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Beyond reasonable doubt

I hear about proving a case beyond reasonable doubt. What does that mean and what are its consequences? HY, Dar

Reasonable doubt is a term used in jurisdiction of common law countries inclusive of Tanzania. Evidence that is beyond reasonable doubt is also the standard of evidence required to validate a criminal conviction in most systems where the Courts adopt an adversarial approach. Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty.

There can still be a doubt, but only to the extent that it would not affect a reasonable person’s belief regarding whether or not the defendant is guilty. Hence if the prosecution cannot prove its case beyond a reasonable doubt, then the accused is entitled to be discharged since there is a reasonable chance that she/he did not commit a crime.

Courts have stated that “It is better that ten guilty persons escape than that one innocent suffer”. The judicial systems want to make sure that no innocent man is convicted of an offence, even if it means that the guilty are sometimes let free due to this very high standard of evidence. As a defence attorney, your job is thus to bring in some doubt in the Judges and assessors minds that the accused is not guilty, even if there is a chance that he is; so long as there is some doubt that he might not be guilty, he cannot be convicted.

Whatsapp obscene, pornographic messages

I am a father of three and my daughters have cell phones which I proudly bought for them. Sadly there are so many obscene and pornographic messages flying around on WhatsApp, text and e mail including video clips of disgusting nature. Isn’t there a law which provide for these things? AL, Dar

The Electronic and Postal Communications Act of 2010 states that any person who by means of any network services or applications service provides any obscene communication to any person commits an offence and shall, on conviction, be liable to a fine not less than five million Tanzanian shillings or to imprisonment for a term not less than twelve months, or to both and shall also be liable to fine of seven hundred and fifty thousand Tanzanian shillings for every day during which the offence is continued after conviction.

As per the said provision, the penalty for such communication is serious with hefty fines and possible imprisonment. If you can pin point the persons who sends such messages to your daughters, you can report the matter to the relevant authorities and proper measures can be taken against them. Even if you cannot pinpoint such a person, this is reportable as all mobile phone numbers are registered. Your lawyer can guide you further.

Pornography is also illegal under our penal statutes- very few people seem to remember that. It is an offence that is imprisonable. Furthermore, under the newly passed Cyber Crimes Act 2015, publishing pornography attracts a fine of between 20 to 30M shillings with a custodial sentence of 7 years.

English law for Tanzanian contract

I executed a contract to be performed in Tanzania but the choice of law is English and English courts have jurisdiction to resolve the disputes. Now the other party has breached the agreement and I don’t see the necessity of filing a case in the chosen jurisdiction, can’t I sue locally? Can I be forced to perform a local contract with a foreign clause such as this? Is there no law to protect me? JK, Arusha

Courts always endeavor to observe the exact word of the contract as agreed by the parties because the intention of the parties at the time of contracting must be respected unless the Court has reasons to depart from the intention of the parties, which is quite rare. It is unlikely that the Courts will agree to entertain the dispute in Tanzania while both of you expressly agreed to apply English law and chose English Courts.

The best available option for you is to request the other party to agree to apply Tanzanian law and Tanzanian Courts to have jurisdiction which we doubt they will agree to. Such contracts are not uncommon and even if a Tanzanian Court had jurisdiction, such a Court would not know the English laws and hence would not in any case be able to entertain this here. As for being forced to stick to English Courts, please note that this was the clause both of you agreed to by signing on the contract.

You cannot now turn around and say that it should not apply. The four corners of a contract are to be respected. Your lawyer can guide you further.

Attending burial of mother whilst in prison

My uncle has been in prison for the past 5 years and has a good disciplinary record with the prison authorities. His mother passed away few months ago and he was informed of this in a timely manner. His application to go for last respects was denied. Is that legal? This has really disturbed me especially considering that all he asked for was to go to Church in Dar where he is imprisoned. RE, Dar Unfortunately the law and the rules governing detention of prisoners are very strict, not only in Tanzania but in many other developing countries

. Facilities of providing escorts to attend funerals are not easily available, and for the sake of safety there is a standard provision that a prisoner cannot go for funerals of their loved ones. It is indeed very sad but the circumstances seem to dictate so. To change this, you can suggest so to the Law Reform Commission of Tanzania to take this up.

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A tale of two presidents who were forced to resign

“HISTORY repeats itself”, so says the old adage. This article presents the interesting story of two former Presidents of their respective countries, who were both removed from power by their own political parties, by way of being forced to resign. They are, respectively, President Aboud Jumbe Mwinyi of Zanzibar, (1972 to 1984); and President Robert Gabriel Mugabe of Zimbabwe, (1980 to 2017.

The respective events. In February, 1984, President Aboud Jumbe of Zanzibar, was firmly and unequivocally told (read forced) by his political party, Chama cha Mapinduzi( (CCM) to resign from that position, as well as his other positions as Vice-President of the United Republic, and Vice- Chairman of CCM.

Similarly, in November 2017, President Robert Gabriel Mugabe of Zimbabwe, was equally firmly and unequivocally told (read forced) by his political party ZANU-PF, to resign from his position as President of that country, having earlier been stripped of his other position as President of that party.

The methodology of removing both these Presidents from power appears to be the same, that is to say, they were forced to resign; but the similarity ends there. It ends there simply because the other factors which led to their downfall, including the ‘crimes’ which were allegedly committed by each of them; and the circumstances and conditions under which this disciplinary action was taken against them, are totally different.

This is the subject matter for discussion in today’s article, in which we will examine the ‘crimes’ allegedly committed by the said Presidents that led to their removal from power, the methodology used for removing them, as well as the circumstances under which such action was taken against these leaders.

Their ‘crimes’ were different. Whereas President Aboud Jumbe was accused of attempting to commit a breach of the Constitution of the United Republic of Tanzania; Zimbabwe President Robert Mugabe’s crime had no relation to a breach of that country’s Constitution. His only crime was the blatant disregard of the cherished principles embodied in the concept of ‘leadership ethics’.

The case of President Aboud Jumbe. President Aboud Jumbe’s ‘crime’ was his attempt to commit a breach of the Constitution of the United Republic of Tanzania, 1977, regarding the sensitive matter of the “structure of the Union”.

The said Constitution provides, in its article 4 (1) and 4(2), for a structure of two governments, namely the Union Government, and the Government of Zanzibar, in the following words:- Article 4 (1): “Shughuli zote za mamlaka ya nchi katika Jamhuri ya Muungano zitatekelezwa na kudhibitiwa na vyombo viwili vyenye mamlaka ya utendaji”. This is clarified in article 4 (2), which provides that “Vyombo vyenye mamlaka ya utendaji vitakuwa ni Serikali ya Jamhuri ya Muungano, na Serikali ya Mapinduzi ya Zanzibar”.

In his determined attempt to breach these provisions of the Constitution, President Aboud Jumbe had decided to secretly prepare certain constitutional amendments which would introduce a third government in the Union structure, which was to be a new Government of Tanganyika.

The project is assumed to have been done secretly because he had apparently undertaken that task alone, without involving the relevant organs of the party, namely the Central Committee, and the National Executive Committee, plus, even more serious, he had avoided consultation with the relevant constitutional organs of the Union Government, specifically the President of the United Republic, and the Attorney- General’s office.

This was a fatal mistake, because the President of the United Republic is the person who is required by his oath of office “to uphold and protect the Constitution as by law established”. Hence, Zanzibar President Jumbe’s attempt to conceal his project of amending the Constitution from the Union President , was absolutely fatal.

He had secretly embarked on his adventure into amending the Constitution by appointing a new Attorney-General for Zanzibar, a constitutional expert from Ghana, to help him to undertake the task of drafting the proposed constitutional amendments.

His project had proceeded quite well, and the proposed draft had in fact been completed, when news of this secret project became known to Mwalimu Nyerere, President of the United Republic and national Chairman of Chama cha Mapinduzi.

The secret draft had apparently been ‘stolen’ from Aboud Jumbe’s office and delivered to President Nyerere, who appeared to have been appalled by Jumbe’s action, and therefore decided to stop him. In his capacity as Party Chairman, Mwalimu Nyerere directed that the matter of President Jumbe’s action be placed on the agenda of the following ordinary meeting of the CCM National Executive Committee, which had been scheduled for in February 1984.

The matter was duly discussed at the said meeting. In his capacity as the Zanzibar CCM Vice-Chairman, President Jumbe was also ex-officio member of NEC, and was thus present at the meeting. I was there too, and can reveal that the atmosphere therein was unusually tense and totally unprecedented.

When the ‘prosecution’ had completed presenting the case against him, he was given the opportunity to present his side of the story. Initially, he denied having undertaken such project, whereupon the secret draft which had been ‘stolen’ from his office was shown to him, and he was asked if he was prepared to deny knowledge of that document.

It was such incriminating evidence that there was no way he could deny it. He was therefore ‘found guilty’, and ordered to resign. To his great credit, he responded immediately by accepting to resign, not only from the Zanzibar Presidency, but also from his other positions as Vice-President of the United Republic, and that of Vice- Chairman of CCM. He must be given credit for having taken this honourable ‘exit route’, which earned him a lot of praise and respect.

His dignified response clearly distinguishes him from Zimbabwe President Mugabe who, as we shall see below, initially tried to offer unreasonable resistance by refusing to resign, until he was forced into doing so through other pressures which he could not possibly resist, specifically the prospect of his impeachment by Parliament, which loomed large. The case of President Robert Mugabe.

As was observed above, Zimbabwe President Robert Mugabe’s case is distinguishable from that of Zanzibar President Aboud Jumbe, in a number of significant respects. In the first place, Mugabe’s apparent ‘crime’ has been stated as “an attempt to secure his family dynasty”, by making open preparations for his wife Grace to succeed him as President of Zimbabwe when he himself ceases to hold that office.

The most transparent move in that direction was his sacking of Vice- President Emerson Mnangagwa, who was seen by many in Zimbabwe as the rightful successor to President Mugabe. This was, essentially, a breach not of the Constitution, but of the leadership code of ethics, which is equally detestable.

Secondly, Unlike Zanzibar President Aboud Jumbe who meekly and readily accepted his party’s order to resign, Zimbabwe President Robert Mugabe defiantly resisted a similar order from his ZANU-PF party for more than a week, wrestling to remain in power, even in the face of intensifying pressure being piled on him to quit, not only from stakeholders inside Zimbabwe, but also from outside that country, specifically from the Southern Africa regional bloc, and from Zambia, who both announced they were dispatching high-level dignitaries to Harare to try and persuade Mugabe to resign. He did finally agree to do so, but only after the country’s Parliament had started the process of removing him from power forcibly, through the rather painful impeachment process.

Thirdly, unlike the case of Zanzibar President Aboud Jumbe, whose resignation was accompanied by general sympathy and public understanding, Zimbabwe President Robert Mugabe’s resignation was followed by countrywide jubilation. It was reported by the news media that his resignation announcement “was greeted on the streets of the capital Harare with car horns and wild cheering”, a clear indication that the majority of the people there were very happy to see him go.

Thus consciously or unconsciously, he had made one unforgivable mistake of sacking Vice- President Mnangagwa in order to position his wife Grace as his successor, and this is what apparently triggered fury in the army, and caused all the other steps taken against him, which followed shortly thereafter, eventually leading to his downfall from power.

As I said in my article last week, President Mugabe had, unconsciously, been captured in the fishnet of “the ethics avoidance syndrome’; which should be a good lesson to other leaders; that they should never allow themselves to be caught in this ‘fishnet’ of the “ethics avoidance syndrome”.

A relevant lesson also for Constitution makers. Perhaps this could also be regarded as a lesson for law makers who enact Constitutions, when it comes to the issue of the powers to be allocated to the President by the Constitution, and in particular, the President’s power to appoint the Vice-President, in jurisdictions where such posts are provided for in their Constitutions.

The relevant lesson is based on the proposition that “if Zimbabwe had a Constitution which denies power to the President to remove the Vice- President from office, President Mugabe would not have committed the costly mistake of sacking Vice- President Mnangagwa, which led to his downfall”. Indeed, this proposition is not entirely theoretical, since there are countries in the world which have that kind of Constitution in place, including Kenya, Tanzania, and several others.

Article 47 (2) of the Constitution of the United Republic of Tanzania provides as follows:- “Makamu wa Rais atapatikana kwa kuchaguliwa katika uchaguzi ule ule kwa pamoja na Rais, baada ya kupendekezwa na Chama chake cha siasa wakati ule ule anapoteuliwa mgombea Kiti cha Rais, na watapigiwa kura kwa pamoja. Mgombea Kiti cha Rais akichaguliwa, basi na Makamu wa Rais atakuwa amechaguliwa”.

In these circumstances, the President has no power to remove the Vice-President from office, who thus has a guaranteed leadership period of five years, that is to say, until the next general election. It should be noted, however, that this provision was included in our Constitution only after the transition to multi-party politics in 1992.

Previous Constitutions had provisions similar to that of Zimbabwe, whereby the Vice-President was appointed by the President and, consequently, could at any time be sacked by the appointing authority.

But this power was severely restricted by another provision of the same Constitution, which required that the Zanzibar President shall also be appointed Vice-President of the Union. It would be impossible for the Union President to sack an elected Zanzibar Vice- President.

The advent of multi-party politics changed this arrangement. This is a matter which actively engaged the minds of our lawmakers at the material time. This is because the results of the 1995 general election in Zanzibar had produced a scenario which pointed to a distinct possibility of the Opposition CUF party winning the Zanzibar Presidency at an early date thereafter.

The results showed that CCM had only won by a razorthin majority of 50.2 percent; while CUF had obtained 49.8 percent of the votes. On the other hand, CCM had won the Union Presidency by a comfortable 61.8 percent.

Such a situation, where Zanzibar had a CUF President while the Union President was from CCM, would automatically create a coalition of two parties in the Union Government. This was deemed undesirable, because ruling coalitions are normally negotiated between parties which are willing to form such an alliance.

Coalitions should NOT be created by a fiat of the Constitution, because such forced alliance would create difficulties in the operations of the Union Government. It was therefore necessary to find a solution, and the obvious one was to separate the office of the Zanzibar President from that of the Union Vice- President.

This was achieved through the Eleventh Amendment to the Union Constitution, which was designed to ensure that both the Union President and the Zanzibar President would be members of the same political party.

That is how the ‘running mate’ procedure was introduced for Presidential elections. And this, as we have seen above, denies power to the President to sack the Vice- President.

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