CHAPTER ONE

INTRODUCTION TO CRIMINAL LAW

You should be familiar with the following areas

  • Meaning of Criminal Law and Crime
  • Purpose of Criminal Law
  • Historical Development of Criminal Law in Tanzania
  • Sources of Criminal Law

1.1 MEANING OF CRIMINAL LAW AND CRIME

1.1.1 Criminal Law

Is a body of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply.

Harris in his book titled Criminal Law pg.3 “As that branch of Public Law which relates to offences that may be subject of criminal proceedings instituted for the punishment of the offender”.

Chamblis in his work “The Political Economy of crimes” attempted to develop a Marxist theory of crime and criminal law. He defined criminal law as:

“a set of rules, laid down by the state in the interest of the ruling class and resulting form the conflict that inhere in class structured societies”. Therefore according to Chamnliss therefore, criminal behavior is then, an inevitable expression of class conflict resulting from the inherently exploitive nature of economic relations.”

  • Criminal punishment depending on the offence and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. In criminal law it is the state, which prosecutes. When we talk of criminal law is that where the state is directly interested. The end result of any criminal offence procedure is to determine whether the person is guilty or innocent.

1.1.2 Crime

According to Black’s Law Dictionary 8th Edition 2004 pg.399 is an act that the law makes punishable the breach of a legal duty treated as the subject matter of a criminal proceeding. Are wrongs which judges have been held or parliament has from time to time laid down as sufficient injurious to the public to warrant the application of criminal procedure to deal with them.

Characteristics of crime

  • That it is a harm brought about by human conduct which the sovereign power in the state desires to prevent;
  • That among the measures of prevention selected is the threat of punishment;
  • That legal proceeding of a special kind is employed to determine the guilty of the accused before being punished.

1.2 PURPOSE OF CRIMINAL LAW

Criminal law exists in any society for purpose of governing and regulating human behavior in society so as to ensure there is an orderly and peaceful environment for productive activities to take place.

  1. To regulate the conduct of human behavior
  2. To maintain the political and economic stability
  • To administer justice to member of the society
  1. To ensure the fundamental rights and freedom of individuals are protected
  2. To establish effective procedures and regulations regarding the dealings among the individuals
  3. To maintain order, peace and security in the country.

1.3 HISTORICAL BACKGROUND OF CRIMINAL LAW

1.3 1Primitive Mode of Production

In the primitive mode of production there was no law alone criminal law. The law emerged together with classes.

1.3.2 Slave Mode of Production

In this society there were two classes; slaves who were the main class and slave owners. The law in the slave mode of production was used for two major functions; first, suppression of resistance put by the slaves and other exploited strata of the population. Example the Greco-Lation Antiquity produced the law book of Gortyn, The Helensis. In Rome the law of the Twelve Tablets, The Lex Aquila and Corpus Luris Civile. The Codes offered a statutory definition of conduct constituting a danger to society (criminal law) conduct, which entitled the consequence, held out by the law and enforced by a sovereign power. Severe coercion e.g. death penalty were resorted to only against slaves. The slave master could kill a slave of his own with impunity whereas the killing of a slave owned by another merely entailed the payment of compensation.

The second function was the protection of the slave owner’s property. Ferocious sanctions were afflicted on offences against property. This was intended to safeguard the institution of private property and the social order relying on this institution. In graver cases theft was punished with death E.g in Rome according to the law of Twelve Tablets, for gravest theft, a freeman was reduced to slave whereas the slave had to suffer death. E.g. In Rome according to the law of Twelve Tablets, for gravest theft, a freeman was reduced to slave whereas the slave had to suffer death. Milder case of theft was maiming the offender.

1.3.3 Feudal Mode of Production

Chronologically, the feudal state belongs to the Middle Ages (5th -17th A.D).  This was also a class society; big landowner and mass peasant labour. The main functions of criminal law were: to put down resistance on the part of the exploited peasant masses as well as anti-feudal uprings of the urban population and protecting feudal ownership of land and providing various forms of compulsion of the peasant to offer their labour for the landlord.

1.3.4 Capitalist Mode of Production

The main function of criminal law included

  • The protection of the political foundations of the capitalist society
  • To put down the resistance of the working class and other masses
  • To take reprisals against political opponents.
  • Protection of private property
  • Establishment of general conditions for the functioning of the capitalist economy

In the capitalist era criminality grew to a mass phenomenon and in particular offences against property showed an upward trend and manifested itself in entirely new forms. Most offenders were workers, jobless and other poor people, e.g offences like corruption, and extortion, industrial espionage sabotage etc were on the forefront.

1.3.5 Socialist Mode of Production

Criminal law here is used for two main purpose;

To protect the socialist the socialist state system against opposition

To protect the socialist property and its relations.

Property, which was owned by private person, was nationalized and taken by the state. Thus laws were enacted to safeguard the new property relations. The only effective method was the use of criminal law to control resistance or counter-revolution.

1.5.6 History of Criminal Law in Tanzania

1.5.6.1 Pre-Colonial

The first unit to emerge was the family and was later followed by a clan. The clan was with higher organization, tribe. At the level of tribal organization, there were territory with common dialetric, religious mythology and political leadership led by a king or chief. The relationships in pre-state communities bwere regulated by customs. The emergence of the state necessitated the introduction of law to protect it. Thus with the state, custom was raise into law, hence the emergence of customary law. In tribal societies, proceedings were mostly inter-family, inter-clan or even inter-tribal, but the emergence of the state, the individual had to be fully and personally responsible for his acts and omissions. The state took the authority to punish for those actions and omissions prohibited by it.

In pre-colonial Tanzania treason and espionage were considered to be very serious crimes. Such crimes were punishable by death E.g the Sukuma and Chagga where spies were killed. Another offence, which was punishable by death, was witchraft.

However, some forms of homicide were considered reconcilable. Where reconciliation was not possible the normal cause of action was blood feud and this depended on the authority of the chief. Where chiefs were less powerful e.g Rombo, feuds were common. In most cases favored reconciliation since this reduced friction within the chiefdom. Even where compensation was paid (blood money) the money copuld be contributed by the whole clan. E.g the Haya, Nyamwezi, Sukuma and Hehe. Another offence was adultery.

1.5.6.2 German Period

It was the Germans who first used the penal sanctions to generate development in Tanganyika. The Natives were required to offer their labour for public works by force and generally unpaid for. In addition to that there were labour legislation which contained very punitive provisions in civil matters such as breach of contract e.g. breach of employment contract was punishable with three months imprisonment in chains.

Taxation is another legislation, which used criminal sanctions. The legislation (taxation) was introduced in 1898. In 1912 a comprehensive House and Poll Tax Ordinance was enacted. Failure to pay these taxes  gave the government an excuse for conscripting defaulters in public works and in private farms.

Subsidiary legislations were also enacted e.g. Tanga and Dar es Salaam were established as municipality. They were given power to make by-laws which included the duty to cultivate cotton, prohibition of hunting certain animals, mining certain minerals e.t.c

1.5.6.2 British Colonial Period

In 1920 British issued Tanganyika Order in Council (TOC) which was equivalent of a constitution. Section 17 of the Order stipulated that:

“Subject to other provisions of this order such civil and criminal jurisdiction shall so far as circumstances admit be exercised in conformity with civil procedure, criminal procedure and penal code of India and other Indian Acts and laws which are in force in the territory at the date of the commencement of this order or may hereafter be applied or enacted; and subject there to and in so far as the same  shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrine of equity and statutes of general applications in force in England at the date of this Order and with the powers vested in and according to the procedures and practice observed by and before courts of justice of peace in England..”

Thus from the reception clause you can get the main body of primary criminal legislation:

  • Penal Code of India
  • Criminal Prodeure Act
  • The evidence Act
  • Oath Act

1.5.6.3 Post Independence Era 1961-to date

Just after independence the Judicature and Application of Laws Ordinance (JALO) No.57 of 1961(CAP.452) was enacted. Section 2(2) of the JALO (the reception clause) reproduced the 1920 reception clause where in the jurisdiction of the High Court was to be

“…exercised in conformity with the written laws which are in force..in conformity with the substance of common law, Doctrine of Equity and the Statutes of General Application in force in England..with powers vested in and according to the procedure and practice observed by and before courts of justice of peace in England”

The independent government inherited the legal framework of the British. The JALO took the same position on customary law as that found in the reception clause of 1920. This means customary law both civil and criminal continued to exist subject to the limitations specified in section 9 of JALO. However customary law was abolished in 1963 by the Magistrate’s Court Act of 1963 (CAP 537) under section 66. In this law the courts were unified giving rise to one tier structure, from primary court at the bottom to the High Court. Administrative officers ceased to perform judicial functions.

. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal will be promulgated.

Various statutes were enacted after independence, for example;

  • Penal Code was introduced by Act No.61 of 1962, made it an offence dissuade others from assisting with self-help schemes.
  • The Minimum Sentences Act No.29 of 1963-aim was that the government was worried by the increases of theft in government offices, stock theft, housebreaking and burgalaries, robbery and corruption.
  • The corporal punishment 1963, however this act was removed (Act No.1/2), but was reinstated in 1989 through Act No.2/89
  • Corruption and Ant-Corruption Laws e.g. The prevention of Corruption Ordinance (CAP 400) was enacted in 1958. The central provisions were on “officials Corruption”. Corruption started to be serious problem in the 1970’s. A new Prevention of Corruption Act No.16/71 was enacted. The Act repealed and replaced the 1958 Ordinance.
  • The Economic and Organized Crimes Control Act No.13/84-the government took a major clam-down on what it called ‘racketeers and economic saboteurs’ in 1983.

1.6 SOURCES OF CRIMINAL LAW

1.6.1 The Constitution of United Republic of Tanzania, 1977 Cap.2 (as amended from time to time)

The Constitution is source of criminal law as per article 13(6) (b) provides that- “No person charged with criminal offence shall be treated as guilty of the offence until proved guilty of the offence” On such, became source of criminal law.

1.6.2 The Statutes

The major source of criminal law in Tanzania is Penal Code [Cap.16 R.E 2019]. In this legislation the most important offences and their respective punishments are provided. There are other penal legislations covering specific crimes or group of crimes such as;

  • The Prevention of Corruption Act,1971 [Cap.329 R.E 2002]
  • The economic and Organized Crime Control Act, 1984 [Cap 200 R.E 2019]
  • The Road Traffic Act, 1973 [Cap 168 R.E 2002]
  • The Education Act, 1969, [Cap 353 R.E 2002]
  • Wildlife Conservation Act, Act No.5 2009
  • Forest Act, Act No 14 2002

1.6.3 The Subsidiary Legislations

In some other cases, governmental departments, e.g. Ministers, local governments, public corporations, private corporations, nongovernmental organizations etc, may be empowered by parental Act to make legislations and regulations in their respective areas of jurisdictions and provide/prescribe punishments for their breach.

Examples of delegated legislations

  • Statutory instruments, rules and orders, normally made by ministers
  • By-laws e.g. made by local governments, public corporation or bodies

1.6.4 Common law of England, Doctrine of Equity and Statutes of General Application

Most of the laws in use are those inherited from colonial masters. But the current rend of legislation does suffice the ever growing needs, and the effect of this has been that whenever there is  in adequacy in our laws, the tendency is that the courts of law resort to the common law of England.

Since the laws of Tanzania are based on English legal system in which common law, Doctrine of equity and statutes of General Application forms an important part, the same forms part of the law in Tanzania.

1.6.5 Precedent

This forms the basis of the case law. It is practice whereby subordinate courts take the decisions previously decided by superior courts in instances of similar factual situations before them. This means, decision of superior courts are binding upon them in cases which are similar in materials respects.

Many of the principles of criminal law or civil can be inferred from decision of superior courts in particular cases. In formulating such rules the court makes law. For this reason decisions of the former East Africa court of Appeal, the Tanzania Court of Appeal, and important decisions of the High Court of Tanzania matters are a source of criminal law in the country.

1.6.6 International Laws

International treaties with some criminal law aspects are the sources of criminal law the country. For example;

  • Bilateral Treaties involving international Extradition
  • Convention for suppression of unlawful seizure of Aircraft
  • Convention for suppression of unlawful Act Against the Safety of Civil Aviation
  • Protocol Amending the Single Convention Narcotic Drugs, 1961
  • Convention on Mutual Administrative in Tax Matters

Southern Africa Development Community Protocol on Ectradiction