Criminal Law

Introduction
It is important that in every academic
work, there is definition or meaning of the
term to be presented. In this subject then
there is a need to provide for definition.
 Meaning of Crime

There are many definition of the term crime. The definitions

defer from one to another depending on context in which the
term is defined.
According to Michael, J. and Mortimer, J., crime is a behaviour
which is prohibited by the criminal code/law.

Encyclopedia Britannica, vol. 6 defines crime to mean an act

or omission forbidden by law under the pain of punishment.

Smith, J C and Hogan, B in their book Criminal Law define

crime as wrong which judges have held or parliament has from
time to time laid down as sufficiently injurious to the public to
warrant application of criminal procedure to deal with them.
 Cont….
From all these definitions, it is not possible
to know which act or omission is a crime
and which one is not a crime. The
decision as to which act or omission is a
crime or not is determined by the state.
This means the decision to make which
act or omission is crime or not is done by
the state
 Characteristics of Crime

Crime is a harm brought about by human

conduct which the sovereign power (state)
desires to prevent,
Crime is prevented by the state through the
use of prescribed punishment,
Before the accused or criminal is punished
there is a duly legal procedure to be
followed.
 Crime and Morality

Morality means principles or ethics and decency which society

respect. They are principles which the society uses to
determine which actions or omissions are useful and which
actions and omissions are not useful in the society. Morality is
created by the society from traditions and customs.

Every society has its moralities. Some of the moralities are

crimes while some of the moralities are not crime. So crime
and moralities relates. This is why there is a time when
morality and criminal law interact. This occurs when the state
desires to impose its moral standards in the society which
sometimes are equal to the moral standards of the community.
However law and moral are different. For that there are many
moralities which are not law and they are not enforceable by
criminal law.
 Cont….
Case
Shaw vs. DPP (1962) AC 220
In this case Shaw published a Ladies Directory. This
directory was designed to assist prostitutes to get
customers. He was charged for conspiracy to corrupt
public morals. This offence was not among the offences
at common law. However the court convicted Shaw in
order to protect morality. One of the Lords Simonds said
the following:-
“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 it is their duty to
guard against attacks which may be more insidious
because they are moral…”
 Cont…..
This decision extended criminal law to morals.
In the correct light of criminal law, this decision
was wrong because law and morals are different
and courts are required to decide cases using
law not morals. So eleven years later-after this
decision, the House of Lords reversed the
decision in the case of Shaw. This was done in
the case of Knuller Ltd vs. DPP (1973) AC 435
In this case the House of Lords emphasized that
the courts did not have residual power to extend
criminal law, by creating newer offences and
widening existing one, to enforce good morals.
 Meaning of Criminal Law
Criminal law is part of public law. It is the law which
is connected with the state and individual. Criminal
law is the law which is set by the state to discourage
commission of crimes in the society (country). It is
the law which prevents certain conduct or omission
by assigning sanctions or punishment for every
action or omission.

Criminal law is a set of rules, laid down by the state

in the interest of the ruling class and resulting from
the conflict between the class of the rulers and the
class of the ruled.
 Sources of Criminal Law

Source of criminal law means the materials

from which principles of criminal law are
derived. These are resources where criminal
law is obtained. There are two groups of
sources of law. These are municipal law and
received laws. In generality, the following are
the sources of criminal law. These are the
constitution, principal legislation, subsidiary
legislation, precedent, common law, doctrines
of equity, statute of general application and
international law.
 Municipal Laws

The Constitution

Constitution is the law which set the state in power. It

is a supreme law in the country which defines state
powers, relationship between the state and individuals
and defines rights and responsibilities of the citizens.
Constitution is the source of all other laws in the
country and that any other law derive their legitimacy
from the constitution. In relation to criminal law the
constitution is the source of law as it provides for
presumption of innocence, set out court structure
through which accused of crime is tried, provides for
right to appeal and other related matters.
 Principle Legislation

Principle legislation is the law which is made

by the Legislature-Parliament. This law is
known as Act of Parliament. Act of parliament
in law are referred to as Statute. There are
many statutes in Tanzania which are source of
criminal law. The following are the examples:-
the Penal Code, CAP 16 RE 2002, the Sexual
Offences (Special Provisions) Act, which is part
to the Penal Code, the Prevention and
Combating of Corruption Act of 2006, the
Economic and Organized Crime Control Act,
CAP RE 2002, the Tax laws, and many others.
 Subsidiary Legislation

Subsidiary legislation is the law which is made by

other organs than the Legislature. There other organs
like the Ministry, Municipal Authorities, District
Authorities, State Agencies, which make laws. The
laws which are made by other organs than the state
are known as By-Laws, Regulations, Rules and
Government Notes.

Power of these organs to make subsidiary legislation

is derived from the Principal Legislations. For that one
of the cardinal principle is that subsidiary legislation is
not allowed to contradict the Constitution and Principle
Legislation.
 Precedent

Precedent is the decision or judgment of the court

of records-the High Court and the Court of Appeal.
When these two courts make decisions or
judgments they create rules or principles. Those
rules and principles become part of the laws of
Tanzania. A best example of precedent is the
decision in the case of doctrine of recent possession.

Precedents are in two forms. There are those

precedents which are made by the local courts and
the decisions of the foreign courts. Decisions of the
local courts have strong power and bind all the
subordinate courts while decisions of the foreign
courts have persuasive value.
Received Laws
 vi.International Law

International law is the law which is made

by the international organizations or two or
more states. These laws are in the form of
Convention, Treaties, Charter and Protocol.
Examples of international law of criminal
nature are the Geneva Convention of 1949,
the Convention in the High Sea of 1958, the
Slavery Convention of 1926 and the
Convention for the Suppression of Traffic in
Persons of 1956.
 General Principles of Criminal
Responsibilities

Introduction
For the act or omission to be crime it must
be declared by the state. The state
declares certain acts or omission to be
crime through criminal statutes. However
for the act or omission to be declared as
crime, it must have two major elements.
These are actus reus and mens rea.
 i.Actus Reus

Actus reus means physical element of the crime. It is the

physical element of a crime which is prohibited by law. For that
for the act or omission to be crime it must has physical element.
Any crime which does not have physical element is not a crime.

Actus reus differ from one crime to another. However for the act
or omission to be crime it must have physical element or actus
reus.

In determining actus reus of a crime it is important to determine

three things; which are conduct, circumstances and
consequence of the conduct. Conduct means a voluntary
muscular contraction; circumstance is the situation or condition
while consequence is the result or outcome of the conduct.
 Cont….
• For example if the law prohibits stealing,
the conduct is taking the property of
another with intention to deprive
ownership, circumstance is the property
capable of being taken and result is
deprivation of ownership. For the offence
of murder conduct is act of killing a
person, circumstance is unlawful killing
while result is death of someone.
 Forms of Actus Reus

• Actus reus may be in the form of action,

attempt or omission. In the Penal Code all of
these three are offences or crimes. This is
provided under section 5 of the Penal Code,
which defines the term offence/crime. This
section defines offence or crime to mean an
act, attempt or omission punishable by law.
Omission is offence or crime because the law
requires positive action on pain of punishment.
For example driving motor vehicle without valid
driving license, omission to pay tax are
offence/crimes in the form of omission.
 ii. Mens Rea

• Mens rea means a guilty mind of the offender/

criminal or accused person. It is a blame-worth
state of mind of the accused person. Mens rea is
a mental state of the accused person to commit a
crime or offence.

• As a general rule no person can be found guilty

without mens rea. For that a person may be found
guilty if there is actus reu and mens rea. This
statement is explained in Latin maxim, which
“Actus non facit reum nisi mens sit rea.”
state that;
 Cont…
• This maxim means an act alone does not constitute
a crime unless that act is accompanied with guilty
mind. In this sense therefore the accused person will
be guilty if he committed an act with intention to do
that act. For that if any person does an act which is a
crime or offence without intention or involuntary he
is not guilty of the offence or crime. This provided
under section 10 of the Penal Code:-
• “Subject to the express provision of this code
relating to negligent acts and omission a person is
not criminally responsible for an act or omission
which occurs independently of the exercise of his
will, or an event which occurs by accident.”
Anthony Mhikwa vs. R (1968) HCD
460
• In this case the accused was charged of
contempt of court as he made peculiar noise
while the court was in progress. The Primary
court convicted the accused but on appeal
he was acquitted. This is because he
explained that he made unusual noises
because a fly had flown into his noise,
something which forced him to snort and
sneeze. The High court accepted the
explanations and acquitted him on the
ground that his act was involuntary.
•
 Forms of Mens Rea

• There are three forms of mens rea. These

are intention, recklessness and negligence.
 Intention

• This is the highest degree of mens rea. At this

degree or stage the accused person is said to intend
a consequence of his act. The accused is said to
have intention if he foresees what it may result and
he desires for that to occur.
• In statute intention is expressed in words like
“intentionally” or “with intent to” or “willfully” or
“malice aforethought” or “willingly” or “fraudulently”.
•
• If the statute requires intention, then it is upon the
prosecution to prove existence of that intention on
part of the accused.
 Brazila vs. R (1968) HCD 304

The accused was the messenger employed by Bukoba district

council and was in charge of prisoners. He was accused to
have let two prisoners to escape contrary to section 117(1) of
the Penal Code. It was stated that the accused let the
prisoners out of their cells to wash their clothes while he went
for a walk thereby the prisoners escaped.
The section under which the accused was charged requires
intention on the part of the accused, which provides; any
person who aids a prisoner in escaping or attempting to
escape from lawful custody commits an offence person.
Mustafa, J., held that the word “aid” in the provision imports an
element of intent ion of helping the prisoner to escape. The
evidence tendered by the prosecution did not prove intention
of the accused; instead it proved only that the accused was
negligent. Thus the High court acquitted the accused.
 Recklessness

Reckless occurs where the accused person

does the act which is a crime or offence and
he knows or foresees the possibility of the
consequence of his act but he does not
desire the consequence to occur or he is
indifferent as to whether it occurs or not.
Recklessness occurs where the accused
person act in a rash or swift manner without
desire for consequences.

This degree of mens rea normally occurs in

offences relating to motor vehicle driving.
 iii.Negligence

he accused person is said to be negligent

with respect to the consequence of his act
or omission without knowing or foresee
the consequences when he ought to have
foresee it as a reasonable man. For
example driving a motor vehicle without
checking it is negligence.
 Intention and Motive

Motive means object or purpose or reason or

emotion for which the accused person
commits the offence or crime. It is the ulterior
intention of the accused person for which he
commits the offence or crime. In criminal law
motive does not change the state of criminality,
whether the motive is good or ill motive-bad.
Case
R vs. Windle (1952)2 QB 826

Pili Kafiti vs. R (1969) HCD 152

 Exceptions to the Rule of Actus
Reus and Mens Rea
For the accused person be guilty of the
offence or crime charged, there are two
ingredients required. These are the actus
reus and mens rea. It means therefore that
the accused person cannot be convicted of
the offence unless it is proved that accused
acted with intention to commit the crime/
offence. Further more the accused person
will be liable for the crime charged or offence
if that person act voluntarily to commit the
crime or offence.
 Cont…..
Although this is the rule-that an act alone
does not constitute a crime or offence
unless that act is accompanied with guilty
mind, this rule has exception. There are
circumstances whereby the accused person
may be found guilty even where there is no
mens rea. This is possible where the crime
or offence fall under strict liability, vicarious
liability, collective liability and corporate
liability.
 Strict Liability (Absolute Liability)

The general principle that for the act to

crime or offence must be accompanied
with mens rea does not apply in strict
liability cases. In strict liability cases
intention or mens rea of the accused
person is irrelevant to establish guilty
mind of the accused person. What is
important is only actus reus-physical act
which constitute a crime or offence.
 Cont…..
In order to know the offence falls under strict liability,
one is required to look at the wording of the statute
which creates the offence. This was confirmed by
De Rutzen vs. (1895) QBD 918
Wright, J. in the case of
In this case Wright, J. stated as follows:-
“There is a presumption that mens rea…is an essential
ingredient in every offence; but the 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.”
 How to Identify Strict Liability
Offences

It is not easy to know whether the section

creating an offence or crime create it as
strict liability or not. However absence of
the words of the words “knowingly,” “with
intent to,” “intentionally,” “with malice
aforethought,” and “fraudulently,” implies
that the crime or offence is under strict
liability.
 Case

In this case D was licensed to sale liquor under the

Licensing Act of 1872. However section 13 of the Act
prohibited any licensed person to sell liquor to the
drunken person. D was charged for selling of liquor to the
drunken person. The evidence tendered in court showed
that D did not know that the person was drunk and there
was nothing to show that the person was drunk. This
means that the accused person had no intention (mens
rea) to commit the offence of selling liquor to the drunken
person. But section 13 of the Act which created the
offence did not have the word requiring mens rea of the
acc used. For that the court convicted the accused person
of the offence charged despite absence of mens rea.
Strict liability is part of the law in Tanzania. Several cases
have so far been decided based on strict liability
 Maulid vs. R (1970) HCD 346

The accused was the employer. He was charged

of failure to prepare and maintain records of
account of oral contract of employment of his
employees and failure to pay minimum wages.
During the trail the accused argued that he was
ignorant of as to the requirement to maintain the
records. This argument meant that the accused
person had no intention (mens rea) to commit
the offence charged. In deciding this case Biron
J., held that apart from the fact that ignorance of
the law is nom defense the offence which the
accused was charged was under strict liability-
requiring no mens rea.
 Test for Strict Liability

In the case of Joseph Hawksworth Georges,

C.J., put three factors for consideration
before the court can declare the offence is
strict liability or not. These factors are the
following:-
The intention of the parliament,
The problem of proving mens rea in
particular cases, and
The gravity of then harm.
 ii. Vicarious Liability

Vicarious liability is the liability of the employer for the

offence or crime committed by his employee, servant or
his agent. However for the master to be held liable for
the act of his servant the act or crime two elements
must be present:-
the act crime must be committed in the course of
employment,
the employer must have authorized or aided the act or
crime,
Examples of scenario for vicarious liability:-
The proprietor of newspaper may be liable if his servant
prints seditious article,
The employer may be liable if the Account ant commit
offence of tax avoidance or tax aversion.
 Cont….
In Tanzania vicarious liability is provided for
under section 54 of the Interpretation Act, CAP 1
RE 2002. This section provides as follows:-
“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 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 diligent, have had
knowledge, of the commission of the offence.”
Ali Mohammed Osman vs. R (1952)
ITLR 391
The appellant was charged with an
offence to permit his lorry to be used on a
road while then tyres were defective. As a
result the tyres burst and turn boy of the
lorry was injured. The Appellant was
charged of the offence despite the fact
that at the material time the lorry was
being driven by his driver.
 Collective Liability

This is the liability of group of persons for

the act or crime committed by one of the
members of the group. It is punishing
persons for the act done by one or several
persons who form part of group.
 v. Corporate Liability

Corporate liability is the liability of legal

person or legal entity. Legal entity is any
entity which is duly formed according to
the laws of the country. It includes
companies, institutions, institute and
others of the like. Although corporate are
persons in law, they are not persons in
physical existence but only persons in the
eye of law.
 Cont….
Corporate may be liable for certain crimes. This
is because the acts of its Directors or employees
in the course of employment are taken to be the
acts of the corporate. Thus if the Directors of the
company or employee of the company commit
offence in the course of employment, the
company will be liable for that offence.

However corporate may be liable for offences

which attract fine or cancellation of licenses
only-they cannot commit crimes which attract
imprisonment or corporal punishment offences.
 Parties to the Crime

Introduction
For any act top be crime or offence there is to be
some one to do certain act which is forbidden by
law. That act must be done with intention of the
person who is accused to have done such an act.
It is possible for one offence to be committed by
more than one person jointly. All those who
participate in one way or another in commission
of the offence are parties to that offence.
However every one of them will be judged
according to the extent of his participation in the
commission of the crime. Therefore in any
criminal liability there are parties to crime.
 Parties to Crime in England

At common law there are four types of the

parties to crime. These are principal
offender in the first degree, principal
offender in the second degree, an
accessory before the fact and accessory
after the fact.
 Principal Offender in the First
Degree
This is the actual offender. It is the person who
actually participated in the commission of the crime.
Principal offender in the first degree is the party
whose actus reus and mens rea are the result of the
consequence of the crime committed.

The principal offender in the first degree may

commit the crime himself or may commit the crime
by using an innocent agent (unsuspected agent). For
example the principal offender may use an animal or
a child which is not criminally liable.
 Cont…..
It is possible in one crime to have more than
one principal offender in the first degree. This
is possible if more than one person form a
common intention to carry out certain act
which is a crime. Again it is not necessary for
the person to be at the place of the
commission of the crime himself or physically
during which the crime is committed. It is
enough or possible for the principal offenders
to be far away from the scene of the crime and
still such a person may be held liable for the
crime so long as he planned for the
commission of the crime.
 Principal Offender in the Second
Degree
This is the person who aids or abets the
commission of the crime. This part may assist
the crime while the crime is being committed.
For a person to be principal offender in the
second degree, he must either render effective
assistance or encouragement to the person
who commits the crime. For that a mere
presence at the scene of the crime or if the
person does not assist the arrest of the
criminal does not make him a principal
offender in the second degree.
 Cont….
What makes someone to be principal
offender in the second degree is that he
must know the intention of the criminal and
decide to aid or abet on the carrying out of
his intention. In other words the person
becomes principal offender in the first
degree if he has common intention with the
criminal at the time the crime is committed
but without having prior agreement on that.
 Accessory Before the Fact

Accessory before the fact is a person who

directly or indirectly counsels, procures or
commands any person to commit crime.
For the person to be accessory before the
fact he must know the crime is to be
committed, he must approve and
encourage the act and he must approve
and encourage it before the crime was
committed.
 Case
R vs. Betts and Ridley (1930) Cr. App.
148
In this case Betts and Ridley agreed that Betts should rob
X by pushing X down and seizing his bag, which he was
carrying. It was agreed between them that while Betts was
robbing X Ridley would be waiting around the corner in a
car by which Betts would use to escape. Instead Betts
struck X with strong force and thus X died. Betts and
Ridley were convicted of murder. Ridley appealed and
argued that Betts committed the crime in different way as
he counseled Betts. However the court held that if the
person complies with counseling and commits a crime,
varying only in circumstances of time or place or in the
manner of execution of the crime counseled does not
excuse the other person from liability. In this case Betts
was the principal offender in the first degree while Ridley
was the accessory before the fact.
 Accessory After the Fact

Accessory after the fact is a person who

knowingly that the crime has been
committed shelters or assist the accused
person to escape or elude justice.
 Parties to Crime in Tanzania

In Tanzania there are two parties to the

crime. These are principal offender and
accessory after the fact.
 Principal Offender

The definition for principal offender in

Tanzania is provided for under section 22 of
the Penal Code,CAP 16 RE 2002 . According
to this section principal offender means
every person who actually does the act or
makes the commission which constitutes
the offence, every person who enables or
aids another to commit the offence, every
person who conceals or procures another
to commit a crime.
 Kamau vs. R (1965) EA 501

The law of Kenya, like that of Tanganyika

as stated in the case ofSita vs. R (19857)
EA 308 (CA) The law of Tanganyika does
not use the expression accessory before
the fact but by section 20 of the Penal Code
(section 22 of the Tanganyika Penal Code)
makes every person who counsels or
procures or aids or abets the commission
of the offence a principal offender
 Cont……….
Section 24 of the Penal Code,CAP 16 RE 2002 clarifies further
the circumstances under which counseling to commit a crime
is punishable. This section states as follows:-
“When a person counsels another to commit an offence and
the offence is actually committed after such counseling by the
person to whom it is given, it is immaterial whether the offence
actually committed is the same as the counseled or different
one, or whether the offence is committed in the way
counseled or in different way, provided in either case that the
facts constituting the offence actually committed were a
probable consequence of carrying out the counseling. In either
case the person who gave the counseling is deemed to have
counseled the other person to commit the offense actually
committed by him.”
R vs. Betts and Ridley (1930) Cr. App.
148
From section 22 of the Penal Code,CAP 16 RE
2002, it is possible for one crime to be
committed by more than one person. In case
that happens all of the persons participated in
commission of the crime are principal
offenders. However for those persons to be
known as principal offenders there should be
common understanding or intention among
them to commit the offense and the offense
committed should be a probable consequence
of the common intention among all
R vs. Mughuira and Others (1943)10
EACA 105
In this case nine Appellants had formed common intention to
commit the crime of burgling a house. During the commission of
the crime, one of the Appellants killed the owner of the house by
stubbing him with a spear. They were charged of murder to
which they denied to have e formed intention to commit murder.
However the trial court convicted them of the offence charged-
murder. They appealed to the Court of Appeal for East Africa on
the ground that they had no common intention to commit murder
but only to commit burglary. The Court of Appeal held that even
though only one member of the party who had formed the
intention to commit burglary was armed the enterprise of
burglary was unlawful, and the resistance by the owner of the
premises burgled was a probable consequence and the
overcoming of such resistance by violence if necessary, by the
burglars would probably be resorted to were sufficient factors to
bring all of the accused persons within the doctrine of common
intention, thus making them equally responsible in law for the act
of the first accused.”
 Common Intention of the Accused

For the group of persons to be said to be

principal offender all of them must have
common intention to commit the offense.
To constitute common intention among
the accused does not mean that there is a
need or them to have a formal meeting or
agreement. Common intention of the
accused may be formed at the scene of
the crime-at the spur of the moment.
 R vs. Tabulayanka s/o Kinya and
Others (1943) 10 EACA 51
In this case a suspected thief, Mikairi, was discovered
sitting near the door of the hut at night. An alarm was
sounded and several persons came rushing to the spot
and at once proceeded to be-labour the said Mikairi
with fists, feet and such weapons they hands on. The
result was death from multiple injuries. The issue was
whether there was common intention among the
persons who participated in be-labouring the deceased.
The court said:-
“To constitute common intention…it is not necessary
that there should have been any concerted agreement
between the accused prior to the attack their common
intention may be inferred from their presence, their
actions and the omission of any of them to dissociate
himself from the assault.”
 Difference Between Common
Intention and Similar Intention

Similar intention does not mean common

intention. So where two or more persons
have intention to commit similar offence,
in similar manner or place does not mean
that they have common intention.
 R vs. Okute and Another (1941)8
EACA 78
In this case the deceased died from shock resulting from injuries
received in two separate and independent assaults. The first assault
was made by the first Appellant and three others who were convicted of
manslaughter but did not appeal. The trial court held that the first
appellant intended to cause grievous harm but that the other assailants
had not so serious intention. Although then injuries inflicted in this
assaults were serious there was no evidence that they were sufficient of
themselves to cause death. After the first assault and independent of it
the second appellant acting in a manner which clearly showed his
intention to cause grievous bodily harm at the least committed a
second and independent assault upon the deceased who was in
weakened condition as a result of this prior beating and caused a
fracture of his breast bone which was one of the injuries from the
cumulative effect of which the deceased died. One appeal the Court of
Appeal stated that the second Appellant, having intent to cause
grievous bodily harm, inflicted an injury on one who was already in a
weak state was properly convicted of murder. The conviction for the
first Appellant was quashed and appeal allowed.
 Accessory After the Fact

Section 387 of the Penal Code,CAP 16 RE

2002 defines accessory after the fact.
According to this provision accessory
after the fact means the following:-
“A person who receives or assists another
who is to his knowledge, guilty of an
offence in order to enable him to escape
punishment, is said to become an
accessory after the fact to the offence.”
 Cont…..
However the proviso to section 387 of the Penal Code,
CAP 16 RE 2002 provides that spouses cannot be
termed or regarded as accessory after the facts if they
assist or enable another spouse to escape punishment.
Further more in order for a person to be guilty as
accessory after the fact, the accused must take active
participation while knowing that he is assisting the
principal offender to escape from punishment or arrest.
In case the accused of accessory after the fact does
not know of the commission of the offence, his
participation will not make him guilty of assisting
principal offender to escape liability. In other words,
the offence or crime of accessory after the fact
requires mens rea of the person accused to have
assisted another to escape punishment or arrest.
Andrea Nicodemo vs. R (1969) HCD
245
In this case the accused persons were charged of stealing a
bicycle-the second accused being Nicodemo, who was joined
as accessory after the fact. The reason for Nicodemo was
joined as accessory after the fact was that after the first
accused to have stolen the bicycle he took it to the Appellant-
Andrea Nicodemo. The second accused received the bicycle
and kept it for several days. He even assisted the first accused
to remove the saddle of the bicycle. However the second
accused did all this without knowing that the bicycle was
stolen. Later on both were arrested and the second accused
was charged and convicted as accessory after the fact
contrary to section 387 of the Penal Code. On appeal the High
Court acquitted the second accused on the ground that he did
not know of the offence-that the bicycle was stolen, although
he assisted to keep the bicycle and remove the saddle thereof.
For that he did not assisted the first accused to escape
punishment.
 The Principle of Causation

Causation means to facilitate something to

occur which otherwise such a thing would
not occur at that time and in that manner.
For that for the accused to be liable for the
offence there must be a link between actus
reus and the consequence of that actus
reus. When there is a link between actus
reus and consequence of the actus reus,
the actus reus is said to be causation of the
consequence-crime or offence.
 Test for Causation

There are seven circumstances under

which the principle of causation may be
examined.
 Where there is no Physical
Participation
The accused person may be held liable for offence
even where he did not physically commit the offence.
This occurs where the accused person procures,
abets, or incites another to commit the offence.

If the accused assist or incite another to commit any

offence and that other real commit the offence then
the person who procures or incites is also liable for
the offence. This is because his incitement or
procurement is said to have caused commission of
the crime.
Where there is Indirect Participation

In case the accused person has misled a

person to commit the offence that person
who misled the other is also liable for the
offence. This is because he indirectly
participated to the commission of the
crime by causing another to act in certain
way. This normally occurs where the
accused person act under negligence
situation.
 Case
R vs. LOW (1850)3 C&K 123
In this case the accused person was working
in the mines. His work was to operate the
machine which was used to take mine
workers down and up mining shaft. One day
he left the machine under the charge of a
person incompetent to operate the machine.
Due to his incompetence, the machine
caused the death of one of the mine workers.
The accused was held liable for his
negligence of leaving the machine under the
charge of incompetence person.
 Where there are Subsisting and
Supervening Causes

The accused person is liable for the

offence committed along to subsisting
and supervening causes. This occurs
where the causes does not break the
chain of causation of the crime. But if
there is a break of chain of causation, then
the accused of the offence committed
under subsisting and supervening will not
be liable.
Where the Victim is the Cause of the
Offence

Where the offence occurred but due to

contribution of the victim of the offence,
the accused is still liable for the offence
irrespective of negligence or contribution
of the victim of the crime
 Case
R vs. Holland (1841)2 M & R 351
The accused assaulted the deceased
person by cutting his finger. The Surgeon
recommended for the finger to be imputed,
but the deceased refused. Later on the
finger contracted lockjaw diseased, which
then caused the death of the deceased. The
accused was found guilty of murder despite
the fact that what killed the deceased was
lockjaw and not wound which the accused
inflicted on the deceased.
 Where the Participation of the
Accused is Superfluous

Even where participation of the accused is

superfluous to the offence charged, the
accused will still be liable as the chain of
causation is not broken
 Case
R vs. Macklin (1838)2 Lew 225

A, B and C were beating Y. Abruptly X

joined and administered a severe blow on
Y, which caused the death of Y. A, B and C
argued that they were not liable as the
death of Y was caused by the blow of X.
they were found guilty despite the fact that
their participation in beating Y was
superfluous for the death of Y.
 Where the Crime is Committed
Without Expectation of the Accused

Where the accused does an act and the

result of that act is different from what he
intended or planned, still the accused
person will be liable for the offence.
 Case
R vs. Curley (1909) Cri. App. R 109
The Appellant quarreled with a woman in
the house-room. The Appellant ran at her
with intention to hit her. Before the
Appellant actually hit her she jumped out
through the window and died. The
Appellant did not intend that woman to die
but since he planned to hit her he was
convicted of manslaughter despite
unexpected result of his action.
 INCHOATE CRIME
• Not completed crime or Imperfect
 The essence of criminal law such as; a
person does not break the criminal law
simply by having evil thought. To plan and
scheme in one’s mind to commit an
offence is not in itself unlawful, Where
however a person take step towards
affecting that plan to commit a
substantive offences.
 Cont…
• It is important to note that these inchoate
offences are step on the way to the
commission of a substantive offence. The
common law gave birth to three general
offences which are usually termed
inchoate crimes: Attempt, Conspiracy,
incitement.
 Attempts and Conspiracy

• Attempts
• Introduction
• Some times the accused person may plan
to commit the offence. But some events
may occur and interrupt the completion of
the commission of the planned offence. In
law even at that stage, there is crime or
offence committed. This offence is known
as attempt
 Meaning of Attempt

• Attempt means a mental commemoration of

the accused to commit certain offence which
is accompanied with actus reus of such
offence. It is the offence which is committed
only at the stage when the accused put into
action his contemplated crime but before the
crime or offence is fully committed or carried
out. It is the offence which its actus reus is
not yet fully carried out by the accused
person. For that attempt offence is normally
incomplete offence-inchoate offence.
 Cont……
• Attempt is provided for under section 380 of the Penal Code,
CAP 16 RE 2002. This section reads as follows:-
• “When a person intending to commit an offence, begins to put
his intention into execution by means adapted to its fulfillment
and manifested his intention by some overt act, but does not
fulfill his intention to such extent as to commit the offence, he
is deemed to attempt to commit the offence. It is immaterial
except so far as regards punishment whether the offender
does all that is necessary on his part for completing the
commission of the offence or whether the complete
fulfillment of his intention is prevented by circumstances
independent of his will, or whether he desists of his own
motion from the further prosecution of his intention. It is
immaterial that by reason of circumstances not known to the
offender it is impossible in fact to commit the offence.”
 Actus Reus in Offence of Attempt

• In attempt there is actus reus, although the actus reus is not

complete. The actus reus in attempt offence is the intention to
commit the offence contemplated-planned. The actus reus in
attempts is known as “overt act.”

• Overt act occurs where the accused person plan to commit the
offence, make preparations for the commission of the offence
and then put into execution some of the actions which will
facilitate commission of the offence. The action which facilitates
the commission of the offence may be interrupted or may
accelerate the offence. It the action is interrupted and the planed
offence does not occur or complete, then the accused person is
guilty of attempt to commit offence. If the action accelerates the
offence then the accused person will be guilty of the offence
itself. In case the accused person just contemplate-thinks to
commit the offence and he makes preparations for the offence
without overt act, then there is no offence of attempt committed.
 Case
R vs. Miskell (1954) WLR 438
• In this case the court said:-
• “The mere intention commit a
misdemeanor is not criminal. Some act is
required, and we do not think that all acts
towards committing a misdemeanor are
indictable. Acts remotely leading towards
the commission of the offence are not to
be considered as attempts to commit but
acts immediately connected with it are.”
 Rules Governing Attempt

There are two rules which govern the

offence of attempt. These are proximity
rule and equivocality rule.
 Proximate Rule
• Proximity means nearness. For the crime
to be attempt, the act or overt act must be
very near-sufficiently proximate towards
the intended crime or offence. For that
acts remotely leading towards the crime is
not crime of attempt.
 Case
R vs. Cook (1963) Cr. App. 48
The accused was found in the car fiddling
with the ignition lock on the dash board of
that car. He was charged of attempting to
steal the car. The court convicted him on
the ground that the accused’s act was
proximity to the offence of stealing that
car.
 Case
Mulira vs. R 20 EACA 223
• The appellant was charged and convicted by the trial
court of attempting to commit rape. The evidence showed
that the Appellant entered into the room of the wife of his
employer, switched off the light, put his hand over the
mouth of the woman, removed his shirts and lifted his
petticoat. At that stage the woman screamed for held and
a boy entered the room and shone a torch. The Appellant
then ran out of the room, being arrested later and charged
of the offence. The East African Court of Appeal quashed
the conviction and acquitted the Appellant on the ground
that the fact showed only an assault with intention to
ravish, the facts which are not sufficiently proximate to
offence of attempting rape. What the Appellant did was
just preparation to commit the offence but not attempt to
commit the offence of rape.
 Case
R vs. Andrew Avarity (1973) LRT 92
Mfalila, J.,
In this case the accused was charged of the offence of
attempting rape. The facts showed that on the material date, at
night, the complainant, a woman, was walking from shopping to
her home around 10:00 pm. She was walking along the path
which was surrounded by mango trees. There after the accused
came from behind her, got hold of her and started stripping her
clothes. The complainant shouted for help. People appeared on
the scene thereupon the accused ran away. He was arrested two
days later and brought in court to answer his charge. In deciding
this case, Mfalila, J., held that stated that the concepts of
preparation and proximity do not exist is Tanzania Penal Code-
section 380. According to him offence of attempt in Tanzania is
complete only when three elements exist:-
• (a). the intention by the accused to commit an offence,
• (b). the manifestation of the intention by embarking upon it by
means adopted to its fulfillment by way of an overt act, and
• (c). proof of the overt act.
 Equivocality Rule

The offence of attempt is committed only

where the overt act indicates beyond
reasonable doubt that it is directed
towards the crime or offence intended. If
the overt act is not directed towards the
crime or offence contemplated, there is no
crime or offence of attempt.
 Impossible Actions

Sometimes the person may contemplate to

commit a crime which is impossible to occur
in certain circumstances. However if the
accused makes requisite preparations and
puts some actions to facilitate that act, the
crime of attempt is committed. This is
provided in part under section 380 of the
Penal Code, CAP 16 RE 2002, which reads as
follows:-
“It is immaterial that by reason of
circumstances not known to the offender it is
impossible in fact to commit the offence.”
 Cont…..
From this section it is clear that act may
be attempt although the commission of
that crime is impossible either by the
means chosen or by other reasons. The
only thing required to constitute offence of
the attempt is intention of the accused
and overt act to commit that offence.
 Mens Rea in Attempts

Attempt requires mens rea of the accused

person. So in order for the accused person
to be convicted of the crime of attempt
there must be evidence to prove that the
accused person had intention to commit
certain crime or offence.
 Case
R vs. Ngambilo (1967) HCD 388
The accused person entered into the house
of the complainant with a gun in hand. Then
he pointed the gun at the knee of the
complainant and said; “today you shall die.”
He then fired the gun on the said knee. He
was arrested and charged with the offence of
attempting murder. The court held that in
order to convict a person for attempted
murder the actual intention to kill must be
proved. In this case the accused did not show
actual intention to kill as he fired the gun at
the knee.
 Case
R vs. Mlatende (1971) HCD 471
The accused secured the front and back
doors of the house in which three persons
were asleep. Then he set the house into
fire and he ran away. The complainants
managed to escape and the accused was
arrested and charged with the offences of
arson and attempting murder. He was
convicted on both of the offences.
 Conspiracy

 conspiracy is agreement between two or

more persons to commit an offence. It is
agreement between two or persons to
carry out unlawful act or lawful act by
unlawful means. Conspiracy is a statutory
CAP 16 RE
offence under the Penal Code,
2002.
• Section 384 of the Penal Code,CAP 16 RE
2002 states as follows:-
 Cont….
“Any person who conspires with another
to commit any felony or to do any act in
any part in party of the world which if done
in Tanganyika would be a crime 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…”
 Cont…
Conspiracy is early stage toward
commission of the offence. It is however an
independent offence, which is inchoate or
incomplete offence. It is the offence which
is committed only by mere agreeing to carry
out the act which is forbidden by certain law.
Conspiracy is therefore committed by mere
agreement, even where parties to such
agreement do not act or perform what they
have agreed to do.
 Actus Reus in Conspiracy

Being an offence conspiracy must have actus reus. The

law requires that for conspiracy to take place, mere
knowledge of the plan to commit an offence is not
enough to constitute the offence of conspiracy.

Actus reus of conspiracy is the state of two or more

persons to make agreement to carry out unlawful act.
Actus reus of conspiracy therefore is evidence to show
that these persons had had agreement to pursue
common objective which is forbidden by law. Actus reus
of conspiracy is formed where two or more persons
know of the existence of any scheme to perform illegal
act. This agreement is not necessarily to formed by
direct communication between and among the persons,
it may be facilitated by third party.
 Cont…
Actus reus of conspiracy therefore is the
existence of agreement and knowledge of
the accused of the common plan to
commit the offence.
 Mens Rea of Conspiracy

Mens rea of conspiracy is plan or objective of the persons to

carry out unlawful act. it involves mental planning and creation
of scheme to commit the proposed offence.

Case
R vs. Whitchurch (1890) 24 QBD 420
Witchurch believed that she was pregnancy. However she was
not ready to mother and thus she planned to con duct abortion.
Witchurch agreed with other women to use instruments and
administer things into her which would cause miscarriage.
However there was no evidence that Witchurch was pregnant
and so no miscarriage occurred. Witchurch was arrested and
would be charged for abortion. However as she was not
pregnant the offence of abortion would not stand. Instead
Witchurch was charged of conspiracy to commit abortion.
 Proof of the Offence of Conspiracy

It is not easy to have direct evidence of

conspiracy. Most of the time the offence
of conspiracy is proved by circumstantial
evidenced or inference.
 Ongodia and Erima vs. Uganda
(1967) EA 137

• In this case it was alleged that on February 24 1966 the two Appellants arrived
at the officers’ mess at entebe at about 2 pm. The first Appellant , Ongodia, in
the presence of the second Appellant, Erima, informed Anguram and
Guweddeko in the mess that war had broken out, that the army headquarters at
Mbuya had been surrounded and they had managed to escape. Ongodia asked
Anguram if he had confidence in his platoon and on receiving an affirmative reply,
Angodia asked Anguram to take his platoon to Baitababiri on the Kampala/
Entebe road and set up a road block with the object of arresting the Prime
Minister, Dr. Obote. Angodia added that other troops were advancing from
Kampala and they could be arriving at any moment. Erima remained silent
throughout the conversation but nodded his head from time to time. It was not
established at what precise moment of the conservations he nodded his head.
The Judge Advocate in his direction stated that if the evidence of Anguram and
Guweddeko that the first Appellant Ongadia conspired with a person or persons
unknown to arrange for a road block to arrest the Prime Minister and the finding
on the first charge was confirmed. It was also found that the evidence was
insufficient to establish that the second Appellant was acting in concert with the
first Appellant and a finding of not guilty was substituted. On the second charge
both Appellants were found not guilty for lack of sufficient evidence.
 Cont…
The husband and wife can commit
conspiracy as an offence. This situation is
provided under section 386 (2) of the
penal code.
 INCITEMENT

• Incitement occurs when people invites or

request another to commit crime. It
focused on three components;
• Mental state
• Physical act
• Social harm
 General Defenses for Criminal
Liability

Any person who is charged of any offence

may raise as many defenses as possible.
However the defense raised must be
relevant to the charge. Some of the
defenses which accused may rise are
provided under the criminal law while
other are provide in other subjects. In
criminal law the following are the general
defense for criminal liability.
 Insanity

• Insanity means lunacy or mental illness of the

accused. The accused may raise the defense that at
the time he committed the offence he was off mind-
lunatic. The insanity is accepted defense due to the
fact that if the accused person committed the
offence during lunacy then he had no mens rea to
commit that offence. As a general rule no crime is
committed if there is no mens actus
rea- non facit
reum nisi mens sit rea.
• However every person is presumed to be of sound
mind and to have been of sound mind at any time
which comes into question until the contrary is
proved. This is provided for under section 13 of the
Penal Code,CAP 16 RE 2002.
 Question
• Mr. Michael deliberately killed his wife under the
insane belief, due to disease affecting the mind,
that God had commanded him to sacrifice his wife,
as Abraham was called to sacrifice Isaac. He then
turned himself over to the police saying “I have
killed my wife as God told me”. Mr. Michael was
charged with murder. While testifying, he was
asked “Did you know that what you were doing
was against the law? Mr. Michael answered; “I
knew it was against the law but I was bound to
obey God.”In the light of the above facts, give a
brief reasoned opinion as to whether Mr. Michael
can succeed in a defence of insanity?
 Test for Defense of Insanity

• For the defense of insanity to be accepted

in court, there are three tests which must
be proved in court during \trial. These
tests were listed by the House of Lord in
the case of M’naghten
R vs. Daniel M’naghten (1843) 10 CL
and F 200
• In this case the accused person was charged for the murder of
one Edward, by shooting him in the back, as he was walking up
whitewall on 20 January 1843. The accused pleaded not guilty.
th

After evidence had been given of shooting of Mr. Edward and

of his death in consequence thereof, witnesses were called on
the part of the accused to prove that at the time of committing
the act, he was not in a sound state of mind. Some of the
medical witnesses who gave evidence had previously
examined the accused; others had never seen him until he
appeared in court and they formed their opinions on hearing
the evidence given by other witnesses. The accused was
acquitted on the ground of insanity. As a result debate took
place in court as to the nature and extent of the unsoundness
of mind which would excuse the commission of a felony of
this sort. At the end of the debate the House of Lord gave the
test of insanity. To plead the defense of insanity successfully
three conditions must be met:-
 Cont…
• it must be proved that the accused was suffering
from a disease of mind at the time of doing the
specified act or making the omission,
• it must be proved that the accused did not know
the nature and quality of the act he was doing,
• if the accused knew the nature or the quality of
the act, then it must be proved that he did not
know that he was doing wrong. The disease of
mind must have given rise to a defect of reason.
•
 Cont…
• Although insanity is a defense, it is a
defense if it is established that the
accused did really not understand what he
was doing when he was committing the
offence, due to mental illness or insanity.
This qualification is provided for under the
proviso to section 13 of the Penal Code,
CAP 16 RE 2002.
 Case
Phillip Musele vs. R EACA 622
• In this case the Appellant was convicted of murder of his wife.
During the trial the Appellant argued that when he killed his
wife he did not know what he was doing. There was expert
opinion of a psychiatrist that he thought the Appellant was very
depressed and thought that he was justified in killing his wife.
However there was another evidence which showed that his
killing of his wife was coloured by the belief that his wife
practicing witchcraft on him. The Court of Appeal stated that it
would not be a defense to prove that although the accused
knew that what he was doing was legally wrong he believed
that it was morally right. It must be proved that, if he was
capable of understanding what he was doing, he was
incapable of knowing that his act was contrary to law. The
court finally held that the evidence fell short of establishing
even the probability that the Appellant through a disease
effecting his mind was capable of knowing that what he did
was contrary to the law.
 Cont…
• The defense of insanity to succeed the
accused person is required to prove it in
court that he was insane at the time he
was committing the offence. Mere
allegation will not assist, but a proof of the
defense at least to the balance of
probability is needed on the party of the
accused person.
 Intoxication

• Intoxication means a state of being drunk. It is the

allegation that the accused committed the offence
under the influence of alcoholism. Intoxication is not
absolute defense, but if it is proved that at the time the
accused was committing the offence he did so under
the influence of alcoholism, it assist to reduce
punishment-it act as a mitigation.
•
• Intoxication is accepted as a defense because alcohol
weakens the restraints and inhibitions which govern
conducts and judgment of persons. So if a person is
drunk he may do some acts which he would never do
while sober. So intoxication removes mens rea of the
accused for the offence he had committed.
 Cont…
• Intoxication is provided for under section 14 of the
Penal Code,CAP 16 RE 2002. According to this section
intoxication shall be a defense to a criminal charge if
by reason thereof the person charged at the time of the
act or omission complained of did not know what he
was doing. However intoxication is defense under two
major conditions. These conditions are provided under
CAP
the same section-section 14 of the Penal Code,
16 RE 2002. The conditions are the following:-
• if the state of intoxication was caused without the
consent of the accused but was caused by malicious
or negligent act of another person, or
• if intoxication made the accused to be temporarily
insane at the time of the commission of the crime.
 Cont….
• Although the statute-section 14 of the Penal
Code,CAP 16 RE 2002 distinguishes between
voluntary and involuntary intoxication, and
that for defense of intoxication to stand there
is to be involuntary intoxication, in practice,
judges do not distinguishing between the two
intoxications. What the judges find is only the
fact that during the commission of the crime,
the accused person did not know what he
was doing due to the influence of
drunkenness. Again drunkenness may be
caused by narcotics, alcohol or drugs.
 R vs. Stanislaus (1969) HCD 32

• In this case the accused person and the

deceased went to a drinking spree at the house
of Mshamba. Later on the deceased left the
house and little moment later the accused
followed the deceased. When the accused met
the deceased, he caught her hands and folded
them of her chest. But suddenly thereafter the
accused drew out a knife and stabbed the
deceased, who died of severe stab. The
accused was convicted of manslaughter due to
the fact that the killing was under the influence
which was voluntary
of intoxication-
ntoxication.
 Self Defense, Defense of Another
(Person) and Defense of Property
• Self defense is a defense which allows a person to
use force to resist crime. Under this defense
individual person is allowed to use certain amount
of force in defense of his property, himself or
someone how is under care to defend commission
of the crime to himself, other person of property.
Defense of person, another or property is provided
CAP 16 RE
for under section 18 of the Penal Code,
2002 . According to this section a person is not
criminally liable for an act done in the exercise of
the right of self defense or defense of another or
defense of property against any unlawful act of
seizure or destruction or violence.
R vs. Mohammed s/o Ndowe (1970)
HCD 211
• In this case the accused persons were watchmen
and they were charged of murder. The fact showed
that on the material date a number of men came
to where the accused were guarding to steal
corrugated iron sheets. The accused attacked one
of the thieves to death. They were charged of
murder but the court acquitted them. In acquitting
the accused, the court stated as follows:-
• “...they were doing so in defense of their lives and
their employer’s property.”
•
 Limitations of This Defense

• The defense of person, another or property is not

absolute. This means that individual is not allowed to
use whatever force and at whatever circumstances
under the ground that he was defending himself,
person or property. For this defense to help the
accused must comply to the following limitations:-
• there must be reasonable apprehension of fear that
violence or unlawful act is to happen to the accused,
• the person who wants to harm the accused or his
property must threat to use violence or force,
• the accused must use reasonable force to counter or
resist the violence or threat or force which other will
use.
 Cont…
• These three limitations are provided for
under section 18B of the Penal Code,CAP
16 RE 2002 . it should be understood that if
the above three limitations are met the
person may use the defense of self
defense even where the defense has
caused death of the enemy. This is
provided for under section 18C of the
CAP 16 RE 2002.
Penal Code,
 R vs. Nyakalio (1970) HCD 344

• In this case the woman killed a man of 60

years of age who had entered into her
house, trying to rape her and when she
resisted, he tried to throttle her preventing
her to shout for help. The woman then
uses panga which was in the house and
mad two blows on the man who died later
on. The woman was acquitted of the
charge of murder.
 Bona Fide Claim of Right

• This is a defense whereby the accused person

exercises his claim of right and in the way of doing
so, he commits a crime. The person who exercises
his right and then alongside it commits a crime is
not criminally liable and ought to be acquitted from
any criminal charge. The defense of bona fide claim
of right is provided for under section 9 of the Penal
CAP 16 RE 2002
Code, . Bona fide claim of right
means the accused person help himself from the
(victim of the
properties of the complainant
offences) to compensate his right he claims from
the complainant.
 Cont…
• However bona fide claim of right is a defense
under the following circumstances;-
• For offence relating properties-specially theft
(stealing) or malicious destruction of property .
• If the person is not criminally liable for crime
if he exercise honest claim of right and
without intention to defraud,
• If the property used to help himself has
proportional equal value to the value of the
claim or right of the accused person.
 Case
Salum Ibrahim vs. R (1971) HCD 481
• In this case the accused was charged of robbery with
violence. The facts showed that the accused person
and the complainant were spouse who divorced. Upon
divorce they distributed the household equally, and
each went to live away from each other. Later on the
accused visited the complainant and found that she
was living with another man. He became furious and
took some of the households which they had shared
on divorce. He was arrested and charged of the
offence of robbery with violence. However on appeal
he was acquitted on the ground that what he did was
claim of his right-his properties which he had given to
the ex-wife! The appellate court stated that defense of
bona fide claim of right; if it was honestly done it is a
good defense to a charge of stealing.
 Read

• Mohammedi Hassan vs. R (1969) HCD 71,

• R Vs. Selemani (1969) HCD 250
• R vs. Tomson (1969) HCD 26
 Mistake of Facts

• The person may do certain act or omission under mistakes.

Mistakes means an error as to the state of facts under which
the person does or omit to do certain act. In case a person
does certain act which is c crime, but he does such act under
mistake of facts, he is not criminally liable for such act. This is
provided for under section 11 of the Penal Code, CAP 16 RE
2002 . however for mistake of fact to be defense the person
who does or omit to do certain act must do so under an
honest and reasonable belief that what he does or omit to do
is right and nothing but right for the time and place being. The
reason for mistake of fact to be a defense is that a person
who act or omit to do anything under mistake, he does so
without mens rea-and absence of mens rea make any person
not criminally liable (actus non facit reum nis mensan sit rea-
act alone doesnot make a person criminally liable unless it sis
accompanied with guilty mind-mens rea )
R vs. Sultan Megiga (1969) HCD 33

• In this case the accused was charged of murdering a person

by spear. The fact showed that the deceased and a woman
were having sexual intercourse at night in rice filed. The
accused was passing along the place where the two were
having their funny, when he saw movements in the darkness.
He shone his torch in the direction of movement, but butteries
of the torch were weak and he could see a little. He then called
out asking whether it was an animal or people, but the
deceased and the woman did not reply. Thereafter the
deceased and the women ran toward different directions. The
accused, mistakenly, that these were gigs or other wild animal,
and so he threw his spear to one of the shadow. He hit the
deceased and killed him. The trail court found that the
accused person did not know that he was throwing the spear
at a man and so the charge of murder could not stand against
him. He was acquitted-set free.
 Cont…
• For the defense of mistake of fact to help,
the accused must exercise reasonable
care to prevent making of the mistakes. In
other words the accused must
demonstrate that he honestly acted with
reasonable care to believe that what he
was doing was right and not wrong-he
was genuinely in error.
 Provocation

• Provocation means a person is being

incited or roused or inflamed by another
person and due to such provocation, the
person inflamed or provoked commits an
offence. The person who commits offence
under provocation is not criminally liable
under sections 201 and 202 of the Penal
CAP 16 RE 2002.
Code, Section 202
defines provocation to mean;
 Cont…
• any wrongful act or insult of such a nature as
to be likely, when done to an ordinary person,
or in the presence of an ordinary person to
another person who is under his immediate
care, or to whom he stands in a conjugal,
parental, filial or fraternal relation, or in the
relation of master and servant, to deprive him
of the power of self control and to induce him
to commit an assault of the kind which the
person charged committed…”
•
 Cont…
• Provocation is a defense even for the
offence of murder. According to section
201, when a person kills another under
provocation, he shall be guilty or
manslaughter not murder-manslaughter is
lesser offence to murder!
 Elements of Provocation

• The case ofR vs. Johali Ismail (1974) LRT 23 provided for the
elements of provocation. There are four elements which are
present and proved in court, the defense of provocation shall
help the accused person against the charge he faces. These
are:-
• the provocative act or word(insult/abuse) must be wrongful
act or word(insult/abuse),
• the provocative act or word must be grave(severe/serious)
enough to deprive a person his power of self control,
• the offence committed by the accused must be done in the
heat of passion of provocation-there should be no time for the
accused to cool down his temper- offence must be done
instantly after provocation,
• the means of relation applied by the accused person must be
proportional to the gravity of provocation.
 Cont…
• However for provocation to be a defense, the accused person
must act as a reasonable man-ordinary person in the
community . The accused person should not act abnormally-
like the person who reacts even if the act or insult is a minor or
just a joke . This test was discussed in the case of Mpagema s/
oChallo vs. R (1970) HCD 70. In this case the accused person
had married to one Violet and they lived for some time. Later
on the two quarreled and Violet returned back to her parents.
The accused then demanded refund of his dowry from the
parents of Violet. Before the dowry was paid back, the
accused met Violet with new man. Accused became furious
and attacked Violet to her death. It was stated by the
assessors that according to Gogo customary law, the act of
Violet to have an affairs with another man before dowry was
repaid was provocation enough among the Gogo. The
accused person was convicted of manslaughter not murder.
 Cont…
• Cooling time is very important factor to consider in
deciding whether there was provocation or not. This goes
to the interval from the time the accused person was
provoked to the time the accused person committed the
offence. If there was reasonable lapse of time passes, the
accused can not succeed to raise the defense of
provocation. This means for the defense of provocation to
stay the accused person must commit the offence at the
heat of passion of the act or insult which is provocative.
The accused person must commit the offence suddenly
upon being provoked! In case the accused delay to
commit the offence upon provocation, indicates he
intends to revenge and he did not acted upon provocation.
This is because if temper of the accused person after
being provoked cools out, he regains his self control.
 Cont…
Provocation must be caused by acts and words (insults) and not by
Words (insults) alone. If the accused person reacts on words alone
the defense of provocation may not be accepted by the court of law.
R vs. Mahamudu s/o Kibwana (1968) HCD 186 , the
In the case of
court held that for words (insult) alone to be provocative, such
words must be of devastating in character to the extent of depriving
the accused person his self control. In the caseLesbin:
of (1914)3
KB 116, the accused person was charged of murder. The facts
showed that he went to the firing range and the girl, who was the in
charge of firing range made some impertinent personal remarks to
him, to the extent that the accused was annoyed. He then asked for
a revolver and fired the girl to death. He was charged of murder and
during trail he raised the defense of provocation. The defense was
dismissed because there was only words (insults) without act and
so he was convicted of murder as charged.
Read
Alistahiki s/o Masumbuku (1967) HCD 343
 The Doctrine of the Last Straw in
Provocation
The doctrine of last straw explains the effect of
cumulative provocation as defense for crime
committed thereafter. This means if the
accused person commits the offence on
cumulative acts and insults, even if the last
act and insult may not be such a grave act or
insult, he will succeed on privation looking at
the previous (series of) acts or insults made
last straw doctrine.
to the accused- This was
what was discussed in the case R vs.
of
Johali Islamil above
 Other Defenses for Criminal
Responsibility

Apart from the above discussed defense

there are other defenses like immature
age (dole incapaxy-a presumption that a
person below 12 years cannot commit an
offence )-section 15, judicial privilege-
section 16 and compulsion and coercion-
section 17 and 20
 Offences Against Property

Offences against properties are provided

for under Part XXVI of the Penal Code,
CAP 16 RE 2002 . These offences are theft,
offences allied to stealing, robbery,
extortion, burglary and house breaking,
receiving and retaining stolen property,
fraud by person in trust false pretence and
offence against safety of aviation.
 Theft

Offence of theft is provided for under sections 257

to 275 of the Penal Code,CAP 16 RE 2002.
Section 258 (1) defines theft. According to this
definition, theft means fraudulent and without
bona fide claim of right, taking of anything
capable of being stolen, or fraudulently converts
to the use of any person other than the general or
special owner thereof, anything capable of being
stolen. So theft connotes two things;-
(a). “fraudulent taking of anything capable of
being stolen, or
(b). “fraudulent conversion (changing ownership)
of anything capable of being stolen”
 Elements/Ingredients of Theft

From the meaning of theft as provided

under section 258(1) of the Penal Code,
there are four elements/ingredients for the
offence of theft to be committed. These
elements are things capable of being
stolen, taking/movement of that thing,
without bona fide claim of right and
fraudulent taking or conversion of that
thing.
 1. Things Capable of Being Stolen

Not every thing may be stolen-there are

things capable being stolen and others which
are not capable of being stole. For offence of
theft to be the thing involved therein must be
thing capable of being stolen. Section 257 of
the Penal Code defines/explains thing which
is capable of being stolen. According to this
provision, thing capable of being stolen must
(non-
have three elements; it is inanimate
living/dead/lifeless), it is a property of any
person and if it is capable of being movable
shifted) from one place to another.
 Cont..
From this explanation it means that;
Living things like animals, human beings and plants(not crops)
are not capable of being stolen under section 258 of the Penal
Code. No one can steal them,
Things which have no owner(un-owned things) are not
capable of being stolen. Owner of the thing may be a real
owner, special owner or legal owner. It is possible for real
owner to steal thing from special owner or legal owner or legal
owner to steal thing from special or real owner or special
owner to steal thing from legal or real owner. In the case of
Rose vs. Matt (1951) K.B 810 it was held that an owner of
goods who entrusts them to another person in such a
circumstances that the owner has special property in them, is
guilty of theft if he fraudulently takes them away again.
Things which are not movable(immovable things) are not
capable of being stolen under section 258 of the Penal Code.
 2. Taking/Movement of the Thing

The thing to be stolen must be moved(shifted) from where

originally it was to another place. Movement of the thing capable
of being stolen in criminal law is known as asportation. This is
the actus reus of theft. For asporatation to occur the distance
from original place of the thing to the new place need not be very
far distance. Even slightest movement is enough to constitute
asporation for the purpose of offence of theft. This was
discussed in the caseMazengo
of Magale vs. R (1969) HCD 156.
In this case, Magale had driven cattle from the boma but was
arrested while he was still within the vicinity (compound) of the
owner of the cattle. He was convicted of the offence of stealing
and appealed. On appeal the issue was whether there was
enough asportation for offence of theft to occur. Biron, J., held
that stated that asportation in law is always present as long as
anything has been moved from its usual place. If taking is not
complete, there is attempt theft. That is why immovable things
are in the group of things incapable of being because
stolen-
here is no asportation of such things .
3. Fraudulent Taking/Conversion of
the Thing
For the offence of theft to be committed taking or
conversion of the thing capable being stolen must be
done fraudulently. The word fraudulently in relation to
theft connotesmens rea of the offence of theft. It means
the person alleged to have stolen a thing must have
(mens rea)
intention to deprive the owner of that thing.
In the caseYusuf
of Salim Mkali vs. R (1969) HCD 264 ,
the accused spent the money of his employer. He then
reported to his employer of the incident and it was
agreed that deductions would be made from his salaries
to reimburse the amount. This was done for sometime.
But later on he was arrested and charged of theft-
stealing. Georges, C.J., as he then was stated that there
was no fraudulent on part of the accused person when
he used the money of his employer.
 Cont…
Section 258(2) of the Penal Code identifies various
types of takings or conversions which if proved
amounts to fraudulent taking or fraudulent
conversion. Fraudulent is presence if:-
the accused has intent(intention) to permanently
deprive (deny/dispossess) the owner that thing,
the accused intent to deal with such a thing in such
a manner that that thing cannot be returned in the
condition which it was at the time of the taking or
conversion,
the accused intent to part with the thing on
condition that not to return that thing to then owner.
4. Without Bona Fide Claim of Right

The offence of theft is committed if the taking or

conversion of the thing capable of being stolen is made
without bona fide claim of right on the part of the accused
person. This means if the accused person takes thing
capable of being stolen under honestly and bona fide
claim of right, he does not commit the offence of theft. In
the caseMohammed
of Hassan vs. R (1969) HCD 71 the
appellant successfully pleaded the defense of bona fide
claim of right and was acquitted of the offence of burglary
(theft at night). He argued that he worked for the
(his employer)
complainant for 3 months without being
paid his salary and so he decided to help himself from the
clothes of the employer to pay his salary. He was
acquitted because although what he did was theft, he did
so under bona fide claim of right from the complainant.
 The Value of Thing capable of Being
Stolen

Value of the thing capable of being stolen

is irrelevant to constitute offence of theft.
The accused person is still guilty of theft
even where the thing capable of being
stolen has no value. The key word is
“fraudulent taking of thing capable being
there is no even implied need of
stolen.”-
value here. So value of the thing capable
of being stolen is irrelevant.
R vs. Kambengwa (1968) HCD 333

In this case the accused had stolen a bonnet

stand of the motor vehicle. He was arrested
and charged with the offence of theft and
was convicted. In mitigation the accused
stated that he thought that a bonnet stand
has no value and so he took it and used it as
a walking stick. The appellate court held that
it was irrelevant that the property taken may
be of no value or that the owner may intend
no further use of it.
 Doctrine of Recent Possession

This is doctrine which was developed by the

court of Tanzania to establish further offence
of theft. This doctrine states that where a
person is found with an article recently
reported stolen, that person may be held to
have stolen it. The person who is found with
thing capable of being stolen in regarded as
the actual thief or a guilty receiver. This
it is not
offence is a result of precedent-
provided for under the Penal Code.
 Cont…
This doctrine was stated firstly in the case ofMichael Mhuto
vs. R (1975) LRT 81. In this case Mhuto was found driving a
motor vehicle which was recently reported to have been stolen.
He was arrested and charged of the offence of theft. He was
convicted and on appeal his appeal was dismissed. Biron, J., is
dismissing the appeal held that the doctrine of recent
possession is a rebuttable presumption of fact based upon
finding of property recently stolen in the possession of the
receiver. Where recently stolen property is found in the
possession of a person the possessor of such property is
deemed to have either stolen it himself or received it knowing
to have been stolen or unlawfully obtained unless he can give
a reasonable explanation of how he came to posses the
article.
 Length for Recent Possession

It is important to determine how recent

enough to constitute recent possession is.
However there is no general rule of how
recent is recent for recent possession to
stand. Each case is decided depending on
its facts. But the caseNaftali
of Ngalya Vs.
R (1976) LRT 45, Mnzavas, J. stated that in
order to determine the recent the court
must have regard to the nature and value of
the property.
 Recent Possession and Other
Offences
Although in the beginning the doctrine of
recent possession was only applied in property
offence, new development of criminal law in
Tanzania witnesses’ expansion of the doctrine.
This means it is now possible for a person to
be convicted for murder or any other offence
based of evidence of recent possession. For
example if a person is found in recent
possession of the property of the deceased
person, such a person may be convicted of
murder of the deceased person. A person who
is found in possession of fake notes may be
charged of that offence.
 ROBBERY

The core of robbery is “theft”

 Section 285 of the penal code
The person is guilty of robbery if he steals,
and immediately before or at the time of
doing so, and in order to do so, he uses
any force on any person or puts or seeks
to put any person in fear of being then and
there subjected to force.
 Cont…
In simple way robbery combines two
offences such as Theft and Assault
The person is guilty of Assault if
 Attempt to cause …..Bodily injury to
another
 Attempts by physical threat to put another
in fear of imminent serious bodily harm
BUT: In Criminal law combined these
two offences as robbery
Generally, the offence of robbery is related to
the offence of theft
The following are the ingredients or elements
of robbery;
 Stealing
 Accompanied with use or threat to use violence
 The use of threat must be directed to any
person or property
 The use of violence or threat of violence is
used in order to obtain the property to be
stolen.
HOUSE BREAKING AND BURGLARY

These offences are defined by section

293 of the penal code
The elements of these offences are;
 Dwelling house
 There must be breaking
Breaking could be direct or indirect
 Entry
 Night or day
 RECEIVING STOLEN PROPERTY

This offences is provided under section 311

of penal code
It is not only a crime to steal someone else’s
property, it is also a crime to receive (accept)
property someone else has already stolen.
The only purpose is to punish those
individuals who benefit from another person’s
action.
 Actus reus of this offence is the act of
receiving the property
 Mens Rea-Knowledge
 Offences against person
 In criminal law, an offence against the
person usually refers to a crime which is
committed by direct physical harm or
force being applied to another person.
They are usually analysed by division into
the following categories: Fatal offences
and non fatal offences.
 Murder
Penal code defined murder to mean any
person who, with malice aforethought
causes the death of another person by an
unlawful act or omission is guilty of
murder.
Section 196 and 197 of the penal code
 Elements of murder
Malice aforethought which is defined under
section 200 of the penal code,
 Under this provision listed four
circumstance which shows a person having
malice aforethought
The person must be killed
The people who commit a murder must be
a person of sound mind
 Assault

Is an act of the person which causes the

victim reasonable apprehension of the
infliction of battery .
Refer to section 240 ,241 and 243 of the
penal code
 Essential elements of assault

Preparation or gesture constituting a

threat of force
 The person has to show in an action for
assault to stand there must be some
gesture or preparation which constituted a
force, but mere threatening words are not
enough to constitute an offence of assault.
 Cont…
A reasonable apprehension of the use of force

Ability or capacity of the person to carry out the

threat
 Although "assault" is an independent crime and
is to be treated as such, for practical purposes
today "assault" is generally synonymous with the
term "battery", and is a term used to mean the
actual intended use of unlawful force to another
person without his consent.'
 Battery

• Is the intentional application of force to

another person without his or her consent
or lawful justification. Here force must be
actually being inflicted as opposed to
merely threatened. The term force is
somewhat misleading. All that is required
for a battery is that the accused person
touches the victim without consent or
without any other lawful excuse. Touching
must be without consent.
 Cont…
Battery is the application, intentionally or
recklessly, of unlawful force on another
person
 Actus reus of battery: the actual use of
force against the victim
 Mens rea of battery: an intention to apply
unlawful physical force or recklessness as
to whether unlawful force has been applied
 There are three essential
requirements of battery
The use of force
The victim must prove the existence of
force. Mere accidental contact with body of
a person does not amount to battery.
It should be intentional
The use of force must be intentionally.
Without lawful justification
Consent which is express or implied is a
lawful justification. For instance friendly
push or hand shaking is not battery.
 Cont….
 For battery it is essential that the use of
force must be intentional, willingly and
without lawful justification.
 Defences

Self-defence
Consent
Lawful justification
 Abortion and child destruction
Section 150 of the penal code defined
abortion
Section 151 explained abortion done by
women
Section 152 explained abortion using
some drugs
 Cont…
Life means every aspect of vitality which puts
a human being in good shape for self-
determination which includes bodily health
and freedom from the pain that did not affect
organic malfunctioning or injury.
Right to life is considered to be one of the
most sensitive rights in the world. This right
is reflected in the legal measures as an
adequate standard of living and to the
freedom from cruel, inhuman or degrading
treatment or punishment
 Cont…
The right to life is inherent right which
most of the philosophers have written on
it. For example Hobbes with the ideas of
inalienable natural right emphasizes that
an individual naturally inborn right to life.
The entire world recognises this right as
among of the basic human right. Most of
the states stipulates in their constitutions
as an intrinsic value to every individual.
 Cont…
The most inalienable right is the right to
life which guarantee by the state and also
the individuals or human’s himself. The
right is protected at all level and even the
individuals who disobey this right are
subject to the punishment.
 Cont…
There is the philosophical reasoning on
the right to life especially those people
who decide to commit voluntary
euthanasia and suicide, was clearly
explained by Thomas Jefferson in his
famous words that;
“all men... are endowed by the creator with
certain unalienable rights that among
these are right to life...”
 Cont…
Penal Code criminalizes “unlawful abortion,
indicating that there are circumstances
under which procuring an abortion is lawful.
It further makes explicit, in section 230, that
termination of pregnancy is not
criminalized if done to preserve the
woman’s life. This life exception has been
interpreted to include an exception for the
Preservation of the woman’s mental and
physical health as well.
 Cont…
Section 219 of the Penal Code also provides for
the separate offence of “child destruction.”This
section criminalizes the destruction of a “child
capable of being born alive” and stipulates that
there is a presumption that the foetus is capable
of being born alive after the 28 week of pregnancy.
th

While this section criminalizes a termination of

pregnancy performed in the final weeks of
pregnancy, as with the provisions criminalizing
“unlawful abortion, “there is an exception when
the termination is done to preserve the pregnant
woman’s life or health. See also section 204,.
Wounding and grievous bodily harm
Grievous bodily harm with intent is the
most serious of the non-fatal offences
against the person. The offence is
committed when a person deliberately
inflicts serious injury. By contrast the
offences of wounding or inflicting grievous
bodily harm can be committed recklessly,
that is if the defendant foresaw that some
physical harm, however minor, would occur.
 Cont…
Section 225 of the penal code defined
grievous harm and the punishment.
 Assault occasioning actual bodily
harm

Actual bodily harm is committed when a

person assaults another which results in
injury. ‘Assault’ bears the same meaning
as it does for common assault.
The difference between actual bodily
harm and common assault is that ABH
requires a degree of injury whereas
common assault does not.
 Cont…
Section 228 and 234 defined wounding
and actual bodily harm
 OFFENCES AGAINST MORALITY

Morality is the belief or recognition that

certain behaviors are either “good” or “bad
and our morality plays a crucial role when
formulating laws and policies. An offence
against morality takes many forms such as
rape, sexual assault defilement, incest, and
many others. This type of violence is a
reflection of gender inequality in a society
where men exercise power over women and
girls.
 RAPE

• Section 130 of the penal code explains what acts

constitute rape.
Rape is provided under section 130 and 131 of the
penal code.
Rape is defined as; the insertion of the penis into a
vigina by force and against the will of the woman.
Or Rape is defined as:
Any person who unlawfully and intentionally commits
an act of sexual penetration with a complainant
without his/ her consent is guilty of the offence of
rape.
 Cont…
• In General
• Sexual penetration is very broad and
includes penetration of genital organs, a
person’s anus or mouth and includes
penetration by genital organs, part of the
body of one person, objects and the
genital organs of animals,
 Cont…
The Law stresses much on the word “CONSENT”. What does it
mean by the word consent? And moreover ‘free consent!’
Under the Law of Contract Act defines ‘free consent’ to include
the absence of;

• 1.Fraud 2.Misrepresentation 3.Coercion (force) 4.Mistakes

and 5.Undue influence . So, in relation to SOSPA these matter a
lot when proved for an individual to claim that there was no
consent in the sexual act hence rape.

or
Consent is defined as:

“voluntary or uncoerced agreement”

 Rape involves four elements

Penetration into the person of another person into

any orifice or opening in the victim’s body such as
the vagina, anus or mouth.
 In the case of chanda V state the appellant after
failing to penetrate the complainant vagina because
his penis was too larger, penetrate her anus. The
court accepted the injury as evidence of penetration
into the anus and convicted the appellant of rape.
It may be affected by a man’s penis or by any other
instrument.
The penetration is for the purpose of sexual
gratification
Without the consent of the victim.
 Cont…
Any degree of penetration will suffice.
As to the instrument of penetration it may
be a man’s penis or any other object such
as piece of wood.
 Cont…
The mens rea for rape is the intention to
have sexual intercourse or to penetrate
the body of another person for sexual
gratification and knowledge that the other
person does not consent.
The actus reus the act of penetration
 Cont…
The Act also provides for the offence
gang rape to cover situations where rape
or defilement is committed in association
with others, as well as for attempted rape.
Section 131 of the penal code.
 PROSTITUTION

Prostitution refers to the granting of sexual

access on a relatively indiscriminate basis
for payment either in money or in goods,
depending on the complexity of the local
economic system
 It is translated in Kiswahili as umalaya and
the prostitute as Malaya. Umalaya is used
to refer to the sex life of an individual
considered to be promiscuous or loose in
sexual relations.
 Cont…
• In the case of
• R v.Nganderu
• prostitution was judiciary defined by Francis, J as the practice
of offering the body for promiscous or indescriminate sexual
intercourse with them. Prostitution which is in existence ever
since the earliest time of civilisation in the world has got its
way in Tanzanian society where a new form emerged in the
late 1990‟s and it was nicknamed ‘uchangudoa’(CD) to mean
prostitution and the prostitute been named a „changudoa’. So
far it is not considered to be an offence under Penal Code but
immoral. With this attitude it lead to the increase of rate of
spread HIV/AIDS and other venereal diseases. This is due to
the fact that although the societies consider it to be morally
wrong, people both women and men involve themselves in this
field.
 Cont…
Section 148 of the Penal code prohibits
people to live whole or partially on earnings
prostitution or persistently soliciting for
immoral purpose and declare that any
person who keeps a brothel is guilty of an
offence.
NB: The law does not provide any provision
which declares prostitution to be an offence
and it neither states the position of the
prostitute. This shows that prostitution is
not an offence.
 Cont…
• Also see section 145,146,147 of the penal
code explain the acts of prostitution.
 Defilement

Defilement is defined by section 137 of the

Penal code as the commission of an act
which causes penetration with a child.“Child
“has the meaning assigned to it in the Child
Act that is a person below the age of
18years.The penalties for defilement which
vary according to the age of the
child. The aim of these provisions is to
protect young, vulnerable people in society.
 Incest
Definition: Persons who may not lawfully
marry each other on account of
consanguinity (blood relationship), affinity
(by marriage) or an adoptive relationship
and who unlawfully and intentionally
engage in an act of sexual penetration with
each other are despite their mutual consent
to engage in such act guilty of the offence
of incest. This is defined under section 158
of the penal code.
 Sexual assault
• Definition: A person (X) who unlawfully
and intentionally sexually violates a
complainant (Y) without the consent of Y
or inspires a belief in a complainant (Y)
that Y will be sexually violated is guilty of
the offence of sexual assault .This is
defined under section 135 of the penal
code.
 Introduction to information
technology crimes (IT Crimes) and
Technology
cybercrimes
 The term technology is often used to refer
to mechanical devices that assist
individuals in their day to day activities.
A computer is an electronic device that
allows the user to input information,
process that information and then receive
result that are based on the information
provided by the user.
 An information technology crimes
 Refers to any crimes involving the use of
high technology devices in its commission.
These are crimes that involve the use of
computers, telephones, check-reading
machine, credit card machines and any other
devices that meet the previous definition of
high technology.
In past there have been several different
ways of referring to crime involving high
technology devices. The two best known
classifications used to distinguish these
crimes are computer crimes or cybercrimes
 Cont…
A computer crime would be a crime that
involves a computer in one of the following
ways;
The computer as an instrument of crimes
 Eg individual who uses a company computer to
embezzle funds from a company account the
intention of stealing computers equipments
The computer as a repository of evidence.
 E.g. Person who store illegal information/files
in his computer
 Cont…
Example of information technology crimes
are hacking, digital child pornography,
identity crimes online fraud.
 CYBERCRIMES

Cybercrimes refer to any crime that involves a

computer and a network, where a computer may
or may not have played an instrumental part in
the commission of the crime.
OR
Cybercrimes can be defined as offences that are
committed against individuals or groups of
individuals through electronics means and
telecommunication networks like internet chat
rooms, mobile phones by way of text messages.
 Cont…
However, cybercrimes relate with information
technology (IT) and the internet is being
exploited to serve criminal purposes.
Computer assisted crimes include email
scams, hacking, distribution of hostile
software (virus and worms) theft e.g. criminal
act of involving theft of someone’s personal
information such as their credit card number
and social security number, pornography,
extortion, terrorism, fraud and impersonation.
 Cont…
Hacking refer to the unauthorized access of
another person’s computer and would be
considered a computer crime under the
preceding definition for several reasons.
Offences of fraud mean the use of false
representation to gain unjust advantage;
dishonest artifice or trick person or think not
fulfilling expectation or description or fraud
as one person deceiving another person for
the purposes of deriving a benefit or gain.
 Similarities between information
technology crimes and cybercrimes

Both activities are crimes

Both activities involve technology in the
commission of the act.
 The classification of cybercrimes
and IT crimes

Cybercrimes broadly describes the crimes

that take place within that space and the
term has come to symbolize insecurity
and risk online.
The persons who engage in cybercrimes are
known as cybercriminals.
 Cont…
Cyber crimes can be broadly classified into the
following two types;
Cybercrime in which one or more elements of the
cyber infrastructures (computer mobile handsets,
communication networks, electronic devices etc,
itself is a target of attack by the cybercriminal.
Cybercrime in which one or more elements of the
cyber infrastructures (computer mobile handsets,
communication networks, electronic devices etc.
are used as a tool to commit the crime these
crimes have existed for centuries such as fraud,
theft blackmailing and forgery)
 THE LEGAL FRAMEWORK
REGULATING CYBERCRIMES AND IT
CRIMES IN TANZANIA
Firstly, Government of Tanzania has taken
measures to ensure that all sim cards are
registered for the purpose of preventing
abuse of mobile phone usages.
 THE CONSTITUTION OF UNITED
REPUBLIC OF TANZANIA

• Article 16
 THE PENAL CODE

THE PENAL CODE

 The persons who used mobile phones and ATM
cards to transfer money from other persons’
accounts in Tanzania have been charged with the
offence of theft contrary to section 265 of the Penal
Code, Cap. 16. This provision reads as follows:
“Any person who steals anything capable of being
stolen is guilty of theft, and is liable, unless owing to
the circumstances of the theft or the nature of the
thing stolen, some other punishment is provided, to
imprisonment for seven years.”
 Cont…
Another is the offence of forgery contrary
to sections 333, 335(a) and (d), (i) and 338
of the Penal Code, Cap 16. Forgery in banks
can take a number of forms. First, a person
forges a transfer statement that authorizes
movement of funds from one account to
another. The form in this respect is paper
based, but the actual transfer is done
electronically, different to when a cheque is
involved.
 Cont…
Section 333 of the Penal Code defines the offence of
forgery as the “making of a false document with intent to
defraud or to deceive.” From the provision of section 335
of this law, a person would be guilty of the offence of
forgery if he
(i)Makes a document which is false or which he has
reason to believe is untrue;
(ii)Alters a document without authority in such a manner
that if the alteration had been authorized it would have
altered the effect of the document;
(iii)Introduces into a document without authority, whilst it
is being drawn up, matter which if it had been authorized
would have altered the effect of the document;
(iv)Signs a document
 Cont…
 (v)In the name of any person without his
authority, whether such name is or is not the
same as that of the person signing;
 (vi)In the name of any fictitious person
alleged to exist whether the fictitious person
is or is not alleged to be of the same name as
the person signing;
 The above provisions relate to forgery of
documents and it is certain under the current
law that a document does not include an
electronic message, data or document
 THE ELECTRONIC AND POSTAL
COMMUNICATION ACT OF 2010

The legal and institutional framework for

combating cybercrimes in Tanzania has a
long and storied development, Tanzania
after embarking onto technological
advancement found in it necessary to
transform her laws to reflect these
changes. Evidence Act was amended and
electronic and postal communication act.
 Cont…
Section 116 of the Electronic and Postal communication
run as follows:
Any person who installs, operates, constructs, maintains,
owns or makes available network facilities without
obtaining any relevant individual license, commits an
offence and shall be liable upon conviction to a fine of not
less than five million Tanzanian shillings or imprisonment
for a term not less than twelve months or to both.
Any person who provides network services without
obtaining any relevant individual license, commits an
offence and shall be liable upon conviction to a fine of not
less than six million Tanzanian shillings or imprisonment
for a term not less than twelve months or to both.
• iii Any person who
 Cont…
• (a)Provides application services without
having first obtained any relevant individual
license;
• (b)Provides content services without having
first obtained any relevant
• individual license, or any relevant class
license commits an offence and shall be
liable upon conviction to a fine of not less
than five million Tanzanian shillings or
imprisonment for a term not less than
twelve months or to both;
 Cont…
• (c)Imports, distributes, or sells electronic
communication equipment or
• apparatus or; establishes, installs, maintains
and operates an electronic communication
system or imports non type approved
electronic communication equipment or
apparatus into the United Republic without a
license, commits an offence and shall be
liable upon conviction to a fine of not less
than five million Tanzanian shillings or
imprisonment for a term not less than twelve
months or to both.
 Cont…
• Section 118 of the Electronic and Postal
Communication Act makes an offence to create
obscene communication like child pornography and
other offence of such nature.

• Section 118 of the same Act run as hereunder,

• Any person who
• i. By means of any network facilities, network services,
applications services or content services, knowingly
makes, creates, or solicits or initiates the transmission
of any comment, request, suggestion or other
communication which is obscene, indecent, false,
menacing or offensive in character with intent to
annoy, abuse, threaten or harass another person;
 Cont…
 ii. Initiates a communication using any
applications services, whether
continuously, repeatedly or otherwise,
during which communication may or may
not ensue, with or without disclosing his
identity and with intent to annoy, abuse,
threatens or harass any person at any
number or electronic
 Cont..
• Section 120 of the Electronic and Postal Communication Act creates a
penalty for interception of communication and it provides that: Any
person who, without lawful authority under this Act or any other written
law
•-
• Penalty for interception of communications
• (a) Intercepts, attempts to intercept, or procures any other person to
intercept or attempt to intercept any communications; or
• (b) Discloses, or attempts to disclose to any other person the contents
of any communications, knowingly or having reason to believe that the
information was obtained through the interception of any
communications in contravention of this section; or
• (c) uses, or attempts to use the contents of any communications,
knowingly having reason to believe that the information was obtained
through the interception of any communications in contravention of
this section, commits an offence and shall, on conviction, be liable to a
fine of not less than five million Tanzanian shillings or to
imprisonment for a term not less than twelve months, or to both.
 Cont…
Section 122 deals with fraud with dishonest
intent while Section 124 deals with illegal
access to computer system like in the
Budapest Convention. Section 123 inflicts
penalty to a person for interference of
electronic communication to be a fine of
not less than Tshs 5 million or 2 years
imprisonment or both fine and punishment.
This is not the case to the Convention.
 THE LAW OF EVIDENCE ACT

Traditional criminal procedure law typically

contains provision on the gathering and
admissibility of evidence. When it comes to
evidence in electronic form computer data
can be altered easily. the recognition of
electronic evidence in Tanzania can be traced
back in the decision pronounced by Nsekela,
J in the casetrust
of bank Tanzania ltd v. le
marsh enterprises and others , were stated
that due to technological advancement
electronic evidence is admissible before
court of law.
 Cont…
Therefore in 2007 through the written
laws Act, The Evidence Act was amended
to incorporate changes of technological
advancement.
 CRBERCRIMES ACT 2015

Generally due to advancement and technology that

takes place in our world communities, Tanzania
enacted the cybercrimes Act so as to deal with
these changes.
Section 15 of the Cybercrime Act provides a person
shall not by using a computer system to
impersonate another person.
And subsection two provides a person who
contravenes subsection one commit an offence and
is liable on conviction to a fine of not less than five
million shillings or three times the value of undue
advantages received by that person, whichever is
greater or to imprisonment for a term of not less
than seven years or to both.
 Cont…
Section 14 deals with pornography
Section 13 deals with child pornography
Section 4 deals with illegal access
Section 11 deals with computer related
forgery
Section 12 deals with computer related
fraud.
 REGULATORY AUTHORITY OF
ELECTRONIC COMMUNICATION
In 1993, Tanzania enacted the Communication
Act. This was primarily geared at the regulation
of postal and telecommunication services
including their licensing. It centered along
those lines i.e protection of postal and
telecommunication, operations and licensing.
In 2003 a communication Regulatory Authority
was created in place of the commission. Its
mandate was expanded to cover management
of electronic technologies and other
information and communications technologies.