Tanzanian Criminal Law

2020 ◽  
pp. 112-116
Author(s):  
Peter H. Reid
Keyword(s):  
Death Penalty ◽  
Criminal Law ◽  
Common Law ◽  
Penal Code ◽  
Customary Law ◽  
Evidence Code ◽  
British Colony ◽  
British Colonial ◽  
Civil Codes ◽  
Procedure Codes

“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. The Indian Codes—that is, Penal Code, Evidence Code, and certain civil codes—had been developed starting in the mid-1820s by legal scholars in England. These scholar took the unwritten common law of England and produced coherent, consistent codes to be used in the British colony of India. The Indian Codes were adopted in East Africa, including Tanganyika, in the early 1920s. This chapter describes the criminal law applicable to the Bill Kinsey case, including the interplay of customary law with the colonial-based evidence, criminal, and criminal procedure codes.

The Necessity Plea in English Criminal Law

1972 ◽  
Vol 30 (1) ◽  
pp. 87-119 ◽  
Author(s):  
P. R. Glazebrook
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Common Law ◽  
Case Law ◽  
Penal Code ◽  
Sharp Contrast ◽  
Striking Feature ◽  
Vast Number ◽  
English Law ◽  
Prevention Of Crime

The sharp contrast between the vast number of detailed statutory provisions defining particular offences and the small handful of widely phrased provisions concerned with the general principles of criminal liability is, perhaps, the most striking feature of English criminal law, and, like the continued co-existence of both common law and statutory offences, one of the unhappy consequences of England's failure to enact a penal code. Among the few statutory provisions laying down general principles of liability or excuse there is none which comprehends a defence of necessity, and so commentators have inevitably looked to the case law for an answer to the question: Is there in English criminal law a defence of necessity? by which they have meant: Is there a defence of necessity in the sense in which there is a defence of, for instance, insanity, or infancy, or duress or prevention of crime? To the question understood in that sense, the answer returned must, it is thought, be a plain No. To ask and to answer the question in that sense may, however, be misleading: it may be more revealing (as this paper suggests) to ask, How does English law handle the plea of necessity when it arises? What, in other words, is the juristic technique employed?

EQUITY IN COLONIAL WEST AFRICA: A PARADIGM OF JURIDICAL DISLOCATION

2006 ◽  
Vol 50 (2) ◽  
pp. 132-144 ◽  
Author(s):  
KWAME AKUFFO
Keyword(s):  
West Africa ◽  
Common Law ◽  
Legal Culture ◽  
Customary Law ◽  
Colonial Experience ◽  
British Colonial ◽  
The Common ◽  
English Law

In English law, equity is assigned relatively benign and comfortable roles, functioning as a canon of interpretation of the common law; as its versatile and flexible help-mate and mitigator of its formal strictness. More than this, equity claims a moral justice or conscience function that is deeply embedded in legal culture. As a consequence, equity has been extremely successful in lubricating the machinery of English law, providing it with a ready means of change to meet the needs of the dominant actors within society. This justice function is, however, contradicted by equity's history and its practical functioning, particularly, within the British colonial experience. This article examines the effect of the imposition of English equity on the prevailing customary law systems in colonial West Africa. The analysis challenges the fundamental claim of equity to a moral justice function within the colonial regime and argues that equity served the imperial objective as an instrument for fragmenting and dislocating indigenous property systems in order to facilitate the installation of capitalist property forms.

scholarly journals THE PRACTICE OF “UKUTHWALWA”, THE CONSTITUTION AND THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT

Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
David McQuoid-Mason
Keyword(s):  
Rural Communities ◽  
Criminal Law ◽  
Cultural Practices ◽  
Common Law ◽  
Customary Law ◽  
Constitutional Rights ◽  
Eastern Cape ◽  
Sexual Offences ◽  
The Law ◽  
The Republic

The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage. It has been said that ukuthwalwa may be used for a number of purposes, such as: (a) to force the father to give his consent; (b) to avoid the expense of a wedding; (c) to hasten matters if the woman is pregnant; (d) to persuade the woman of the seriousness of the suitor’s intent; and (e) to avoid payment of lobolo. At common law the courts have stated that ukuthwalwa should not be used “as a cloak for forcing unwelcome attentions on a patently unwilling girl”, and have held that abduction by way of  ukuthwalwa is unlawful. However, it has been suggested that if there is a belief by the abductor that the custom of ukuthwalwa was lawful the abduction would lack fault, and that if the parents or guardians consented to the taking it would not be abduction, because abduction is a crime against parental authority. Where the parents or guardians consent to the abduction the crime may amount to assault or rape. Some of these potential lacunae in the law seem to have been addressed by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. There has recently been public outrage about the practice of ukuthwalwa in the Eastern Cape in which girls between the ages of 12 and 15 years of age were being abducted and forced into marriages against their consent. This aspect of ukuthwalwa is a breach of the common law and the repealed section of the Sexual Offences Act (s 9 of the SexualOffences Act 23 of 1957. It is also completely contrary to the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa Act, 1996) and the Sexual Offences Amendment Act (Chapters 2 and 3 of the Sexual Offences Amendment Act). Part of the problem may be that some rural communities think that cultural practices trump constitutional rights, whereas according to the law the reverse applies.

UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICES

2016 ◽  
Vol 32 (2) ◽  
pp. 161-183
Author(s):  
Heidi M. Hurd ◽  
Michael S. Moore
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Penal Code ◽  
Mens Rea ◽  
Model Penal Code ◽  
American Law ◽  
General Part ◽  
The Common ◽  
Anglo American ◽  
Responsibility Model

Abstract:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three "pure models" of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement.

Sources of the Criminal Law of Botswana

1974 ◽  
Vol 18 (1) ◽  
pp. 24-36 ◽  
Author(s):  
I. G. Brewer
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Penal Code ◽  
Broad Context ◽  
Customary Law ◽  
Present Position ◽  
Unique Position ◽  
Separate System ◽  
Tribal Areas ◽  
Formal Establishment

The purpose of this article is to examine the sources of the general criminal law of Botswana.2 Prior to the creation of a Protectorate there existed in the country several indigenous systems of law operative within tribal areas which later collectively became known as the customary law. Included in this customary law was an ill-defined body of criminal law which can be termed the customary criminal law. We are not, however, examining the sources of this customary criminal law but rather of the criminal law which was originally introduced by statute on the establishment of the Protectorate and which was administered in a separate system of courts. Botswana is in an almost unique position in this respect3 because after the formal establishment of the Protectorate it received what may be broadly, but inaccurately, called the Roman-Dutch criminal law. Subsequently this was abolished and in its place a Penal Code was introduced which was based mainly on English law. The customary criminal law will be considered in this article but only in the broad context of its present position in the legal system and the effect of the general criminal law on its application.

Texts

2020 ◽  
pp. 105-121
Author(s):  
Giuseppe Pelli
Keyword(s):  
Death Penalty ◽  
Criminal Law ◽  
Penal Code ◽  
Cesare Beccaria ◽  
The Law

This chapter presents select excerpts from Cesare Beccaria Bonesana's On Crimes and Punishments. It examines whether the death penalty really is useful and just in a government that is well administered. The chapter argues that the death penalty is for most people a spectacle, and for some an object of compassion blended with disdain. These are the two sentiments that take hold of the minds of spectators, rather than the salutary terror that the law claims to inspire. The chapter then takes a look at Beccaria, Gallarati Scotti and Risi's opinion Against the Death Penalty. It discusses the drafting of the new penal code — The Criminal Law Committee. Ultimately, it infers that the death penalty is inappropriate because it is irreversible; we bear in mind the inevitable imperfection of human judgements. Even if the death were a just penalty, even if it were the most efficacious of all punishments, in order for it to be justly applied to a particular criminal, it would be necessary that he be proven to be guilty in such a way that the possibility of the contrary is excluded.

Shariah Punishments in Republic of Sudan

2019 ◽  
pp. 315-320
Author(s):  
Mohammad Hashim Kamali
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
The State ◽  
Penal Code ◽  
Colonial Rule ◽  
Principal Source ◽  
British Colonial

Although the Muslim influence on Sudanese law remained important, British colonial rule left the country with a mixed legal system. The primary legal influence remained British, yet the constitution of Sudan 1973 proclaimed shariah as the principal source of legislation. The 1998 constitution only adopted Islam as the state religion, which was followed by Nimeiri’s Penal Code 1983 episode. Al-Bashīr announced new amendments to Islamic criminal law, yet court sentences imposing shariah punishments often remained unenforced.

A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935

1974 ◽  
Vol 18 (1) ◽  
pp. 6-23 ◽  
Author(s):  
H. F. Morris
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
General Application ◽  
Administrative Service ◽  
Salient Points ◽  
History Of ◽  
British Colonial ◽  
English Law ◽  
Law Reports ◽  
British Colonies

This article is a survey of the process whereby codes of criminal law and procedure, having their origin in English law, were introduced into the British colonies and protectorates lying between the Sahara and the Zambesi. Such a survey, covering so large an area and period of time, must needs here be brief, but certain salient points emerge clearly from it. A codified body of criminal law and procedure, replacing the English common law and statutes of general application (as modified piecemeal by local Ordinances), had a great appeal to administrators, government law officers, judges and magistrates, and, whatever their differing views as to the respective merits of codes on the Indian, or more purely English, model, they were virtually all agreed that the introduction of such codes was an essential measure of reform. This is hardly surprising in view of the difficulties experienced by judicial officers, of whom the majority were the lay magistrates of the administrative service, in applying the uncodified English law without an adequate supply of text-books or English law reports.

Development of Criminal Law in Israel During the 25 Years of its Existence

1974 ◽  
Vol 9 (4) ◽  
pp. 568-579
Author(s):  
Gabriel Bach
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Criminal Code ◽  
The State ◽  
British Colonial ◽  
The Creation ◽  
English Law ◽  
The Law ◽  
Council Of State ◽  
State Of Israel

A few days after the State of Israel was established in 1948 a law was passed by the Provisional Council of State which enacted, that the law in force in Palestine on the eve of the creation of the new State should remain in force in Israel, with such modification as the establishment of the State and its organs rendered necessary, until varied or revoked by the legislative organs of the State.That meant, in effect, that as far as Criminal Law and Procedure were concerned, the rules of English law were retained by the State of Israel.The substantive criminal law, the Criminal Code Ordinance, as enacted by the British Mandatory Administration for Palestine, is still in force in Israel, except for those parts that have been repealed or amended by the Israel legislature. This Ordinance was enacted in 1936 and constitutes an attempt to codify the English Common law. Similar laws were passed by the British Colonial Administrations in Sudan (1924) and in Cyprus (1929).Under one of the provisions of this Ordinance, the Code and the expressions used in it have to be interpreted and construed in accordance with the rules of English law and interpretation.

scholarly journals A CRIMINAL LAW RESPONSE TO THE HARMFUL PRACTICES OF UKUTHWALA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Mkhuseli Jokani ◽  
Elmarie Knoetze ◽  
Deon Erasmus
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Electronic Media ◽  
Customary Law ◽  
Early Marriage ◽  
Recent Past ◽  
Elderly Men ◽  
Constitutional Order ◽  
Legal Challenges ◽  
Law And Legislation

This article deals with the criminal consequences of the customary law practice of ukuthwala that has been in the news in the recent past in both print and electronic media, whereby elderly men forcibly take young girls for purposes of marriage. A distinction is drawn between ukuthwala, forced and early marriage in order to clarify the concept of ukuthwala. The article considers the question of whether additional legislation is needed to criminalise the thwala custom. The article concludes that forced and early marriages constitute crimes, are illegal, harmful and have no place in a modern constitutional order. It further provides a response to the legal challenges arising from the customary law practice by means of common law and legislation. In conclusion, it recommends that South Africa does not need separate legislation to criminalise ukuthwala and its variants.

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