Institute of Judicial Administration Journal

Juvenile Justice and Children Protection in Mainland Tanzania

Mr. Kassian Clemence Mshomba , Dr. Damas Daniel Ndumbaro — Tue, 01 Nov 2022 00:00:00 +0000

Juvenile justice has been championed in different disciplines by human rights defenders, activists, politicians, religious people, lawyers and social welfare personnel. Remarkable outcry for children rights was witnessed from the industrial revolution era resulting into international and regional instruments such as the Convention on Rights of the Children and the African Charter on Rights and Welfare of the Children, followed by national legislation. In Mainland Tanzania, children rights paved way to the now repealed Children and Young Persons Act, 1937, the Children Home (Regulation) Act, Cap. 61, the Affiliation Act, Cap. 278, the Adoption of Children Act, Cap. 335 and their respective amendments and subsidiary legislation. In meeting the contemporary needs, the above were replaced with the Law of the Child Act, 2009 and its subsidiary legislation, which largely protect rights of children in conflict with the law with a peanut coverage to rights of victim children in commission of offenses. Such imbalances have caused unfairness in protecting and safeguarding children rights in Mainland Tanzania. This study is a whistle blow in ensuring smooth and equal protection of rights to all children. A critical analysis to the unaddressed rights of victim children has been made towards significant safeguard.

Legal Aspects of Search and Seizure in Respect of Wildlife and Forestry Offences Forestry Offences

Hon. Justice Dr. Gerald A.M. Ndika — Tue, 01 Nov 2022 00:00:00 +0000

Article 16 (1) of the Constitution of the United Republic of Tanzania, 1977 guarantees, among others, respect and protection to every person, the privacy of his own person, his family and of his matrimonial life and respect and protection of his residence and private communications.2On the other hand, Article 16 (2) enjoins the state authority to lay down legal procedures regarding the circumstances, manner and extent to which a person’s right to privacy, security of his person, his property and residence may be encroached upon without prejudice to the guarantee under Article 16 (1).

A number of laws have, therefore, been put in place to regulate the circumstances and manner in which a search and seizure can lawfully be executed for the purposes of policing and law enforcement for the greater good of our nation. In this context, since any search and subsequent seizure are essentially an encroachment into a person’s right to privacy, security of his person and his property, they can only be justified if they are executed within the ambit of the applicable law.

This article briefly examines the applicable procedure for executing searches and seizures under the laws regulating the wildlife and forestry sectors as well as the general law governing criminal procedure in the country.

Corporate Criminal Liability in Nigeria

Mr. Oreluwa Ojo Solomon , Mr. David Eyongndi — Tue, 01 Nov 2022 00:00:00 +0000

The propriety of corporate criminal liability is a controversial theme. Some expressed views appeared to have whittled down the efficacy of the artificial legal personality conferred on companies. One view argues that; a company cannot itself be said to have perpetrated a crime when in fact, the said act had been executed by its human actors. Another view canvassed that; if the company can legally be entitled to participate in the corporate benefits accruable to natural person, it should not be absolved of criminal liability thereof. This article adopts a doctrinal methodology in appraising corporate criminal liability in Nigeria, South Africa, Australia and United States of America with a view to drawing lessons for Nigeria. It discusses theories adopted in the ascription of a guilty mind (mens rea) which is a sine quanon for criminal culpability as well as the inadequacies of these theories. The article finds that; the law has over time found a balance between these two arguments, by simultaneously holding the company and its human actors liable for their criminal conducts. The article caters also for the inadequacy of sentencing options under the law.

Corporate Tax Residency In Tanzania

Mr. Archibald Aristarch Kiwango, Ms. Nyamwero Bwire — Tue, 01 Nov 2022 00:00:00 +0000

In determining Corporate Tax Residency most advanced countries use place of effective management, sometimes along with the place of incorporation as a criterion for defining the residence of a company. This article aims at analyzing the tests that are used to determine corporate tax residency in Tanzania in line with the recent controversial Court of Appeal of Tanzania’s decision in African Barrick Gold Plc Vs. Commissioner General & Tanzania Revenue Authority, Civil Appeal No. 144 of 2018.

Anti-HIV/AIDS Stigma and Discrimination Law in Tanzania

Dr. Thobias Mnyasenga — Tue, 01 Nov 2022 00:00:00 +0000

HIV/AIDS is still a major life threatening concern in Tanzania. The Government and Non-Governmental Organizations (NGOs) have made recommendable efforts to provide public education on the transmission and prevention of HIV/AIDS that have a bit contributed to the decrease of new infections. However, the efforts by the government and NGOs to suppress the spread of HIV/AIDS are yet to bring the expected results mainly because of the prevalence of stigma and discrimination towards people living with HIV/AIDS (PLWHIVA). Continued HIV/ AIDS stigma and discrimination implies that there are weaknesses either in the law and its enforcement or there are other factors beyond the legal purview. This Article examines the anti-HIV/AIDS stigma and discrimination law and its enforcement in Tanzania. The article is an extract of research findings which were obtained through desk review and in-depth interviews conducted in four Councils of Mainland Tanzania. The article illuminates that, notwithstanding the law and the provision of community awareness on HIV transmission, HIV/AIDS treatment, prevention and protective gears; HIV/AIDS stigma and discrimination is still prevalent. Moreover, the light of PLWHIVA not to be stigmatized and discriminated is yet to be realized because of weaknesses in the law and its enforcement, little community awareness of the law and its enforcement and the ways HIV/AIDS is transmitted as well as wrong community perceptions towards PLWHIV/ AIDS. Thus, the Article opines for the Government to- formulate viable anti-HIV/ AIDS stigma and discrimination policies; enact strict laws against perpetrators of stigma and discrimination; provide more community awareness; and to improve the system of providing health care facilities to the PLWHIVA.

Dispute Resolution Frameworks and the Menace Stranding African Regional Integrations

Mr. Kassian Clemence Mshomba , Dr. Damas Daniel Ndumbaro — Tue, 01 Nov 2022 00:00:00 +0000

Regional integration forms the world’s cooperation in safeguarding economies and political stability. Integration faces legal issues for determination in implementing the formed objectives necessitating intervention by conflict resolution organs. On the part of the SADC, there exists a Tribunal to fascinate some principles under the United Nations Charter under article 1(3) targeting at resolving international disputes in safeguarding human dignity and all forms of freedoms. Establishment of such an organ aimed at preventing perseverance of any likelihood that seems to endanger or impair maintenance and subsistence of international peace and security under article 33(1) of the Charter of the United Nations. Despite establishment of the SADC Tribunal with a number of cases heard and determined, execution of the decreed findings has constantly remained a nightmare. This article determines efficacy of the Tribunal and the way forward. With regard to the methodology, a comparative analysis method to the European Union has been invoked with some theoretical recommendations accorded towards appropriate legislative and institutional frameworks suiting the international benchmarks. Findings and recommendations for legal and institutional reforms for the sake of improving efficacy and sustainability of the integration have been accorded with some local content based scholarships emulated from the EU mode.

Are the customers’ rights protected against fraud in mobile banking in Tanzania?

Ms. Caroline A. Mutalemwa, Hon. Justice Dr. John Ubena — Tue, 01 Nov 2022 00:00:00 +0000

The development of Information and Communication Technology especially digitalization, computerization and Internet has improved the banking sector in various countries including Tanzania. Customers have the potential to perform financial transactions through their Bank Accounts at any-time and anywhere. Despite that, Tanzania currently faces a challenge in the digital or cyber environment which has brought with it several cybercrimes perpetrated by unknown persons such as hackers. These crimes and notorious behaviours extend to the banking sector where unauthorized or fraudulent transactions are performed in the customers’ bank accounts without their knowledge and affect their chances of being indemnified for the losses. This article analyzes the law and practices relating to mobile banking customer’s rights to privacy and compensation in case of fraudulent mobile banking transactions in Tanzania. The findings have shown that the increase of fraud in mobile banking cases is contributed by ineffective compensation schemes, cumbersome procedures for investigating cybercrimes, and unfair terms and conditions of mobile banking services.

Protecting Expressions of Folklore in Tanzania

Mr. Jovine Costantine — Tue, 01 Nov 2022 00:00:00 +0000

This article examines the suitability of copyright law in protecting expressions of folklore in Tanzania. The pertinent question is why protection of expressions of folklore matters? To address the question, it is worth to note that expressions of folklore have intrinsic social, cultural and spiritual value in addition to economic, scientific, intellectual and educational value. Traditional cultures are not static, but are diverse frameworks for innovation and creativity that both benefit indigenous and local communities and have the potential to benefit society in general. In that regard, efforts have been made both at regional and international level to protect the expressions of folklore against misappropriation or prejudicial actions. Initially, expressions of folklore were protected under copyright law and other laws like trade mark. However, data collected and analyzed by using doctrinal and comparative legal research indicates that Copyright law is no longer good to protect expressions of folklore. This is because expressions of folklore have unique characteristics such as passing from one generation to another and being used according to customary law. Therefore, the copyright law that protects works within specific time is not suitable to protect expressions of folklore. It is further noted that several countries including some East African Community States have abolished the system of protecting expressions of folklore under the copyright law and other laws like trade mark and industrial design laws. Instead, expressions of folklore are being protected under a unique regime i.e., sui generis law which embrace the unique characteristics of expressions of folklore. This is elucidated by countries such as Kenya and Zambia. The contribution indicates that, to date Tanzania is still protecting expressions of folklore under the copyright law. Finally, the author recommends Tanzania to have a specific law for protecting expressions of folklore.