those factors and the circumstance of the deceased death, it is proper for the accused person to undergo sentence in terms of Section 198 of the TPC so that the accused is convicted and hereby sentenced to serve one-year imprisonment.   	 92 Class Discussion Question: X, Y and Z, three hideous male robbers, jointly decide to rob Madame Rosa, a gypsy fortune teller who lives in a caravan in the centre of the wood, of all her jewellery after she has told them their fortune. X, Y and Z are not armed, and they do not have the intention to cause Madame Rosa’s death. During their visit, X and Y forcefully hold Madame Rosa down for Z to grab her jewels. Madame Rosa shouts in panic, after which Z kicks her in her stomach. Hereafter X, Y and Z flee with the jewels from the scene. Madame Rosa dies a week later in the hospital due to the kick in her stomach. Discuss X’s and Y’s criminal liability in respect of the death of Madame Rosa.   2.2.3 Infanticide The crime of infanticide is created by Section 199 of the TPC. The act should have been committed by a deliberate act or omission brought on by pregnancy, childbirth, or lactation. When a mother carried out the killing at a time when her responsibility for the act may have been diminished by the mental disturbance brought on by the stress of giving birth, the crime of infanticide was intended to be reduced from what would otherwise be murder to a lesser offence.   Crimen expositionis infantis: This is a common law crime for exposing a living/live child (baby) to vulnerable circumstances. For instance, a woman goes into labour but does not want the child and the child is born alive; she then dumps the baby in the garbage can. Under the TPC, the mother is not liable for murder (as the baby does not die), but she is liable for crimen expositionis infantis.  Case Law: R. v. Nakulinga d/o Ndangali, Criminal Session Case 14 of 2017 [2020] TZHC 370 Facts The accused attempted to commit an offence of manslaughter through infanticide by throwing a child under twelve months at the bush to cause the death of that child. The records show that the accused, having delivered a baby, stayed with her baby for three weeks. After realising that the baby's father denied the child, the accused attempted to kill her baby. She did not succeed in killing the baby and decided to throw that baby at the bush before one Samaritan discovered the baby alive. The accused admitted to having committed an offence without any intention. It appears the accused committed an offence when she had not fully recovered from the birth's effect, and her mind's balance was disturbed. The accused was charged with manslaughter under Sections 198 and 199 of the TPC, Cap. 16 [R.E. 2002].  Held After hearing the prosecution's case and the accused's admission of guilt, the accused was found guilty of attempted infanticide under Sections 199 and 198 (Manslaughter) of the TPC. On the other hand, the Court used Section 199, which reads as follows: “Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission she had not fully recovered 	 93 from the effect of giving birth to the child, and of that reason or because of the effect of lactation consequent upon the birth of the child the balance of her mind was then disturbed, she shall, notwithstanding that the circumstances were such that but for this Section the offence would have amounted to murder, be guilty of infanticide, and may, be dealt with and punished for the offence as if she had been guilty of the manslaughter of the child.” The accused was found guilty of manslaughter and infanticide.  2.2.4 Assisted Suicide This topic discusses human emotions affected by morality, religion, and convictions. The authors are of the opinion that there should not even be a debate over whether assisted suicide should be allowed or not: In other jurisdictions, assisted suicide can be allowed on several grounds. Assisted suicide is not about whether a particular physician or any other person should take the initiative to cause the death of a patient a victim. The dying patient or person must be the one that takes the initiative. Like in many Commonwealth Nations, Tanzania outlaws suicide, attempted suicide and assisted suicide under Sections 216 and 217 of the TPC. It is immaterial whether the patient initiated the assisted suicide or that it is only fair to assist a depressed person to commit suicide. In either way, a patient or depressed person will not be given such assistance under the existing legislation instead their illness or depression would be treated. Nor does the penal law allow a person's family to initiate assisted suicide or death squads to periodically visit hospitals and nursing homes to exterminate the vulnerable who are no longer contributing to society. Nonetheless, not everyone would opt for voluntary active assisted suicide: even if the option were generally available, only a tiny percentage of people would probably request it. Section 216 of the TPC defines aiding suicide as: any person who (1) procures another to commit suicide; (2) counsels another to commit suicide and thus induces him to do so; or (3) aids another in committing suicide is guilty of a felony and faces life imprisonment. The issue of physician-assisted suicide has been heavily debated in other jurisdictions. Several countries have legalized doctors to help their patients die under certain circumstances. The TPC, under Section 216(3), does not allow assisted suicide, it is illegal and a serious offence that can send the doctor to life imprisonment.  2.3 Assault Sections 240-243 of the TPC define assault as an act that negligently or intentionally causes another person to anticipate violent harm. It is an assault to swing a stick at someone, aim a knife or a gun at someone, or hurl a stone at someone, even if it misses.  In summary: - Assault is unlawful and intentional; - Act or omission: • which results in another person’s bodily harm being directly or indirectly impaired or  • which inspires belief in another person that such impairment of his or her bodily harm is immediately threatening 	 94 - There are two ways to commit assault: • Directly or indirectly infringing upon bodily harm; or • Inspiring such belief (a threat). - In common law, crimes that would today amount to assault were punished as iniuria,314 but later on, this developed into crimes of iniuria against a person’s bodily harm. - The three forms of assault: • Direct assault: This is where X applies physical force with a part of his body to a part of Y’s body, i.e. striking or at least touching a part of Y’s body. • Indirect assault: X uses an instrument or another strategy (such as a dog or a walking stick) to injure Y. • It could be occasioned through the instrumentality of a third person: Such as where X orders Z to assault Y. - There is no such thing as a negligent assault: Therefore, the intention is required as a minimum degree of fault. The Tanzanian court is unlikely to consider recklessness and negligence in assault cases. - The battery is the real use of criminal force – regardless of how little – on another person, either directly or indirectly. It constitutes battery to kiss a woman without her permission. • Where a person is being lawfully reprimanded, the battery is not prohibited. • Sections 231 and 232 of the TPC: when a person agrees to use force during a game and is legally permitted to do so. Where a person otherwise can consent to the use of force and consents to.  Case Law: Chacha Range and Mahinda Range v. Matinde Nyabite, Criminal Appeal No. 21 of 2021 Facts The appellants were charged with assault causing actual bodily harm contrary to Section 241 of the TPC, Cap. 241 [R.E 2019]. On 1 October 2020 at 08:00 hours in Kihumbu area within Bunda District, they assaulted Matinde Nyabite (the respondent) by beating her with an iron bar on different parties of her body. Held Appellants were convicted and sentenced to pay a fine of Tanzanian Shillings one hundred thousand shillings (TZS 100,000/=) each or serve three months imprisonment in default. Furthermore, each appellant was ordered to pay compensation to the tune of seventy-five shillings (TZS 75,000/=) in favour of the respondent.  Actual bodily harm is a more broad-based offence because it includes any type of physical injury, illness, or problem, whether temporary or permanent. You must demonstrate that  314 Iniuria is a delict that means humiliating treatment of another person in the form of words (insult or contempt) or deeds (violating one’s right, making unfair decision or outrage). See, Garner, B.A., Black's Law Dictionary, 11th Edn., Thomson Reuters, 2019. 	 95 a body part's external organ, membrane, or sense was cut or punctured to establish an unlawful injury. The differences between an assault charge that results in actual physical harm and an unlawful wounding charge are as follows: • The crucial proof of identification of the accused, whether it be direct or circumstantial that he suffered hurt. • That the defendant meant to damage others in this way. • The injury was done without a valid justification. Consent-based assault, accidental assault, or violence permitted by the law do not constitute crimes. The fact that the accused acted in self-defence is a defence to an assault allegation that results in actual bodily harm, but the amount of harm must not be excessive.   2.3.1 Narrative explanations on assault It is not a requirement that X injures Y for an assault to be committed. An assault can also consist of X administering some form of harmful substance Y was unaware of. Furthermore, to force Y to drink any substance (whether this substance is harmful or not) without Y’s will, will also amount to assault. Assault can also be committed without any physical contact (direct or indirect) but can be done by a mere threat that X may apply, or threatens to apply, force to Y (referred to as assault using a threat). The requirements for this type of assault are the following: • There must be a threat of personal violence. The threat must be against Y’s body, thus, a mere threat to damage Y’s property is insufficient. • There must be a threat of immediate violence. A mere threat to inflict harm on Y sometime in the future is insufficient.  The test used in this regard is a subjective one. The mere fact that X can carry out his threat is not sufficient. The test is whether Y (the person threatened) believed X intended to carry out the threat and that X could do this. The state of mind of Y must be looked at, and it must be determined if Y saw X’s act as a threat. Saying you will kill Y, who is used to hearing this as a joke, is not assault. However, words are sufficient to constitute assault.  2.3.2 Assault with the Intent to Murder? For attempted murder, an act of assault is not required. Therefore, attempted murder can exist without an act of assault being present. However, in cases where the act of assault forms part of the attempted murder charge, we are actually dealing with a specific type of assault, namely assault with the intention to murder.  An example of attempted assault is when X, intending to assault Y, applies force to Y in the belief that Y is still alive, whereas Y is already dead (attempt to commit the impossible). So, X could be charged with assault with intent to murder or desecration of a human corpse.  	 96 2.3.3 Assault with the intent to cause grievous bodily harm For this form of assault, all the normal requirements for assault must be present as well as one additional requirement, i.e. X must also have the intention to cause grievous bodily harm to Y. Whether grievous bodily harm is, in fact, inflicted is immaterial in determining liability. Factors that are relevant include: • The nature of the weapon; • How the weapon was used; • The degree of violence; • The part of the body aimed at; • The persistence of attack; and • The nature of intention inflicted.  Dolus eventualis is sufficient to establish this crime. By dolus eventualis, we mean, first, whether the perpetrator foresaw the possibility that the act in question would have fatal consequences (foresaw the outcome). Second, the perpetrator was reckless whether his action would have fatal consequences or not (took unjustified risk).315 There can also be an assault to do grievous bodily harm if such assault amounts to a threat.  2.4 Sexual offences 2.4.1 Rape Under Section 130(1) of the TPC, rape is committed if a person has unlawful carnal knowledge of a woman or girl without her consent or with her consent but a person is under 18 years of age or if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by impersonating her husband. Section 130(1), which is refined by the Sexual Offences Special Provisions Act (1998), provides new elements of rape as follows: offence of a male to a woman or girl, penetration/sexual intercourse, lack of consent, not of sound mind, misrepresentation, and the use of authority or seniority in management.  The Question of Consent Consent involves a voluntary or un-coerced agreement. It must be remembered that submitting is not consent. Thus, the prosecution must prove the absence of consent beyond a reasonable doubt.  Consider the following circumstances in Section 130(2) in respect of which B (the complainant) does not voluntarily or without coercion agree to an act of sexual penetration as contemplated in the Act: • The use of force or intimidation by A (the accused person) against B, C (a third person), or D (another person) or against the property of B, C, or D; or • A threat of harm by A against B, C, or D or against the property of B, C or  315 Cf. S. v. Malinga 1963 (1) SA 692 (A) at 694G-H (South Africa).  	 97 • Where there is an abuse of power or authority by A to the extent that B is inhibited from indicating his or her unwillingness or resistance to the sexual act or unwillingness to participate in such a sexual act; • Where the sexual act is committed under false pretences or by fraudulent means, including where B is led to believe by A that B is committing such a sexual act with a particular person who is, in fact, a different person; or • Sexual intercourse with any girl who is below 18 years old and not a legal wife – aged fifteen or above (statutory rape) • Where B is incapable in law of appreciating the nature of the sexual act, including where B is – at the time of the commission of such sexual act – asleep, unconscious; • In an altered state of consciousness, including under the influence of any medicine, drug, alcohol, or other substance, to the extent that B’s consciousness or judgement is adversely affected; • Forced sexual intercourse during separation; or • A person who is mentally disabled.  Case Law: R. v. Elineema Oscar O. Mwandry, Criminal Case No. 40 of 2022. Facts The accused was charged with the offence of statutory rape contrary to Section 130(1)(2) and Section 131(1) of the TPC, Cap. 16 [R.E. 2019]. The accused, on 14 May 2022, unlawfully did have sexual intercourse with a girl of seven years old and a pupil of class one at Lomakaa Primary School. She lived with her grandmother and the accused. The accused, her father, raped her many times at their home in the guest house. She testified that “my father misbehaved with me.” Accordingly, the accused would undress her clothing and underwear and lay on her back. Then he would sleep on her, take out his penis and penetrate her vagina. The victim reported her ordeal to her teacher and her grandmother.  Held The accused person was found guilty as charged and was then convicted and sentenced to serve thirty years imprisonment. Note:  As opposed to rape (unconsented sex), statutory rape happens when both parties agree to a sexual activity, but one party is below the age of consent (minor or schoolgirl).   • A person under the age of ten is not criminally liable for any act or omission, according to Section 15(1) TPC. The conduct or omission cannot be justified until it is established that a child under twelve is criminally accountable under Section 15(2) of the TPC. According to Section 15(3) of the TPC, a male under twelve is deemed incapable of engaging in sexual activity. • Punishment for rape, attempted rape, and gang rape ranges from 30 years to life in prison. It may also include a compensation order or corporal punishment.316   316 See, the Corporal Punishment Act [Cap. 17 RE 2019] and Section 28 of the TPC. 	 98  2.4.2 A husband defiling a wife under eighteen Section 138 of the TPC prohibits a husband from having or attempting to have sexual intercourse with a wife below the age of 18. Sections 141 and 142 also sanction a householder who permits someone to defile a girl under 18 on their premises. As opposed to statutory rape, this provision applies where someone is legally married to an underage girl. Thus, the law requires a person who wed an underage girl to not touch her until she turns 18. The key elements: • The female must be under the age of 18, • The accused person must have engaged in illicit sexual activity with the victim; • In this crime, consent is irrelevant. Thus, we conclude that the elements of this crime are identical to those of rape except: • The complainant's age is significant; the prosecution must establish that the girl was under the age of 18; • In this case, the girl's consent is irrelevant; the accused cannot use this as a defence. The accused individual will still be held accountable even if the girl gives her consent. However, if a man mistakenly believed that the girl was older than 18 years this can be used as an excuse.  Case Law: Ally Athumani v. R. [1991] T.L.R 59 Facts The appellant was found guilty of defiling a young woman, as defined by Section 136(1) of the TPC. The girl's age was not determined throughout the trial. The entire case seems to have been handled by the magistrate under the assumption that the charge was rape under Sections 130 and 131 of the TPC. In his testimony, the appellant did not dispute having sex with the complainant. According to him, his defence is that he had been dating that person for a long time, and they had previously engaged in sexual activity.  Held On review, the High Court held that defilement and rape are very different crimes that each call for specific evidence. Unlike defilement, where the girl's consent or lack thereof is irrelevant, rape requires proof of consent or lack thereof to be deemed rape. Age verification is required for defilement. Note: The Sexual Offences Special Provisions Act (1998) introduced ‘statutory rape and defilement’ which render the aspect of ‘consent’ irrelevant if an underage girl is involved in a sexual activity with an adult person.  ************************************ Case Law: Thomas Emmanuel v. R. [1996] T.L.R 373 Facts The appellant and PW1 Farida Mohamedi shared a home in the matter of Buya Sylvester, her two-year-old daughter, who was her child. On a relevant day, she was in her room at around 11.30 hours. She overheard Buya, the appellant's daughter, sobbing in the room. 	 99 The appellant was resting on the youngster when she arrived in a hurry. It was just him. Masunga PW 2 was the first person to arrive at the location after she raised the alarm. The young girl's buttocks and vaginal area were both covered in what seemed to be semen. The defendant was detained, put on trial for defilement, and found guilty. PF 3 revealed, "hakuna jeraha lolote la kimwili au la sehemu za uzazi lililoonekana" after the youngster was checked. Sehemu za kike umeonyesha mbegu za kiume, uchafu ulikutwa. During the appeal against the conviction and sentencing, it was argued that the evidence did not demonstrate that the defiled two-year-old girl had been pierced.  Held The Court held that the evidence presented did not demonstrate that there had been penetration; if there had, the complainant – a very young girl – would have displayed some damage. Due to the circumstances, defilement as a whole was not committed. However, the evidence does establish the offence of attempt defilement.  2.4.3 Defiling of Idiots and Imbeciles Section 137 of the TPC states: • Having carnal knowledge with an idiot or imbecile is unlawful; • Doing so does not constitute rape, and • The offender must have known at the time the offence was committed that the victim was an idiot or imbecile. An idiot is a person who lacks knowledge, is intellectually weak, has very little intelligence, and is incapable of thinking clearly or behaving normally. A person with a mental deficiency that prevents him from protecting himself from everyday physical threats is considered an idiot in law. On the other hand, an imbecile is a person with abnormally low intelligence who is both mentally and physically feeble; however, they may exhibit some evidence of rudimentary intelligence. A person with a mental impairment, even if it does not amount to idiocy, is severe enough to prevent them from handling their affairs. Therefore, a person is said to be an idiot when they lack physical and mental power.   Please note that the TPC also criminalises a range of sexual activities termed as immoral conduct, namely unnatural offences (sodomy), abortion, owning brothels, indecent assault, and living under the earning of prostitution.   2.4.4 Incest a) Male Incest  Any male who engages in forbidden sexual activity with a woman who, in his knowledge, is his grandchild, daughter, sister, or mother commits the crime of incest. Consent is irrelevant in incest trials; hence the accused cannot use the defence that the victim gave her consent (Section 158(1) and (2) of the TPC). If found guilty, where the victim is a female who is under the age of 18, the sentence to be served will be at least thirty years in prison. This is because the sexual encounter would be equated to a statutory rape, thus vitiating consent. If the victim is a female of at least eighteen (age of consent), the defendant will serve a minimum of twenty years in prison. 	 100  b) Female Incest A girl who is at least eighteen years old and lets her grandfather, father, brother, or son have sex with her is guilty of incest under Section 160 of the TPC. To qualify as incest, a female must have engaged in consensual sexual activity with a male, knowing that he is her grandpa, father, brother, or son. She faces a mandatory minimum sentence of thirty years in prison or life in prison if found guilty. She might also be required to pay the court-determined amount in compensation. If the boy is under ten, she faces a minimum of thirty years in prison. Without the Director of Public Prosecution (DPP)'s approval, there is no prosecution of the accused for the offence under Sections 158 and 160 of the TPC. Alternatively, the prosecutor could proceed under Section 135 of the TPC. The wording of Section 135(1) of the TPC, which deals with sexual assault on persons and indecent assaults, has been changed to apply to both genders. The current position is that anyone who says any word or noise or displays a gesture or item to cause any sexual annoyance to any person is guilty of sexual assault on a person or indecent assault. Sexual assault is a crime when someone speaks, makes a sound, gestures, or displays an object with the intent that the person will hear or see it. It will not be a defence if it relates to a boy or girl under 18 who has given consent. If found guilty, the defendant faces a maximum sentence of five years in prison, a maximum fine of 300,000 shillings, or a combination of the two.  Case Law: Sharifu S/O Bakari @ Mdee v. R., Criminal Appeal No. 30 of 2020 Facts The appellant was charged with and convicted of the offence of incest by men contrary to Section 158(1)(a) of the TPC, Cap. 16 [R.E. 2019]. It was alleged that on the 1st of September 2017, the appellant had carnal knowledge of his daughter, a 16-year-old. The appellant pleaded not guilty to the allegations put forward by the prosecution; hence a full trial was conducted.  Held The Magistrate found the appellant guilty as charged, convicted him, and sentenced him to serve 30 years imprisonment.  2.4.5 Abduction Under Section 133 of the TPC, any person who, with intent to marry or have sexual intercourse with a woman of any age, or to cause her to be married or to have sexual intercourse with any other person, takes her away, or detains her, against her will, is guilty of abduction. Also, Section 134 of the TPC punishes a person who commits abduction if he/she unlawfully and intentionally removes an unmarried minor of sixteen years from his/her parents or custodians without their consent, with the intention that either he/she, or someone else, marries the minor or has sexual intercourse with the minor. Abduction affects two interests, i.e. the parents’ physical control, care, and custody, and the parents’ right to consent to the marriage of a minor. Therefore:  	 101 • In terms of the definition, the minor has to be unmarried. • A married minor is regarded as emancipated and, subsequently, an adult. • The crime of abduction can be committed in respect of either a male or a female. • The perpetrator intends to marry or have sexual intercourse with the abducted girl. • Just as with kidnapping, abduction is a crime committed against the minor's parents or guardians; therefore, consent by the minor is not a defence.  Case Law: Kubilo Komanya v. R., Criminal Appeal No. 136 of 2019 Facts In this case, the Appellant was charged with four counts; the first count was abduction contrary to Section 133 of the TPC, Cap. 16: preventing a school girl from attending school contrary to Rule 4(2) of the Education (Composition of Penalties to a Person who Marries or Impregnates a School girl) Rules 2003 read together with Section 35(3) of the Education Act, Cap. 353; marrying a school girl contrary to Rule 4(2) of the Education (composition of Penalties to a person who marries or impregnates a school girl) Rules, 2003 read together with Section 35(3) of the Education Act, Cap. 353 and rape contrary to Sections 130(1)(2)(e) and 130(2)(a) of the TPC, Cap. 16 in the Pt, 2nd, 3rd  and 4th  counts respectively. The appellant, on the first count, abducted a 13-year-old girl and student of Badugu Secondary School against her parents' will and lived with her as his wife, the cause of which prevented her from attending classes.  Around November 2014 at Mwamanyili Village in Busega District, the Appellant abducted Esther Mussa, a girl aged 13 years and student of Badugu Secondary School against the will of her parents and lived with her as his wife. On 5 November 2014, the victim, on her way home, met the Appellant for the first time. He seduced her for love affairs, but she never cooperated. They met again in three days and gave her Tshs. 50,000 and cooperated. At home, she never disclosed this to his grandmother. The appellant later managed to convince the girl, and they went to his residence, where they started living together as husband and wife. He later introduced her to the village chairman. The girl and the Appellant had sexual intercourse naturally and against the order of nature. Having sex against the order of nature, made her escape to Igoma, Mwanza. One Samaritan, Salome Charles, was informed of the disappearance of the girl. The efforts lead to locating her at Igoma. Salome Charles met the girl in that house and took her to Magu town. While there, the Appellant appeared and got arrested. Although the Appellant denied any involvement in the four counts, the trial Court convicted the appellant as charged and sentenced him to five years in prison. Held On appeal, the Judge contended that “there is no evidence that the Appellant was impotent such that, in the period of two years he happened to stay with PW1 under one roof, in one bed and certainly as PW1 stated, if proved so; using one bed sheet that the Appellant, energetic as he is at the age of 20 years, left the young girl untouched.”  Nonetheless, the Judge allowed the appeal and acquitted the Appellant on all counts. In particular, he concluded that the prosecution failed to establish the offence of abduction because: 	 102 (i) After the victim escaped from the Appellant, she landed in the hands of would be one Samaritan at Igoma who was not called upon to testify as a key witness.  (ii) The Appellant was charged under Section 133 of the TPC, which is on abduction generally. Since the prosecution were certain that girl aged 13, the proper provisions that the Appellant violated is Section 134 and not 133 of the TPC.  (iii) Had the legislature intended girls under the age of 16 years to be covered in Section 133, they would have not legislated Section 134. The words ‘woman of any age’ referred to in Section 133 excludes unmarried woman under the age of sixteen years as provided under Section 134.  (iv) The prosecution failed to prove the age of the victim. The evidence tabled was not enough to establish that the victim was aged 13 when abducted. There is no parent or guardian called to state the age of the girl. According to the case of Edson Simon Mwombeki v. Republic, evidence of a parent is the best in proving the age of victim of sexual offence. (v) The prosecution failed to establish whether at the time of the alleged abduction the victim was a student by adducing an attendance register. Besides, the victim absconded classes way back in 2013 and she did not sit for the form two national examination.   2.5 Marriage Ceremony Fraudulently Gone Through Without Lawful Marriage Bigamy is a crime hard to prove in Tanzania, especially within the Muslim religion, as Muslims are allowed to marry up to four wives according to Sharia law and customs. Bigamy is committed if a person already married is unlawfully and intentionally a party to a marriage ceremony purporting to bring about a lawful marriage between them and somebody else. In Tanzania, marriage is defined as the voluntary union of a man and a woman, meant to last for the duration of their combined lives, as stated in Section 9 of the Law of Marriage Act. Section 2 of the Act further says that marriage exists to the exclusion of all others. A monogamous marriage is a partnership between one man and one woman. A polygamous marriage is one in which the husband may get married to or marry another lady or woman while the marriage is still going strong.  The types of marriages that can be entered into are illustrated in Section 10. (1) There shall be two types of marriages: (a) monogamous marriages or marriages that are intended to be monogamous; and (b) people who are polygamous or who may become so. (2) A marriage contracted in Tanganyika, whether before or after the start of this Act, shall be presumed to be monogamous unless the contrary is proven in the following situations: (a) if contracted in Islamic form or accordance with rites recognized by Tanganyika customary law; and (b) in all other cases. Section 165 of the TPC states, "Any person who dishonestly or with a fraudulent intention goes through the ceremony of marriage, knowing that he is not thereby lawfully married, is guilty of a felony, and is liable to imprisonment for five years". For example, a person is not legally allowed to exchange marriage vows with a blood relative or contracting another marriage while there is a subsisting monogamous marriage.    2.6 Forced Labour Tanzania's constitution prohibits all forms of forced labour. All forms of forced labour are likewise forbidden by the Employment and Labour Relations Act of 2004. Bonded labour 	 103 is considered forced labour, any employment demanded of a person against their will and threatened with punishment. Anyone who arranges for, requests, or imposes forced labour is guilty of a crime. A person commits an offence if they move someone to work against their will. Children may not be subjected to forced labour or bonded labour, according to the Child Law. A person who violates the Child Law provision pertaining to forced labour commits an offence and is subject to a fine of at least two hundred thousand shillings, a term of imprisonment for at least six months, or both upon conviction.  Article 25(2) of Tanzania's Constitution, Section 6 of the Employment and Labour Relations Act of 2004, and Section 80 of the Law of the Child Act of 2009 regulate forced labour in Tanzania. Forced labour is regulated under Chapter XXV, Section 256 of the TPC. Section 256 of the TPC states that "any person who unlawfully compels any person to labour against the will of that person is guilty of a misdemeanour. Hence the Act must be intentional, unlawful, and associated with compulsion. It should be noted that the compulsion can be either passive or active, dependent on the facts of the case. The most important aspect is the intention. The culprit must bear the given unlawful intent to induce forced labour.   Case Law: Ernest P. Agalla v. The Attorney General and Another, Civil Cause 64 of 1999 [2012] TZHC 37 (August 14, 2012) Facts  The plaintiff was claiming from the defendants a sum of Tshs 25,000,000 for compensation and general damages. The plaintiff, accompanied by his family members on a journey in Mwanza, was forced to collect stone, gratings and sacks of sand for about 50 meters where army men were constructing the demolished bridge. The defence rather raised a self-help scheme argument towards building the nation, claiming that the elements of forced labour were not to be entertained in this case.   Held The Court found that the actions by the army men to induce forced labour were unlawful and intentional, and therefore, the Court found the army men guilty.  Note As discussed in Chapter one, some prohibited conducts exhibit and embody both civil and criminal features, blurring the line separating the two. If this happens, litigants opt for a civil lawsuit because it attracts a hefty compensation compared to a crime where the perpetrator is likely to face jail time or being conditionally discharged. The above case meets all the penal elements of forced labour under Section 256 of the TPC.  2.7 Defamation Defamation is the unlawful and intentional publication of allegations regarding another person, which tends to injure another person's good name or reputation. Defamation may be in a libel (when it is in writing) or slander (oral) form. To prove defamation, the following elements must be present: the nature of the publication, the defamatory allegation, and the seriousness of the offence, and the publication must be unlawful and intentional. Previously defamation was regulated under Sections 187 and 194 of the TPC. 	 104 The TPC has since repealed defamation leaving the highlights of the crime in other legal instruments, such as the Media Services Act of 2016,317 the Cyber Crimes Act of 2015318 and the Electronic and Postal Communications (Online Content) Regulations of 2020.319   Justifications for Defamation: Anyone who believes defences of truth and public interest, fair comment, or privilege lacks the necessary intention. Therefore, the publication of defamatory matter may be justified on the following grounds: that it is the truth and that it is for the public's benefit that it be made known; that it amounts to a fair comment; or that the communication is privileged. Also, to prove intent, X must have meant to hurt or hurt someone else's good name or reputation and at least have known that what they did would have that effect. Therefore, dolus eventualis is sufficient. X must also intend to bring these allegations to someone else's attention. As mentioned earlier, defamation must constitute a publication to others: for X to be guilty of defamation, someone other than the complainant must also become aware of the defamatory statements. If it is only between X and Y, it can get at most amount to crimen iniuria (unlawfully, intentionally and seriously impairing the dignity of a person). A reasonable person in public must understand a defamatory statement that refers explicitly to a specific person. The following are the given determinants: • The seriousness of the allegations (how true or untrue the statements are); • The scope and degree of the publication; • Whether the statements could cause a breach of the peace (for example, racist statements).  Note As discussed in Chapter one, defamation exhibits and embodies both civil and criminal characteristics. Except where the Government or its official is the victim of a defamatory statement, private litigants usually opt for a civil defamation because it attracts a hefty compensation compared to a criminal defamation.  Criminal elements in the Tanzanian defamatory law are exemplified as follows: 1. The Online Content Regulations, which defines ‘hate speech’ to include ‘defamation’, provides:       21.-(1) A person who contravenes the provisions of these Regulations commits an offence and shall, upon conviction, where no specific punishment has been provided, be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than twelve months or both. 2. The Media Services Act imposes a criminal penalty in the following words:        50.-(1) … shall be liable to a fine of not less than five million shillings and not exceeding twenty million shillings or to imprisonment for a period not less than three years but not exceeding five years or to both. 3. The Cyber Crimes Act provides:  317 Sections 35-41. This Act also repeals the Newspapers Act (RE 2002). 318 Section 16. 319 G.N. No. 538 of 2020 revised via G.N. No. 136 of 2022. 	 105          16.- Any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defame, threaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.    	 106 SECTION 3: PROPERTY CRIMES Burglary, robbery, car theft, arson, shoplifting, and vandalism are just a few examples of crimes that fall under the category of "property offences,” typically involving private property. Property offences are crimes committed to access money, valuables, or other benefits. These crimes are considered property offences because the person who commits them does so to make money. In situations like robbery or extortion, this may entail using force or the threat of using it. Property theft and property destruction are the categories used to categorize crimes against property. Arson or vandalism are terms used to describe when a property is destroyed. Robbery and embezzlement are two instances of the theft of property.  Property crimes are covered under Chapters XXVII, XXVIII, XXIX, XXX, XXXI, XXXII, XXXIII, XXXV, and XXXVI of the TPC. These crimes include theft, concealing registers, wills and deeds, appropriation of power/electricity, damaging property, robbery, armed robbery, gang robbery, extortion, housebreaking, burglary, criminal trespass, false pretence, cheating, frauds, false declaration for passport, receiving property stolen or unlawfully obtained, fraudulent or false accounting by a clerk, trustees fraudulently disposing of trust property, arson, casting away vessels, injuring animals, communicating infectious diseases to animals, defacing bank notes, kite-flying, forgery, counterfeiting coins/legal tender and impersonation.  3.1 Theft Section 258(1) of the TPC defines theft as the fraudulent taking or converting anything that can be stolen without the owner's consent. According to the description given above, the act of stealing is defined as the taking or asportation of another person's property. Therefore, a person commits theft if she/he unlawfully and intentionally; appropriates (not restricted to removal); movable corporeal property. The property in question: • Belongs to, and is in possession of, another (this is ordinary theft);  or • Belongs to another but is in the perpetrator’s possession (this is embezzlement); or • Belongs to the perpetrator but is in another’s possession and such other person had a right to possess it, which legally prevails against the perpetrator’s own right of possession (this is the unlawful arrogation of the possession of a thing: In Roman law, this was referred to as furtum possessionis).  Keep in mind It is debatable if ‘furtum usus’, the temporary use of a thing, is theft. The intention to appropriate the property (the animus furandi) includes an intention to permanently deprive the person entitled to possessing such property. While items like water, gas, and electricity can be stolen, general intangibles like air, ideas, and so on cannot. It is specifically stated in Section 283 of the TPC that electricity can be stolen. 	 107 Note further A thing must have some value to be the target of theft, although the value need not be in legal tender.  Be mindful that a husband may be guilty of stealing from his wife and vice versa (Section 264 of the TPC).  Key principles in understanding ‘theft’ (i) Possession and ownership: One of the key elements of a theft offence is ownership. The property of someone must be the target of the theft. According to Section 258(2)(e) of the TPC, the taking may be made from either the actual owner or a "special owner." Due to the significance of ownership, it follows that the owner or possessor must always be mentioned when drafting a theft accusation.  Note: Possession should not be temporary. As such, it is not a crime when, for example, a visitor stays for just one night in a home and takes temporary possession of the relevant goods in the bedroom or when a customer enters a store and takes some items to look at/inspect.  (ii) Fraudulent taking: Under any scenarios listed in Section 258(2) TPC, someone is considered to have taken or fraudulently converted anything that can be stolen. A person cannot be found guilty if they are exercising a legitimate claim of right since they did not act dishonestly.  (iii) Recent possession doctrine: When it is established that something was stolen and the defendant was found in possession very quickly after the theft, he may be considered either the real thief or a guilty receiver. Before the doctrine is used, it must be demonstrated that the stolen item is in question and the theft has happened recently.  Case Law:  Mustapha Darajani v. R., Criminal Appeal No. 242 of 2008 [2012] TZCA 232  Facts On midnight of 6 October 2006, Omari Msafiri, a watchman in the neighbourhood, heard a bang from some shop in the commercial premises. At that time, he was in the backyard; when the noise came from the front, where there was another watchman who did not testify. When Omari rushed there, he found three men running away from the scene, carrying some things wrapped in sulphate bags. He could not catch them but could identify them and repeated the story to a police officer on patrol before the matter was reported to the police station. By then, the owner of the premises/saloon Mariam Rashid had also been notified and was around. According to her, two hair dryers and a 5-band radio cassette went missing from her saloon due to larceny. On 9 October 2006, Mariam got wind that someone was selling driers. In the company of D/C James (who did not testify), they traced that person to the 4th accused person in the trial, who admitted taking them to one Hidaya Abdul. Hidaya admitted that the appellant and his cohort (4th accused) sent three driers to her and pawned them for a loan of TZS 180,000/=. Mohamed Ponera confirmed and witnessed the transaction. It was based on this evidence that the appellant was convicted. The Trial Court sentenced them to ten years imprisonment each. The High Court dismissed their joint appeal, thus the present appeal. 	 108 Held The Court of Appeal held that "for the doctrine of recent possession to apply, it must be established, Firstly, that the property was found with the suspect or there should be a nexus between the property stolen and the person found in possession of the property; secondly, the property is positively the property of the complainant; thirdly, that the property was recently stolen from the complainant; and lastly, the stolen property in possession of the accused must have a reference to the charge laid against him.” *************************** Tunda s/o Hakimu @ Makoba v. R., Criminal Appeal No. 144 of 2020 [2020] TZHC 4172 Facts The appellant was charged with stealing 31 pieces of swim bladders worth TZS 10,000,000/= and burglary of the same items. In alternative to the two counts, the appellant was charged for being found in possession of the said goods, suspected of stealing from one Kawawa Masige of Bwai village within Musoma district in Mara region. The offence was allegedly committed at Kawawa Masige's residence at Bwai village on 31 August 2018. The appellant, who is also a resident of Bwai village and a neighbour of Kawawa Masige, was arrested at Kiabakari on the same morning of 31 August 2018, enjoying a ride on a motorbike while carrying a plastic bucket marked 'KM' connoting Kawawa Masige containing the stolen swim bladders, for which he did not have any plausible explanation as to their acquisition or ownership. The appellant was charged as above, and finally, he was convicted of burglary and stealing contrary to law. He was sentenced to five years imprisonment with an additional order to pay TZS 10,000,000/= in refunding Kawawa Masige the value of the swim bladders. That decision aggrieved the appellant hence the present appeal. Held The Trial Court found that the ingredients of theft were met as per Section 258(1) of the TPC. Furthermore, the court agreed with Mr. Ibrahim that the appellant was convicted based on the doctrine of recent possession. The Court reasoned that: The blue bucket containing the swim bladders was discovered with the appellant, the stolen goods were established to belong to Kawawa Masige, the appellant was detained the same day as the theft, and finally, the theft was the subject of the charges brought against the appellant.  (iv) The doctrine of Implied Consent: In some cases, implied consent counters fraudulent intent. For instance, if someone uses money entrusted to them in the honest belief that the owner would have approved, they may not be charged with theft because there was no intention to defraud.  (v) Taking: There must be taking or asportation for theft to be considered complete. According to Section 258(5) of the TPC, a person is not considered to have taken something unless they have moved or caused it to move or ‘taken’ it. Therefore, under this provision, even the smallest movement qualifies as theft. It may also amount to attempted theft if the stolen item was taken from its original location to another.  (vi) Conversion: The definition of theft in Section 258 of the TPC allows the crime to be committed in two ways: by a fraudulent taking (covered above) or a fraudulent conversion. 	 109 Criminal conversion entails taking possession of another person’s property without the proper authority with the sole intention of asserting control over it. It should be borne in mind that if a person takes another person’s property without any intention of exercising permanent or temporary control is not a conversion. A conversion must fit the "fraudulent conversion" criterion to be considered theft. Except in cases where the thing converted falls under Section 284 of the TPC, a conversion that does not amount to theft is not a crime under Section 258(2) of the TPC.  Hypothetical case of conversion, i.e., intentional or unintentional exerting unauthorised control over someone’s property: X has been keeping Y’s title deeds for ten years. Upon Y’s death, X refuses to give them up except on condition, which he had no right to impose, that is, to have the final say on Y’s last will.   Case Law: Imerimaleva and Other v. Dima Nhorongo (1991) TLR 1 Facts In December 1982, a group known as Sungusungu (traditional army/community-based security group) invaded the appellant’s homestead at Udongo Village, Sikonge Ward, in Tabora District. They drove 316 heads of cattle and two goats after torturing him and the animals were then distributed to the defendants. The appellant claimed the defendants had no colour of right over the animals. Despite several demands, none of the animals in question had been returned to him. The appellant claimed the return of the animals in his possession. Court’s Opinion/Obiter Dictum  The Court opined that “at law a person can be charged with conversion of goods if he had an actual or constructive possession of them at the time of the alleged conversion”. Note Apart from treating the Sungusungu’s action as a delict (civil wrong), the Court suggested that the victim could as well have instituted a criminal case against them for the said cattle’s conversion.  (vii) Unlawfully obtaining property: Section 311 of the TPC defines the offences of receiving and holding onto stolen or illegally obtained property. Receiving and holding onto are two distinct offences. Receiving suggests that the accused knew the item was stolen or acquired illegally when he received it. Keeping the property implies that the accused did not realise it was stolen or otherwise acquired illegally at the time of reception and only learned this information afterward. It follows logically that a person cannot be accused of receiving and retaining the same item since if he keeps the property after such discovery, he is considered to retain it. (viii) Being in possession of a possibly stolen item: For Section 312 of the TPC to apply, a person must have been held by a police officer per Section 25 of the Criminal Procedure Act (CPA). As a result, if someone is discovered in possession of or conveying in any way something that could reasonably be suspected of having been stolen or obtained 	 110 unlawfully, they may be charged with the crime of being in possession of, conveying, or in control of the stolen or acquired property unlawfully. • For this Section, "unlawfully acquired" refers to being obtained under conditions considered a crime under any written law. Sections 312(2)(a) and 312(3)(a) of the TPC explain why such property is deemed illegally acquired. • The detention of the accused by a police officer under Section 25 of the CPA constitutes the first element of this offence. A police officer of any level has the authority under this Section to stop, search, or detain any vessel, boat, aircraft, or vehicle if he has grounds to believe it may be carrying or carrying someone who is carrying something that is stolen or was obtained illegally. The accused must persuade the court that he did not steal or obtain the item illegally once the prosecution has proven these elements. (ix) Property (things) capable of being stolen: The general rule is that theft can only be committed for certain types of property (things). However, to qualify as property capable of being stolen, the property must comply with the following requirements: • The property must be movable; • The property must be corporeal (an independent part of corporeal nature, i.e. one cannot steal an idea or board or lodging); • The property must be in commercio (i.e., property capable of being sold, exchanged or pledged or generally privately owned). The following properties are not capable of being in commercio: res communes (property belonging to everybody, such as the air); res derelictae (property that its owner has voluntarily abandoned to get rid of it); and res nullius (property belonging to nobody but which can be subjected to private ownership).   In principle, the property must belong to somebody else, so one cannot steal one’s own property. However, the exception to this is the unlawful arrogation of the possession of a thing, i.e., an act of the owner of a property to dishonestly remove it from the control of a lawful user (furtum possessionis/theft of possession). For instance, X hires Y’s car for a month, then before the month's expiration, Y takes possession of the car without X’s knowledge from a parking lot and hides it.   3.2 Appropriation of electricity Section 283 of the TPC provides that anyone who "fraudulently abstracts or diverts to his or another person's use any mechanical, illuminating, or electrical power derived from any machine, power apparatus, or substance that belongs to another person" is guilty of a felony and could go to prison for five years. The TPC has provided factors that need to be present for the unlawful appropriation of electricity. The taking must be illegal, a plan to cheat, and an illegal transfer of ownership from the government to the person. It should be noted that previously, it was impossible to steal electricity. However, if credit can be stolen, so can electricity be appropriated? The fact that electricity is a corporeal object makes it possible to steal it. As a result, the energy loss on the grid can be examined, and because the grid is corporeal and tangible, electricity can be repossessed and thus stolen. For instance, TANESCO, a power company, makes electricity by putting charged 	 111 electrons into a grid and moving them around. In that case, the energized electrons have the property of being able to drive a load when driven in this manner. Once that characteristic (the energy by which it was moved) was used by an electrical appliance or a load, it was no more. This difference was lost and contributed to the loss of electricity use.  Case Law:  Richard Kombola v. TANESCO, Complaint No. EWURA133/1/185   Facts On November 01, 2013, the Energy and Water Utilities Regulatory Authority (EWURA) received a complaint from Mr Richard Kombole about the wrong power disconnection, done by TANESCO at Ukonga Majumba Sita in Dar es Salaam for allegedly stealing electric power by punching the wire lead.  Held The Court held that TANESCO bared the onus of proof on whether the accused, Mr Kobmole, had stolen electricity from the utility company. The Court found Mr Kombole guilty of electricity theft under Section 283 of the TPC.  3.3 Robbery Section 285 of the TPC, a person commits ‘robbery’ if she/he “steals anything and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” The crime of robbery is exemplified by bag snatching and hijacking. In short, robbery consists of theft of property by unlawfully and intentionally using violence to take the property from somebody else; or threats of violence to induce the possessor of the property to submit to the taking of such property. The elements of the crime of robbery are, therefore: • The theft of property (proof that the accused stole anything is required); • Through the use of either violence or threats of violence; • A causal link between violence and the taking of property; • Unlawfulness; and • Intention. In essence, a robbery occurs where X wants something from Y, but X has to resort to violence (either direct physical violence or threats of violence) to get this thing. Only movable corporeal in commercio property can be the object of the crime of robbery.  Causal Nexus: As has been stated, violence must precede the taking of property. For example, X assaults Y merely to assault Y, and in the process of the assault, Y’s wristwatch falls out of his pocket. Seeing the wristwatch, X then forms the intention to take it. In this instance, this will only amount to a charge of assault and theft, not robbery.  However, what about the situation where X breaks into Y’s house, collects a few items, and then Y enters the house, X assaults Y to stop Y from being in his way. This latter 	 112 situation applies to robbery as the appropriation of the property was made possible by violence (assault).  Case Law Magesa Chacha Nyakibali and Another v. Republic, Criminal Appeal No. 307 of 2013, Court of Appeal of Tanzania at Mwanza  Facts On 8 June 2006 at about 20.00 hours, Spice Rite Hotel, Bunda, Mara Region, was broken into by bandits and a shotgun make Excelsior 12 bore with serial number 0069 with ammunition in it was stolen in the process. It was alleged in the particulars of offence that the gun belonged to Mara Security Guards and Patrol Services Co. Ltd. The incident was reported to the police and investigations were carried out immediately. Meanwhile, on 14 June 2006 and 8 July 2006, incidents of armed robbery in the houses of one Njugulile and another Juma Marwa were reported. Information was revealed that the bandits who ambushed the residence of Juma Marwa were heading to Mwanza through the TANESCO high tension power line, which passes through Rubana River. A trap was laid. In one car, a Hiace, the police suspected two men who happened to be the first appellant herein and one Matiko Sando. Upon interrogations, the two confessed to having participated in the robbery at Spice Rites Hotel. They mentioned the second appellant as having been in the team that robbed the gun at the hotel on the date and time. Following his arrest, the second appellant confessed to having committed the robbery and led the police to Rubana River, where two guns and several machetes were retrieved. One of the guns was eventually identified by the first accused Samwel Mboje, who was guarding the Hotel at the time of the incident. Wilson Wangwe, the General Manager of Mara Security Guards Ltd., also identified the gun. It was essentially based on the above prosecution evidence that the appellants were convicted of armed robbery in the District Court of Bunda and the High Court, thus this appeal. Held The Court held: (i) One of the most crucial elements of armed robbery is the threat of physical violence against any person or piece of property (the victim should be specified). (ii) It is now a common rule that the charge's specifics must list all necessary ingredients or constituent parts of the offence. According to the fundamental principles of criminal law and evidence, the prosecution must demonstrate that the accused committed the actus reus of the offence with the required mens rea. Therefore, the particulars must include the offense's key elements and any purpose required by law to offer the accused a fair trial and allow him to prepare his defence. (iii) It must first be established that the item was discovered with the suspect, that it is unquestionably the complainant's property, that the item was stolen from the complainant, and that it was recently stolen from the complainant before a court of law can use the doctrine of recent possession as the basis for a conviction in a criminal case. No matter how many witnesses are present, discredited evidence regarding the search of the suspect and the recovery of the allegedly stolen property is insufficient to establish possession.  	 113 Robbery with Aggravating Circumstances: This is a more serious manifestation of robbery. Aggravating circumstances are defined as the following: • The use or the yielding of a firearm or other dangerous weapon: e.g. X robs Y while using an axe or a firearm. • The infliction of grievous bodily harm: e.g. X cuts off Y’s hand to steal her handbag. • A threat to inflict grievous bodily harm. If any of the above circumstances are present, it constitutes robbery with aggravating circumstances. Robbery with aggravating circumstances carries a heavier sentence than a ‘simple/normal’ robbery.  3.4 Housebreaking Housebreaking with intent to commit a crime consists of unlawfully and intentionally entering a building or structure to commit a crime inside the building or structure. The legal interest protected is twofold, i.e., the right to the undisturbed enjoyment of his/her residence (undisturbed habitation), and the right to the undisturbed storage of a person’s property. The elements of the crime of housebreaking with unlawful intent are breaking; entering; a building or structure; unlawfully; and intentionally. There must be actual entry to commit this crime. If, for instance, X breaks Y’s door to his house but does not enter the house, this will most probably amount to malicious injury/damage to property but not to housebreaking with intent.  Case Law: housebreaking and burglary Amrani Ramadhani Mohamed @ Chema v. R., DC. Criminal Appeal No. 48 of 2022, High Court of Tanzania Facts The accused person was charged with and convicted of burglary, among other offences, contrary to Section 294(1)(a)(2) under the Penal Code [Cap 16 RE 2019]. On appeal, the Appellant argued that for the offence of burglary to be proved: one, the element of breaking and entering has to be proved; two, it must be proved that it was committed during the night and three, the accused intent to commit it. Held  Among other things, the Judge quashed the conviction for burglary and observed that “[…] breaking alone does not necessarily mean burglary, as breaking can be committed either at night or daytime. It is elementary knowledge that burglary is only said to have been committed only if the offence of house breaking was committed in the night… The charge sheet did not disclose the necessary information for the offence of burglary, in that it is silent as to whether the alleged breaking was committed in the night or daytime. This is fatal […]”  i) Breaking: Breaking is defined under Section 293 of the TPC as the removal or the displacement of any obstacle that bars entry to the structure and which forms part of the structure. Therefore, if X walks through an already open door, he will not commit this crime (X has to remove or displace an obstacle). Damage is also not required for 	 114 this crime (“breaking” is merely a technical term). If a door or a window is partially open and X opens it further to gain entry, this will constitute breaking for purposes of this crime. ii) Entering: Entry is completed at the moment that X has inserted any part of his body or any instrument he is using for that purpose into the opening to thereby exercise control over some contents of the building/structure. iii) Lawful: Entering the house must be unlawful, and some of the usual grounds of justification can render X’s entry into a house as lawful. For example, X has the authority to be on the property during the week but has no such authority over weekends. Therefore, if X breaks into and enters the property on the weekend, he has committed this crime. This is so because X has exceeded the bounds of his authority to be on the property. Another example is where X enters a building through open doors but then breaks open an office door. This will also be housebreaking with the intent to commit a crime. iv) Premises: The general rule is that any structure or premises in respect of which this crime is committed can be any structure that is or might ordinarily be used for human habitation or the storage or housing of property. Being used for human habitation means that the building/structure can be both immovable and movable (such as a caravan). The building/structure can also be a storage facility or a cabin on a ship. There is no hard and fast rule as to what will suffice as a structure, but the general rule is that it must be used for human habitation (such as a house, business premises, and storage facility). v) Intent to commit a crime: Sometimes, the prosecution side is unaware of the intention of the accused person. In such cases, the prosecution will charge the accused with housebreaking whether the intent is known or not to the state. If the intent is unknown, the prosecution may infer an intent from the circumstances of the case to prove their case beyond reasonable doubt.  Case Law: R. v. Ntibilanti (1972) H.C.D No. 106 Facts The defendant was prosecuted and found guilty of breaking and entering under Section 294(1) TPC despite being medically certified as twelve years old. He was also given a conditional discharge. The offence that the accused intended to commit was not identified in the charge.  Held The Court held that “time and time again this court has stressed that a charge of house breaking should specify the felony that was intended. It is a cardinal principle that a complaint should be couched in words which sufficiently inform the accused of the nature of the offence with which he stands charged.”  3.5 Burglary Burglary is the act of breaking into a home at night. Housebreaking has a fourteen-year prison sentence, while burglary carries a twenty-year sentence. Burglary is covered under 	 115 Section 294 of the TPC. Section 5 of the TPC defines night-time as “the period between seven o’clock in the evening and six o’clock in the morning.”  Case Law: Festo Komba v. Republic, Criminal Appeal No. 270 of 2014    Facts On 21 August 2003, at 19.30 hours, while she was busy in her kitchen, Beatrice Nindi heard a loud noise in the direction of her room. She immediately went into the room to see what had caused the noise. To her surprise, she found a person taking away a radio. She tried to prevent him from going out with the property by getting hold of his shirt, but the person overcame her and ran away into the darkness. Disturbed by that incident, she raised an alarm which was positively responded to by people who, after hearing it, convened at the scene. The same night, the incident was reported to the Ward Secretary, who advised that the matter should be dealt with the next day. On the following day, 22 August 2003, Beatrice Nindi sent one youth, January Mponji, to Songea town to inform her husband, Adilikina Nyoni, about the incident. Upon his return, Adilikina Nyoni went to the office of the Ward Secretary and upon being asked to name the suspect, he said that he suspected the appellant. He was then assigned a militiaman, Bakari Soko. With other persons, Bakari Soko and Adilikina Nyoni arrested the appellant at his residence. What followed after the appellant's arrest was that Adilikina Nyoni, Bakari Soko and other persons went with him to an area where the radio, which was the subject of the charge, was recovered. The same was uncovered from the ground, where it was buried in between banana plants. The appellant was taken to the police, where he was later charged. In the course of the investigation, on 25 August 2003, the police/D/C searched the appellant's residence. Humfrey seized one Yuasa battery and three radio cassette tapes from the appellant's residence. This was done without the presence of the appellant. Held (i) The facts of this case are somewhat similar to those found in the case of R v. Damas Herman (1961) I EA 591 whereby the Court held that burglary is not a completely different offence from but an aggravated form of housebreaking which carries an enhanced sentence if the additional element, a commission in the night, is both charged in the Court and proved at the trial. If the additional element is either not charged or, if so, not proved, the offence is nevertheless housebreaking no matter at what time it may be committed. (ii) The irregularity in R v. Damas Herman (1961) I EA 591 was that there was no evidence showing at what time of the day or night the offence was committed, whether it was housebreaking or burglary. The Court of Appeal found thus that the conviction on the offence of housebreaking was proper. (iii) In the present case, however, it was clearly stated in the particulars of the offence that the time at which the offence was committed was at night. (iv) Although the appellant was charged with housebreaking, according to the evidence, the committed offence is burglary. (v) Decision was quashed, and the appellant was released from prison.  	 116 3.6 Other Property Offences  3.6.1 Entering a dwelling house with the intent to commit a crime Section 295 of the TPC states that entering must occur through a doorway typically used for egress. That door or window should not be shut or locked.  3.6.2 Entering a building without permission and committing a crime Under Section 296 of the TPC, the prosecution must be able to demonstrate the following elements to secure a conviction for this offence: That the accused broke into a property; and that the facility in question was a school, garage, office, or counting-house, shop, store, etc.; that he entered the structure and committed a crime there.  Case Law: The accused in Masemu Butili v. R. (1971) H.C.D No. 81 damaged a garage door but was scared away before he could enter the building. He was found guilty under Section 296(1) of the TPC. The following elements must be proven to establish an offence under this Section: a) The commission of the felony therein; b) A breaking and entering; and c) Into one of the buildings listed in the statute. It does not appear that a garage was within the defined types of buildings. Furthermore, neither an entry into the building nor the committing of a crime there occurred.  3.6.3 Breaking into a building with the intent to commit an offence The same elements apply to this crime: breaking into a building and committing a crime inside. The governing statute for this offence is Section 297 of the TPC.    3.6.4 A person found armed with intent to commit an offence Section 298 of the TPC punishes a person found with weapons or the intent to commit a crime. The hardest element of proving any of these offences is demonstrating the intended victim. Naturally, this will depend on the situation in which the suspect was discovered. An inference could be drawn from the fact that the defendant was unfamiliar with the area; the object or weapon was inappropriate for a person to carry while conducting a lawful activity; he was discovered squatting close to the property; or when discovered, he tried to flee.  3.6.5 Criminal trespass To be found guilty under Section 299 of the TPC, the prosecution must demonstrate that the subject property belongs to another; the accused's entry into or use of the property was illegal since it was done without the owner's permission or a valid justification; and the accused intended to conduct an offence or to frighten, insult, or irritate the owner of the property when they did it.   	 117 Case Law: In Paul Kajuna v. R. (1967) H.C.D. No. 318 case, the defendant was found guilty of criminal trespass despite asserting that he believed the property belonged to him. The accused had attempted to claim possession of the property in the earlier legal dispute but had been unsuccessful. It is inadmissible for the accused to claim that he honestly believed the land to be his, given the earlier determination of ownership.  3.6.6 Malicious damage to property Contrary to popular belief, the legal definition of "malice" is an intentional wrongdoing committed without good reason or excuse. Section 326 of the TPC states that someone commits a malicious act when they do something, knowing it would harm someone else or their property.  A person commits this crime if they unlawfully and intentionally damage the property or a thing (including animals) belonging to another person, or if the perpetrator damages his/her own property to claim the value thereof from the insurance company.  The elements of malicious injury to the property are the damaging of property, unlawfully and intentionally.  Case Law: Mohamed Mshauri v. Gerald Amandi, PC., Criminal Appeal No. 12 of 2019, High Court of Tanzania Facts The appellant was charged with Malicious Damage to Property contrary to Section 326(1) of the TPC, Chapter 16. It was alleged that, on 16 March 2018, the appellant using a tractor, ploughed the respondent’s paddy field thereby causing damages to the seedlings, all the damages valued at Tshs. 240,000/=, which act, to his knowledge, was contrary to the law. The appellant denied the charge raising a defence that the said paddy field/plot was his as the dispute over the disputed land was resolved in his favour. The trial court found him guilty of the offence charged with, convicted, and sentenced him to pay a fine of Tshs. 150,000/= or serve an imprisonment term of two months in default. And in addition to that, he was ordered to compensate the respondent Tshs. 240,000/= for the loss he suffered by damaging his seedlings. Held The Judge quoted the case of Lawrence Mateso v. R. [1996] TLR 118 with approval and allowed the appeal. He reasoned that: (i) What constitutes the offence of malicious damage to property, first is the intent to commit the offence which is ‘malice' as the accused is presumed to have so acted wilfully and unlawfully in destroying or damaging the alleged property. Thus, this major ingredient must be proved before the accused is convicted of the offence leave alone proof of ownership and damage or destruction of the disputed property. (ii) It is on record that ownership of disputed land was once determined by the Mkindo Land Ward Tribunal in Land Cause No. 23 of 2017 by allowing both parties to utilise their 	 118 land as per the demarcations shown by them. The Land Ward Tribunal judgment does not bear the sketch map to show the disputed land for this court to satisfy itself of the exact area which the appellant is alleged to have ploughed and damaged respondent's property. (iii) The offence of malicious damage to property was not proved beyond reasonable doubt against the appellant.   3.6.7 Arson Arson is defined by Section 319 of the TPC as the purposeful and unlawful lighting of a fire in a mine, or in the workings, fixtures, or equipment of a mine, or any building, structure, or vessel, whether complete or not. To qualify as arson, the accused must have intentionally and unlawfully set fire to any of the items above. A person commits arson if he/she unlawfully and intentionally sets fire to movable or immovable property belonging to another or his/her own immovable insured property to claim the value of the property from the insurance company. The elements of malicious injury to the property are: setting fire to; movable or immovable property; unlawfully, and intentionally.   Please note that if a person sets fire to a movable structure, this will amount to malicious injury to property and not arson.  Malicious injury to property Arson Malicious injury to property can be committed in relation to movable and immovable property.  Arson can only be committed in relation to immovable property.  Malicious injury to property is a materially defined crime: • It is a result of a crime;  • The damage caused by X to the property is punished. Arson is a hybrid offence: • Hybrid refers to the fact that this crime is formally and materially defined. • Punish the act of setting on fire as well as the consequences thereof.  Case Law: Rajabu Hassan Mfaume and 3 Others v. R., Criminal Appeal No. 30 of 2020 Facts The appellants were charged with and convicted of six counts, including arson contrary to Section 319A of the TPC. 28 October 2020 was the General Election Day in Tanzania. The first appellant was a contestant in the position of a Ward Councillor commonly referred to in Kiswahili as "Diwani" for Majengo Ward in Lindi District on a Chama Cha Demokrasia na Maendeleo (CHADEMA) ticket. The 2nd and the 3rd appellants were Agents "MaWakala" on behalf CHADEMA, one of the political parties that took part in the election. It is alleged by the prosecution that in the night hours of that day, mayhem or fracas erupted which led to the setting ablaze of the office of Majengo Ward. A few days later, that on 1 November 2020, the appellants were arrested. Aggrieved by both conviction and sentence, the appellants have approached this court in its appellate jurisdiction.  	 119 Held The Judge allowed the appeal and agreed with the defence’s submission that: (i) The prosecution failed to establish elements of arson: (a) the accused destroyed or significantly damaged property, (b) the property [so damaged] belongs to another, (c) the accused intended to destroy or damage the property, (d) the damage or destruction occurred by fire, (e) the accused intended to damage or destroy the property by fire, and (f) the accused did not have a lawful excuse on his or her action. (ii) The appellants were not legally identified that they took part in the alleged arson.  3.6.8 Setting fire to crops and growing plants According to Section 321 of the TPC, the following are the primary elements of this offence: burning grasses, trees, and other vegetation being or have been farmed. Simple negligence or accidents are insufficient, meaning the offence must be carried out intentionally or recklessly.  3.6.9 Injury to animals According to Section 325 of the TPC, the accused's act must have been both wilful and illegal. The damage cannot be a by-product of another offence. It is crucial to understand which animals are eligible for theft under Section 257 of the TPC.  3.7 False pretences Under Sections 301-310 of the TPC, it is a false pretence if someone makes a representation – by words, writing, or conduct – of a fact – past or present – that was untrue, and that person knew it to be false or did not believe it to be true. Before 1980, the law prohibiting false pretences did not apply to future representations. The Court was reluctant to apply future representation to form the offence of false pretences because Section 301 of the TPC did not encompass future instances. Under the current law, to prove false pretences, the prosecution must demonstrate that the accused made a representation through speech, writing, or conduct; representation concerned a reality or an aim; and the defendant or the individual who made the alleged representation was aware it was untrue or did not hold it to be true. One dimension of false pretence is “getting credit by false pretences”. Under Section 305 of the TPC, the prosecution must demonstrate the occurrence of debt or liabilities using deceptive means and the desire to defraud. Simply put:  • Becoming liable or indebted; • Through deceptive means; and • Intention to defraud. For instance, when a man enters a bar, orders a drink, and fails to pay, that individual has committed the crime of obtaining credit under false pretences.   Case Law: Hamida Nuhu and Ramadhan Abdallah v. R., DC Criminal Appeal No. 106 of 2019, High Court of Tanzania 	 120 Facts Among other things, the trial court convicted the appellants for the offence of obtaining money by false pretence contrary to Section 302 of the Penal Code. Between 1 January, and 30 May 2017 at Miningani Street in Kondoa District by false pretences and with intent to defraud the appellants did obtain cash money Tshs. 21,000,000/= from on Ramadhani Ally by pretending that they would sell him a house on Plot No. 91 Block EE, Miningani Street knowingly that the said house was in a conflict with CRDB Bank (encumbered).  On appeal, the issues were whether the Appellant committed false pretence, and whether the matter in dispute falls under civil and not criminal law. Held The Judge dismissed the appeal in its entirety. Regarding the first issue, the Judge quoted the decision in Longimus Komba v. R., [1973] LRT No. 39 with approval, which contended that in certain circumstances silent conduct may amount to false representation. In the case at hand, the Judge argued that there were two crucial facts for the seller to state. One, that they as a couple owned two houses at Miningani Street, being house on Plot No. 91 Block EE and house on Plot No. 188 Block DD. Two, that one of the houses is encumbered by a bank mortgage. None of these two crucial pieces of information were mentioned. The appellant, though he had no legal duty to speak them out, implied a false representation through their concealment.  On the second issue as to whether the matter should have been governed by civil procedure and not criminal law, the Judge opined that once all the ingredients of the offence are proved, the matter falls under criminal law.  ************************* Case Law: Ibrahim Loya v. R. [1991] TLR 162 Facts The appellant was charged before the District Court of Tabora with three offences. In the first count he was charged with corruption contrary to paragraph 2 of the first schedule to and Sections 56(2), and 59(2) of the Economic and Organized Crime Control Act No. 13/84. He was convicted of this offence and sentenced to 4 years imprisonment. In the second count he was charged with the offence of personating a public officer contrary to Section 100(1) of the Penal Code, convicted and sentenced to 6 months imprisonment. In the third count he was charged with and convicted of attempt at extortion contrary to Section 290(1) of the Penal Code and sentenced to 3 years imprisonment. The complainant had committed an offence known to law at the time the appellant put him under restraint and demanded bribe from him.  Held (i) There is abundant evidence supporting the conviction of obtaining goods by false pretences c/s 302 of the Penal Code. This is so because the complainant committed an offence known to law at the time when the appellant purported to accuse him of having committed the offence of assault. The conviction of the offence of obtaining goods in the first count is thus substituted for conviction of the offence of corruption. 	 121 (ii) Having been proved that the appellant had falsely represented himself as a policeman and that the complainant had agreed to give out money because of the appellant's personation as a policeman, the offence of attempts at extortion c/s 290 of the Penal Code was a duplication of the second count of personating a public officer c/s 100(1) of the Penal Code. Conviction of personation upheld, third count of attempts at extortion quashed and sentence of 3 years imprisonment imposed thereon set aside.  3.8 Extortion Under Sections 289 and 290 of the TPC, extortion is committed when a person unlawfully and intentionally obtains some advantage, which may be either of a patrimonial or a non-patrimonial nature, from another person by subjecting that person to pressure which induces him/her to hand over the advantage. The following element of the crime of extortion must be proved: ü The obtaining of a benefit or advantage; ü By means of exercising/inducing pressure; ü There must be a causal link between the pressure and the acquiring of the benefit. ü Unlawfulness; and ü Intention.  Case Law: Joshua Mulindwa v. R., Criminal Appeal No. 478 of 2015, Court of Appeal of Tanzania Facts In this case, the Appellant was not charged with the offence of extortion despite the facts exhibiting all necessary element of the Offence. On 12 May 2013, the Headmaster of Bukoba Secondary School (PW1) was informed that the keys of the school's academic office were missing. After consultations with his colleagues, it was decided that the padlock be changed. The same day when the decision was made that the padlock be changed it was discovered that 125 academic certificates and 75 results slips for Form IV and Form VI of different academic years were missing.  PW1 received communication from someone who purported to have the certificates and the result slips. The Appellant, Joshua Mlindwa (a security guard at the school) at first demanded Tshs. 2,600,000 /- from PW1 so that the documents could be returned to him. After negotiations, the amount demanded was reduced to Tshs. 1,500,000/-. PW1 was directed to send the money through M-Pesa with Mobile No. 0766116147. PW1, in the course of communicating with the Appellant, retrieved three certificates and three result slips as proof that the Appellant possessed the documents for which he was extorting money. PW1 decided to involve the police who arrested the appellant and found him in possession of 123 academic certificates and 41 result slips stolen from the school. The Appellant was charged with and convicted of breaking into a building and stealing.  Held The Justices of Appeal dismissed the appeal and held that they “have no doubt that the appellant committed the crimes that he was charged with. He is lucky that the prosecution 	 122 was unable to come up with a charge on extortion because evidence also showed that he did extort money from PW1 so that the certificates could be returned to the school.”  3.9 Forgery Under Sections 333-352 of the TPC, forgery is committed by unlawful and intentional making of a false document (this includes music, statues, paintings etc.) with the intent to defraud to the actual/potential prejudice of another. These are two separate crimes and not one crime. Forgery is completed the moment the document or object is forged. In practice, X commits two crimes where he forges and alters (produces fake money, then takes and uses it). If there is only forgery, then X will be guilty of forgery only. Likewise, if there is only altering, then X will be guilty of altering only.   	 123 Differences between Fraud and Forgery Fraud Forgery The misrepresentation can take any form. The misrepresentation is always in the form of a forged document or object.  Fraud is completed the moment the misrepresentation comes to the complainant's attention. Forgery is completed the moment the document/object is forged/completed.   Something will not be forged merely because it contains a lie or untruth. For instance, A is addicted to pills and goes to the Doctor who does not know him. A introduces himself as B. He lies about his identity. The doctor consults A without knowing about A’s addiction. He prescribes the name of B. A is presenting to a Chemist. Did A commit forgery, fraud, or altering? Solution: A did not forge or alter any document – he faked or told a lie, but the document presented to the Doctor and Chemist was authentic. In reality, A committed fraud or impersonated B. A forgery purports to be what it is not – it tells a lie about itself. For example, if a person signs or affixes a false signature in a Will or insert information in a Will (not originally part of the Will) amounts to forgery. Therefore, to forge means that X must tamper with the originality of the document – additions, erasures, substitutions, amendments, alterations, or creating a new document. In Section 334 of the TPC, they may be written or printed; trademarks and other signs used in connection with commercial goods are not considered documents.  Case Law:  DPP v. Justice Lumima Katiti and Others, Criminal Appeal 15 of 2018, Court of Appeal of Tanzania Facts: The four respondents answered a charge consisting of ten counts. Out of those ten counts, the second and third counts were preferred against Godwin Mgonda Paula (the 4th respondent). The 4th respondent was charged with forgery contrary to Sections 333, 335 and 337 of the Penal Code. It was alleged that, with intent to defraud or deceive, the 4th respondent forged a document known as Request for Swift Customers Transfer Form (E.17) purporting to show that Tourism Promotion Services Tanzania Limited (TPST) requested Barclays Bank Tanzania to pay East Africa Procurement Services Limited. Also, the 4th respondent was charged with uttering a forged document contrary to Section 342 of the Penal Code. It was alleged that the 4th respondent uttered the forged form E.17 to the bank fraudulently to show that TPST had instructed that bank to make payment of TZS 338,935,337.46 to EAPS. (EAPS) TZS 338,935,337.46 for supply of campsite tents and equipment, knowing it to be untrue. The prosecution sought to prove forgery through gazetted handwriting expert and investigator from PCCB (anti-graft bureau). The respondents totally denied committing the offences. The trial court found investigator's evidence to be of no value for the reason 	 124 that he did not display photographic enlargements of the handwritings as required by law. On the other hand, the learned judge of the High Court was satisfied from the totality of the expert’s and investigator’s evidence on forgery but concluded that there was no evidence to link any of the respondents with that forgery. Thus, this appeal by the DPP. Held The payment into the account of EAPS was a result of a forged transfer form. The Court was far from convinced that these two transactions were isolated incidents or that they are a mysterious coincidence. They took them to be a manifestation of the same jigsaw, which, when its pieces are put together, there is left only one conclusion that there is no other TZS 338,935,337.46 lying somewhere in one of TRA's other accounts. The Court was also satisfied that the first respondent misled his principal by making false entries of tax collection and a document known as single record view of VAT payment from TPST for the month of August 2008. It concluded that the prosecution proved the charge against the respondents beyond reasonable doubts. Thus, all respondents are found guilty and convicted on the first and fourth counts. The 4th respondent is in addition, found guilty and convicted on the second and third counts (forgery). ********************* Joseph Mapema v. R. [1986] TLR 148 (HC) Facts The appellant was charged with and convicted on 22 counts of forgery, 22 of fraudulent false accounting and 23 counts of stealing. On appeal he argued that evidence on the disputed handwriting was not given by an expert. Moreover, it was pointed out that the trial court was wrong in convicting the appellant on both forgery and fraudulent false accounting.  Held (i) For the purpose of enabling a court to decide the author of any piece of handwriting in dispute, the opinion of a person who is conversant with the handwriting of the disputing author is as good as, if not sometimes better than, that of a handwriting expert. (ii) It was wrong for the trial court to convict and sentence the appellant on both forgery and fraudulent false accounting.       	 125 SECTION 4: CRIMES AGAINST THE COMMUNITY The crimes against the community encompass public violence or crimes against public tranquillity, corruption, traffic offences, prostitution, drug trafficking, firearms violations and other offences against the community's welfare. These offences find their origin in the Statute and Common Law. The existence of these crimes must constitute unlawfulness, intention, and the fact that they inconvenience other community members.    In Tanzania, there is an overlap between crimes against the community, human life, the person and the family on the one hand and offences against the state (covered under the next Section) on the other hand. Crimes against the community are covered under Chapters X, XIV, and XVII of the TPC. In a nutshell, crimes against the community include: disturbing public tranquillity tranquillity/public violence, corruption/bribes, traffic offences, prostitution, drug abuse and trafficking, illegal possession of firearms and ammunition, abuse of office, false certificates by public officers, unauthorised administration of the extra-judicial oath, false assumption of authority, impersonating public officers, the threat of injury to persons employed in public service, insulting to religion, disturbing religious assemblies, trespassing on burial or other places, hindering burial of the dead body, uttering words with intent to wound religious feelings, common nuisance, pyramid schemes, traffic in obscene publications, rogues and vagabonds, a negligent act likely to spread infection, adulteration of food or drink intended for sale, sale of harmful food or drink, adulteration of drugs, sale of adulterated drugs, fouling the water, fouling the air, and offensive trades.  Discussion of selected crimes 4.1 Disturbing public tranquillity/public violence This unlawful or intentional act is committed by several persons, acting together. Such an unlawful conduct assumes profound dimensions and is intended to disturb the public peace and tranquillity or invade the rights of others. Key takeaways:  • This is a situation where a group of people is taking part in a strike, and in the process of the strike, they cause property damage. • The situation where a group of people invade some public place and disturb the peace and tranquillity of such a place. • Each person in the group must be aware of this act (there has to be some form of common purpose within the group to disturb the peace and tranquillity of the public). • This crime has to be committed by a group of people and cannot be committed by a person on his/her own. • Once the prosecution has proven prior agreement, it is unnecessary to prove every role player's part in this activity (doctrine of common purpose).  Public violence is defined and regulated under Section 74 of the TPC, stating that: “When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as 	 126 to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.”  It should be noted that it is immaterial whether the assembly that led to public violence was lawful. In addition, to maintain public tranquillity, Section 87 of the TPC establishes the offence of affray, i.e. it bans people from taking part in a fight in a public place. If one is found guilty of a misdemeanour and convicted, they will be imprisoned for six months.   Case Law: Republic v. Israel (1968) EA 609, the accused, Israel, was jointly charged with Salim for disturbing the public tranquillity. The conviction of Israel was squashed as the evidence did not meet the ingredients of the TPC. The Court followed the ingredients of the TPC, namely (1) there must be a fight, (2) the accused took part in it, and (3) the fight occurred in a public place.   4.2 Corruption Anyone who gives or receives gratification from another to persuade the recipient to act in a way that amounts to unlawfully performing any obligations is considered to have engaged in corruption. To prove corruption, there must be the following: parties to the offence; presence of gratification; to entice/induce certain unlawful acts; and intention to corrupt. The Prevention and Combating of Corruption Act 2007 (PCCA) is Tanzania's primary statute governing anti-corruption. It is applicable in conjunction with other relevant statutes, including the Anti-Money Laundering Act 2006, the Economic and Organized Crimes Control Act [Cap. 200, R.E. 2002], the Criminal Procedure Act, [Cap. 20, R.E. 2002], the Public Procurement Act 2011, the Public Finance Act 2004, subsidiary legislation, and any guidelines issued from time to time. The PCCA creates corruption and related charges but does not define the word "bribe" specifically. According to the PCCA, it is illegal to solicit, accept, agree to accept, or attempt to obtain any benefit for oneself or another person without just compensation or for just compensation that one knows or has reason to believe is insufficient from anyone they know or have reason to believe has been, is, is likely to be, or is about to be, involved in any matter or transaction with them or having any connection to their office. According to the PCCA, it is also illegal for someone in a position of authority to demand or impose sexual favours or any other favours on another person as a prerequisite for granting them employment, a promotion, a right, a privilege, or any other preferential treatment. The PCCA also specifies what counts as a corruption-related violation and a corrupt transaction. To corruptly solicit, accept, or attempt to obtain anything for oneself, another person, or any agent – whether or not that agent is the same person as the first person mentioned – is illegal. This is true regardless of whether the agent is authorized to handle 	 127 their principal's affairs or conduct business, whether they have done so or not, or whether they have done so or refrained from doing so.  Giving, promising to give, or otherwise providing any benefit to someone as an inducement or reward, whether for their own or another's benefit, is thus illegal. Such benefit may be given, promised, or offered to an agent before or after the agent takes or refrains from taking any action regarding the affairs of their principal.  The PCCA forbids giving gifts or payments to officials in the public and private sectors or individuals in positions of authority to obtain any illegal business advantage. In a nutshell, corrupt practices that can lead to prosecution include corrupt transactions in contracts, procurement, auctions, and employment; bribing local and foreign public officials; demand and imposition of sexual favours; embezzlement; misappropriation; abuse of position; attempt; and conspiracy. Regarding the investigation and prosecution of corrupt offences in Mainland Tanzania, the Prevention and Combating of Corruption Bureau (PCCB) has a carte blanche in corruption cases. However, PCCB tends to collaborate with the DPP, the Financial Intelligence Unit (FIU), and the Director of Criminal Investigations (DCI). Depending on the charges, corruption cases are heard by the High Court of Tanzania's Corruption and Economic Crimes Division, the High Court of Tanzania's Main Registry, or the Resident Magistrate's Court.    The Corruption and Economic Crimes Division deals with the relevant cases whose value is not less than one billion shillings, except for serious offences concerning wildlife, money laundering, drugs control, terrorism, forestry, armaments, oil and gas revenues, cyber, deep-sea fishing, territorial sea and exclusive economic zone, firearms and ammunition, petroleum, electronic and postal communications, and whistleblower and witness protection. These include hoarding commodities, leading organised crime, fraudulent schemes (games and artifices, theft of public property), persons conveying or having possession of goods suspected of having been stolen or unlawfully acquired, authorisation of unlawful supply of designated authority goods, occasioning loss to at specified authority, offences relating to uncustomed goods, interfering with a necessary service, using firearms to commit assault or robbery or any other offence punishable with death or life imprisonment, mining offences, theft of mail matter (post office), hoarding of money, medicine/drug offences, offences under the PCCA (see above) and others from the TPC (piracy,  abuse of office, hoarding of commodities, causing pecuniary loss or damage to property of specified authority, and fraudulent accounting by public officer). Therefore, an offence that does not fall under the above categorisation and its monetary value is less than one billion shillings can be tried in the Resident Magistrate’s Court. The DPP or a DPP’s delegatee (State Attorneys) can refer criminal cases to the High Court’s Corruption and Economic Crimes Division or the Resident Magistrate's Court to other Subordinate Courts and vice versa. This is done through a certificate directed to the respective Court and parties to the proceedings. The certificate to transfer such cases to other Courts is affected under the pretext of protecting the public interest or some other 	 128 reasons deemed necessary or appropriate by the DPP or his delegate. The offence subjected to the DPP’s certificate can be non-economic or economic and non-economic.  See, Sections 3 and 12 of the Economic and Organised Crime Control Act [Cap. 200, R.E. 2019] read together with the First Schedule.  A person found guilty of corruption, could get a sentence of three to seven years in prison, a fine, or a combination of both. A conviction of corruption, also means such a person may be subject to confiscation or forfeiture of the crime's proceeds, including the money earned from contracts obtained through corruption and the number of bribes paid. The assets of a person convicted of corruption could be frozen while the criminal proceedings are processed. If a political or charitable donation is made with the intent to get any benefit without providing legal consideration or for an amount that one knows or has reason to suspect is insufficient, it may be construed as bribery or corruption.  Under the PCCA, no specialized legal defences against bribery and corruption charges exist. Depending on the case's specifics, one must demonstrate that the benefit or property was obtained legitimately. Corruption charges may be resolved with a Deferred Prosecution Agreement (DPA)/Plea Bargaining under Section 194A-H of the Criminal Procedure Act, [Cap. 20 R.E 2019], as amended by the Written Laws (Miscellaneous Amendments) (No. 4) Act, 2019.  The prosecution may propose a DPA after speaking with the victim and the investigator, or the defendant and their attorney may start the process and inform the Court that they intend to negotiate a DPA. If a DPA is presented and approved and provided that the DPA's terms are satisfied: Depending on the facts of the case, the prosecutor may choose to charge the defendant with a lower crime, drop other counts, or take any other appropriate action. In exchange for the withdrawal of other charges, the accused may enter a plea of guilty to the offence charged, a lesser offence, or a specific count or counts in a charge with several counts; or the proceeds and tools used to commit the crime in question may be forfeited, or the accused may be required to make restitution or pay reparation.  Case Law:  Buyigo Yusuph Mvuyekule v. R., Criminal Appeal No. 16 of 2021, HC - Bukoba Facts The Appellant was charged with 25 counts of corrupt transactions contrary to Section 15(1)(a) of the Prevention and Combating of Corruption Act. The appellant, on 27 August 2019, and another person, namely Aidan Mpenda Chamubale did corruptly solicit and obtained an advantage worth the sum of shillings 100,000/= from 20 people applying for the post of spray operator. Each applicant for the vacant post paid shillings 5,000/= as an inducement of discussing and passing applications for the advertised post. After hearing the prosecution and defence case, the Court convicted the appellant for all 25 counts and was sentenced to pay a fine of shillings 500,000/= being a fine for each offence or, in 	 129 default, to serve three years imprisonment. The Appellant was aggrieved by the decision of the District Court and filed the present appeal. Held On appeal, the issue for determination is whether the evidence available in record proved the offence of corrupt transactions against the Appellant. The Judge held that: (i) The offence of corrupt transaction as provided by Section 15(a) of the Prevention and Combating of Corruption Act, Cap. 329 R.E. 2019 is committed where a person who corruptly by himself or in conjunction with any other person solicits, accepts or obtains, or attempts to obtain, from any person for himself or any other person, any advantage as an inducement to, or reward for, or otherwise on account of anything in relation to his principal's affairs or business. (ii) The Appellant and his fellow accused person did not deny receiving the money from 20 Applicants, the fact which cements the prosecution’s case. (iii) The evidence available proved that the Appellant obtained advantage from twenty applicants and soliciting advantage from three witnesses (PW4, PW5 and PW7).  4.3 Traffic offences The Road Traffic (Notification of Offences) Regulations 2011, as updated by the Road Traffic (Notification of Offences) (Amendment) Regulations 2015, explain how fines are given for breaking traffic laws. The Regulations give police the authority to punish a driver they suspect of committing one of the traffic offences listed in the First Schedule to the Regulations. To get the fine, the law says that a police officer must give an electronic ticket to the driver who is being accused. Before giving the driver the electronic ticket to pay the fine, the law does not allow for the opportunity to hear their side of the story. Suppose a driver denies committing the traffic violation and refuses to pay the fee. In that case, they must appear at the nearby police station to be transported to Court to address the claimed charges of violating traffic regulations. The traffic police and the driver will both have to testify in Court to determine whether the claim that the driver did something wrong is valid. If the driver shows up at the police station within seven days of getting the electronic ticket, the driver will get a fine. In that case, it is assumed that they have admitted to doing what they are accused of and will have to pay the fine. So, a driver who does not agree with the alleged traffic violation has two options: either pay the fine or, if they do not agree with the offence, go to the police station to face charges and get the right to dispute the alleged traffic violation. When there is a traffic violation, you must pay a fixed fine within seven days of getting an electronic ticket. The motorist must pay a default penalty and a fixed fine if payment is not made within seven days. 25% of the predetermined penalty fine is the defaulting fine. The driver must pay the fixed fine plus the defaulting fine at a rate of 50% in addition to the fixed fine if they fail to pay the fixed fine more than 14 days after the date the electronic ticket was printed. The driver is considered to have committed another offence by failing to pay the fixed fine if the default to pay the fixed penalty continues after 30 days. If the fixed fine for the first traffic violation is not paid in full within 30 days, the total amount owed will go up by 50%. 	 130 This means that if a fixed fine imposed by the traffic police is not paid after 30 days, it constitutes a separate offence and is punishable by TZS 50,000.  4.4 Prostitution Sections 146 and 146A of the TPC do not expressly forbid prostitution. It only makes it illegal to depend entirely or partially on prostitution-related income (sex workers and maintaining a brothel). Prostitution itself or visiting a brothel is not prohibited; instead, it is a crime to live off the revenues of prostitution. Therefore, a person is not breaking the law if he or she provides sexual services for free. If he or she charges for such sexual encounters and relies on the money he or she receives from clients for livelihood, she or he is breaking the law, i.e., living off prostitution.  A person who relies only on prostitution in Tanzania may be expelled from the country by immigration. Please note that under Section 23(1)(e) of the Immigration Act [Cap. 54, R.E. 2016], a person is considered a prohibited immigrant if at the time of admission or after entry into Tanzania, they live in prostitution or obtain prostitution-related income.  4.5 Offences regarding firearms and ammunition A private person cannot obtain a license to possess more than one handgun, one shotgun, or more than two rifles of various calibres under the Firearms and Ammunition Control Regulations 2016. If you already have a gun, you can only get a license to own a second rifle; if you already have a pistol, you cannot get a license to hold a second handgun. The Firearms and Ammunition Control Act of 2015, Section 11, lists the rules for gun ownership in Tanzania, such as the minimum age. One of the requirements is that the applicant for a firearms license must be at least 25 years old when applying. The candidate must also be of legal age and have a competency certificate from a government or state-approved private school that shows he has learned how to handle and use weapons safely. You also have to be a citizen of Tanzania or have a residency permit from Tanzania, have good mental health and not be prone to violence, not use drugs or other substances, not have a criminal record, and not have been told you cannot own a gun because you are reckless, old, or have a disability.  Case Law: Sabika Charles and Charles Buyambayamba v. R., DC Criminal Appeal 21 of 2021  Facts The 1st appellant testified that at the night of the incident, he was in the house of the 2nd appellant when they were arrested. The caution statement of the 1st appellant was admitted during the trial where he admitted that, in June 2018, the 2nd appellant and him were found in the game reserve with a weapon, but they had no permit. The appellants were charged with and convicted of the offence of unlawful possession of firearms in a Game Reserve contrary to Sections 17(1)(2) of the Wildlife Conservation Act No. 5 of 2009 and Section 20(1)(2) of the Firearms and Ammunition Control Act, No. 2 of 2015. The two laws were read together with paragraph 31 of the First Schedule to the Economic and Organized Crime Control Act and Sections 57(1) and 60(2) of Economic and Organized Crime Control Act [Cap. 200 R.E, 2002] as amended by the Written Laws (Misc. Amendments) 	 131 Act No. 3 of 2016. The appellants were imprisoned for five years each. Aggrieved by both the conviction and sentence, the appellants filed this appeal on the ground that the charges were not proved beyond reasonable doubt. Held On appeal, the court was persuaded that the case against the appellants was proved to the standard required by the law. The appellants were rightly convicted of the offence with which they were charged, and the sentence imposed on them was the mandatory penalty for the offence, thus dismissed the appeal in its entirety.  4.6 Offences regarding drugs and drug trafficking The Drug Control and Enforcement Act defines and governs drug offences. Before arresting anyone for drug possession, law enforcement should always consider the following: prohibited conduct; unlawfulness; intention; and dealing drugs. It is important to remember that any substance that makes you dependent on it can also be harmful to you and the community. Three significant law amendments have been made regarding the bailability of drug offences. Before 15 September 2015, bail was completely prohibited for offences involving the trafficking of narcotic drugs or psychoactive substances under Section 27(1)(a) of the Drugs and Prevention of Illicit Traffic in Drugs Act (DPITDA) [Cap. 95, R.E. 2002] and Section 148(5)(a)(iii) of the Criminal Procedure Act [Cap. 20, R.E. 2002]. The two laws said that bail could not be given for illegally having a narcotic or a psychoactive substance with a market value of more than TZS 10 million. The Drug Control and Enforcement Act 2015 (DCEA), which went into effect on 15 September 2015, repealed and replaced the DPITDA. Under Section 29(1)(a)–(c) of the DCEA, trafficking in narcotic drugs or psychotropic substances became a bailable offence, depending on how much of the drug was involved. If the drug involved weighed 200 grams or more, the offence of trafficking in manufactured narcotic drugs like heroin or cocaine was not subject to bail between 15 September 2015 and 1 December 2017. Bail was prohibited for illegal plants weighing 100 kilos or more, such as cannabis and khat. For precursor chemicals, bail is not granted if the substance weighs more than 30 litres in liquid form or 100 kilograms in solid form. Thus, one could leave below the aforementioned limits at any weight or volume. In 2017, the weight requirement for bail was lowered in Section 29 of the DCEA. As a result, starting on 1 December 2017, if the drug implicated weighs 20 grams or more, trafficking in synthetic narcotic drugs like heroin and cocaine is no longer bailable. Bail is not granted for substances like cannabis and khat that weigh 20 kilos or more, nor for precursor compounds that consider 30 litres or more. Three additional drug offences were added to the list of crimes not subject to bail due to the 2017 amendment to the DCEA. The DCEA's Sections 16, 20, and 23 apply to the new offences. The weight criterion for bail should be distinct from the threshold for jurisdiction. Bail's threshold is far lower than the jurisdiction's.    	 132 Case Law: R. v. Abdul Issa Nsembo and Another, Economic Case 4 of 2020 [2021] TZHCCED 7 Facts Abdul Issa Nsembo and Shamimu Omari Mwasha are husband and wife cohabiting under house No. 9 Mbezi Beach "B" Upendo Street. On 1/5/2019 at Mbezi Beach area within Kinondoni District in Dar es Salaam region, the duo jointly and together trafficked in narcotic drugs of heroine hydrochloride weighing 232.70 grams (first count) and heroine hydrochloride weighing 42.70 grams (second count). In the course of search, inside the bedroom of the accused persons particularly in the bathroom cum toilet, they seized four small transparent plastic cans which had flour and in a motor vehicle registration No. T 817 BQN Land Rover Discovery (owned by the first accused) they seized a bag of cloth material white in colour at a rear of driver's seat (at a pouch), wrapped by a transparent nylon bag which contained flour. The accused persons denied this fact, the first accused (DW2) introduced a theory that a search was conducted randomly, officers were searching unsystematic others searching this side others on the other side, officers used to enter and exit during search.   The duo was charged with trafficking in narcotic drugs contrary to Section 15(l)(a) of the Drugs Control and Enforcement Act, No. 5 of 2015 read together with paragraph 23 of the First Schedule, and Sections 57(1) and 60(2) of the Economic and Organized Crime Control Act (Cap. 200 R. E. 2002). They were also charged with trafficking in narcotic drugs contrary to Section 15A(1) and (2)(a) of the Drugs Control and Enforcement Act, No. 5 of 2015 as amended. Held The first and second accused are convicted for trafficking in narcotic drugs as charged. The Judge argued that: (i) Indeed, a white bag of cloth material wrapped by a transparent nylon containing flour of heroin hydrochloride (exhibit P3(a) was seized in a motor vehicle T817BQN Land Rover Discovery and small plastic can containing flour of heroin hydrochloride exhibit P3(d) was found inside the accused persons' bathroom in their bedroom. (ii) So far, a white bag of cloth material wrapped by a transparent nylon containing flour of heroin hydrochloride (exhibit P3(a) was seized in a motor vehicle T817B (J\I Land Rover Discovery and small transparent plastic can containing flour of heroin hydrochloride exhibit P3(d) was found inside the accused persons' bathroom (in their bedroom. Therefore, the first and second accused are taken to have been trafficking in narcotic drugs. The judge ruled that the prosecution managed to prove an information in respect of two counts levelled against the accused persons.  4.7 False Assumption of Authority The false assumption of authority emanates from a person with no jurisdiction who pretends to control a certain office or course of events. It should be noted that a person in office cannot have a false assumption of authority. They can only abuse their official position within their given capacity. Section 99(1)-(3) of the TPC provides the grounds for 	 133 a person being found guilty of the false assumption of authority. The provisions provide an exception for tribal elders and other personnel given powers by customary law. This is important to note, as customary law is a source of criminal law and law in Tanzania. Therefore, to be found guilty of a false assumption of authority, one must have the unlawful intention of creating a misrepresentation that they hold the given authority or office under Tanzanian law. This crime constitutes what is also known as "gross misrepresentation" and “impersonation” as it is a direct violation of the TPC and other relevant laws that regulate the authority assumed. The charges brought under Sections 99 and 100 of the TPC (false assumption of authority) can sometimes be brought under Section 304 of the TPC, which regulates false pretence in criminal law.  Case Law: Gaudence Sangu v. R., Criminal Appeal No. 88 of 2020 [2022] TZCA 784   Facts:  Alex Mengo (PW1), Hamisi Sikanyika (DW3) and another person, all businessmen at a place called Ikuti sokoni, in Mbeya City had applied to Tanzania Electric Supply Company Ltd (TANESCO) for supply of electricity power for their butcher businesses conducted in adjacent rooms. DW3 approached TANESCO with a joint power supply application and upon compliance with the necessary preliminary steps including payment of the requisite charges, TANESCO connected the power to the relevant business premises, but a meter was installed in PWl's shop. PW1 noted unproportioned power consumption that attracted frequent purchase of electricity units which he suspected was too way beyond the actual consumption. After a period of time, PW1 appears to have discovered some foul play in the power connection extending beyond the three shops. That prompted PW1 confronting DW3 for a meter separation which entailed each one of them having have his own meter to which suggestion DW3 agreed and had the meter removed from PW1 to his shop after refunding PW1 money he had paid for the connection.  It would appear that the change of the meter from PWl's business premises to DW3's shop was done by the appellant allegedly an employee of TANESCO. According to PW1, the appellant had represented to him that he was an employee of TANESCO and that he had an identity card just like any other employee. Since PW1 was in urgent need of power and upon the alleged representation from the appellant to facilitate electricity power connection in three days, PW1 agreed to pay the appellant a sum of TZS. 600,000.00 for the much-sought reconnection.  Initially, PW1 paid TZS. 300,000.00 followed by TZS. 220,000.00 making a total sum of TZS 520,000.00. That notwithstanding, no electricity was connected within the three days promised or any subsequent date until PW1 made a follow up with TANESCO whereby he learnt that the appellant had indeed lodged an application and paid TZS. 320,000.00 for electricity connection which would be affected within 90 days. Needless to say, TANESCO connected PW1 with electricity in December 2015. It also came to light that contrary to the alleged representation, the appellant was not an employee of TANESCO.  TANESCO mounted an investigation at PWl's and DW3's business premises through its employees; Cyprian Lugazia (PW3) and Fortunatus s/o Fungulima (PW4). The findings of 	 134 such investigation revealed that there was a shift of an electricity meter initially installed at PWl's shop to DW3's shop without the knowledge or authorization of TANESCO. It was equally revealed that neither was the appellant an employee of TANESCO nor a registered licenced contractor in the list of contractors in its regional register of electricity contractors. Upon such findings, a complaint was made to the police resulting into the appellant's arrest and arraignment in court to answer the aforesaid charges. The accused was arraigned in Court for impersonating a TANESCO employee. The Resident Magistrate’s Court of Mbeya tried and convicted the appellant, Gaudence Sangu, inter alia, for personating public officers (false assumption of authority) and obtaining money by false pretences, thus, this appeal. Held: The presiding judge dismissed the appeal because: (i) The evidence of the prosecution witnesses was so specific that the appellant personated himself as an employee of TANESCO and transferred the meter to DW3's shop. (ii) Not only did the appellant show them an identity card resembling those used by TANESCO staff on one occasion, but also led them to TANESCO offices in similar uniform used by TANESCO employees. Besides, when he was pursued to deliver on his promise to connect power to PWl's shop, he pleaded with him not to report him to TANESCO lest he got terminated from employment. (iii) The offence of obtaining money by false pretence is committed when two ingredients exist that is to say; false representation and intent to defraud. The appellant falsely represented himself to be an employee of TANESCO and obtained money.  	 135 SECTION 5: CRIMES AGAINST THE STATE AND ADMINISTRATION OF JUSTICE 5.1 Crimes against the administration of justice This crime involves defeating or obstructing the path of justice, i.e., an accused person commits an unlawful act that stops or slows the administration of justice or law enforcement. The elements of the crimes are (a) unlawful act, (b) committed intentionally, and (c) that amounts to thwarting or obstructing the administration of justice. Trying to destroy or obstruct the course of justice can be done in several ways, such as by forcing a witness to lie in court, not to testify, give false information to the police, or run away (so they cannot testify at a trial), or by using illegal means to get a complainant to drop a case. A person commits a crime when they tamper with documents or exhibits in a case to prevent true evidence from being presented to the court or when they intentionally mislead (or attempt to mislead intentionally) the police to avoid the detection of a crime that might otherwise be revealed to the police. It is also illegal for a possible witness to ask for money in exchange for running away (or not running away), giving false or even true evidence, or making up fake evidence. Either a deed or an omission may constitute the offence. A suspect's weak denial of guilt when questioned by the police does not mean they are trying to stop or slow down the justice process.   Crimes relating to the administration of justice are covered under Chapters XI and XII (Sections 102-118) of the TPC, namely: false statements by interpreters; perjury; fabricating evidence; false swearing; deceiving witnesses; destroying evidence; conspiracy to defeat justice; interference with witnesses; unlawful compounding of offences; compounding penal actions; advertising stolen property; contempt of court; preventing or obstructing service or execution of process; rescue or escape from lawful custody; absence from extramural employment; aiding prisoners to escape and removal of property under legal seizure.  In what follows, critical crimes against the administration of justice and public administration will be considered: perjury, subornation of perjury, defeating/obstructing the course of justice, and contempt of court.  5.1.1 Perjury Perjury is the unlawful and intentional making of a false statement under oath, administered by someone competent to administer the oath, while such a statement is made during judicial proceedings. The elements of the crime of perjury are the making of a statement; which is false; under oath; in the course of a judicial proceeding; unlawfulness; and intention. A false statement can also be made in an affidavit.  Under Section 102(1) of the TPC, perjury is committed when a person who, in any judicial proceedings, or to institute any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question depending on that proceeding or intended to be raised in that proceeding.  Key takeaways:  	 136 • Whether or not the testimony is given on oath; • The person giving the testimony and bound to speak the truth assents to the forms and ceremonies used in administering the oath or in otherwise binding him; • Whether the false testimony is given orally or in writing; • Whether the court or tribunal is properly constituted or is held in the proper place or not if it acts as a court or tribunal in the proceeding in which the testimony is given; • Whether the person who gives the testimony is a competent witness or not or whether the testimony is admissible in the proceedings. • According to the law, "perjury" is a misdemeanour that applies to anyone who knowingly provides false testimony in any judicial proceeding or initiates a judicial proceeding regarding any matter relevant to any question currently being decided in that proceeding or intended to be raised in that proceeding. Whether the testimony is provided under oath or not is irrelevant. Whether the fraudulent testimony was made orally or in writing is irrelevant. Therefore, lying in an affidavit amounts to perjury.  5.1.2 Subornation of perjury Subornation of perjury entails unlawfully and intentionally inducing/inciting another person to make a false statement during judicial proceedings. Here, a statement is made by the other person (the inciter). It is a situation where one person (X) incites another (Y) to commit perjury.   In terms of incomplete crimes, this could also amount to the offence of incitement to commit perjury.  Section 102(2) provides that any person who aids, abets, counsels, procures or suborns another person to commit perjury is guilty of subornation of perjury. It can be executed by anyone who encourages, counsels, procures, or suborns another person to lie. A person commits the crime of perjury if they aid, abet, procure, or suborn another person to lie. When it comes to the crimes of perjury and subornation of perjury, it is vital to keep in mind that no one can be found guilty of either of these crimes without supporting evidence and that supporting evidence must address whether the allegedly false statement was made. It also does not suffice for someone to have given two consistent statements to be found guilty of perjury. The prosecution must prove that at least one of the two assertions is untrue; this is not sufficient. The prosecution must demonstrate that the statement that is the subject of the accusation was false.  See the case of Aloyce Maridadi, Applicant v. Republic, Criminal Application No. 28/7 of 2018, Court of Appeal of Tanzania at Mtwara  • False statement as a key ingredient in proving ‘perjury’ and ‘subornation of perjury’ 	 137 The claim must be untrue. Even if the false statement is subjective, objective falsity is unnecessary. This means that even if a person believes they are lying and plans to give a false statement but inadvertently tells the truth, perjury is still committed (as long as the other criteria for the crime are met). First, according to our courts, making a false statement constitutes perjury. It may be considered attempted perjury in cases where a witness who wants to lie tells the truth. Second, the Criminal Procedure Act talks about making a false statement when it talks about the rules for how to handle perjury. The prosecution could use hints in X's words to show that he made a false statement since a false statement can be either direct or indirect. For instance, under some circumstances, a witness's statement that "I have already said what I heard" fairly implies that he did not hear anything else. If the prosecution uses innuendo, the conclusion drawn from X's comments must be a necessary inference. Also, the decision must be based on the evidence presented in court, not on statements or affidavits that have nothing to do with the case.  To commit perjury, a statement must be false. There is still debate about whether this falsity should be subjective or objective. Subjective falsity – here, we examine whether X believed his statement was false. Objective falsity – here, the statement is false irrespective of whether X knows that the statement is incorrect or not.   In judicial proceedings, only competent witnesses can commit perjury. Perjury can occur in civil or criminal proceedings but may not happen in an administrative tribunal's judicial procedure.  Section 198(1) of the TPC states that every witness in a criminal cause or matter shall, subject to the given provisions of any other written law to the contrary, be examined upon oath or affirmation under the Oaths and Statutory Declarations Act, Official Oaths Act, and Notaries Public and Commissioners for Oath Act (all Acts revised in 2002).  5.1.3 Defeating and Obstructing the Course of Justice The terms "defeating" and "obstructing" the administration of justice have different meanings. The latter implies a lower level than the former. Only if it can be demonstrated that justice has been thwarted then someone can be found guilty of defeating the ends of justice. This will be the case when it is established that an innocent person was found guilty or that a guilty one was acquitted, or when, in a civil matter, an order was issued that would not have been made had the wrongdoing not occurred.  It is conventional to accuse behaviour falling within the scope of the offence of defeating or obstructing the course of justice because it is typically difficult to prove that the course of justice has been defeated (or attempted to be defeated). The justice process can be blocked in many ways, such as when a trial must be postponed or delayed or when the police or prosecution officials are forced to waste time and resources looking into the wrong charge or individual. In cases where someone is accused of "defeating or obstructing the path of justice" or "trying to defeat or obstruct the path of justice" the final verdict does not have to be "defeating or obstructing the path of justice" or "trying to defeat or obstruct the path of justice." It could be "obstructing the 	 138 path of justice" instead. Put another way, the allegation of "defeating or obstructing the course of justice" (or attempting to do so) refers to a single offence, not a pair of separate crimes.  For example, X drives past traffic officials on the highway, and to warn oncoming motorists of the traffic officer’s presence; he flashes his headlights at them.  Key takeaways (i) The unlawful and intentional engagement in any conduct that defeats or obstructs the administration of justice. The elements of the crime of defeating/obstructing the course of justice are:  • Conduct; • Which amounts to “defeating” or “obstructing”; • The course or administration of justice; • Which takes place unlawfully; and • Intentionally. (ii) The terms “defeating” and “obstructing” are used interchangeably. However, there is a difference between these two terms: • “Obstructing” indicates something less than “defeating”. • A person can only be found guilty of defeating the course of justice if it is proven that justice has been defeated. There could be a case where it is proven that an innocent person has been convicted or a guilty person has been discharged. (iii) The interest protected in terms of this crime is the ‘course of justice’ and the fact that it should run smoothly. It is not necessary that there must be a pending case for this crime to take place.  Legal Authorities Statute: Sections 114A, 110 and 243 of the TPC. Case Law:  Benedicto Ndalo v. R. [1981] TLR 8   Facts The accused was charged with and convicted of the offence under Section 243(b) of the TPC. Thereby the police officers, while exercising their duty, spotted a group of people who had several bags of maize. The police suspected that the maize was being transported illegally, so they approached those people to inquire. The appellant, who was nearby, became interested and drew near. After listening to the interrogation, he remarked that the police officers were only after a bribe and even urged suspects to ignore them. Held The appeal was dismissed on the ground that the obstruction spoken of Section 243(b) is something broader than actual physical obstruction. It was further stated that it is sufficient if the obstruction is perpetrated wilfully, without lawful justification. The police officers were lawful interrogating the group of suspects to detect crime; then, the appellant 	 139 intervened to say that the police officers were after a bribe and that should be ignored. That was designed to frustrate and inhibit the officers in their investigations.   5.1.4 Contempt of Court The formation of this offence has been significantly influenced by English law. The phrase "contempt of court" can be considered a collective noun for various other crimes with similar characteristics. There are several ways that contempt of court might manifest itself. Some have specific rules, such as requiring a case to remain pending (sub iudice) when information that could change the outcome is published. As a result, the offence can be broken into several "sub-offences," each with its own set of conditions.   Some cases of court disobedience are handled through civil law instead of the usual criminal system. In these cases, a civil lawsuit court order has not been followed, and the party who got the order wants to ensure it is followed by asking the Court to find the other party in contempt of Court if the order is not followed. It is now clear that these supposed cases of "civil contempt" are also crimes of contempt of Court. In this case, the DPP can file a contempt Court charge. Under the private prosecutions, a party whose interest is violated for failing to follow the court orders in civil proceedings may also seek and obtain the DPP’s consent to institute a contempt of court proceedings. In some cases, it may require harsh legal measures, like conviction and punishment for contempt of Court done in front of a Judge or Magistrate in the courtroom.   Key takeaways (i) Contempt of Court consists of unlawfully and intentionally: • Violating the dignity, reputation, or authority of a judicial body or a judicial officer in his/her judicial capacity; or • Publishing of information concerning a pending trial (sub iudice) that tends to influence the outcome of the trial or interfere with the administration of justice in that trial. (ii) Intention – there must be an intention to commit this crime. However, where information regarding a pending case is published, there is a duty on the publisher/editor of a newspaper or magazine to verify the correctness of the information in the article. If she/he fails to do so, she/he may be guilty of contempt of court. The fact that he/she was unaware of what was published, or that he/she is unaware that a court case is pending in connection with the published information and hence lacks the necessary intention, is no defence because, in his/her case, negligence is sufficient for conviction. (iii) Contempt of Court can take two forms: • In facie curiae (“in the face of the court”); and • Ex facie curiae (“outside the court”; such as a publication). 	 140             Please note: Contempt of court in facie curiae This takes place intentionally while the court is in session in the presence of the presiding officer. It takes place during court proceedings by insulting the presiding officer or by conducting yourself in such a manner to bring the judicial body in disrepute. If contempt of court takes place in facie curiae, a procedure allows the court to prosecute the person there and then immediately. It is common practice to allow the accused person to explain and state why they acted the way they did. Contempt of court ex facie curiae This form deals with publishing information on a case pending before the Court/tribunal. There are two forms of ex facie curiae contempt:  (i) Publishing information regarding a pending case: • The publication should have the aim of influencing the outcome of the trial.  • Sub iodide (pending trial) refers to a case between the phases of initial arrest or summons and the final verdict.  • Therefore, cases that will only start in the future are excluded.  (ii) Publishing information not referring to a pending case. Here, a person makes statements that disrespect a presiding officer or place a presiding officer or the judicial system under suspicion.   Legal Authorities Statute: Sections 3(1)(c) and 114 of the TPC Case Law: SP Mwageni v. R. [1982] TLR 223   CONTEMPT OF COURT:Contempt in facie curiae: Contempt ex facie curiae:Referring to a pending caseCommentary on pending caseInterferences with witnesses or courtFailing to appear in courtNot referring to a pending caseScandalising the courtFailure to comply with an order of courtObstructing court officialsSimulating court processes	 141 Facts The Magistrate ordered the police to seize the motor vehicles and give them back to the accused person. The order was not complied with. The appellant, then the Regional CID officer, was summoned by the Magistrate to explain why the order had not been complied with. The appellant explained that they had appealed against such an order, and he refused to explain on oath. The magistrate then convicted the appellant for contempt of court and sentenced him to pay a fine of TZS 400. Held When a court takes cognizance of an offence of contempt of court, the court must frame and record the substance of a charge and call upon the person accused to show why he should not be convicted on that charge and give him a fair opportunity to reply to it. The object of creating the offence of contempt of court is to maintain respect for the court and the rule of law. The sole purpose of proceedings for contempt of court is to give the court power to effectively protect the rights of the public by ensuring that the administration of justice is not impeded.   5.1.5 Fabricating Evidence The TPC regulates the fabrication of evidence. Section 106 of the TPC states that any person who, with intent to mislead any tribunal in any judicial proceeding – (1) fabricates evidence by any means other than perjury or subornation of perjury; or (2) knowingly makes use of such fabricated evidence, is guilty of a misdemeanour and is liable to imprisonment for seven years. Therefore, for one to prove the fabrication of evidence, the party must prove intention by the culprit, the uttering or forgery of documentation or information, and the Act must be unlawful. The prosecution must prove three ingredients:  (i) He had a legal obligation to state the truth. The obligation to state truth could be inferred from an oath or a provision of the law. (ii) He makes a false statement or declaration, and  (iii) He knows or believes that his statement is false or does not believe it to be true.   It should be noted that the intention must aim to defeat the ends of justice or sway the Court or Tribunal or relevant authority (public servant). For example, a matter concerning a Will of X for which X’s Brother is called to testify about the handwriting of X. Even after knowing it is not X’s handwriting, he states that it is the handwriting of X. He commits the offence of perjury. Section 34B.-(2)(c) of the Tanzania Evidence Act provides:  If it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he wilfully stated in it anything which he knew to be false or did not believe to be true.    	 142 Case Law: In the Indian case of Santokh Singh v. Izhar Hussain, AIR 1973 SC 2190, the accused falsely identified Izhar Hussain during an identification parade, providing false testimony against him. The Supreme Court held that Santokh Singh violated Sections 193 and 195 of the Criminal Code, which penalizes a person who makes a false statement under oath in support of the prosecution's case. The offenses covered by Sections 196-200 are those that carry the same penalties as providing false evidence or fabricating evidence.  5.1.6 Escape from Lawful Custody Resistance to arrest is not the same as escaping from arrest. When someone resists being taken into custody by the police, it is considered a crime. A person runs from lawful custody if they do so after being effectively placed under arrest by law enforcement or another official. If someone has been arrested and detained in a manner that the law permits, they are in lawful custody. If the prisoner can establish reasonable doubt that they were in legal custody; they escaped or attempted to escape, the charge of escape from lawful custody can be dismissed.   The defence that the arrest was unlawful could be raised if the accused was taken into custody by police who did not have a good faith belief that they had committed a crime or if the police used excessive force to bring them into custody. This defence could also be employed if the accused was wrongfully detained and thus the victim of false imprisonment after being wrongly detained or held in custody longer than necessary. If someone is sentenced to death or life in prison, convicted of a felony, or liable to life in prison, they are being held legally. Section 116 of the TPC states that anyone in lawful custody who escapes from such custody is guilty of a misdemeanour. Section 115 of the TPC punishes anyone who, by force, rescues or attempts to rescue anyone from lawful custody. The punishment for the offence ranges from life to seven years imprisonment depending on the gravity of the offence the prisoner (rescued person) is serving.   Case Law:  Gift Abdallah v. R., Criminal Appeal No. 80 of 2019, High Court of Tanzania  Facts The appellant Gift s/o Abdalla was, together with Bakari s/o Ally Chuma (1st accused), arraigned before the trial District Court for an offence of two counts. In the first count the appellant and the 2nd accused were charged with conspiracy c/s 384 of the Penal Code in which it was alleged that the two, at unknown date, time, and day in the month of July 2018 at Nachingwea District in Lindi Region, conspired to escape from lawful custody of Nachingwea District Prison. The appellant and his fellow were also charged with escape from unlawful custody c/s 116 of the Penal Code.  It was alleged that on 26 July 2018 at about 1200 hrs at Nachingwea District Prison within Nachingwea District in Lindi Region, the duo broke the fence of the prison and ran away. They were caught by prisoner policemen, returned to prison on 1 August 2018. When the charge was read over and explained to the appellant and the 1st accused, they pleaded guilty to both counts. They were sentenced to three years imprisonment in the first count 	 143 and one year imprisonment in the 2nd count. The appellant has appealed against the sentence and claimed that the trial Magistrate erred in law by convicting the appellant on both counts of conspiracy and attempted escape while both the two are inchoate offences. Held The Judge reversed the lower court’s decision and held that: (i) The facts narrated did not establish any ingredients of the offence of conspiracy. Indeed, there was not mention that the appellant and his fellow ever conspired to commit an offence.  (ii) In case of conviction the judgment shall specify the offence of which and the Section of the Penal Code or other law, the accused person is convicted and punishment to which he is sentenced.  (iii) Convicting and sentencing the appellant and his fellow under Section 228(2) of the Criminal Procedure Act violated of Section 312(2) of the Criminal Procedure Act [Cap.20 R.E.2002].   5.2 Crimes against the State  Generally, all criminal offences under the TPC and other penal laws are treated as crimes against the Republic or the Government, i.e., the state prosecutes or pursues justice on behalf of the victim (public witness). However, some criminal activities are directed against the state's survival or national unity and integration. Crimes against the state are covered under Chapters VII, VIII, and IX of the TPC. These offences are discussed below: treason, sedition, and public violence/rebellion/subversion.  The Legal Framework of Crimes against the State   Discussion of selected crimes  5.2.1 High treason Treason is a serious offence punishable by the death penalty in Tanzania. Under Section 39(1) of the TPC, a person commits treason if, owing allegiance to the United Republic of Tanzania, they unlawfully engage in conduct within or outside the borders of the Republic, with the intention of: • Overthrowing the government of the Republic; 	 144 • Coercing the government by violence into any action or inaction; • Violating, threatening, or endangering the existence, independence, or security of the Republic; • Changing the constitutional structure of the Republic; • Plans to kill the President of the Republic  Article 28 of the Constitution of the United Republic of Tanzania requires every citizen to protect, preserve and maintain Tanzania's independence, sovereignty, territory, and unity. Thus, it is illegal to surrender the nation to the victor, ratify or recognize an act of occupation, or prevent Tanzanians from waging war against an enemy of the nation. It follows, therefore, that “treason, as defined by law, shall be the gravest offence against the United Republic.”  The elements of the crime of high treason are: • Unlawfulness – treasonable conduct must be a crime in itself/prohibited under the law, e.g. murder of the President. • Intentional (specifically the animus hostiles) – the perpetrator must have the hostile intention to overthrow the Republic. This is one of the aspects that distinguishes the crime of treason from the crime of sedition. • The perpetrator must owe allegiance to the Republic – a perpetrator must owe allegiance to the United Republic of Tanzania. As such, the perpetrator should be a citizen of the Republic, have sworn allegiance to the Republic, or be domiciled in the Republic. Allegiance is more than mere citizenship. • Conduct certain treasonous acts within or outside the Republic's borders that target the Republic or its top officials.   Case Law: Gray Likungu Mattaka & Others v. R., Criminal Appeal No. 32 of 1971 Facts   The accused persons conspired with Oscar Kambona and other unidentified parties between March 1968 and October 1969 to carry out a treasonable act, i.e., they wanted to overthrow President Nyerere and install Kambona to power. Kambona, Nyerere’s friend, had previously served as TANU’s General Secretary and a cabinet minister. Leballo, a South African commander of an organisation called the Freedom Fighters and residing in Tanzania, served as the principal witness for the prosecution. In his testimony, he claimed that Mattaka asked him to join the plot to overthrow the government and agreed to do so after consulting with the intelligence director. He then claimed to have become a government agent, playing a key role in the plot while continuously providing information, letters, and other materials to the intelligence director.  The six appellants were tried in the High Court of Tanzania. The first three and the fifth were convicted on three counts of treason and sentenced to life imprisonment. The first count of treason alleged that the accused formed an intention to kill the President; the second that they formed an intention to depose the President by unlawful means; and the 	 145 third that they formed an intention to overthrow the government by unlawful means. The fourth and sixth were found guilty of misprision, and each was sentenced to ten years imprisonment. All convicts appealed to the apex court. Held (i) The offence of misprision is committed when someone who knows that another person intends to commit treason does not report the matter promptly. Thus, appeals of the first, fourth and sixth appellants were allowed, and their convictions set aside. (ii) Appeals of the second, third and fifth appellants were dismissed, thus their convictions on treason charges were upheld. (iii) The Court had no consensus on the question as to whether conspiracy can be charged as an overt act. ***************************** Hatibu Gandhi & Others v. Republic [1987] TZCA 18 or [1996] TLR 12  Facts The appellant was accused of engaging in a plot to assassinate the President of Tanzania or illegally conspiring to remove the President from power. The prosecution alleges that the first appellant helped or facilitated the deceased Mohamed Tamimu, alias Martin Tamimu, to travel from Kenya to Dar es Salaam. The appellants approached and recruited people for their illegal scheme. Several people contacted and hired were TPDF members. Some fell for the plot, while others rejected it or informed the authorities about the situation. The plan for the coup was finalized at two meetings between the end of December 1982 and the beginning of January 1983. On trial, the High Court found the appellants guilty of three counts of treason and misprision of treason contrary to the TPC, thus this appeal.  Held (i) A conviction on a charge of treason requires proof of an overt act as well as the perpetrator's appropriate intention and his allegiance to the Republic at the material time. (ii) An appellate court will not interfere with the sentence imposed by the trial court unless such sentence is manifestly excessive; thus, the appeals were completely dismissed. See also Serikali ya Mapinduzi ya Zanzibar v. Machano Khamis Ali & Others, Criminal Application 8 of 2000 [2000] TZCA 1 (discussed in Part 1 of this course manual). *********************** Other key laws: Section 8 (data espionage) of the Cyber Crime Act (2015) and Sections 3 (espionage and sabotage), 4 (communication of sensitive information), 5 (protection of classified information), 6 (unauthorized use of uniforms and passes), 7 (interfering with persons on guard at protected places), 8 (possession of offensive weapons or materials), 9 (spying on certain organizations and bodies), and 10 (harbouring) of the National Security Act (1970).  5.2.2 Sedition Sedition is typically restricted to the crime of organising or encouraging opposition to the government in a way (such as through speech or writing) that falls short of the more serious 	 146 actions constituting treason, even if it may ultimately have the same result as treason. In English common law, it was made illegal to publish seditious writing ("seditious libel") or make a seditious speech ("seditious words"). Modern laws have become more precise. It has occasionally been ruled that displaying a specific flag or supporting a certain movement, such as criminal syndicalism or anarchism, is seditious. Under Section 55 of the TPC, sedition is the unlawful and intentional taking part in a concourse of people violently or by threats of violence challenging, defying, or resisting the authority of the Republic or causing such a concourse.   The seditious intention could be inferred if one engages in either of the following unlawful conduct: (i) Incite hatred or contempt against the lawful authority of the government; (ii) Excite inhabitants against the Republic;  (iii) Raise hatred or contempt against the administration of justice in the Republic;  (iv) Raise discontent or disaffection against the Republic; and  (v) Promote ill-will and hostility amongst the Republic's population.  Case Law: In Hussein Kasanga v. Republic [1978] LRT 16, Mr. Hussein Kassanga was tried and convicted of sedition for uttering the following words “I am sorry, Mr. Chairman, when Nyerere was fighting for independence, all he wanted was to rule Nyerere wept at Tabora. In actual fact, he wanted to rule us and fry us like groundnuts in a pot if you were like me, we would have rejected Ujamaa in Tabora up to Kigoma. […] I as Hussein Kassanga, I am cursing Nyerere. We had a chief, chief Nassoro Fundikira. He was a dictator like Nyerere. We cursed him. The result was that he committed suicide. This Nyerere will do the same, and everything will be over.”   *********************** Freeman Aikael Mbowe and Others v. Republic, Criminal Appeal 76 of 2020 [2021] TZHC 3705 Facts On various dates between 1 and 16 February 2018 in Dar es Salaam, Freeman Aikael Mbowe, Peter Simon Msigwa, Salum Mwalimu, John John Mnyika, Ester Nicholas Matiko, Vicent Biyegiza Mashinji, Halima Mdee, John Wegesa Heche, and Ester Amos Bulaya jointly and together conspired with other persons not in Court to commit an offense. The accused persons collectively and together, being assembled with intent to carry out a common unlawful purpose, did conduct themselves in a way that caused residents to have a reasonable fear that they would be attacked. The leader of the Tanzanian opposition, Freemen Mbowe, and others were brought before the Court and charged with conspiracy to commit an offence, unlawful assembly, riot, riot after proclamation, promoting feelings of ill-will for an unlawful purpose, raising discontent, promoting feelings of ill-will for an unlawful purpose, raising discontent, sedition, and inciting the commission of offence. They were tried in the Resident Magistrates Court of Dar es Salaam at Kisutu and convicted of all counts in the charge 	 147 sheet except the first count for which they were acquitted; thus, this appeal to the High Court.  Held (i) The failure to name the Lawful Authority targeted by the utterances prejudiced the first accused in his defence and denies the court an objective criterion upon which it can evaluate if relevant words were calculated to achieve the act or conduct said to be seditions. (ii) Sedition can be for two major purposes. Firstly, it can be aimed at stirring up treason. Secondly, it can target defaming the government. In our case, the utterances can be categorized as intended to defame the government.  (iii) The case of Hussein Kasanga v. Republic (cited above) was decided in the era of single-party democracy and party supremacy policy. Our Constitution had not yet had the bill of rights guaranteeing freedom of speech. We are now a multi-party democracy where, subject to other laws, the freedom of speech and the right to information is guaranteed under Article 18 of the Country's Constitution. The alleged seditious words in this case, therefore, shall be considered in the current political landscape. (iv) The maker of these statements was expressing his grievances at an election campaign rally so that voters could vote for his party. Voting is a lawful process; if he managed to attract voters by advancing those grievances that could not amount to sedition. (v) In all these counts, the inciting words have not been mentioned in the particulars of the offence. The accused persons sounded unaware of the words they allegedly uttered to incite the commission of the alleged offences.  Charge in all counts was not proved; thus, the accused was acquitted.  *********************************** Other laws on sedition are Sections 52 (seditious intention), 53 (seditious offences), and 54 (publication likely to cause fear and alarm) of the Media Services Act 2016, and Section 16 (publication of false information) of the Cyber Crime Act 2015. The state increasingly uses sedition, cyber, and national security laws to curtail free speech in Tanzania. Since 2015, the government has closed, fined, and suspended several media outlets and prosecuted many dissidents, as exemplified below:  • Zitto Kabwe, a prominent opposition leader in Tanzania, was sentenced to serve a one-year ban for writing seditious statements in 2020. This was after he claimed that 100 people had been killed in clashes between cattle herders and police officers at Kigoma region.  • Tundu Lissu, another prominent opposition leader in Tanzania, faced sedition charges in 2016. The prosecution claimed that the accused committed the offense between 12 and 14 January 2016 contrary to Section 32(1)(a), 32(1)(c), and 12(a) of the Newspapers Act and Section 89B(1)(a) of the TPC. It was claimed the accused published seditious content in Mawio Newspaper from 14 to 20 January 2016. Other co-accused were Mr. Ismail Mehbood (a printer) and Mr Jabir Idrissa Yunus (a journalist). Altogether faced charges regarding conspiracy, publishing seditious content, and intimidation.   • Eric Kabendera, a journalist, was accused of publishing "false and seditious" information under the Cybercrimes Act.  	 148 • The government banned Mseto Newspaper in 2016 for reporting corrupt practices during the 2015’s presidential campaign.  • The government banned Mawio Newspaper in 2017 for featuring an article that linked the then President with the mining contracts scandal. It also banned Mwanahalisi Newspaper for slandering the then President.  • Immediately before the 2020’s General Elections, the Portfolio Minister cancelled Tanzania Daima’s licence for violating the law and journalism ethics. Tanzania Daima is a daily newspaper owned and run by one of the opposition parties.     5.2.3 Differences between Treason and Sedition High Treason Sedition Even one person can commit treason. Sedition requires the involvement of more than one person. Treason requires animus hostilis. Sedition does not require animus hostilis.  Treason requires allegiance. Sedition does not require allegiance.   Other offences against the Republic (Chapters VII-IX of the TPC) include promoting warlike undertakings, inciting mutiny, inducing soldiers or police officers to desert, aiding prisoners of war to escape, unlawful oaths to commit offences, raising discontent and ill-will for unlawful purposes, hate speech, foreign enlistment, piracy, unlawful assembly and riot, rioters demolishing or damaging building, going armed in public, affray, abusive language, brawling and threatening violence, watching or besetting, and assembling for smuggling, dissuading persons from assisting with self-help schemes.    	 149 SECTION 6: ORGANISED AND COMMERCIAL CRIMES Organised and commercial crimes cover a wide range of offences committed through a criminal enterprise and have a bearing on the economy, provision of social services, discharge of public powers, and community wellbeing. Organised and commercial crimes, to name a few, include money laundering, cybercrimes, corruption, tax evasion, misappropriation and embezzlement of public funds and property, theft, armed robbery, fraud, forgery, poaching, drug and human trafficking, abduction, kidnapping, contract killing, and smuggling. Most of these offences are not necessarily incorporated in the TPC but are scattered in several penal laws.    Legal framework on organised and commercial crimes  Organised and commercial crimes Legislation Money laundering  The Anti-Money Laundering Act (Chapter 423) Terrorism and terrorist financing The Prevention of Terrorism Act (Chapter 19) Organized crime, racketeering, and economic sabotage The Economic and Organized Crime Control Act (Chapter 200) Trade in narcotic drugs and psychotropic substances The Drug Control and Enforcement Act (Chapter 95) Corrupt and bribery The Prevention and Combating of Corruption Act (Chapter 329) The Public Leadership Code of Ethics Act (Chapter 398) The Public Procurement Act (Chapter 410) Proceeds of crimes The Proceeds of Crime Act (Chapter 256) Illicit dealing in armaments, firearms and ammunitions The Armaments Control Act (Chapter 246) The Firearms and Ammunition Control Act (Chapter 223) Armed robbery, theft, kidnapping, illegal restraint and hostage-taking, extortion, fraud and forgery The TPC (Chapter 16) Trade in prohibited goods and smuggling of goods The East African Customs Management Act 2004 Tax-related crimes The Income Tax Act (Chapter 332) The Value Added Tax Act (Chapter 148) The Stamp Duty Act (Chapter 189) The Tax Administration Act (Chapter 438) Trading in counterfeited and pirated products The Merchandise Marks Act (Chapter 85)  	 150 The Trade and Service Marks Act (Chapter 326) The Patents (Registration) Act (Chapter 217) The Copyright and Neighbouring Rights Act (Chapter 218) The Tanzania Medicines and Medical Devices Act (Chapter 219) The Standards Act (Chapter 130) Trafficking of persons and immigrants The Immigration Act (Chapter 54) The Sexual Offences (Special Provisions) Act (Chapter 102) The Anti-Trafficking of Persons Act 2008 Gaming crimes The Gaming Act (Chapter 41) Laundering of proceeds of crime using banks and financial institutions The Bank of Tanzania Act (Chapter 197) The Banking and Financial Institutions Act (Chapter 342) The Foreign Exchange Control Act (Chapter 271) Laundering proceeds of crime using corporate and non-corporate entities The Foreign Exchange Control Act (Chapter 271) The Companies Act (Chapter 212) The Societies Act (Chapter 337) The Non-governmental Organizations Act (Chapter 56) Electronic crimes and internet-assisted laundering The Electronic and Postal Communications Act (Chapter 306) The Cyber Crimes Act (Chapter 443) Investment-related crimes The Tanzania Investments Act (Chapter 38) The Export Processing Zones Act (Chapter 373) Natural resources-related crimes The Mining Act (Chapter 123) The Forest Act (Chapter 323) The Fisheries Act (Chapter 279) The Wildlife Conservation Act (Chapter 283) Tracing, freezing, and forfeiture of proceeds of Crime The Proceeds of Crime Act (Chapter 256) Procedural laws The Criminal Procedure Act (Chapter 20) The Evidence Act (Chapter 6) Protection of witnesses  The Whistleblower and Witness Protection Act 2015 	 151 International cooperation in criminal matters The Mutual Assistance in Criminal Matters Act (Chapter 254) The Extradition Act (Chapter 368) The Reciprocal Enforcement of Foreign Judgements Act (Chapter 8) The Fugitive Offenders (Pursuit) Act (Chapter 57) The Witness Summonses (Reciprocal Enforcement) Act (Chapter 67) Investigative and prosecutorial powers The National Intelligence Service Act (Chapter 47) The Police Force and Auxiliary Services Act (Chapter 322) The Attorney General (Discharge of Duties) Act (Chapter 268) The National Prosecutions Service Act (Chapter 430) Judicial powers The Magistrates, Courts Act (Chapter 11) The Judicature and Application of Laws Act (Chapter 358) The Appellate Jurisdiction Act (Chapter 141)  6.1 Commercial crimes These are white-collar offences, mostly committed non-violently by professionals for financial gain or to occasion loss.     6.1.1 Money laundering Section 3 of the Anti-Money Laundering Act defines "money laundering" as the engagement of a person or persons, direct or indirectly, in conversion, transfer, concealment, disguising, use, or acquisition of money or property known to be of illicit origin and in which such engagement intends to avoid the legal consequence of such action and includes offences referred in Section 12 of the Act.   Money laundering is a ‘predatory’ offence that embraces all organised and commercial crimes, commonly known as ‘predicate’ offences. Tanzanian law adopts the "listed criminal offences" paradigm when defining the predicate offences of money laundering. Section 3 of the Anti-Money Laundering Act identifies specific crimes as primary offences of money laundering. Trafficking in narcotics, and psychotropic substances, including those drugs and substances; terrorism and financing of terrorism; tax evasion; illicit weapon trafficking; involvement in organized crime and racketeering; smuggling of immigrants, trafficking in persons, including children, sexual exploitation, trafficking in stolen or other goods, bribery, and corruption are among these offences. Other offences include smuggling, participation in pyramid schemes and similar offences, insider trading and market 	 152 manipulation, poaching, illegal fishing, mining, and environmental crimes. Therefore, any offence under the TPC can be framed as a ‘predicate offence’, thus money laundering.  According to Section 12, anyone who engages in money laundering is guilty of the crime after committing the following: • Engages, directly or indirectly, in a transaction that involves property that is derived from proceeds of a predicate offence of money laundering; • converts, transfers, transports, or transmits property which is the proceeds of a predicate offence of money laundering for purposes of concealing, disguising the illicit origin of the property or assisting the person involved in the commission of a crime to evade legal consequences of his actions; • conceals, disguises, or impedes the establishment of the true nature, source, location, disposition, movement, or ownership of or rights to property, which is the proceeds of a predicate offence of money laundering; • acquires, possesses, uses, or administers property that is the proceeds of a predicate offence of money laundering; or • participates in, associates with, conspires to commit, attempts to commit, aids and abets or facilitates and counsels the commission of any of the acts described in clauses (a)–(d) above.  Sections 3 and 12 of the Anti-Money Laundering Act raise several challenges. One might initially assume that Section 3 of the Act defines the crime of money laundering, and Section 12 lists how it is done. However, in Director of Public Prosecutions v. Harry Msamire Kitilya and Others (DC Criminal Appeal No. 190 of 2019), the High Court of Tanzania ruled that each of Section 12's clauses constitutes a distinct offence, i.e., "money laundering" is the name given to each offence. In contrast to the Court’s position, Section 12 refers to an "offence" of money laundering rather than "offences" of money laundering.  Despite the circumstances above, Section 12 suggests that: (i) Money laundering involves several actions.  (ii) Criminals may behave as major offenders or accessories to the crime when they commit money laundering.  (iii) The laundered proceeds must come from or be related to specific crimes that produce illicit proceeds.  (iv) Assets other than cash might also be considered proceeds of crime.   • Proceeds of crime According to the Proceeds of Crimes Act of 1991 "proceeds of crime" refer to any property obtained, directly or indirectly, as a result of committing a crime. The term "property" also refers to any tangible or intangible real or personal property and any legal documents or instruments, including electronic or digital ones, attesting to the ownership or interest in such assets. It also includes drafts, letters of credit, bank credits, traveller’s checks, bank checks, money orders, shares, bonds, and other securities, as well as any 	 153 interests, dividends, incomes, or values derived from such assets. Fourth, a crucial element of the crime of money laundering is the offender's knowledge of the illicit nature of the money or property. It must be demonstrated that the offender knew – or reasonably should have known – that the money or property in question was obtained from or connected to the conduct of a crime that served as the basis for the money laundering offence at the time the offence was committed. But when assisting and abetting the offences listed in Section 12, (a)-(d) above, the Anti-Money Laundering Act is silent about the offender's awareness of the unlawful nature of the money or property.  Please note that money laundering is an unbailable offence. The Tanzanian Courts have upheld the constitutionality of Section 148(5) of the CPA, thus denying bail requests from individuals charged with money laundering and other economic crimes. See the case of William Enerst Nturo v. Republic; Simon Yared Mdakilwa v. Republic; Richard Mtolela and Gastol Mtolela v. Republic; James Burchard Rugemalira v. Republic; and Dickson Paulo Sanga v. Attorney General.   6.1.2 Cybercrime Cybercrime is a crime that uses or targets a computer, a computer network, or a networked device. Hackers or cyber criminals conduct most cybercrimes for financial gain. However, there are times when cybercrime tries to harm systems or networks for factors other than financial gain. These might be either personal or political. Both individuals and groups of people can commit cybercrime. Some online criminals are well-organised, employ cutting-edge methods, and have extensive technical skills.  Cybercrimes may take the form of email and internet fraud, identity fraud (where personal information is stolen and used), theft of financial or card payment data, theft and sale of corporate data, cyber extortion (demanding money to prevent a threatened attack), ransomware attacks (a type of cyber extortion), crypto-jacking (where hackers mine cryptocurrency using resources they do not own), cyber espionage (where hackers access government or company data), interfering with systems in a way that compromises a network, infringing copyright, illegal gambling, selling illegal items online, and soliciting, producing, or possessing child pornography.  In Tanzania, the laws that criminalise cybercrimes are the Cybercrimes Act, Electronic and Postal Communications Act and related TCRA regulations, Electronic Transactions Act, Access to Information Act, and the TPC.  6.2 Organised Crimes Section 2 of the Economic and Organised Crime Control Act (1984) defines organised crime as any offence or non-criminal culpable conduct which is committed in combination with or from whose nature a presumption may be raised that its commission is evidence of the existence of a criminal racket in respect of acts connected with, related to or capable of producing the offence in question.  	 154 Key takeaways:  (i) Motive – to achieve financial success – crimes are carried out to gain power, money, or to occasion loss. Although the crime is unintentional, there is still some physical or emotional harm resulting from such action. It is crucial to realize that organized crime is not done to exact revenge or harm; rather, it is a type of unlawful business or a way for people to make money.  (ii) Mode – organized criminal group / criminal racket – crimes are committed by more than three criminals who operate in intricate corporate organisations and are subject to rules that are more strictly enforced than those of a legitimate government. Such a criminal organisation might assign each member certain duties or responsibilities; use internal control and discipline; use force or other effective intimidation tactics; use corruption or other illegal tactics to influence politicians, the media, law enforcement, or the economy; and structured in a way that is commercial or entrepreneurial.  According to Article 2(a) of the UN Convention against Transnational Organized Crime (2000), an organized criminal group is defined as a group of three or more people who have a history of working together to commit one or more serious crimes or offences listed in the Convention to gain, directly or indirectly, a financial benefit or another material advantage.   (iii) Unlawful act – criminal activity/non-criminal culpable conduct– four conditions must be met to commit a crime, especially organized crime. First, there must be a criminal purpose. Second, there needs to be some planning to put the crime into motion. Third, some attempt or activity must be taken to further the crime committed. Fourth, the crime should be committed after the attempt.  (iv) Regularity – continuity – another crucial aspect of organized crime is that it frequently occurs, much like a corporation would, rather than just once. The phrase is referred to as "organized" due to this characteristic of continuity because a system has been established wherein similar activities (crimes) are carried out regularly to make money.  6.3 Human trafficking One of the most major and heinous organised crimes is human trafficking, which involves exploitation of vulnerable persons, especially women and children. The Anti-Trafficking in Persons Act (2008) and Sections 254-256 of the TPC criminalise human trafficking and forced labour. It requires a prison sentence of one to 20 years or a fine of five million to one hundred and fifty million shillings, depending on the offence. The first Section of the Act bans coercing, recruiting, or transporting a person "for prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage". “Promoting, procuring or facilitating the commission of trafficking in persons” includes creating or distributing “unissued, tampered or fake certificates, registration or stickers of any government agency” or leasing or subleasing any “house, building or establishment for 	 155 trafficking”. The Act also lists "severe trafficking" offences: trafficking of children or disabled victims, adoption for sexual or labour exploitation, and offences committed by crime syndicates, groups of two or more people, religious leaders, or other authority figures. "Buying or engaging the services of trafficked persons for prostitution" carries a fine of one to thirty million shillings or a prison sentence of twelve months to seven years. The Act also provides a harsher punishment for second-time traffickers.  6.4 Killings for hire and kidnapping 6.4.1 Killings for hire Sections 196, 203, 213 and 215 of the TPC apply to a killing for hire scenario. This is so because the TPC prohibits and punishes the act of killing someone (murder), conspiracy to murder, aiding someone to commit murder, accessory after the fact to murder, and kidnapping to murder. Also, any payment received from such illegal act is sanctioned under the Proceeds of Crime Act. Murder committed on behalf of someone else for payment is referred to as a "contract killing". This is frequently the case with highly prominent and public figures whose rivals or competitors are assassinating another criminal in exchange for a ransom. The same is true of abduction incidents, where victims either pay a particular amount to have someone taken or the thieves demand a ransom. Organised criminals who regularly carry out such tasks commit such crimes.   6.4.2 Kidnapping Sections 244, 245, 247-252 of the TPC define kidnapping as: • Transporting another person beyond the limits of Mainland Tanzania without the consent of that person or of some person legally authorised to consent on behalf of that person; or    • Taking or enticing another person under 18 years of age or any person of unsound mind, out of the keeping of the lawful guardian of the minor or person of unsound mind, without the guardian's consent. • Holding hostage or secret and wrongful confinement of an adult person against his/her will.   Note: Kidnapping could also take the form of kidnapping or abducting in order to murder; Kidnapping or abducting with intent to confine; kidnapping or abducting with intent to do harm; and kidnapping or abducting child with intent to steal (see Sections 247-252 of the TPC).  Based on the definition of the crime, kidnapping may: (i) Curtail a person’s freedom of movement – the deprivation of a person’s freedom of movement does not have to be accompanied by violence. Also, the victim does not have to be taken between destinations for his/her freedom of movement to be infringed. X can still deprive Y’s freedom of movement if he locks her in her room. The period that a person’s freedom of movement has been deprived of is not a necessary factor that must be considered. 	 156 (ii) Infringes a parent’s/guardian’s control over a minor – if a child is removed without either his/her consent or that of his/her parents, these interests are infringed. Therefore, even if a child consents to their removal, kidnapping is still a crime against the parents.  (iii) A parent cannot commit this offence with respect to his/her child – if a parent does not have rights of care and contact with the child, for example, after a divorce, she/he can only be guilty of contempt of Court.  Differences/similarities between kidnapping and abduction  Kidnapping Abduction A person is deprived of his/her freedom of movement The perpetrator has the intention to either marry or have sexual intercourse with the minor (therefore, abduction has a type of “qualified intention” – there must be an intention to have sexual intercourse with or to marry the minor)  Kidnapping can be committed in respect of adults or minors Abduction is relative to minors only  A parent’s custodial right is infringed A parent’s custodial right is infringed   Case Law: Masanja Mwinamila @ Gimbui v. R., DC Criminal Appeal No. 131 of 2018 [2021] TZHC 2441 Facts In the District Court of Nzega, Masanja Mwinamila Gimbui was convicted on his plea of guilty to kidnapping or abducting with intent to harm contrary to Section 250 of the TPC. The offense's particulars were that on 15 June 2015 at or about 21.00 hours in Ugembe Village within Nzega District, he kidnapped one Margret Hamish, a six-year-old girl with albinism, to put her in danger of being subjected to grievous harm.  The police officers set a trap and arrested the accused person after being tipped that the victim was kidnapped with the aim of being sold. Upon mitigation, the trial magistrate sentenced him to ten years in prison. The Appellant was dissatisfied with the conviction and sentence, thus lodged this appeal to the High Court. Held The Judge quoted Sections 5 and 250 of the TPC with approval. Section 250 reads:  “Any person who kidnaps or abducts another in order that that other person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or slavery, or to the unnatural lust of any person, or knowing it to be likely that the person will be so subjected or disposed of, is guilty of an offence and is liable to imprisonment for ten years.”  Based on the above provision, the Judge dismissed the appeal and held that:      i) The appellant admitted all facts to be true and correct and volunteered additional information on the price set in selling of the abducted girl.  	 157     ii) The appellant admitted that after the abduction, the girl was hidden at his residence while scouting for buyers and a rescue came at a time when policemen set a trap against him.     iii) The act of the appellant to kidnap and subject a 6 year old girl with albinism to an unlawful imprisonment with a view of selling her as a commodity for huge sums of money, extremely endangered her life and amounts to a grievous harm.     iv) At the time of the kidnapping and throughout the period that she was hidden and unlawfully imprisoned by the appellant, the girl suffered from psychological torture and as a result experienced nightmares, insomnia, memory loss, fatigue, anxiety, depression and posttraumatic stress disorder. Note People with albinism are kidnapped, trafficked, murdered, and dismembered for their body parts. Their graves are also unearthed, and their organs are extracted. Clients who purchase their organs are wealthy and important individuals, politicians seeking re-election, and businessmen. Their limbs, bones, skin, and internal organs are thought to be capable of producing charms, potions, amulets, or concoctions that bring good fortune, health, money, and supernatural abilities such as flying.320    320 Schühle, J., Medicine Murder of People with Albinism in Tanzania: How Casino Capitalism Creates Rumorscapes and Occult Economies, CAS Working Paper Series No. 2, Center for Area Studies, Freie Universität Berlin, 2013. See also, Makulilo, E.B., Albino Killings in Tanzania: Witchcraft and Racism? Independently published, USA, 2017. 	 158 SECTION 7: CONCLUSION This part classified crimes into five groups and analysed them. These included crimes against human life, the person and the family, property crimes, crimes against the community, crimes against the State and administration of justice, and organised and commercial crime. The next part provides a snapshot of international criminal law from the Tanzanian perspective.                       	 159 PART 4: INTERNATIONAL CRIMINAL LAW AND ITS APPLICATION IN TANZANIA  SECTION 1: INTRODUCTION, ORIGIN AND RATIONALE International criminal law refers to the branch of public international law which holds individuals criminally responsible for committing international crimes against the peace, security and well-being of the international community through criminal tribunals. The rationale for this branch of law is to ensure that impunity for international crimes is not left unpunished. Left unpunished, impunity begets impunity, and this could spur mass atrocities against the global peace, security and wellbeing. Another elementary rationale is the removal of immunity for persons in responsible positions who might commit crimes of concern to the international community and hide behind state sovereignty, national law or state acts. International criminal law dictates for effective prosecution of international crimes regardless of the position and character of the perpetrator. We can trace the origins of international criminal law through the Versailles Peace Treaty of 28 June 1919, which provided the first attempt to establish individual criminal responsibility for international crimes. This was followed by the Charter of the International Military Tribunal at Nuremberg, whose Articles 6, 7 and 8 proscribed crimes against peace, crimes against humanity and war crimes committed by perpetrators of the Nazi regime. This has been considered the “birth certificate of international criminal law.” It was followed by the Control Council Law No. 10 of 20 December 1945, which the Allied Powers established to formulate a uniform law to prosecute Nazi Crimes in occupied Germany after the Second World War and to follow the work of the Nuremberg Tribunal.  In 1993, the United Nations Security Council acting under Chapter VII of the United Nations Charter, established the International Criminal Tribunal for the Former Yugoslavia to prosecute war crimes, crimes against humanity and genocide committed in the former Yugoslavia. And in 1994, the United Nations Security Council acting under Chapter VII again established the International Criminal Tribunal for Rwanda through the Statute to prosecute similar crimes in the territory of Rwanda following the Rwandan genocide of the Tutsi. The crystallisation of this development happened on 17 July 1998 when the States Parties adopted the Rome Statute of the International Criminal Court, thereby establishing a permanent international court with jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. More importantly, in this aspect, the international community has seen the development of hybrid or internationalised domestic courts which prosecute the substance of international criminal law. These include, for example, the Special Court for Sierra Leone, Extraordinary Chambers in the Courts of Cambodia, the Special Criminal Court for the Central African Republic, Special Panels for Serious Crimes in East Timor, and Kosovo Specialist Chambers.  Like any branch of law, international criminal law has its own sources. These sources follow the confines of Art. 38(1) of the Statute of the International Court of Justice which mentions as sources international conventions, these being instruments concluded at bilateral and multilateral level by states. As such, the Rome Statute of the International Criminal Court is a typical example of an international convention; customary international 	 160 law, these being general state practices backed by a sense of binding obligation which have crystallised into binding law of the nations; general principles of law of the world’s major legal frameworks, these principles of law most nations follow such as presumption of innocence and no punishment or crime without law; judicial decisions and the teachings or writings of the most highly qualified publicists of the various nations, with the latter two being subsidiary means of determining the law.321 Article 21 of the Rome Statute, which states the applicable law for the determination of cases and situations brought before it, considers international law, national court decisions, international conventions and international principles as basis upon which decisions could be based, in addition to the Statute itself, Elements of Crimes and Rules of Procedure and Evidence.  Article 6 of the Rome Statute criminalises the crime of genocide in line with its international underpinnings under the Convention on the Prevention and Punishment of the Crime of Genocide, with a specific intent to destroy in whole or in part the protected groups as its contextual element.322 This entails that genocide was already a crime under customary international law before the Rome Statute criminalised it. Thus, its investigation and prosecution do not depend on the existence of a domestic legal framework or its recognition and categorisation. It is a jus cogens norm imposing obligation erga omnes on all states, including Tanzania. This crime can be committed both in peace and wartime. Article 7 of the Rome Statute criminalises crimes against humanity with the contextual element of a widespread or systematic attack directed against a civilian population in furtherance of a state or organisational policy. This crime can be committed in peace or wartime. The contextual element is the presence of an armed conflict in the context of a plan or policy, or wide-scale commission. Finally, the Rome Statute criminalises war crimes under Article 8 in the context of armed conflict of an international character and armed conflict not of an international character. It is here that a student also should refer to the Four Geneva Conventions for a wider understanding not only of the armed conflict but also of the relationship that exists between international criminal law and international humanitarian law. The rationale of this approach is basic. The Rome Statute is not the sole instrument that criminalises war crimes. The Four Geneva Conventions, the Law of the Hague and several other principles of customary international law embody the essence of the law on war crimes, only that the Rome Statute gathers in one document the most fundamental principles of this body of law.  The Rome Statute has its own unique procedure and mechanisms on investigation, jurisdiction and prosecution of cases and situations by the International Criminal Court. The Court relies on a complementary jurisdiction, thus acting as a last resort when domestic courts are proved to be unable and unwilling to investigate and prosecute international crimes.323 The Court exercises jurisdiction for crimes committed only from its entry into force and from when a particular state ratifies the Rome Statute, unless the state makes a special declaration conferring jurisdiction to the Court for crimes committed prior to that state’s ratification but not before the Statute entered into force.324 Generally  321 Werle, G., and Jessberger, F., Principles of International Criminal Law, (3rd Edn), London: Oxford University Press, 2014, pp. 74-75.  322 277 U.N.T.S 78 (1948).  323 Paras. 6 and 10 of the Preamble to and Art. 1 of the Rome Statute.  324 Arts. 11, 12(3).  	 161 the Court exercises jurisdiction on the basis of the territoriality and active personality principles.325 This jurisdiction can be triggered in three different ways, namely, through a referral from a state party,326 by a United Nations Security Council,327 and through the Prosecutor acting proprio motu.328 Although the Court can have jurisdiction over a given case or situation, the admissibility criteria must equally be met. The case is only admissible to the Court if a state party reveals a clear case of unwillingness or inability to genuinely investigate or prosecute the case. Unwillingness is measured when the state conducts criminal proceedings to shield a person from criminal responsibility for crimes under the Rome Statute, the state unjustifiably delays conducting proceedings in a manner revealing inconsistency of bringing a person to justice, and lack of impartiality or independence in the conduct of proceedings, with a clear intent to shield a person from justice. Inability is considered to exist when there is a total or substantial collapse or unavailability of a state party’s national judicial system and inability to obtain the accused or necessary evidence or testimony, rendering it impossible to conduct meaningful proceedings.329 Based on this introduction, we can assess the applicability of international criminal law in Tanzania.   1.1 Domestic Applicability Tanzania not only participated in the deliberations leading to the adoption of the Rome Statute but also ratified this Statute on 20 August 2002, and the Statute entered into force for Tanzania on 1 November 2002.330 Tanzania likewise signed the Court's Agreement on Privileges and Immunities on 27 January 2004. The country also took an active role at the 2010 deliberations of the Kampala Amendments to the Rome Statute. Tanzania is yet to ratify these amendments. 331  While ratification imposes on Tanzania an international obligation to act in good faith concerning the Rome Statute, domestic enforceability and justiciability of the Statute require a legislative act of domestication. This is because Tanzania is a dualist state where signature and ratification is only one aspect of accepting international treaty obligations domestically.332 This is not to say that the Rome Statute is not influential in Tanzania. On the contrary, the High Court of Tanzania has authoritatively cited certain provisions of the Rome Statute in interpreting some domestic legal provisions as explained below.      325 Art. 12(1), (2).  326 Arts. 13(a) and 14.  327 Arts. 13(b) read together with Chapter VII of the Charter of the United Nations.  328 Arts. 13(c) and 15.  329 Art. 17.  330  Ratification Status available at <https://treaties.un.org/pages/showDetails.aspx?objid=0800000280025774&clang=_en> (accessed 30 April 2024). 331 “Amendments on the Crime of Aggression to the Rome Statute of the International Criminal Court”, available at <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b&chapter=18&clang=_en> (accessed 30 April 2024). 332 Articles 63(3)(e), 34 and 35 of the Constitution of the United Republic of Tanzania, 1977, Cap. 2 R.E 2002.  	 162 Case Laws: In Director of Public Prosecutions v. Abdi Sharif Hassan@ Msomali & Mohamed Ibrahim Juma@Lunga,333 the High Court had to decide an application for the protection of certain prosecution witnesses against personal harm in a case against the respondents on the charges of conspiracy to commit terrorism and the financing of terrorism. Since this concept was novel in Tanzania and only slightly contained through Section 188(1) of the Criminal Procedure Act, 334  the High Court resorted to considering international criminal law practice. Citing the case of Prosecutor v. William Samoei Ruto and Joshua Arap Sang,335 the Court found that Articles 67(1), 68(1), (2), 64(2), (6) of the Rome Statute, and Rule 87 of the International Criminal Court’s Rules of Procedure allow for such protective measures. The High Court has taken similar approaches in the cases of Director of Public Prosecutions v. Yahya Twahiru Mpemba & 15 Others,336 and Director of Public Prosecutions v. Yusuph Ally Huta@ Hussein & seven Others.337 The Court of Appeal, which is the apex court in Tanzania, has been clear that whenever a legal lacuna occurs in the legislation or legal practice, it will borrow a leaf from the United Nations system, public international law, and common law system, in general, to arrive at its own conclusion.338  For the Tanzanian case, domestication occurs through enacting legislation evidencing the substance of the Rome Statute. Unfortunately, Tanzania lacks even a legal arrangement through which cooperation provisions of the Rome Statute could be affected. While available information suggests that Tanzania has drafted the Tanzania International Criminal Court Draft Bill, there has not been any sign of legislative procedure ongoing.339 It is also important to state that a direct international obligation to domesticate the provisions of the Rome Statute in the domestic legal framework does not exist. 340 Notwithstanding, the necessity and important nature of such compliance are implied in the Rome Statute itself. A closer examination of the workings of the principle of complementary indicates that the State Party must have either domesticated the substance of the Rome Statute or allowed direct use of the Rome Statute through ratification (international crimes approach) or has a sufficient domestic legal framework to prosecute international crimes as evidence of willingness and ability (ordinary crimes approach).341 Thus, domesticating or implementing the substance of the Rome statute at the domestic level is an implied obligation.   333 Miscellaneous Criminal Application No. 19 of 2020, High Court of Tanzania at Mwanza.  334 Cap. 20 RE 2022.  335 ICC-01/09-01/11.  336 Miscellaneous Criminal Application No. 88 of 2021, High Court of Tanzania at Arusha.  337 Miscellaneous Criminal Application No. 25 of 2022, High Court of Tanzania at Arusha.  338 Attorney General v. Mugesi Anthony and 2 Others, Criminal Appeal No. 220 of 2011, Court of Appeal of Tanzania at Mwanza.  339   Parliamentarians for Global Action, available at <https://www.pgaction.org/ilhr/rome-statute/tanzania.html> (accessed 30 April 2024). 340 Nouwen SMH Complementarity in the Line of Fire: The Catalyst Effect of the International Criminal Court in Uganda and Sudan. Croydon: Cambridge University Press, 2013, pp. 37-40.  341 Article 12(2)(a), (b) of the Rome Statute. See further Benzig M., ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity” 7 Max Planck Yearbook of United Nations Law, 2003, pp. 592, 596.  	 163 An Examination of Tanzania’s ability to implement international criminal law and thus prosecute international crimes must be gauged through the ordinary crimes approach of its domestic legal framework and under customary international law due to the lack of domestication or direct applicability of the Rome Statute. The impetus for this exercise stems from Tanzania’s role in developing international criminal law and human rights in the world and Africa in particular. Currently, Tanzania hosts the African Court on Human and Peoples’ Rights, the East African Court of Justice, and the Arusha branch of the United Nations International Residual Mechanism for Criminal Tribunals. Previously, Tanzania had hosted the International Criminal Tribunal for Rwanda (ICTR). Tanzania has also taken a central role in the peacekeeping efforts in the Democratic Republic of the Congo and Africa’s liberation from colonial domination.   1.2 Director of Public Prosecutions and National Prosecutions Services The Constitution of the United Republic of Tanzania vests the Director of Public Prosecutions (DPP) with the overall responsibility to investigate and prosecute crimes committed by Tanzanian citizens and nationals or in the whole territory of the United Republic of Tanzania.342 The effective realisation of these powers saw the Parliament enacting the National Prosecutions Services Act, which establishes the National Prosecutions Service (NPS) to promote and dispense criminal justice in Tanzania through organised, coordinated, supervised, managed and monitored investigation and prosecution of crimes in Mainland Tanzania.343 Effective implementation of the DPP’s and NPS’ responsibility requires thus a consideration of several laws establishing criminal offences other than TPC. Such laws include the Anti-Trafficking in Persons Act, Criminal Procedure Act, Anti-Money Laundering Act, Prevention of Terrorism Act, Prevention and Combating of Corruption Act, Immigration Act, Proceeds of Crime Act, Cybercrimes Act, Economic and Organised Crime Control Act, Drug Control and Enforcement Act, Law of the Child Act, Law of Marriage Act, and several other laws.  Some of these laws take a direct inspiration from international law. For example, the preamble to the Anti-Trafficking in Persons Act refers to the international human rights laws, the United Nations Convention against Organised Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons as its inspiration. Tanzania also has several other laws that can effectively help in the implementation of international criminal law should the substantive provisions be included in TPC or Tanzania domesticating the Rome Statute and several other treaties. Tanzania has in place the Mutual Legal Assistance in Criminal Matters Act,344  Extradition Act345 and Transfer of Prisoners Act.346 All these instruments provide procedural mechanisms upon which several aspects of international criminal law could be enforced in Tanzania.   Where crimes against humanity, war crimes and genocide are alleged to have been committed, the DPP and NPS should, on behalf of Tanzania, demonstrate the willingness and ability to prosecute these crimes, irrespective of their designation. Since the DPP and  342 Article 59B (1), (2).  343 Sections 2, 4, 9 and 16(1).  344 Cap. 254 [R.E 2008].  345 Cap. 368 [R.E 2022]. 346 Act No. 10 of 2004.  	 164 NPS have the authority to investigate and prosecute all offences in Tanzania irrespective of their designation, the investigation and prosecution of international crimes in Tanzania must be under the mandate of the DPP and NPS. Since Tanzania has neither enacted the Rome Statute nor robustly amended its criminal laws respectively, international crimes should be understood through an ordinary crimes approach unless there is a direct resort to customary international criminal law, where the international crimes approach takes the lead.   1.3 Genocide The TPC, which is the primary penal and criminal law of Tanzania, does not criminalise the crime of genocide as such. The TPC, however, has several provisions for ordinary crimes, which can be broadly interpreted as including the individual acts of the crime of genocide, although lacking the international element. TPC criminalises the crimes of murder, causing grievous harm or wounding another person, administering poison or harmful substance to any person to endanger his life or causes grievous harm, attempting to procure abortion, or supplying instruments or any other means to execute such an act with intent to destroy the life of a child, wilful acts that cause the child to die before having an independent existence of its own, trafficking of children, child stealing and rape.347 Furthermore, the Cybercrimes Act criminalises the crime of inciting, denying, minimising, or justifying acts that constitute the crime of genocide through the unlawful publication of any material through a computer system. Rather than using the Rome Statute, the Cyber Crimes Act defines genocide by a direct reference to the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.348 Tanzania ratified this Convention on 5 April 1984. Nonetheless, just like the Rome Statute and several other treaties, Tanzania is yet to domesticate this instrument. Of course, the Cybercrimes Act does not have the effect of domesticating the content of the Genocide Convention. It only allows the courts of law in Tanzania to adopt and use the framework of the Genocide Convention in the punishment of the crime of inciting, denying, minimising, or justifying acts constituting the crime of genocide only when such acts have been published through a computer system. Thus, it is not the substance of the crime of genocide the Cybercrimes Act criminalises or punishes. Notwithstanding and based on these provisions, we can convincingly argue that Tanzania can, on a minimal legal basis, prosecute genocide as a group of several ordinary crimes only under the ordinary crimes approach through TPC and the Cybercrimes Act or the direct reference to the Genocide Convention based on customary international law. However, it needs to be insisted that Tanzanian courts are yet to prosecute the crime of genocide through ordinary or international crimes approach.   1.4 Crimes against Humanity Concerning crimes against humanity, TPC lacks specific provisions criminalising these crimes, just as it is with the crime of genocide. However, TPC’s ordinary crimes and several other laws’ provisions can be interpreted as capable of prosecuting crimes against humanity,  347 See Sections 130-132, 195-198, 241.  348 Section 19(1).  	 165 although lacking the necessary contextual element. For example, TPC criminalises the acts of murder, buying and disposing of any person as a slave, habitual dealing in slaves, rape, gang rape, sexual assaults, exploitation of children, grave sexual abuse, sexual harassment and enforced prostitution.349 Furthermore, the Anti-Trafficking in Persons Act criminalises the crimes of trafficking in persons, including children, for sexual exploitation, forced labour, slavery and involuntary servitude. 350  Noticeably, the Cyber Crimes Act also punishes the conduct of a person who unlawfully publishes through a computer system any material that incites, denies, minimises, or justifies acts constituting crimes against humanity.351 The Cyber Crimes Act, however, does not define what amounts to crimes against humanity nor makes any direct reference to international law. Notwithstanding this limitation, it is possible to consider the crimes against humanity from the point of view of customary international law and the Rome Statute. Thus, like genocide, international law recognises crimes against humanity as part of international crimes prohibited by customary international law. Although the wording and content of what amounts to crimes against humanity differ from one legal instrument to another,352 the essential crimes and the contextual element have remained affirmed.353 Although the Cyber Crimes Act punishes those acts that incite, deny, minimise or justify acts constituting crimes against humanity only when published through a computer system, thus providing a very limited scope of applicability, we present that the Cybercrimes Act takes the wider view of crimes against humanity according to customary international law and the Rome Statute in particular. This is because not only is Tanzania a state party to the Rome Statute, but its courts have also referred to the Rome Statute as an authority on several occasions, as shown above.  A further argument favouring this approach stems from the Refugee Act of Tanzania. Section 4(4)(a) rejects to recognise and accord a refugee protection status to any person who “has committed a crime against peace, a war crime or a crime against humanity, as defined in International instruments drawn up to make provision in respect of such crimes.” This provision recognises the existence of crimes against humanity, war crimes and the crime against peace or the crime of aggression based on international law, or instruments adopted to criminalise them. Tanzania takes definitions of these instruments and applies them domestically. While these provisions do not domesticate the essence of international law on these crimes, they allow courts of law and other state institutions to resort to international instruments and customary international law in understanding their content. One can argue that the commission of international crimes in Tanzania will thus not go unpunished. However, it needs to be insisted that Tanzanian courts are yet to prosecute the crimes against humanity through ordinary or international crimes approach.    349 Sections 196, 254, 255, 130, 131A, 135, 138B, (C), (D), 131(1)(f).  350 Section 4, Anti-Trafficking in Persons Act.  351 Section 19(1).  352 The Rome Statute, ICTR Statute and ICTY Statute are typical examples here of these differences.  353 Werle, G., and Jessberger, F., Principles of International Criminal Law, (3rd Edn), London: Oxford University Press, 2014, note 9 at pp. 331-332.  	 166 1.5 War Crimes Concerning war crimes, TPC prohibits murder, rape, sexual exploitation, setting fire to crops and growing plants, and slavery.354 In addition, the Anti-Trafficking in Persons Act outlaws the crime of trafficking children or disabled persons to engage them in armed activities.355 Thus, even under the ordinary crimes approach, certain individual acts of war crimes can be prosecuted in Tanzania. Further, as TPC suggests, war crimes are not limited in their scope and applicability. Apart from the Rome Statute, the law on war crimes is contained in the ICTY and ICTR Statutes, the Hague Regulations of 1899 and 1907 and several other legal instruments adopted after that, the four Geneva Conventions of 1949 and the 1977 Additional Protocols, international humanitarian and criminal law in general as well as customary international law.356 The content of war crimes and several other prohibitions, as contained in the international humanitarian law and the Geneva Conventions, has attained the status of customary international law. This means that states are bound to observe and implement the provisions of this international legal framework even in the absence of treaty obligations.  Although there is no domestication yet, it is important also to note that Tanzania has ratified several legal instruments on war crimes. These include the four Geneva Conventions, namely, the first Geneva Convention I, also known as Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, which protects the sick and the wounded in armed forces in wartime; Geneva Convention II, also known as Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, which regulates the protection of the sick and the wounded in warfare at sea; Geneva Convention III, also known as Geneva Convention III Relative to the Treatment of Prisoners of War, regulating the status and protection of prisoners of war; and Geneva Convention IV, also known as Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, this provides comprehensive rules on the protection of civilians during wartime. This is followed together with Additional Protocol 1, also known as Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I) of 8 June 1977, the Protocol regulates the protection of persons in international armed conflict. Additional Protocol II, also known as Protocol Additional to the Geneva Conventions of 12 August 1949, and the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, the Protocol regulates the provisions of the common Art. 3 and promulgates comprehensive rules for non-international armed conflicts (civil wars).  Other relevant instruments that Tanzania has ratified include the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict of 2000, the Geneva Protocol on Asphyxiating or Poisonous Gases, and Bacteriological Methods of 1925, the Convention on the Prohibition of Biological Weapons of 1972, Convention Prohibiting Chemical Weapons of 1993, Anti-Personnel Mine Ban  354 Sections 254, 255, 139(1)(f), 138B, 130, 131A, 135, 196.   355 Section 4(1)(g)(ii).  356 Werle, G., and Jessberger, F., Principles of International Criminal Law, (3rd Edn), London: Oxford University Press, 2014, note 9, pp. 392-398.  	 167 Convention of 1997, Hague Convention for the Protection of Cultural Property of 1954, and OAU Convention on Mercenaries of 1977.357 We can thus conclude that Tanzania can prosecute war crimes committed within its territory by its nationals based on the limited provisions of the TPC, and Anti-Trafficking in Persons Act, and under international instruments whose principles form the fabric of customary international law.  A further argument favouring this approach stems from the Refugee Act of Tanzania. Section 4(4)(a) rejects to recognise and accord a refugee protection status to any person who “has committed a crime against peace, a war crime or a crime against humanity, as defined in international instruments drawn up to make provision in respect of such crimes.” This provision recognises the existence of crimes against humanity, war crimes, and the crime against peace or the crime of aggression based on international law or instruments adopted to criminalise them. Tanzania takes the definitions of these instruments and applies them domestically. While these provisions do not domesticate the essence of international law on these crimes, they allow courts of law and other state institutions to resort to international instruments and customary international law in understanding their content. One can argue that the commission of international crimes in Tanzania will thus not go unpunished. However, it needs to be insisted that Tanzanian courts are yet to prosecute war crimes through ordinary or international crimes approach.   SECTION 2: CONCLUSION One notes that although Tanzania can prosecute the crimes falling under international crimes of the Rome Statute through the ordinary crimes approach and sometimes using the international crimes approach through customary international law, the domestic legal framework is utterly insufficient. There is thus a need to domesticate the Rome Statute or adopt serious and comprehensive amendments of the TPC to incorporate the essence of international crimes and the Rome Statute in the domestic framework. Tanzania is not immune from the commission of international crimes within its territory. Following the 28 October 2020 election, several opposition parties and human rights activists have written formal requests to the Prosecutor of the International Criminal Court to investigate allegations of massive human rights violations during the election, which could amount to crimes against humanity. 358  This also has been the case in Zanzibar, where several international human rights groups have aired out human rights violations which could amount to crimes within the jurisdiction of the International Criminal Court following the October 2020 general election.359    357  International Committee of the Red Cross (ICRC), available at <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=TZ> (accessed 30 April 2024). 358 The East African, “Tanzania Opposition Turns to ICC for Probe into Rights Violations, Electoral Misconduct”, 14 November 2020, available at <https://www.theeastafrican.co.ke/tea/news/east-africa/tanzania-opposition-turns-to-icc-for-probe-into-rights-violation-3020846> (accessed 30 April 2024). 359  Human Rights Watch, ‘Still No Justice for 2020 Zanzibar Election Violence’, available at <https://www.hrw.org/news/2022/10/28/still-no-justice-2020-zanzibar-election-violence> (accessed 30 April 2024). 	 168 REFERENCES  BOOKS Bronitt S & McSherry, B., Principles of Criminal Law, (4th Edn), Pyrmont: Thomson Reuters (Professional) Australia Limited, 2017.  Cecil, T.J., Kenny's Outlines of Criminal Law. Cambridge: Cambridge University Press, 2013.  Chipeta, B.D., A Handbook for Public Prosecutors. Dar es Salaam: Mkuki & Nyota, 2008.  Chipeta, B.D., Criminal Law and Procedure: A Digest of Cases. Dar es Salaam: LawAfrica, 2010.  Molan M, Lanser D, & Bloy, D, Principles of Criminal Law 4th Ed, London: Cavendish Publishing, 2000.  Prado, M.M., and Trebilcock, M.J., Advanced Introduction to Law and Development. Cheltenham: Edward Elgar Publishing, 2021.  Nouwen, SMH., Complementarity in the Line of Fire: The Catalyst Effect of the International Criminal Court in Uganda and Sudan. Croydon: Cambridge University Press, 2013.  Schafer, S., 1974, The Political Criminal: The Problem of Morality and Crime, New York: Free Press.  Smith & Hogan, Criminal Law, London: Butterworth, 1965.  Stahn, C., A Critical Introduction to International Criminal Law, Cambridge: Cambridge University Press, 2019.  Yeazell, S.C., Schwartz, J.C. and Carroll, M., Civil Procedure, Boston: Aspen Publishing, 2022.  Werle, G. and Jessberger F., Principles of International Criminal Law (3rd Edn), London: Oxford University Press, 2014.  JOURNAL ARTICLES Aminzade, R., “The Politics of Race and Nation: Citizenship and Africanization in Tanganyika”, Political Power and Social Theory, Emerald Group Publishing Limited, 2001.  Benzig, M., “The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity”, New York: 7 Max Planck Yearbook of United Nations Law, 2003.  Boehringer, G.H., Aspects of Penal Policy in Africa with Special Reference to Tanzania” Journal of African Law, 15(2), 1971, pp. 182-212. 	 169  Bukurura, L.H., “Public Participation in Financing Local Development: The case of Tanzanian Development Levy”, Africa Development/Afrique et Developpement, 1991, pp.75-99.  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THESES AND DISSERTATIONS Seimu, S.M., “The Growth and Development of Coffee and Cotton marketing Co-operatives in Tanzania, c. 1932-1982”, Doctoral Dissertation, University of Central Lancashire, 2015.   	 171 ANNEX: UNION MATTERS              FIRST SCHEDULE            (Referred to in Article 4)  1. The Constitution of Tanzania and the Government of the United Republic. 2. Foreign Affairs. 3. Defence and Security. 4. Police. 5. Emergency Powers. 6. Citizenship. 7. Immigration. 8. External borrowing and trade. 9. Service in the Government of the United Republic. 10. Income tax payable by individuals and by, corporations, customs duty and excise duty on goods manufactured in Tanzania collected by the Customs Department. 11. Harbours, matters relating to air transport, posts and telecommunications. 12. All matters concerning coinage, currency for the purposes of legal tender (including notes), banks (including savings banks) and all banking business; foreign exchange and exchange control.  13. Industrial licensing and statistics. 14. Higher education. 15. Mineral oil resources, including crude oil and natural gas. 16. The National Examinations Council of Tanzania and all matters connected with the functions of that Council. 17. Civil aviation. 18. Research. 19. Meteorology. 20. Statistics. 21. The Court of Appeal of the United Republic. 22. Registration of political parties and other matters related

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