Asherry B P Magalla
Asherry B.P. Magalla is an academician, formerly worked as Teaching Assistant and Assistant Lecturer in Law at the Faculty of Law of University of Iringa (Formerly Constituent Tumaini University Iringa University College) and University of Bagamoyo with more than 5 years working experience. Possesses Masters Degree of Law in Information and Communication Technology Law and Bachelor Degree of Law. The author is experience in conducting lecturing, researching and publishing various legal articles on academician websites and some international journal, conducting negotiations between aggrieved parties, settling of disputes in amicably/peaceful way, drafting contracts and other necessary legal documents and providing legal advice to the institutions/students/clients. He acquires report writing
Supervisors: Professor Ricky Costa Mahalu The Vice Chancellor University of Bagamoyo College of Law P.O. Box 75254, Dar-es-Salaam-TANZANIA Tel: +255 22 2781415, 2781416, 2781419 Fax: +255 22 2773037 E-mail: bagamoyouniversity@gmail.com , Augustino S.L. Ramadhani Former Chief Justice, Tanzania Mainland Brigadier General (Ret) Former Chief Justice, Zanzibar. Former President of African Court on Human and People’s Rights , and Hon.Dr.Eliamini Isaya Laltaika, CEO & Founder of Ubunifu Initiative Limited
Phone: 0716348882 / 0692435391
Address: 8401, Dar Es Salaam-Tanzania
Supervisors: Professor Ricky Costa Mahalu The Vice Chancellor University of Bagamoyo College of Law P.O. Box 75254, Dar-es-Salaam-TANZANIA Tel: +255 22 2781415, 2781416, 2781419 Fax: +255 22 2773037 E-mail: bagamoyouniversity@gmail.com , Augustino S.L. Ramadhani Former Chief Justice, Tanzania Mainland Brigadier General (Ret) Former Chief Justice, Zanzibar. Former President of African Court on Human and People’s Rights , and Hon.Dr.Eliamini Isaya Laltaika, CEO & Founder of Ubunifu Initiative Limited
Phone: 0716348882 / 0692435391
Address: 8401, Dar Es Salaam-Tanzania
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Legal Papers by Asherry B P Magalla
The information and communication technology has probably the greatest impact on society than any other technology. It is believed that at the beginning of 1990s, pornographic items were less watched and barely experienced in Tanzania. The flowing of pornographic items begun to flourish by the years of 2000s as the fact that the flowing of information was enormous. The reason for this enormous flowing of information was resulted by the augmented amount of the scientific amenities such as computers, mobile phones, internet and others which simplify the preparation and the view of the same. The point is , the internet is regularly regarded as an unidentified intermediate aspect that consumers of pornography appreciate, in view of prevailing social opinions. The same technology which gives us a number of positive outcome is the same through which pornographic pictures, videos and other of the same are currently highly created, processed, produced, possessed and shared among the individuals. The recent research has identified as many as 4.2 million pornographic websites that may be available on the Internet at any time. As the fact that internet does not respect boundaries, it has become a quite challenge to total prevent the availability of pornographic contents in the cyberspace for those countries which do not adhere or recognize pornographic contents as legal items. In Tanzania, any sort of image, video or other form of things in pornographic nature are both physically and electronically prohibited. This paper intends to provide the historical view of pornography in Tanzania and in some other countries. It further describes basic concepts and how the development of science and technology have posed a great risk to the current and coming generation upon creating, possessing, accessing, distributing any of the pornographic content presented or created for the purpose of sharing it online.
Keywords: cyber laws, pornography, and cyber pornography.
Alternative Dispute Resolution is the way of resolving dispute out of the court, it is one of the mechanisms applied to reduce overlapping of cases in the courts of law and intend to preserve the relationship between parties. The laws which deals with tax dispute settlement in Tanzania are Tax Administration Act, Tax Revenue Appeal Act, Tax Revenue Appeals Board Rules, and Tax Revenue Appeal Tribunal Rules. It is from these laws any aggrieved person is able to know what to appeal, who to appeal, where to appeal, how to appeal and when to appeal.
This paper aims at discussing and probing the applicability and enforcements of the alternative dispute resolution in undertaking disagreements ascending in tax administration precisely on how tax laws have encompassed the facet of alternative dispute resolution on the disagreements encompasses tax matters, and whether the same laws are sufficient enough to undertake tax disagreements through alternative dispute resolution.
Coming of digital environment have transform the means on how freedom of expression is exercise and protected. Tanzanian laws have responded to these digital changes by involving digital laws such as The Tanzania Electronic and Postal Communications (Online Contents) Regulation of 2018; Cyber Crime Act, No.13 of 2015, and Media Service Act, No.12 of 2016.
However, despite of this involvement of digital laws there have been a number of claims upon some of their provisions on infringement of constitutional rights such as freedom of expression and privacy.
This manuscript entails to provide analysis of the above-mentioned laws principally on evaluating their reflection towards freedom of speech/expression and privacy to online users.
Employers are not obligated to offer casual workers with an employee reimbursements compendium that full-time, permanent employees receive. This entails that most of them do not obtain paid vacations, retreats, breaks, holidays, or sick leave, and employer's annuity and health protection strategies do not customarily embrace them. It is rarely seen for labour legislations in Tanzania to include a casual worker as an employee.
This manuscript intends to make an analysis on the position of casual workers in Tanzania, by looking at a number of labour legislations so as to make a determination as to how does these employment legislations have provided for the recognition and protection of casual workers in Tanzania. It also entails at estimating possible reasons for the recruitment of casual workers, disadvantages of recruitment of casual workers, and the challenges facing casual workers before, during and after being recruited by the employers. In the end it is the conclusion whereby the position of casual workers in Tanzania is seen and the possible solutions to suppress violations of casual worker’s rights.
In September 2015, world leaders adopted the 2030 Agenda for Sustainable Development, which included 17 Sustainable Development Goals (SDGs).This was done in the United Nations Sustainable Development Summit. One among the impartial goal was on women’s equality, as well as the mainstreaming of gender.
The Summit came with a vision that, “a world in which every woman and girl enjoys full gender equality and all legal, social and economic barriers to their empowerment have been removed,” which was declared and signed by the leaders.
The aim of this paper is to establish and determine the gender role of women in energy sector in the United Kingdom, particularly by look at the gender equality and equity in working places in United Kingdom Energy Sector. The paper look further on the role of the government and private sectors in ensuring the gender equality in working places prevails and eliminate or reduce a number of obstacles facing the imbalance of gender equality in energy sector in United Kingdom (The legislation part).
The most important part of the paper is on the analysis of the laws dealing with electronic cheque and the admissibility of an electronic cheque system in Tanzania, particularly on how these new laws (the Electronic Transactions Act No.13 of 2015, the National Payment Systems Act NO.4 of 2015, Cyber Crime Act, No.14 of 2015, the Tanzania Automated Clearing House Rules and other related laws) which have provided for the same.
The questions guiding this paper are, whether the electronic cheque system in Tanzania is protected by the law, whether the law has provided for the conditions for electronic cheque, whether we have electronic clearing house and whether electronic cheque can be admissible before the court of law as evidence in civil or criminal action. As the fact that electronic cheque is discussed, then we cannot escape a briefly details on electronic evidence, as electronic cheque may form part and parcel of electronic evidence when required to be so.
Korten quotes a Philippine government advertisement (1995)
Successful governance in the world in the 21st Century requires companies to adopt an inclusive and not exclusive approach. The company must be open to institutional activism and there must be greater emphasis on the sustainable or non financial aspects of its performance. Boards must apply the test of fairness, accountability, responsibility and transparency to all acts or omissions and be accountable to the company but also responsive and responsible towards the company’s identified stakeholders. The correct balance between conformity with government principles and performance in an entrepreneurial market economy must be found, but this will be specific to each company”.
King II Report (2002)
The quotations above entails the importance of encompassing the two concepts, Corporate Governance as all of the above activities needs a good management of the company including the relationship between the company and its employees, and Corporate Social Responsibility as the activities above influence the living organisms and conditions of the individuals who are living in those mountains, jungles, swamps, rivers, and towns, and therefore it has to be socially responsible for any act affecting them, and also responsible in creating the better living conditions and environments surrounding those living organisms.
Corporate or Company Law includes the law concerning the establishment, functional and administration of corporations and their associations with other legal persons. Corporate Governance and corporate Social Responsibility principles are some of the principles used worldwide in relation to handle a matter of business activities specifically corporate activities. There is an assertion that these principles are new phenomenon and not well incorporated to many of the African countries particularly on the laws dealing with businesses.
This paper aims at assessing a number of business laws of at least three African countries including Tanzania as to whether, the same principles have been stipulated or not.
For the purpose of this paper, Tanzania, Kenya and Uganda legal frameworks are going to be used to assess the position of the two concepts named above.
Lord Steyn
The Act was enacted to provide for the forfeiture or confiscation of the proceeds of certain crimes and for connected or related matters. This short and a brief paper intend to explain the applicability of the Act in Tanzania. The term proceeds of crime is the term given to money or assets gained by criminals during the course of their criminal activity. The aim here is to set out the law in relation to the recovery of assets with criminal being the most commonly used power. Confiscation usually occurs after a conviction has taken place.
As I said earlier that a criminal cannot be benefit from any assets or money obtained from his/her criminal activities. So the Act intends to deprive and close the loophole that a criminal may use his/her assets after being found guilty of an offence. There is this saying that, “a person cannot be benefit from his/her own wrong”. In this case, the Act intends to show the society that commission of crime do not pay. Therefore, once you commit a crime which involves the accumulation of any assets including money or property, then you cannot be benefit from the wrong doing on such accumulation of assets, and therefore any properties resulting from criminal activities of serious or specified offenses cannot remain in the offender’s possession or ownership.
Properties derived from criminal proceeds are properties acquired as the fruit of criminal proceeds, or properties acquired as returns on criminal proceeds or properties acquired as returns on these properties and properties acquired from the possession or disposal of criminal proceeds.
Therefore, this short paper tries to show how the Proceeds of Crime Act, [Cap.256] of 2007 works particularly on its amendments of 2007 and 2012, and for the purpose of this paper, the term Act shall mean the Proceeds of Crime Act, [Cap.256] of 2007.
It is rebuttable fact that, the use of community services, probation, parole, extra-mural labour, open air camps and other means of punishing criminals allows the government reducing much costs in development programmes as well as allowing those criminals or prisoners contributing directly in maintenance of their dependants, taxpaying liabilities and income productions to rise up the revenue and their personal income. It allows also those criminals to learn good social values of their societies, so as to become good citizens of such societies. To some countries except Tanzania, those criminals they also have the right to vote or participating in any political election. Hence serving punishment other than imprisonment may allow them to active participate in some of political movements, such as voting. In Tanzania a person is not qualified to be voted or vote or appointed in any political position if such person is serving sentence of imprisonment of more than 6 months or death penalty.
For many years passed criminal laws on punishments were based on deterring, restituting, revenging against them on the basis that “who commit an offence should suffer the same” from committing offences once again without considering the socio-economic and political impacts of those sanctions.
Now it has reached the time where societies started to look upon those impacts resulting from imprisonment and tried to come up with various mechanisms to resolve such problems resulting from imprisonment as the means of punishing offenders whereby alternative punishments had been introduced; this aims at examining the contributions of those alternative punishments in promoting socio-economic and political development.
This paper aims at tracing and analyzing the effectiveness of alternative punishments in engineering socio-economical and political development in the society in Tanzania, by looking to a number of legislations which provides for the same.
The United Nations Convention against Corruption
This paper is concern about the Mutual Assistance in Criminal Matters Act No. 24 of 1991 [Cap 254 R.E 2008] on the mutual assistance in criminal matters between Tanzania and Commonwealth countries and other foreign countries, and also to facilitate the provision and obtaining by Tanzania of such assistance, and to provide for matters connected thereto.
The mutual assistance in criminal matters, criminal proceeds and extradition in Tanzania are related matters, as they are depending on each other. For example, in correlation with the bombing of the US Embassy in Tanzania in 1998, a Tanzanian citizen was extradited to the United States. Also in 2017 the Court approved the extradition of a leader of a global drug trafficking ring to the United States of America.
This means such person can be returned to our country (or foreign country) where crime has been committed in order to give the chance for the particular court proceedings to prevail. This act is normal known as Extradition, and the power given to the parties to an agreement on mutual assistance on extradition processes is known as Extradition Authority. The extradition processes cannot be carried out without having a common understanding between the two states on the matter at hand, which is mostly created by a number of treaties between states.
These treaties or any other form of agreements are the one which procures jurisdiction. The question of jurisdiction in Extradition lies at the root of judicial functions, being the creatures of statutes, court of law cannot exercise any powers other than those conferred on them by statute. They may not exercise powers which the law does not expressly or impliedly permit or prohibits.
Hence, first there must be a mutual agreement on the assistance of such criminal act(s) between the states in order for every order, rules, regulations, procedures to be carried out by either state in relating for such occurred criminal act. This is where mutual assistance in criminal matter emerged.
Tanzania can extradite its own nationals. In correlation with the bombing of the US Embassy in Tanzania in 1998, a Tanzanian citizen was extradited to the United States. Also in 2017 the Court approved the extradition of a leader of a global drug trafficking ring to the United States of America.
In Republic V Wilfred Onyango Nganyi & Another involving extradition of suspected robbers connected to a robbery that occurred in Arusha, Tanzania, extradition proceedings were followed to the letter and the accused were handed over to the Tanzania authorities after the High Court on appeal, granted extradition orders.
This means such person can be returned to our country (or foreign country) where crime has been committed in order to give the chance for the particular court proceedings to prevail. This act is normal known as Extradition, and the power given to the parties to an agreement on mutual assistance on extradition processes is known as Extradition Authority. The most important thing in Extradition is jurisdiction, which is mainly given after the mutual agreement between the said countries on extradition assistance. Territorial jurisdiction simply means the geographical area within which a court of law can exercise its powers (Sharma v R, 20 E.A.C.A 310).
For instance, if any fugitive criminal or other person is arrested in pursuance of the provisions of this Act and brought before a magistrate shall have power to order, who has no power to exercise jurisdiction under this Act, that magistrate person to be brought before some magistrate having that jurisdiction, and to remand or admit that person to bail, and effect shall be given to that order.
In 1974, the independent government of Tanzania passed the Wildlife Conservation Act, which further consolidated central control over wildlife in State agencies. The Act re-emphasized that wildlife is State property, further restricted access to and use of wildlife by local people, and gave the government greater control over commercial uses of wildlife.
The government under the Wildlife Conservation Act, 2009, the Economic and Organized Crime Control Act, 1984, [RE. 2016], Forest Act, 2002, the National Parks Act, Cap.282 [RE.2002], the Environmental Management Act, 2004, the Firearms and Ammunition Control Act 2015, and the Penal Code Cap.16. R.E. 2002 in consideration to other written laws of the land together with international agreements such as CITES, have try to her level best to ensure that the environmental ecosystem is not affected by environmental crimes.
A number of bodies, committees, and units have been established by particular legislation to assist on preventing the occurrence of such crimes. However, the participation of people committing such nature of crimes has been also largely practiced. These laws have also tried to cure such problem by joining the criminals who are said to be part on the commission of such crime.
Sometimes an environmental crime may be committed accidentally or with reasonable conscientiousness. In that case a person may be convicted for any environmental crime by unjustifiable means. These laws have also given the room for such person to raise a defence upon commission of such crime.
This paper assesses the possible available defences, ancillary powers and offenders to the crime as stipulated by some of environmental legislations in Tanzania.
In 1974, the independent government of Tanzania passed the Wildlife Conservation Act, which further consolidated central control over wildlife in State agencies. The Act re-emphasized that wildlife is State property, further restricted access to and use of wildlife by local people, and gave the government greater control over commercial uses of wildlife. For the purpose of this session the term Act means the Wildlife Conservations Act of 2009.
There are number of legislations that provides for a number of penalties and convictions relation to unlawful possession of government trophies and other relevant penalties relating to government trophies. These legislations may have different penalties and convictions compared to the principal legislation which is Wildlife Conservations Act of 2009.
However, due to the amendments made to the Economic and Organized Crime Control Act, 1984, [RE. 2016] by the Written Laws (Miscellaneous Amendments) Act No.3 of 2016 which includes wildlife and firearms offences, the punishments and fines vary in accordance with the type or class of animal hunted, killed or poached as specified by the Act. The most protected species, the more punishments and fines imposed.
This paper presents some of the provisions as provided by some legislation on penalties and convictions in relation to unlawful possession of government trophies and weapons in Tanzania.
For the purpose of this paper, the Acts referred shall be The Wildlife Conservations Act of 2009, the Economic and Organized Crime Control Act, 1984, [RE. 2016], the National Park Act [Cap.282 RE.2002] and the Firearms and Ammunition Control Act No.2 of 2015.
K.G. Kannabiran
From the above quotation, it is quite true that to conceive crimeless society is totally impossible. For those who believe in the Holy Bible even in the Heaven, a devil who was an angel acted against GOD and was punished. There is no society without crime/criminals. Professor Hart argued that, human beings are vulnerable; hence need a rule of law to maintain the society. In fact, everyone owes a certain duties to his fellow men and the same to the society. This respect is what regulates the acts of people in the society. But there are some people who deviate from these duties; it is from this concept that states had to regulate the people.
Crimes and politics have become friends in this current world. Not only in Tanzania, but we have witness a number of political unrest worldwide. Look at the situation in Syria, Iraq, Afghanistan, both Congo countries, Boko haram in Nigeria, we also have witness UAMSHO in Zanzibar, and latterly a number of kidnapping, assaults, battery, killings, the most current killing is that of a university student (Akwilina) in Tanzania mainland. All of these kinds of crimes and others which I did not mention them are directly resulted by political point of view.
As stated above, ‘efforts are focused on the preservation of the status quo and this fierce protection of the status quo leads to large-scale crime such as murder. Fighting in the way of each party effort to occupy the seat of power. And this is all about the connection between crime and politics. Conflict within any country may happen simply because of different political ideologies. People may commit crimes because of unfair acts of some leaders or politicians, as those acts do not correspond with their political ideology. So for somehow there is a deep relationship between crime and political.
This paper tries to show the connection between these two concepts, crime and politics, and how the connection of the concepts affects the society, either being involved on the criminal sub-political activity or being hurt and humiliated by such activity.
The information and communication technology has probably the greatest impact on society than any other technology. It is believed that at the beginning of 1990s, pornographic items were less watched and barely experienced in Tanzania. The flowing of pornographic items begun to flourish by the years of 2000s as the fact that the flowing of information was enormous. The reason for this enormous flowing of information was resulted by the augmented amount of the scientific amenities such as computers, mobile phones, internet and others which simplify the preparation and the view of the same. The point is , the internet is regularly regarded as an unidentified intermediate aspect that consumers of pornography appreciate, in view of prevailing social opinions. The same technology which gives us a number of positive outcome is the same through which pornographic pictures, videos and other of the same are currently highly created, processed, produced, possessed and shared among the individuals. The recent research has identified as many as 4.2 million pornographic websites that may be available on the Internet at any time. As the fact that internet does not respect boundaries, it has become a quite challenge to total prevent the availability of pornographic contents in the cyberspace for those countries which do not adhere or recognize pornographic contents as legal items. In Tanzania, any sort of image, video or other form of things in pornographic nature are both physically and electronically prohibited. This paper intends to provide the historical view of pornography in Tanzania and in some other countries. It further describes basic concepts and how the development of science and technology have posed a great risk to the current and coming generation upon creating, possessing, accessing, distributing any of the pornographic content presented or created for the purpose of sharing it online.
Keywords: cyber laws, pornography, and cyber pornography.
Alternative Dispute Resolution is the way of resolving dispute out of the court, it is one of the mechanisms applied to reduce overlapping of cases in the courts of law and intend to preserve the relationship between parties. The laws which deals with tax dispute settlement in Tanzania are Tax Administration Act, Tax Revenue Appeal Act, Tax Revenue Appeals Board Rules, and Tax Revenue Appeal Tribunal Rules. It is from these laws any aggrieved person is able to know what to appeal, who to appeal, where to appeal, how to appeal and when to appeal.
This paper aims at discussing and probing the applicability and enforcements of the alternative dispute resolution in undertaking disagreements ascending in tax administration precisely on how tax laws have encompassed the facet of alternative dispute resolution on the disagreements encompasses tax matters, and whether the same laws are sufficient enough to undertake tax disagreements through alternative dispute resolution.
Coming of digital environment have transform the means on how freedom of expression is exercise and protected. Tanzanian laws have responded to these digital changes by involving digital laws such as The Tanzania Electronic and Postal Communications (Online Contents) Regulation of 2018; Cyber Crime Act, No.13 of 2015, and Media Service Act, No.12 of 2016.
However, despite of this involvement of digital laws there have been a number of claims upon some of their provisions on infringement of constitutional rights such as freedom of expression and privacy.
This manuscript entails to provide analysis of the above-mentioned laws principally on evaluating their reflection towards freedom of speech/expression and privacy to online users.
Employers are not obligated to offer casual workers with an employee reimbursements compendium that full-time, permanent employees receive. This entails that most of them do not obtain paid vacations, retreats, breaks, holidays, or sick leave, and employer's annuity and health protection strategies do not customarily embrace them. It is rarely seen for labour legislations in Tanzania to include a casual worker as an employee.
This manuscript intends to make an analysis on the position of casual workers in Tanzania, by looking at a number of labour legislations so as to make a determination as to how does these employment legislations have provided for the recognition and protection of casual workers in Tanzania. It also entails at estimating possible reasons for the recruitment of casual workers, disadvantages of recruitment of casual workers, and the challenges facing casual workers before, during and after being recruited by the employers. In the end it is the conclusion whereby the position of casual workers in Tanzania is seen and the possible solutions to suppress violations of casual worker’s rights.
In September 2015, world leaders adopted the 2030 Agenda for Sustainable Development, which included 17 Sustainable Development Goals (SDGs).This was done in the United Nations Sustainable Development Summit. One among the impartial goal was on women’s equality, as well as the mainstreaming of gender.
The Summit came with a vision that, “a world in which every woman and girl enjoys full gender equality and all legal, social and economic barriers to their empowerment have been removed,” which was declared and signed by the leaders.
The aim of this paper is to establish and determine the gender role of women in energy sector in the United Kingdom, particularly by look at the gender equality and equity in working places in United Kingdom Energy Sector. The paper look further on the role of the government and private sectors in ensuring the gender equality in working places prevails and eliminate or reduce a number of obstacles facing the imbalance of gender equality in energy sector in United Kingdom (The legislation part).
The most important part of the paper is on the analysis of the laws dealing with electronic cheque and the admissibility of an electronic cheque system in Tanzania, particularly on how these new laws (the Electronic Transactions Act No.13 of 2015, the National Payment Systems Act NO.4 of 2015, Cyber Crime Act, No.14 of 2015, the Tanzania Automated Clearing House Rules and other related laws) which have provided for the same.
The questions guiding this paper are, whether the electronic cheque system in Tanzania is protected by the law, whether the law has provided for the conditions for electronic cheque, whether we have electronic clearing house and whether electronic cheque can be admissible before the court of law as evidence in civil or criminal action. As the fact that electronic cheque is discussed, then we cannot escape a briefly details on electronic evidence, as electronic cheque may form part and parcel of electronic evidence when required to be so.
Korten quotes a Philippine government advertisement (1995)
Successful governance in the world in the 21st Century requires companies to adopt an inclusive and not exclusive approach. The company must be open to institutional activism and there must be greater emphasis on the sustainable or non financial aspects of its performance. Boards must apply the test of fairness, accountability, responsibility and transparency to all acts or omissions and be accountable to the company but also responsive and responsible towards the company’s identified stakeholders. The correct balance between conformity with government principles and performance in an entrepreneurial market economy must be found, but this will be specific to each company”.
King II Report (2002)
The quotations above entails the importance of encompassing the two concepts, Corporate Governance as all of the above activities needs a good management of the company including the relationship between the company and its employees, and Corporate Social Responsibility as the activities above influence the living organisms and conditions of the individuals who are living in those mountains, jungles, swamps, rivers, and towns, and therefore it has to be socially responsible for any act affecting them, and also responsible in creating the better living conditions and environments surrounding those living organisms.
Corporate or Company Law includes the law concerning the establishment, functional and administration of corporations and their associations with other legal persons. Corporate Governance and corporate Social Responsibility principles are some of the principles used worldwide in relation to handle a matter of business activities specifically corporate activities. There is an assertion that these principles are new phenomenon and not well incorporated to many of the African countries particularly on the laws dealing with businesses.
This paper aims at assessing a number of business laws of at least three African countries including Tanzania as to whether, the same principles have been stipulated or not.
For the purpose of this paper, Tanzania, Kenya and Uganda legal frameworks are going to be used to assess the position of the two concepts named above.
Lord Steyn
The Act was enacted to provide for the forfeiture or confiscation of the proceeds of certain crimes and for connected or related matters. This short and a brief paper intend to explain the applicability of the Act in Tanzania. The term proceeds of crime is the term given to money or assets gained by criminals during the course of their criminal activity. The aim here is to set out the law in relation to the recovery of assets with criminal being the most commonly used power. Confiscation usually occurs after a conviction has taken place.
As I said earlier that a criminal cannot be benefit from any assets or money obtained from his/her criminal activities. So the Act intends to deprive and close the loophole that a criminal may use his/her assets after being found guilty of an offence. There is this saying that, “a person cannot be benefit from his/her own wrong”. In this case, the Act intends to show the society that commission of crime do not pay. Therefore, once you commit a crime which involves the accumulation of any assets including money or property, then you cannot be benefit from the wrong doing on such accumulation of assets, and therefore any properties resulting from criminal activities of serious or specified offenses cannot remain in the offender’s possession or ownership.
Properties derived from criminal proceeds are properties acquired as the fruit of criminal proceeds, or properties acquired as returns on criminal proceeds or properties acquired as returns on these properties and properties acquired from the possession or disposal of criminal proceeds.
Therefore, this short paper tries to show how the Proceeds of Crime Act, [Cap.256] of 2007 works particularly on its amendments of 2007 and 2012, and for the purpose of this paper, the term Act shall mean the Proceeds of Crime Act, [Cap.256] of 2007.
It is rebuttable fact that, the use of community services, probation, parole, extra-mural labour, open air camps and other means of punishing criminals allows the government reducing much costs in development programmes as well as allowing those criminals or prisoners contributing directly in maintenance of their dependants, taxpaying liabilities and income productions to rise up the revenue and their personal income. It allows also those criminals to learn good social values of their societies, so as to become good citizens of such societies. To some countries except Tanzania, those criminals they also have the right to vote or participating in any political election. Hence serving punishment other than imprisonment may allow them to active participate in some of political movements, such as voting. In Tanzania a person is not qualified to be voted or vote or appointed in any political position if such person is serving sentence of imprisonment of more than 6 months or death penalty.
For many years passed criminal laws on punishments were based on deterring, restituting, revenging against them on the basis that “who commit an offence should suffer the same” from committing offences once again without considering the socio-economic and political impacts of those sanctions.
Now it has reached the time where societies started to look upon those impacts resulting from imprisonment and tried to come up with various mechanisms to resolve such problems resulting from imprisonment as the means of punishing offenders whereby alternative punishments had been introduced; this aims at examining the contributions of those alternative punishments in promoting socio-economic and political development.
This paper aims at tracing and analyzing the effectiveness of alternative punishments in engineering socio-economical and political development in the society in Tanzania, by looking to a number of legislations which provides for the same.
The United Nations Convention against Corruption
This paper is concern about the Mutual Assistance in Criminal Matters Act No. 24 of 1991 [Cap 254 R.E 2008] on the mutual assistance in criminal matters between Tanzania and Commonwealth countries and other foreign countries, and also to facilitate the provision and obtaining by Tanzania of such assistance, and to provide for matters connected thereto.
The mutual assistance in criminal matters, criminal proceeds and extradition in Tanzania are related matters, as they are depending on each other. For example, in correlation with the bombing of the US Embassy in Tanzania in 1998, a Tanzanian citizen was extradited to the United States. Also in 2017 the Court approved the extradition of a leader of a global drug trafficking ring to the United States of America.
This means such person can be returned to our country (or foreign country) where crime has been committed in order to give the chance for the particular court proceedings to prevail. This act is normal known as Extradition, and the power given to the parties to an agreement on mutual assistance on extradition processes is known as Extradition Authority. The extradition processes cannot be carried out without having a common understanding between the two states on the matter at hand, which is mostly created by a number of treaties between states.
These treaties or any other form of agreements are the one which procures jurisdiction. The question of jurisdiction in Extradition lies at the root of judicial functions, being the creatures of statutes, court of law cannot exercise any powers other than those conferred on them by statute. They may not exercise powers which the law does not expressly or impliedly permit or prohibits.
Hence, first there must be a mutual agreement on the assistance of such criminal act(s) between the states in order for every order, rules, regulations, procedures to be carried out by either state in relating for such occurred criminal act. This is where mutual assistance in criminal matter emerged.
Tanzania can extradite its own nationals. In correlation with the bombing of the US Embassy in Tanzania in 1998, a Tanzanian citizen was extradited to the United States. Also in 2017 the Court approved the extradition of a leader of a global drug trafficking ring to the United States of America.
In Republic V Wilfred Onyango Nganyi & Another involving extradition of suspected robbers connected to a robbery that occurred in Arusha, Tanzania, extradition proceedings were followed to the letter and the accused were handed over to the Tanzania authorities after the High Court on appeal, granted extradition orders.
This means such person can be returned to our country (or foreign country) where crime has been committed in order to give the chance for the particular court proceedings to prevail. This act is normal known as Extradition, and the power given to the parties to an agreement on mutual assistance on extradition processes is known as Extradition Authority. The most important thing in Extradition is jurisdiction, which is mainly given after the mutual agreement between the said countries on extradition assistance. Territorial jurisdiction simply means the geographical area within which a court of law can exercise its powers (Sharma v R, 20 E.A.C.A 310).
For instance, if any fugitive criminal or other person is arrested in pursuance of the provisions of this Act and brought before a magistrate shall have power to order, who has no power to exercise jurisdiction under this Act, that magistrate person to be brought before some magistrate having that jurisdiction, and to remand or admit that person to bail, and effect shall be given to that order.
In 1974, the independent government of Tanzania passed the Wildlife Conservation Act, which further consolidated central control over wildlife in State agencies. The Act re-emphasized that wildlife is State property, further restricted access to and use of wildlife by local people, and gave the government greater control over commercial uses of wildlife.
The government under the Wildlife Conservation Act, 2009, the Economic and Organized Crime Control Act, 1984, [RE. 2016], Forest Act, 2002, the National Parks Act, Cap.282 [RE.2002], the Environmental Management Act, 2004, the Firearms and Ammunition Control Act 2015, and the Penal Code Cap.16. R.E. 2002 in consideration to other written laws of the land together with international agreements such as CITES, have try to her level best to ensure that the environmental ecosystem is not affected by environmental crimes.
A number of bodies, committees, and units have been established by particular legislation to assist on preventing the occurrence of such crimes. However, the participation of people committing such nature of crimes has been also largely practiced. These laws have also tried to cure such problem by joining the criminals who are said to be part on the commission of such crime.
Sometimes an environmental crime may be committed accidentally or with reasonable conscientiousness. In that case a person may be convicted for any environmental crime by unjustifiable means. These laws have also given the room for such person to raise a defence upon commission of such crime.
This paper assesses the possible available defences, ancillary powers and offenders to the crime as stipulated by some of environmental legislations in Tanzania.
In 1974, the independent government of Tanzania passed the Wildlife Conservation Act, which further consolidated central control over wildlife in State agencies. The Act re-emphasized that wildlife is State property, further restricted access to and use of wildlife by local people, and gave the government greater control over commercial uses of wildlife. For the purpose of this session the term Act means the Wildlife Conservations Act of 2009.
There are number of legislations that provides for a number of penalties and convictions relation to unlawful possession of government trophies and other relevant penalties relating to government trophies. These legislations may have different penalties and convictions compared to the principal legislation which is Wildlife Conservations Act of 2009.
However, due to the amendments made to the Economic and Organized Crime Control Act, 1984, [RE. 2016] by the Written Laws (Miscellaneous Amendments) Act No.3 of 2016 which includes wildlife and firearms offences, the punishments and fines vary in accordance with the type or class of animal hunted, killed or poached as specified by the Act. The most protected species, the more punishments and fines imposed.
This paper presents some of the provisions as provided by some legislation on penalties and convictions in relation to unlawful possession of government trophies and weapons in Tanzania.
For the purpose of this paper, the Acts referred shall be The Wildlife Conservations Act of 2009, the Economic and Organized Crime Control Act, 1984, [RE. 2016], the National Park Act [Cap.282 RE.2002] and the Firearms and Ammunition Control Act No.2 of 2015.
K.G. Kannabiran
From the above quotation, it is quite true that to conceive crimeless society is totally impossible. For those who believe in the Holy Bible even in the Heaven, a devil who was an angel acted against GOD and was punished. There is no society without crime/criminals. Professor Hart argued that, human beings are vulnerable; hence need a rule of law to maintain the society. In fact, everyone owes a certain duties to his fellow men and the same to the society. This respect is what regulates the acts of people in the society. But there are some people who deviate from these duties; it is from this concept that states had to regulate the people.
Crimes and politics have become friends in this current world. Not only in Tanzania, but we have witness a number of political unrest worldwide. Look at the situation in Syria, Iraq, Afghanistan, both Congo countries, Boko haram in Nigeria, we also have witness UAMSHO in Zanzibar, and latterly a number of kidnapping, assaults, battery, killings, the most current killing is that of a university student (Akwilina) in Tanzania mainland. All of these kinds of crimes and others which I did not mention them are directly resulted by political point of view.
As stated above, ‘efforts are focused on the preservation of the status quo and this fierce protection of the status quo leads to large-scale crime such as murder. Fighting in the way of each party effort to occupy the seat of power. And this is all about the connection between crime and politics. Conflict within any country may happen simply because of different political ideologies. People may commit crimes because of unfair acts of some leaders or politicians, as those acts do not correspond with their political ideology. So for somehow there is a deep relationship between crime and political.
This paper tries to show the connection between these two concepts, crime and politics, and how the connection of the concepts affects the society, either being involved on the criminal sub-political activity or being hurt and humiliated by such activity.
The existence of cyberspace demanded the creation of multi-nations agreements. They suggest that crimes against peace and security in cyberspace should be established as crimes under international law through a Convention or Protocol at the United Nations level.
In 1996 the International Law Commission approved at its forty-eight session The Draft Code of Crimes against Peace and Security of Mankind, and presented it to the United Nations General Assembly. Crimes against the peace and security of mankind were then established as crimes under international law, whether or not they were punishable for binding Parties under national law. The Council of Europe Convention on Cybercrime (2001) is a historic milestone in the combat against cyber crime, and entered into force on July 1, 2004 with the total number of ratifications to the Convention are 30 States.
The widespread digital accessibility creates new opportunities for the unprincipled because the manners in which offenders commit crimes changed from traditional to digital means. A lot of currencies are lost by both businesses and consumers to computer-criminals. Fair enough, computers and networks can be used to harass victims or set them up for violent attacks such as to coordinate and carry out terrorist activities that threaten us all.
Coming back to our country Tanzania, regrettably in many cases law enforcement institutions have insulated behind these criminals, deficient in the technology and the trained recruits to address this fresh and rising risk. To make things worse, old laws did not fairly prevent the crimes from being committed. Furthermore, new laws had not quite caught up to the reality of what was happening, and there were few court precedents to look to for guidance.
It is from this book whereby the position of cyber security, prevention and detection in Tanzania against cyber crimes, is determined. Actually by looking at the Cyber Crime Act No.14 of 2015 on how the concepts above have been provided and implemented.
In 2015, Tanzanian Parliament enact the new Cyber Crime Act, No.14 among other thing, with the aim of protecting human rights which have been infringed online for a long time without legal assistance. This book aims at showing the legal position of this new law in protecting human rights in Tanzania.
The developments of science and technology particularly on the aspect of information and communication technology have contributed to a lot of changes from traditional world to the cyber world. Some of these changes are positive and some are negative. For instance, the developments of science and technology have led to the transmission of information in a very easy form, fastest, and in large quantity and quality. This is not a problem as the fact that a transmission of this information in such circumstances it is not a big deal. The problem is when such transmitted information is used negatively, that is where a person transmitted such information gets some legal responsibility.
One among of those legal responsibilities is Defamation. Defamation is the situation whereby a person states to a third party a false statement towards another person which in the end resulting to a damage or injury. As stated before that, these developments of science and technology have both positive and negative impacts to the society. For the negative impacts it is where a person accumulates a large quantity of information of a person or institutions which are not true hence false statement and spread them or transmit them through electronic means in a very fastest way to a third party. The availability of this false information to a third party creates legal responsibility, which is defamation. But these legal responsibilities now have been turned from traditional legal responsibility to digital legal responsibility, Cyber Defamation. So now the problem is how such legal responsibility in a new world and era is handled? Because in some countries, cyber defamation is still a problem, as there is no cyber defamation law at all or the law is there but not sufficient enough to fight against cyber defamation.
Currently in Tanzania the new Cyber Crime Act, No.4 of 2015 has been enacted and provides some provisions relating to the crime committed in digital world, including provisions relating to cyber defamation. It is from this book whereby the current situation of cyber defamation in Tanzania legislations is determined through looking at the history of defamation in general from where it started to where it is right now, and how does the law dealing with cyber defamation in Tanzania sufficient enough to handle the problem.
In order to make this assessment prolific, comparison between Tanzania defamation legislations and other jurisdictions outside the world is crucial. Hence a number of countries have been used to determined, the current position of cyber defamation in Tanzania.
In my paper named, “Electronic Contracts in Tanzania: A Detailed Discussion on the Formation of Electronic Contract in Digital Age”,
I wrote about how the law governing contracts in Tanzania (Cap.345, [R.E.2002]) did not recognize electronic contract, even though there have been a lot of contracts contracted online. This was before the enactment of Electronic Transaction Act. No.13 of 2015.
The major problems that were being examined on the earlier paper were; the ascertainment of electronic contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. In respect to this problem, a lot of people in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment was not suitable in Tanzania in terms of recognition of electronic contracts. Messages sent via internet may be garbled in transmission and also determination of the time in which the message is sent or received as to ascertain offer and acceptance. This problem is already covered under the Electronic Transaction Act. No.13 of 2015, thus it is no longer a challenge to us.
Another problem was the requirement of consent i.e. consensus ad idem in contract in electronic contract has become a challenge particularly in e-agent because in some contracts e-agents are involved. And sometimes software programs can act as an agent (on behalf of the original owner). It has become a question as to whether these activities done by e-agent or software programs can amount to consent of the other party to the contract as per this new Electronic Transaction Act. No.13 of 2015.
This is still a problem as the fact that e-agents are not included in the interpretation of this law as to either mean a person or a computer program or software. Also the new Electronic Transaction Act. No.13 of 2015 does not provide a clear provision as to whether e-agent has legal enforceability or not. Section 26 of the Act provides with contracts by interactive systems but it does not provide as to what are those interactive systems means or comprises, hence creates a problem on the credibility of any transaction done by them.
Therefore, despite of having this new Electronic Transaction Act. No.13 of 2015 there is mismatching between this law on one hand, and on the issues of consensus ad idem particularly on the aspect of recognition of E-agent.
This book comprises of six parts which entails the general view of contract from traditional transaction to digital transactions particularly on the assessment of the new Electronic Transaction Act. No.13 of 2015, specifically on the aspect of recognition of E-agent and looking as to how the outside jurisdictions have tried to solve the problem.
This book aims to give exhaustive analysis on the infringement of artistic works in Tanzania, legal protection of artistic works in Tanzania, lessons for Tanzania to learn from the protection of artistic works in India and the United Kingdom and things that Tanzania may do so as to have efficient legal framework on the protection of artistic works.
We have to know that time, creativity, investment needed for the creating artistic works is often huge, and their protection against unauthorized use is of crucial importance particularly when it is done online.
Efficient legal framework for protection of artistic works is needed against their misuse, misappropriation and infringement of artistic works that are done online or offline.
The authors opted to analyze the legal framework on the protection of artistic works in India and the United Kingdom because of the significant development of Information and Communication Technology and Copyright Law in both countries. Furthermore, the United Kingdom is among of the first countries that adopted Intellectual Property Legal framework that protect artistic works from unauthorized use, since 15th Century.
Tanzania copied many of her laws from India and British; this is explained only by tracing how British Colonialists introduced copyright laws in Tanzania exclusively in 1920s.
Hence Tanzania has to learn from the legal protection of artistic works in India and the United Kingdom.
This book consists of Four (IV) chapters.
The developments of science and technology in Tanzania have made copyright protection and exceptions to become of vital importance compared with the ancient period where these changes were not noticeable. A lot of copyrighted information is accessed online through downloading; uploading and many other electronic means without any justifiable limitations; at the same time the owners of the copyrighted materials are trying to total prevent this accessibility of copyrighted materials which at the end affects the balancing between the owner’s rights and user’s rights.
The author has tried to create the analytical and descriptive book in nature. The reason for it to be analytical and descriptive is to aim at discovering whether the rules of copyright protection and exceptions are efficient in literature and practice.
The book entails that Copyright Protection in Tanzania is undermined by the development of science and technology which affects many of the copyright aspects in our current legislation (Copyright and Neighbouring Rights Act, [CAP. 218 R.E. 2002]).
Even though the aspect of copyright online infringement has been explain in the New Cyber Crime Act of 2015, as in a single provision, the government should take responsibility on amending current copyright legislation so as to keep pace with the development of science and technology. This must go hand in hand with ratifying some of the International Instruments which support copyright protection in digital environment.
All of the above concepts are explained and found in five (5) comprehensive chapters.