1. What is a crime?
To date there is no agreed definition of the term crime. Various writers have tried to define this
term differently depending on their philosophical outlook and other various material factors in the
society they come from.
Some criminologists, namely Michael J, and Mortimer J. defined the term crime as;
“The most precise and least ambiguous definition of crime is that which define it as a behavior
which is prohibited by the criminal code…. this is the only possible definition of crime”.
Crime Law and Social Science New York, 1933, at p.2.
Another legalistic definition says crimes are;
“…Wrongs which judges have been held or parliament has from time to time laid down as
sufficiently injurious to the public to warrant the application of criminal procedure to deal with
them”. Smith, J.C. and Hogan Criminal law 6
Ed.
According to Osborn, P.G. in his concise law Dictionary 5
th
th
Ed. Crime is defined as
“An act, default or conduct prejudicial to the community, the commission of which the law
renders the person responsible liable to punishment by a fine or imprisonment in special
proceedings”.
In Kenny’s Outlines of Criminal Law 17
th
Ed. at p.5 three major characteristics of crime are
pointed out;
i) That it is harm brought about by human conduct, which the sovereign power in the state
desires to prevent.
ii) That among the measures of prevention selected is the threat of punishment.
iii) That the legal proceedings of a special kind are employed to determine the guilty of the
accused before being punished.
2. What is Criminal Law?
Is a branch of public law (public law include; Administrative law, Constitutional law, and criminal
law) and it is designated to protect the interest of the public.
It defines the duty, which a person owes to the society in contrast to civil law, which primarily
concerned with rights of individuals among themselves.
The term criminal law, sometimes called penal law, also refers to any of various bodies of rules in
different jurisdictions whose common characteristic is the potential for unique and often severe
impositions as punishment for failure to comply. Criminal punishment, depending on the offense
and jurisdiction, may include execution, loss of liberty, government supervision (parole or
probation), or 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.
Criminal sanctions
Criminal law is distinctive for the uniquely serious potential consequences of failure to abide by its
rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some
jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as
whipping or caning, although these punishments are prohibited in much of the world. Individuals
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may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction.
Confinement may be solitary. Length of incarceration may vary from a day to life. Government
supervision may be imposed, including house arrest, and convicts may be required to conform to
particularized guidelines as part of a parole or probation regimen. Fines also may be imposed,
seizing money or property from a person convicted of a crime.
Five objectives are widely accepted for enforcement of the criminal law by punishments:
retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the
value to be placed on each.
• Retribution – Criminals ought to suffer in some way. This is the most widely seen goal.
Criminals have taken improper advantage, or inflicted unfair detriment, upon others and
consequently, the criminal law will put criminals at some unpleasant disadvantage to “balance
the scales.” This belief has some connection with utilitarianism. People submit to the law to
receive the right not to be murdered and if people contravene these laws, they surrender the
rights granted to them by the law. Thus, one who murders may be murdered himself. A related
theory includes the idea of “righting the balance.”
• Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to impose
a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims
at society at large. By imposing a penalty on those who commit offenses, other individuals are
discouraged from committing those offenses.
• Incapacitation – Designed simply to keep criminals away from society so that the public is
protected from their misconduct. This is often achieved through prison sentences today. The
death penalty or banishment have served the same purpose.
• Rehabilitation – Aims at transforming an offender into a valuable member of society. Its
primary goal is to prevent further offending by convincing the offender that her conduct was
wrong.
• Restitution – This is a victim-oriented theory of punishment. The goal is to repair, through
state authority, any hurt inflicted on the victim by the offender. For example, one who
embezzles will be required to repay the amount improperly acquired. Restitution is commonly
combined with other main goals of criminal justice and is closely related to concepts in the
civil law.
3. Crime and Morality
There is a difference between crime and morality. As you know each society has its morals.
However you may find that sometimes morals and crimes coincides.
Morals emerged earlier than state and law. Morals and customs regulated the relations of people
during the primitive mode of production. Where there is a class society the dominant system of
moral is that of the ruling class. This is so because by the use of apparatus of ideological influence,
political and legal institutions the dominant class strives to impose its morals on the whole society.
At one point there was an attempt to extend criminal law to morals. This however has led to some
legal problems. In the case of Shaw v. D.P.P [1962] A.C 220, Shaw published a “Ladies
Directory” in order to help prostitutes to get customers and he was charged, inter alia, with
conspiracy to corrupt public morals. He was convicted of this offence, and the Court of Criminal
Appeal and the House of Lord upheld his conviction. Lord Simonds at page 267 said he entertained
no doubt that in the sphere of criminal law;
“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 morals….”
We see that this decision was extending criminal law to morals. However this decision did not
stand the test of time. The case of Knuller L.T.D. v. D.P.P [1973] A.C 435 reversed the position.
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In this case the House of Lords emphasized that the courts did not have residual powers to extend
criminal law by creating newer offences and widening existing ones, to enforce good morals.
You have to note that many of the rules enforced by criminal law have nothing to do with morality,
and many of the rules of morality are not enforced by criminal law.
Law consists of rules established in a specific way by the state organs and fixed in legal acts.
Morals however do not include just norms but also concepts, views and feelings.
Legal acts consist of the will of the class in power while moral may include this will in the form of
public opinion.
Moral norms embrace a sphere of relations that is considerably broader than that regulated by law.
Law and morals are also based on measures of coercion but these differ. In morals coercion takes
the form of public opinion. Moreover, moral norms do not regulate in advance specific measures
and form of coercion.
In the event of violation of law, however, corresponding law enforcement agencies are obliged to
take measures envisaged by the law.
4. Sources of Criminal Law
1 The Constitution
The constitution provides for the rights and duties of its citizens. The constitution of Tanzania for
example provides for the presumption of innocence to the accused person. The constitution is the
basic source of criminal law.
2 Statutes
Statutes consist of Acts of Parliament and Subsidiary legislation. The laws that were passed by the
legislative council in the colonial period are referred to as Ordinances, whereas, after independence
laws passed by the parliament are known as Acts of the Parliament. The major source of criminal
law is the Penal Code (Cap.16). This was introduces in the country in 1930.
There are other statutes, which cover specific crimes or group of crimes e.g. The Prevention of
Corruption Act, Cap.329, Economic and Organized Crimes Control Act, Cap. 200, The Road
Traffic Act, Cap.168.
Persons or bodies to whom power has been delegated by the Parliament make subsidiary
legislations. Normally this power is delegated to the Minister, local government authorities and
public corporations. The reason for delegating power is to fill in more details giving effect to the
principles of enabling Act. These subsidiary legislations cover vast areas of life such as commerce,
health, sanitation etc. in these legislations penal provisions are always provided for defaulters.
3 Common Law of England, Doctrine of Equity and Statutes of General Application.
The laws we have in Tanzania are either those we inherited from the colonial masters or have been
enacted after independence. The laws of Tanzania are based on English Jurisprudence in which
common law, Doctrine of Equity and Statutes of General Application forms an important part. This
is another source of criminal law in Tanzania. The basis of this is the Tanganyika Order in Council
of 1920, section 17 (which is commonly known as reception clause) which provides that; criminal
jurisdiction in Tanganyika, so far as circumstances admit, shall be exercised in conformity with the
Criminal Procedure and Penal Code of India and where the same was not applicable, the court were
to apply Common Law, Doctrine of Equity and Statutes of General Application in force in England
on or before 20
th
day of July 1920. This position was reintegrated after independence by the
reproduction of the section in section 2(2) of the Judicature and Application of Laws Ordinance
1961. In addition the Penal Code allows the application of the Common Law and Doctrine of
Equity in the circumstances specified in section 3(1) PC.
4 Precedents/Case laws
The lower courts are bounded by the decisions of the superior courts. This is the practice of the
inferior courts in common law jurisdictions. This being so, the decisions of the former East Africa
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Court of Appeal, the Court of Appeal of Tanzania and important decisions of the High Court of
Tanzania on important matters are also a source of criminal law.
5 International Law
The basic source of International law among others is treaties. These treaties however before
binding to the country they have to be incorporated in the local Act and this Act must be passed by
the parliament. Some of these treaties deal with international criminal law. Some of the most
outstanding international crimes are;
War crimes
The Geneva Convention (I—IV) of 1949
Piracy on the High Sea:
The Convention of High Seas 1958.
The Seizure of Aircraft and Other Attack on the Security of Civil Aviation:
The 1950 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971
Montreal Convention for the Suppression of Unlawful Act Against the Safety of Civil Aviation.
Salve Trade
The Slavery Convention of 1920 as amended in 1953.The supplementary Convention on the
Abolition of Slavery, Slave Trade and Institution and Practices similar to slavery 1966, the
Convention for the Suppression of Traffic in Person and the Exploitation and the Prostitution of
other 1956.
5. The Nature and Function of Criminal Law Under Different Modes of Production.
i) Primitive Mode of Production
In the primitive mode of production there was no law let alone criminal law. The law emerged
together with classes.
ii) Slave Mode of Production
In this society there were two classes;
The slaves who were the main class
Slave owners
The law in the slave mode of production was used for two major functions;
The suppression of resistance put by the slaves and other exploited strata of the population. E.g.
The Greco-Lation Antiquity produced the law book of Gortyn, The Helensis. In Rome the Law of
the Twelve Tablets, The Lex Aquilia and the 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. Milder case of theft was maiming the
offender.
iii) Feudal Mode of Production
Chronologically, the feudal state belongs to the Middle Ages (5
th
-17
th
A.D). This was also a class
society;
The big landowner
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Mass of 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 uprisings
of the urban population.
Protecting feudal ownership of land and providing various forms of compulsion of the peasant to
offer their labour for the landlord.
iv) 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 the 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.
v) Socialist Mode of Production
Criminal law here is used for two main purposes;
To protect 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.
6. History of Criminal Law in Tanzania
i) Criminal law in pre-colonial Tanzania.
The first unit to emerge was the family and was later followed by a clan. The clan was linked with
a higher organization, the tribe. At the level of tribal organization, there were tribal territory with
common dialectic, religious mythology and political leadership led by a king or a chief. The
relationships in pre-state communities were 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 with 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 witchcraft.
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 chiefs favoured
reconciliation since this reduced friction within the chiefdom. Even where compensation was paid
(blood money) the money could be contributed by the whole clan. E.g. the Haya, Nyamwezi,
Sukuma and Hehe. Another offence was adultery.
ii) Criminal Law in the German Period
a) The process of colonization.
The Germans took over Tanganyika in 1885 and at that time it was known as German East Africa
and included Rwanda and Burundi. The Germans used the divide and rule tactics and brutal force.
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However the Germans did not achieve full control of the territory easy, e.g. 1891 Major Von
Wissman had to use Sudanese and Zulu troops to subdue chief Sina of Kibosho, in June 1892 chief
Meli of moshi defeated German troops and it was until August 1893 when 800 troops under the
German officers defeated Meli. Other tribes, which resisted were the Hehe, Ngoni etc.
Furthermore, individual Europeans displayed their authority by the indiscriminate use of corporal
punishment to the local people. They used to walk around with a whip made of hippopotamus hide
cut (kiboko).
b) The Emergence of Institutions of “Law and order”
The Germans considered the non-European population as insufficient advanced for the laws of the
Whit man. For this reason jurisdiction over natives was exercised by the District Officers and
officers in command of military stations. Since there was no law for non-European population, the
Germans used and maintained the authority of Native Chiefs. Where there were no chiefs, akidas
and jumbes or liwalis were appointed.
The so-called “established customs” and “rules of Procedure” were modified to suit the German
state needs. Minor cased were handled by native authorities but the serious ones were forwarded to
the district officers. Whilst akidas favoured corporal punishment, native chiefs resorted mostly to
pre-colonial method of dispute settlement.
c) Use of Criminal Law for ‘Development Programs’
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 etc.
(iii) Criminal Law during the British Colonial Period 1918-1961
(a) The Establishment of British Colonialism in Tanganyika.
After the defeat of the Germans in WW1 German East Africa was handed to the British (1919) and
in January 1920 the British christened the Country Tanganyika. The mandate was formally
concluded in July 1922 giving Britain full powers of legislation and administration. In 1920 by
Order in Council the office of the Governor was formally established with Horace Byatt as the
first governor. He was given powers to enact ordinances, rules and regulations alone subject to His
Majesty’s approval until the constitution of the legislative council at the end of 1926 when the
powers were vested in the Governor in Council. District officers were appointed however; the
akidas left by Germans were replaced by hereditary chiefs.
In 1926 the governor created eleven provinces under provincial commissioners above the district
officers. Under the district officers were native authorities created in 1920 as substitute for akidas
and jumbes under the German administration. Native authorities ensured that the whole territory
was effectively controlled by eh British. This set up made colonial exploitation easy.
(b) Reception Clause
In 1920 British issued Tanganyika Order in Council (TOC) which was equivalent of a constitution.
Section 17 of the Order stipulated that:
“subject to the other provisions of this order such civil and criminal jurisdiction shall so far as
circumstances admit be exercised in conformity with the civil procedure, criminal procedure and
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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 and justice of peace in England…”
Thus from the reception clause you can get the main body of primarily criminal legislation:
Penal Code of India
Criminal Procedure Act
The Evidence Act
Oath Act.
(c) Customary Criminal Law
TOC also sanctioned the application of the customary criminal law in all cases to which the natives
were parties provided that it was not repugnant to justice and morality or inconsistent with any
Order in Council or Ordinance.
However it is to be noted that the British and local standard of ‘justice and morality’ differed. In
most cases the repugnant clause was used to prevent cases ranging from trial by ordeal, the
indiscriminate killing of witches to the extension of criminal responsibility to the next of kin. A
good example I s the case of Gwao Bin Kilimo V. Kisunda Bin Ifuti 1 T.L.R. (R) 403, where the
high court said that customary principle which held a father liable to pay part of the compensation
in a case in which his son was liable is repugnant to justice and morality…the son was solely
responsible for his action. The judge used the standard of justice of the British.
(d) Penal Code and the Related Penal Statutes
Apart from the application of customary criminal law, the main source of criminal law in
Tanganyika was penal code.
In early 1920’s the impact of the penal code was not immediately felt as most people in the rural
area resorted to traditional methods of dispute settlement. You will also note that some of offences
created by the code did not at the beginning reflect the existing social conditions. Offences like
armed robbery did not surface until 1931 when it was first reported to the police. Thus we see the
code was imported wholesome defining several acts and omissions as criminal even before there
was evidence of their existence in the territory. A good example is the growth of vagrancy, there
was no such problem until it started in DSM in 1930’s due t the world economic depression. To
combat this problem was a host of statutes which were already in force ranging from provisions on
‘idle and disorderly persons ordinance’ and ‘rogue and vagabonds’ The Destitute Persons
Ordinance and The Township (Removable of Undesirable Persons) Ordinance (1944). Many other
crimes like prostitution, assault, rape were the result of slums and alcoholism.
(e) The Administration of Justice
The Native Courts Ordinance was introduced in 1929 which took away the Native Court outside
the jurisdiction of the High Court, and placed under the district and provincial administration, final
appeal to the governor.
In 1951 Local Court Ordinance was enacted. There was a change of name Native to Local Courts
and with appeals lying directly from the District Commissioner to the Native Court of Appeal.
In practice serious crime was dealt with by the subordinate courts under the received law while
minor crime committed in rural areas was dealt with by Native Courts applying customary law.
This system operated up to the independence of Tanganyika.
(iv) Criminal Law in the Post-Independence Era 1961-to date.
(a) The Reception of English Legal System.
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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
“…ecercised 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 the 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 section66. 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.
(b) Selected Penal Statutes and Offences
The Penal Code
This is the major source of criminal law in Tanzania. There have been some amendments to
accommodate politico-economic changes that took place after independence. For example:
Section 89C of the Penal Code was introduced by Act No.61 of 1962, made it an offence to
dissuade others from assisting with self-help schemes.
After the 1967 Arusha Declaration the Minimum Sentence Act No. 2/72 was enacted to
increase punishments in the Penal Code for stealing from public enterprises.
The emergence of the problem of shortage of essential commodities in 1970’s witnessed the
creation of the offence of hoarding of goods—s.194A Penal Code.
In short there have been no major changes in the Penal Code since independence.
The Minimum Sentences Act No.29 of 1963
This is said to be the harshest legislation introduced by the independent government. The aim was
that the government was worried by the increases of theft in government offices, stock theft,
housebreaking and burglaries, robbery and corruption. This Act introduced corporal punishment. In
1972 the corporal punishment was removed (Act No.1/2), but was reinstated in 1989 through Act
No.2/89.
Vagrancy Laws
By Act No.11/83, section 176 Penal Code was widened the categories of “idle and disorderly
persons” to include unemployed persons and those who absent themselves from their places of
duty.
Corruption and Ant-Corruption Laws
The Prevention of Corruption Ordinance (CAP 400) was enacted in 1958. The central provisions
were on ‘officials Corruption’. Corruption started to be a 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. New features of the Act included drastic increase in punishment for corruption
offences, the expansion of corruption offences to cover public officers who live or are found with
property beyond their known source of income etc.
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.The crack down was aimed at people dealing illegally with foreign exchange, those hoarding
commodities, those possessing unlicensed firearms and ammunition and those found with
government trophies. The government enacted the Economic Sabotage (Special Provisions) Act
No.9/83. This Act established special Tribunal to hear all economic sabotage cases with a final and
conclusive jurisdiction not subject to any review by any court or person in any capacity. However
some of the abnormalities of this Act were corrected by Act No 13/84.
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Use of Criminal Law for Development Purposes
The use of criminal law initiated by the colonial masters continued after independence. A few
examples suffice:
Taxation the use of taxation legislation continued after independence for eight years. Local
rated were abolished in 1970(January), but was reintroduced in 1983 and was called
development levy. Coercion was the major means of securing compliance by the people.
Subsidiary Criminal Legislation so far we see that cities, towns, and district councils have wide
powers of enacting by laws which carry penal sanctions. These range from those regulating
farming, education, trade, health, the production, storage and sale of foodstuffs, manufacture
and sell of intoxicating liquor to public order. These by laws apply only within their areas of
jurisdiction. Other institutions also make some by laws e.g. crop authority.
