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I hear about proving a case beyond reasonable doubt. What does that mean and what are its consequences? HY, Dar

Reasonable doubt is a term used in jurisdiction of common law countries inclusive of Tanzania. Evidence that is beyond reasonable doubt is also the standard of evidence required to validate a criminal conviction in most systems where the Courts adopt an adversarial approach. Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty.

There can still be a doubt, but only to the extent that it would not affect a reasonable person’s belief regarding whether or not the defendant is guilty. Hence if the prosecution cannot prove its case beyond a reasonable doubt, then the accused is entitled to be discharged since there is a reasonable chance that she/he did not commit a crime.

Courts have stated that “It is better that ten guilty persons escape than that one innocent suffer”. The judicial systems want to make sure that no innocent man is convicted of an offence, even if it means that the guilty are sometimes let free due to this very high standard of evidence. As a defence attorney, your job is thus to bring in some doubt in the Judges and assessors minds that the accused is not guilty, even if there is a chance that he is; so long as there is some doubt that he might not be guilty, he cannot be convicted.

Whatsapp obscene, pornographic messages

I am a father of three and my daughters have cell phones which I proudly bought for them. Sadly there are so many obscene and pornographic messages flying around on WhatsApp, text and e mail including video clips of disgusting nature. Isn’t there a law which provide for these things? AL, Dar

The Electronic and Postal Communications Act of 2010 states that any person who by means of any network services or applications service provides any obscene communication to any person commits an offence and shall, on conviction, be liable to a fine not less than five million Tanzanian shillings or to imprisonment for a term not less than twelve months, or to both and shall also be liable to fine of seven hundred and fifty thousand Tanzanian shillings for every day during which the offence is continued after conviction.

As per the said provision, the penalty for such communication is serious with hefty fines and possible imprisonment. If you can pin point the persons who sends such messages to your daughters, you can report the matter to the relevant authorities and proper measures can be taken against them. Even if you cannot pinpoint such a person, this is reportable as all mobile phone numbers are registered. Your lawyer can guide you further.

Pornography is also illegal under our penal statutes- very few people seem to remember that. It is an offence that is imprisonable. Furthermore, under the newly passed Cyber Crimes Act 2015, publishing pornography attracts a fine of between 20 to 30M shillings with a custodial sentence of 7 years.

English law for Tanzanian contract

I executed a contract to be performed in Tanzania but the choice of law is English and English courts have jurisdiction to resolve the disputes. Now the other party has breached the agreement and I don’t see the necessity of filing a case in the chosen jurisdiction, can’t I sue locally? Can I be forced to perform a local contract with a foreign clause such as this? Is there no law to protect me? JK, Arusha

Courts always endeavor to observe the exact word of the contract as agreed by the parties because the intention of the parties at the time of contracting must be respected unless the Court has reasons to depart from the intention of the parties, which is quite rare. It is unlikely that the Courts will agree to entertain the dispute in Tanzania while both of you expressly agreed to apply English law and chose English Courts.

The best available option for you is to request the other party to agree to apply Tanzanian law and Tanzanian Courts to have jurisdiction which we doubt they will agree to. Such contracts are not uncommon and even if a Tanzanian Court had jurisdiction, such a Court would not know the English laws and hence would not in any case be able to entertain this here. As for being forced to stick to English Courts, please note that this was the clause both of you agreed to by signing on the contract.

You cannot now turn around and say that it should not apply. The four corners of a contract are to be respected. Your lawyer can guide you further.

Attending burial of mother whilst in prison

My uncle has been in prison for the past 5 years and has a good disciplinary record with the prison authorities. His mother passed away few months ago and he was informed of this in a timely manner. His application to go for last respects was denied. Is that legal? This has really disturbed me especially considering that all he asked for was to go to Church in Dar where he is imprisoned. RE, Dar Unfortunately the law and the rules governing detention of prisoners are very strict, not only in Tanzania but in many other developing countries

. Facilities of providing escorts to attend funerals are not easily available, and for the sake of safety there is a standard provision that a prisoner cannot go for funerals of their loved ones. It is indeed very sad but the circumstances seem to dictate so. To change this, you can suggest so to the Law Reform Commission of Tanzania to take this up.

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I came to Dar and stayed at a top notch hotel. When taking a hot shower, I burnt myself very badly as the shower water was very hot. I talked to the ho-tel boss that as part of compensation he allows me to stay free for one week but he is refusing. I have reported him to the Tanzania Tourist Board but they have not taken any action. What should I do?PL, Dar

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Flying to international space centreI

have a new cheaper way to fly to the international space centre and want to know whether I can be stopped by any-one. From my reading this is an object in no man’s land and every human has the right to go out into space and to the space centre. When I pass immigration in Dar what should I tell them?EL, Dar

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 My husband is suffering from a canonical disability. I am not sure what to do. Is this a ground for me to claim damages from him? What else can I do? TE, Lindi

Canonical disability is the inability of either party to have sexual relations with the other. It is another word for impotence. You cannot claim damages if this is a medical condition and which occurred after the marriage. However if you were unaware of this before marriage and were made to believe that all is normal, then you may have a claim for damages. As lawyers we are not qualified to guide you on the medical remedies available but if canonical disability is permanent and incurable then it is a valid ground for divorce.

When does a law comes into force

There is a particular law which was passed in the National Assembly in Dodoma on a certain day but we are unsure when it came into force.Is it immediately after the President assents to it? IO, Moshi

Section 14 of the Interpretation of Laws Act states that every Act shall come into operation on the date of its publication in the gazette or, if it is provided either in that Act or in any other written law, that it shall come into operation on some other date, on that date. Hence the law must be published in the gazette to come into force, otherwise it comes into force as shall be stated in the law itself.

For example some laws state that the law comes into force upon an order being gazetted by the Minister responsible. You hence need to read the law itself to know when it was to come into force.

Appealing after an appeal

Is it possible for me to appeal from the Court of Appeal? How does one do that? PP, Dar

Normally the Court of Appeal judgment after an appeal is final. However there is what is called a review, based on some very narrow grounds, that one can lodge after losing an appeal. Section 4(3) of the Appellate Jurisdiction Act and section 66 of the Tanzania Court of Appeal rules addresses reviews and states that the Court may review its judgment or order, but no application for review shall be entertained except on the following grounds: (a) the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; or (b) a party was wrongly deprived of an opportunity to be heard; (c) the court’s decision is a nullity; or (d) the court had no jurisdiction to entertain the case; or (e) the judgment was procured illegally, or by fraud or perjury.

The rules state that an application for review shall as far as practicable be heard by the same Justice or Bench of Justices that delivered the judgment or order sought to be reviewed and where the application for review is granted, the court may rehear the matter, reverse or modify its former decision on the grounds stipulated in sub-rule 1 or make such other order as it thinks fit.

Unsolicited advertisements from suppliers

My inbox is flooded with mass e mails being sent by suppliers who are promoting their services. I get e mails from those offering courses, to those selling computers.I hear there is a new law that protects us as consumers from such messages. What about mass messages inviting persons to attend a debate or seminar? Please guide. OI, Dar

The newly enacted law, The Electronic Transactions Act of 2015 provides for this and makes it illegal for such commercial suppliers to send you unsolicited messages. Section 32 of this Act states that (1) A person shall not send unsolicited commercial communication on goods or service unless- (a) the consumer consents to the communication; (b) at the beginning of the communication, the communication discloses the identity of sender and its purpose; and (c) that communication gives an opt-out option to reject further communication.

(2) The consent requirement is deemed to have been met where- (a) the contact of the addressee and other personal information were collected by the originator of the message in the course of a sale or negotiations for a sale; (b) the originator only sends promotional messages relating to its similar products and services to the addressee; (c) the originator offered the addressee the opportunity to opt-out and the addressee declined to opt-out; and (d) an opportunity to opt-out is provided by the originator to the addressee with every subsequent message. (3) An originator who contravenes this section commits an offence and shall, upon conviction, be liable to a fine of not less than ten million shillings or to imprisonment for a term not less than one year or to both.

You can see that if the commercial advert is unsolicited, it is illegal and the sender can be fined ten million shillings or be imprisoned for a minimum of one year, or both. However this does not apply to non commercial communication meaning that mass e mails with free debates and seminars would not fall foul under this law. Further, section 20 of the Cyber Crimes Act of 2015 states that (1) A person shall not, with intent to commit an offence under this Act - (a) initiate the transmission of unsolicited messages; (b) relay or retransmit unsolicited messages , or (c) falsify header information in unsolicited messages; (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine of not less than three million shillings or three times the value of undue advantage received, whichever is greater or to imprisonment for a term of not less than one year or to both.

It is important for those sending out mass e mails for commercial purposes or those emails that will end up being an offence under the Cyber Crimes Act to be careful as they can be fined and imprisoned.

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