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`Ignorance of the law is no excuse` is far-fetched maxim

13th January 2012
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This maxim resides in section 8 of the Penal Code chapter (Cap) 16 of Tanzanias Laws Revised Edition 2002 which provides, in English, as follows:

“8. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.”

The maxim is worsened by section 22 of the Penal Code which defines principal offenders:

 

“22. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing namely:

(a)  Every person who actually does or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence enabling or aiding another person to commit the offence;

(c) Every person who aids or abets another in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence, in which case he may be charged either with committing the offence or with counselling or procuring its commission;

(2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(3) A person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind and is liable to the same punishment as if he had himself done the Act or the omission.

Then, the Code has provisions dealing with offences committed by joint offenders in prosecution of common purpose, counselling another to commit an offence, kinds of punishment etc.

The Code consists of 46 chapters, all in pure English. They deal with such offences as treason and other offences against the Republic, unlawful assemblies, riots and other offences against public tranquility, abuse of office, offences relating to the administration of justice, against morality, marriage and domestic relations, health and convenience, defamation, criminal recklessness and negligence, assaults, theft, burglary, housebreaking and similar offences, false pretences and frauds, forgery, coin, personation etc. Suffice it to say that the Code consists of 390 sections detailed in pure English.

The Code defines the term “offence” as meaning an act, attempt or omission punishable by law. And there are many criminal laws other than the Code which create criminal offences, for example, section 72 of the National Social Security Act, Cap 50 R.E 2002 creates criminal offences. So does section 102 of the Employment and Labour Relations Act No. 6 of 2004.

In fact, there at least 415 chapters each of principal and subsidiary legislation and many of these pieces of legislation create criminal offences.

The Constitution of the United Republic of Tanzania, 1977 (“The Union Constitution”) which is in force since April 26, 1977, and which has ever since been amended 14 times, peculiarly contains no single solitary provision which requires Kiswahili to be the official language of Tanzania.

This is despite that Article 152 (3) of the Union Constitution applies to Mainland Tanzania as well as to Tanzania Zanzibar.

In this regard, Article 87 of the Constitution of Zanzibar, 1984, goes ahead and makes Kiswahili the official language as follows:

“87.(1) Bila ya kuathiri kifungu hiki, lugha rasmi ya Baraza la Wawakilishi itakuwa ni Kiswahili.

 

 

(2) Kila Mswada (pamoja na vijalizo vilivyofuatana na Mswada, kila sheria inayotungwa na Baraza, kila sheria ya msingi au sheria inayopendekezwa chini ya chombo cha sheria na Baraza, maafikiano yote ya kifedha na nyaraka zenye kuhusiana na kila sheria halisi au inayopendekezwa, kusahihishwa au inayoendelea itaandikwa kwa lugha ya Kiswahili na ikihitajika kwa lugha ya Kiingereza.

In short, Article 87 makes English very subordinate to Kiswahili. Regrettably, Tanzania’s Interpretation of Laws Act No.4 of 1996, confounds the confusion about the importance of Kiswahili.

Section 2. (1) of that Act provides:

“2. (1) This Act shall apply to Mainland Tanzania as well as to Tanzania Zanzibar

(2) The provisions of this Act shall apply to, and in relation to, every public document whether the law or public document was enacted,  passed, made or issued before or after the commencement of this Act, unless in relation to a particular written law or document.”

And section 84 of that Act belittles Kiswahili as follows:

“84. (1) The language of the laws of Tanzania shall be English or Kiswahili or both.

(2) Where any written law is translated from one language and published in both languages, then in the case of conflict or doubt as to the meaning of any word or expression, the version of the language in which the law was enacted shall take precedence.

(3) Where any written law is enacted in both languages and there occurs a conflict or doubt as to the meaning of any word or expression, the English version shall take precedence.

In spite of all this confusion regarding Kiswahili, Article 62 of the Union Constitution provides:

“26.(1) Every person has the duty to observe and to abide by this Constitution and the laws of the United Republic.

(2) Every person has the right, in accordance with the procedure provided by law, to take legal action to ensure the protection of this Constitution and the laws of the land.

Now, it is statistically provable that few Tanzanians understand the English language, in fact many Tanzanians have been murdering English ever since Mainland Tanzanian’s Independence on December 9, 1961. What chances, therefore, has an ordinary Tanzanian to comprehend English?

Perhaps, the provisions of section 4 of the Code may be resorted to by legal authorities to temper mercy with justice;

“4. Subject to the provisions of the Interpretation Act and the expressions specifically defined in this Code, the Code shall be construed according to the principle of construction which may be applied to any written law, with regard to Tanzanian conditions without applying any principle of strict Construction relating to penal legislation.” (Emphases supplied).

It was reported in a local newspaper dated Saturday December 24, 2011, that, in the Meatu district, 29, 528 people, equivalent to 20 percent, did not know how to read and write.

Generally, penal legislation which is passed in pure English gives the ordinary Tanzanian the answer by way of punishment before it gives the Tanzanian a lesson.

SOURCE: THE GUARDIAN
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