THE UNITED REPUBLIC OF TANZANIA

THE LAW REFORM COMMISSION OF TANZANIA

REPORT ON THE REVIEW AND DRAFTING OF THE PROPOSED

PROVISIONS FOR AMENDMENT OF THE SEXUAL OFFENCES LAWS AS
AMENDED BY SOSPA 1998

MARCH 2009
Itk-

m-
 COMPOSITION OF THE COMMISSION

The members of the Law Reform Commission of Tanzania who participated in

one way or another in the preparation of this Report are as follows:-

THE COMMISSIONERS:

Professor Ibrahim H. Juma Chairman

Justice (Rtd.) Edward A. Mwesiumo Full Time Commissioner

Mr. William J. M. Mdundo Full Time Commissioner

Justice (Rtd.) William J. Maina Full Time Commissioner

Justice (Rtd.) Augusta G. Bubeshi Full Time Commissioner

Mr. Pius Msekwa Part Time Commissioner

Mr. Mohamed Ismail Part Time Commissioner

Mr. Onel Malisa Part Time Commissioner

Dr. E. H. Sinare Part Time Commissioner

THE SECRETARIAT

Mrs. C. Makuru Executive Secretary

Ms. Angela A. Bahati Senior Legal Officer

Ms. Agnes Z. Mgeyekwa Senior Legal Officer

Ms. Flora J. Tenga Legal Officer

Ms. Judith M. Kakongwe Legal Officer

Ms. Marlin L. Komba Legal Officer

Ms. Mercy E. Mrutu Legal Officer

Ms. Zainab I. Chanzi - Legal Officer

Ms. Andisya A. Nalingigwa - Legal Officer

Mr. Fred A. Kandonga - Legal Officer

CONSULTANT

Professor S. Mchome - Dean, Faculty of Law, University of Dar-es Salaam

The Commission's offices are located along Luthuli Street, No.8, HAKI House
Building, P.O. Box 3580, Dar es Salaam, Tanzania.

Telephone Number:+255 22-2123533/2111387

Fax Number: +255 22-2123534

E-mail: lrct@lrct-or.tz

Website: http://www.lrct-or.tz

P5
 THE UNITED REPUBLIC OF TANZANIA

THE LAW REFORM COMMISSION OF TANZANIA

Telegrams: "TUMESHERIA". >Afc

Telephone: +255 22 2111387/2123533 ifflRB po- Box 3580'
Fax No: +255 22 2123534 JHHlP DAR ES SALAAM.
E-mail: lrct@lrct.or.tz

Website: www.lrct.or.tz

In reply please quote:

Ref. No. CCA.73/101/05A March 19th 2009

Hon. Mathias M. Chikawe (MP),

Minister for Constitutional Affairs and Justice,
P.O. Box 9050,
DAR ES SALAAM

Re: TRANSMITTAL LETTER IN RESPECT OF THE REPORT ON THE

REVIEW AND DRAFTING OF THE PROPOSED PROVISIONS FOR
AMENDMENT OF THE SEXUAL OFFENCES LAWS AS AMENDED BY
SOSPA 1998

On 15th March 2007, the Law Reform Commission of Tanzania received a

Reference from the Attorney General under Ref. No. JC^.10/35/20 requesting the
Commission to,

'Examine and Report on the Implementation of the Law and its effectiveness since its
enactment pursuant to the provisions ofSection 8 ofthe Law Reform Commission'.

The Commission prepared Terms of Reference and engaged consultants

to carry out initial ground work of the research study and to assist in the
finalization of the Report and Draft Bills for implementation of
recommendations which are finally approved by the Commission.

In undertaking this study , the Commission engaged a team of

consultants from the Faculty of Law of the University of Dar-es- Salaam who
areexperts in Criminal Law, to assist in its work, guided by elaborate terms
of reference for the review of sexual offences set out below:
(i) To review the current legislative provisions of the SOSPA and report on:

(a) Its implementation and effectiveness since its enactment;

(b) Whether legislative, administrative or procedural changes are necessary to

ensure the criminal justice system is responsive to the needs of the victims
in sexual offences cases;

(c) Response of criminal justice system to sexual abuse of

i) Children; and

ii) People with impaired mental ability;

(d) recorded/reported sexual offences;

(e) Prosecutorial guidelines or practice;

(f) Prosecutorial outcomes;

(g) Legal representation for victims;

(ii) To undertake a comprehensive review of other laws related to SOSPA (in

particular laws relating to evidence, procedure and sentencing);

(iii) To conduct field research and stakeholders consultative meetings;

(iv) To examine the performance of various stakeholders involved in the

implementation of SOSPA;

(v) To examine the treatment of complaints of sexual offences and medico

legal services provided;

(vi) To examine the investigation process of sexual offences, in particular, the

role of science and forensic investigations;

(vii) To examine reports filed to the Police and compare with cases taken to
courts;

(viii) To examine case management process of sexual offences in regard to bail,

legal representation, child and expert testimony, sentencing etc;
(ix) To make recommendations for reforms where necessary; and

(x) To draft the proposed provisions for amendment in all identified relevant
laws.

The Commission has accomplished the task assigned to it under Terms of

Reference. Due to a number of reasons, research on this Reference has taken a
longer period of time than initially prescribed by the Attorney General.
Amongst the reasons that necessitated more time was the need to make further
consultations to address issues that emerged when writing initial draft of the
Report.

In accordance with the provisions of Section 14(1) of the Law Reform

Commission of Tanzania Act, [Cap.171 RE 2002], we have the honour to submit
the Report on the Review and Drafting of the Proposed Provisions for
Amendment of the Sexual Offences Laws as Amended by SOSPA 1998.

I remain,

Yours faithfully,

k
Professor Ibrahim H. Juma
CHAIRMAN
\xlUxU*4\^i)
Justice (rtd.) Edward A. Mwesiumo Mr. William J. M. Mdundo
FULL-TIME COMMISSIONER FULL-TIME COMMISSIONER

>*,^AAfV.
Justice (rtd.) William J. Maina Justice (rtd.) Augusta G. Bubeshi
FULL-TIME COMMISSIONER FULL-TIME COMMISSIONER

"^b^KtiourtL A
Mr. Pius Msekwa Mr. Mohamed Ismail
PART-TIME
r-TIME COMMISSIONEJ
COM1V PARTVXflS^JCOMMISSIONER

JLl
Mr. Onel Malisa Hawa Sinare
PART-TIME COMMISSIONER /'-TIME COMMISSIONER
 ACKNOWLEDGEMENT

The Law Reform Commission of Tanzania would like to express its sincere
appreciation to various people within and outside the Commission who have
helped in the preparation of this Report on the Review and Drafting of the
Proposed Provisions for Amendment of the Sexual Offences Laws as Amended
by SOSPA 1998.

In view of the depth of their contributions, the Commission would like to

specifically mention, at least, some of the people or institutions, who severally or
collectively made substantial contributions which enriched this Report. These
were; Police Force , individual victims of sexual offences, prosecutors, defence
lawyers, judicial officers and groups that provide advocacy and assistance to
sexual offences victims, members of the Regional Defence and Security
Committees, Local Government officials, representatives of faith based and civil
societies, to mention just a few. To all of them, the Commission extends its
appreciation.

The Commission acknowledges the tireless effort and dedication shown by the
Technical Working Group comprising of members from University of Dar-es
salaam( Faculty of Law), the Law Reform Commission and all other persons and
institutions whose contributions into this project have resulted into the
production of this Report. The Commission is indebted to all them.

In the final analysis, the Commission bears full and collective responsibility for
both the form and content of this Report.

»i

m
 TABLE OF CONTENTS

THE UNITED REPUBLIC OF TANZANIA 1

TABLE OF CONTENTS 1
PREFACE 4
LIST OF CASES 7
LIST OF INSTRUMENTS AND STATUTES 8
CHAPTER ONE , 9
1.1. BACKGROUND 9

1.2. TERMS OF REFERENCE AND IMPLEMENTATION STRATEGY 11

1.3. OBJECTIVE AND JUSTIFICATION FOR THE REVIEW 12

1.4. METHODOLOGY 14

1.5. LITERATURE REVIEW AND ANALYSIS OF WEB BASED

INFORMATION 16

1.6. TABLES AND CHARTS 16

1.7. FIELD, LIBRARY, ARCHIVAL AND INTERNET RESEARCHES 17

CHAPTER 2 18
OVERVIEW OF THE SEXUAL OFFENCES IN TANZANIA 18
2.1 Introduction 18

2.2 Rape- Section 130 of the Penal Code 18

2.3 Abduction- Section 133 of the Penal Code 24

2.4 Sexual assault on persons and indecent assaults on women- Section 135
of the Penal Code 24

2.5. Defilement of idiots or imbeciles- Section 137 of the Penal Code 25

2.6. Defilement by husband of wife under fifteen, etc. -Section 138 of 25

2.7. Marriage of a Girl under 15 in accordance with tribal or religious 26
2.8. Acts of gross indecency between persons- Section 138A of the 27
2.9. Sexual exploitation of children- Section-138 B of the Penal Code 28

2.10 Grave sexual abuse- Section 138C of the Penal Code 29

2.11. Sexual harassment- Section 138D of the Penal Code 29

 2.12 Unwelcome Sexual Advances at Places of Work- section 138 D of 30
2.13. Procuration for prostitution- Section 139 of the Penal Code 30
2.14 Trafficking of person- Section 139A of the Penal Code 31
2.15 Other Sexual Offences 32

2.16 Amendments of Procedural Aspects of Sexual Offences 33

2.17 Minimum Sentencing Laws 33
2.18 Restrictions on Open Courts 33
2.19 Power of A Superior Court to Enhance Punishment ... 34
2.20 Compensation in cases of Sexual Offences 34
2.21 Evidence of a child in a Case involving Sexual Offences 35
CHAPTER THREE ,. 36 1
3.0. INTRODUCTION 36

3.1 THE STATE OF THE IMPLEMENTATION AND EFFECTIVENESS '

SINCE THE SOSPA AMENDMENTS .36
3.2 RESPONSE OF CRIMINAL JUSTICE SYSTEM TO SEXUAL ABUSE OF (
CHILDREN AND PEOPLE WITH IMPAIRED MENTAL ABILITY 188
3.3 RECORDED/REPORTED SEXUAL OFFENCES 193 1
3.4 INVESTIGATION AND PROSECUTORIAL GUIDELINES OR
PRACTICE 194 '
3.5 PROSECUTORIAL OUTCOMES 197
3.6 LEGAL REPRESENTATION FOR VICTIMS 197 '
3.7 OTHER LAWS RELATED TO SOSPA 199 I
t

3.7A. LAW OF EVIDENCE 199

p
3.7.2 CRIMINAL PROCEDURE 201
3.8 SENTENCING 202

3.9 PERFORMANCE OF VARIOUS STAKEHOLDERS INVOLVED IN THE

IMPLEMENTATION OF SOSPA 203
IM
3.9.1 THE JUDICIARY 203

U
 3.9.2 THE PROSECUTIONS SYSTEM 204

3.9.3 THE POLICE FORCE 205

3.9.4 THE SOCIAL WORK SERVICE PROVIDERS 206

3.9.5 MEDICAL SERVICE PROVIDERS 208

3.10 TREATMENT OF COMPLAINTS OF SEXUAL OFFENCES AND

MEDICO- LEGAL SERVICES PROVIDED 210

3.10.1 TREATMENT OF COMPLAINTS OF SEXUAL OFFENCES 210

3.10.2 MEDICO- LEGAL SERVICES 210

3.10.3 THE ROLE OF SCIENCE AND FORENSIC INVESTIGATIONS 210

3.11 REPORTS FILED TO THE POLICE AND COMPARED WITH CASES

TAKEN TO COURTS 212

3.12 CASE MANAGEMENT PROCESS OF SEXUAL OFFENCES 212

3.12.1 BAIL 212

3.12.2 CHILD AND EXPERT TESTIMONY 213

CHAPTER FOUR 215

CONCLUSION AND RECOMMENDATIONS 215
4.0 CONCLUSION 215

4.1 LEGAL RECOMMENDATIONS 216

4.2 NON-LEGAL RECOMMENDATIONS 223

4.3 NON-LEGAL RECOMMENDATIONS FOR HEALTH CARE

PROVIDERS 225

4.4. NON-LEGAL RECOMMENDATIONS TO CHECK JUVENILE

DELINQUENCY 227

REFERENCES 229
 PREFACE

On Is1 July 2008, Sexual Offences (Special Provisions) Act 1998 [SOSPA]1
attained 10 years since it was enacted in 1998. SOSPA was enacted to amend a
number of specific legislations as one of the interventions by the government to
address the menace of sexual offences in the country. The SOSPA amended such
laws like the Penal Code2, Children and Young Persons Act3, Criminal Procedure
Act4, Evidence Act5 and Minimum Sentences Act6. Ten years since the enactment
of SOSPA the Government is taking stock of the experience of implementation
and effectiveness of the amendments that were brought about by SOSPA in 1998.
A decade is indeed an ideal timeline if one wishes to assess the implementation
and effectiveness of a particular undertaking, suchas a piece of legislation.

This Report is a result of assessment of the law on sexual offences in Tanzania as

amended by SOSPA and field visits carried out by the Law Reform Commission
of Tanzania to review the efficacy, efficiency and implementation of the law on
sexual offences in Tanzania and make appropriate recommendations towards
improvement.

This Report makes findings which are informed by the field visits and
suggestions which will guide the discussions and proposal to improve the law
and practices on the ground. This Report will hopefully stimulate further

'Cap 101; originally Act No. 4 of 1998,

2[Cap. 16R.E. 2002].
3[Cap. 13 R.E. 2002]. <*'
4[Cap. 20 R.E. 2002].
5[Cap. 6 R.E. 2002].
6[Cap. 90 R.E. 2002]. i*

i*«
aJfth—W^W^lMH-J^Ti TTmnMn^J^lBUn^HVliF
discussion on the right direction to be taken to ensure that the law on sexual
offences is improved and efficiently implemented.

The ultimate aim is to ensure that the criminal justice system serves its intended

purpose of protecting people from invasion of their privacy, dignity and respect.
ABBREVIATIONS AND ACRONYMS

AIDS Acquired Immune Deficiency Syndrome

Cap. Chapter
CBO Community Based Organisation
CPA Criminal Procedure Act, [Cap 20 RE 2002]
DC District Court

DNA Deoxyribonucleic Acid

DPP Director of Public Prosecutions

FBO Faith Based Organisation

FGM Female Genital Mutilation

G.N. Government Notice

HIV Human Immunodeficiency Virus

ILO International Labour Organisation
LMA Law of Marriage Act, [Cap 29, RE 2002]
LRCT Law Reform Commission of Tanzania

NGO Non Governmental Organisation

PF.3 Police Form No. 3

R Republic
RE Revised Edition

SOSPA SexualOffences (Special Provisions) Act, [Cap 101, RE 2002]

TAMWA Tanzania Media Women Association

TAWLA Tanzania Women Lawyers Association

U.K. United Kingdoms
U.S.A United States of America

0*

•- i>i*^i^*frTI»WI.|W-^i^^i-"-"^F>g-^
 LIST OF CASES

Goodluck Kyando vs. R, Criminal Appeal No. 118/2003, Court of Appeal of

Tanzania, Mbeya (Unreported).

Herman Henjewele v R„ Criminal Appeal No. 164 of 2005, Court of Appeal of

Tanzania, Mbeya (Unreported).

Sadick Msosi v R., (DC) Criminal Appeal No 21 of 2007, High Court, Iringa
(Unreported).

LIST OF INSTRUMENTS AND STATUTES

INSTRUMENTS

The UN Convention on the Rights of the Child 1989.

The African Charter on the Rights and Welfare of the Child 1990.

TANZANIAN STATUTES

Principal Acts

Children and Young Persons Act, [Cap. 13, RE 2002].

Corporal Punishment Act, [Cap 17, RE 2002].

Criminal Procedure Act, [Cap. 20, RE 2002].

Evidence Act [Cap. 6 RE 2002].

HIV and AIDS (Prevention, Control and Treatment) Act, 2008 [Act No. 28 of

2008].

Law of Marriages Act, [Cap. 29 R.E. 2002]

Minimum Sentences Act, [Cap. 90 RE 2002].

Penal Code, [Cap 16 RE 2002]

Sexual Offences (Special Provisions) Act, [Cap 101, RE 2002]

Statistics Act, [Cap. 351 RE 2002].

Anti-Trafficking in Persons Act, 2008 [Act No. 6 of 2008].

The Constitution of the United Republic of Tanzania, 1977, [Cap. 2 RE 2002].

Subsidiary Legislation

Primary School (Compulsory Enrolment and Attendance) Rules, G.N. No. 280 of
2002.

Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G.N.

No. 295 of 2002
 CHAPTER ONE

1.1. BACKGROUND

1.1.1 The Law Reform Commission of Tanzania (LRCT) is mandated by its

establishing Act7 to undertake review of any law of the United Republic of

Tanzania with a view to its systematic development and reform.
Initiatives towards this endeavour can either be a result of the LRC itself

or by reference from the Attorney General8.

1.1.2 On 15th March, 2007 the Attorney General referred to the Commission the
Sexual Offences (Special Provisions) Act9 (SOSPA) with a view to examine
it and thereby report on its implementation and effectiveness since its
enactment. The exercise was to be completed in June 2008 but due to its
complexities an extension was sought by the Commission and the
Attorney General agreed to extend the time for submission of the final
report to 22nd December 2008.10

1.1.3 It will be noted that SOSPA attained 10 years on 1st July 2008. A decade is
indeed an ideal timeline if one was to assess the implementation and
effectiveness of a particular undertaking, such as a piece of legislation like
SOSPA.

7 The Law Reform Commission of Tanzania Act, [Cap. 171 R.E 2002].
8 Section 4 (2) (e) of the Law Reform Commission of Tanzania Act, [Cap. 171 R.E 2002].
9 Cap. 101 R.E. 2002)
10 Refer to the Attorney General's letter dated 23rd June 2008with Reference Number JC/J.10/35/26.
1.1.4 SOSPA was enacted to amend a number of specific legislations as one of
the interventions by the government to address the menace of sexual
offences in the country. The amendments were effected in such laws like
the Penal Code11, Children and Young Persons Act12, Criminal Procedure
Act13, Evidence Act14 and Minimum Sentences Act15.

1.1.5 In essence the amendment was a result of work by the Commission

among other institutions that carried out research in this area. Among the
work of the Commission that had a bearing on the plight of women and
children include the following:

i. Report on the Law of Marriage Act 1971 which was

submitted on 4th July 1986;

ii. Report on Statutory System of Compensation to Victims of

Crimes submitted in 1987.

iii. Report on the Law Relating to Children in Tanzania

submitted in April 1994.

iv. Discussion Paper on Criminal Law as a Vehicle for the

Protection of the Right to Personal Integrity Dignity and

Liberty of Women submitted in 1998.

The various findings and recommendations emanating from these reports

and papers will be taken on board while dealing with various aspects
related to the present report.

11 [Cap. 16R.E.2002].
12 [Cap. 13 RE. 2002].
13 [Cap. 20R.E. 2002].
m
14 [Cap. 6R.E.2002],
15 [Cap. 90 R.E. 200].

10 m

m
1.2. TERMS OF REFERENCE AND IMPLEMENTATION STRATEGY

1.2.1 The terms of reference for the review of sexual offences are:

(i) To review the current legislative provisions of the SOSPA and

report on:

(a) its implementation and effectiveness since its enactment;

(b) whether legislative, administrative or procedural changes

are necessary to ensure the criminal justice system is
responsive to the needs of the victims in sexual offences

cases;

(c) response of criminal justice system to sexual abuse of

i) children; and

ii) people with impaired mental ability;

(d) recorded/reported sexual offences;

(e) prosecutorial guidelines or practice;

(f) prosecutorial outcomes;

(g) legal representation for victims;

(ii) to undertake a comprehensive review of other laws related to

SOSPA (in particular laws relating to evidence, procedure and
sentencing);

(iii) to conduct field research and stakeholders consultative meetings;

(iv) to examine the performance of various stakeholders involved in the

implementation of SOSPA;

11
 (v) to examine the treatment of complaints of sexual offences and
medico- legal services provided;

(vi) to examine the investigation process of sexual offences, in

particular, the role of science and forensic investigations;

(vii) to examine reports filed to the Police and compare with cases taken
to courts;

(viii) to examine case management process of sexual offences in regard

to bail, legal representation, child and expert testimony, sentencing
etc;

(ix) to make recommendations for reforms where necessary; and

(x) to draft the proposed provisions for amendment in all identified

relevant laws.

1.2.2 The implementation of these terms of reference has led to this report on
the review of SOSPA and working bills of the proposed provisions for
amendment of SOSPA and other related laws. New law are also being
recommended.

1.3. OBJECTIVE AND JUSTIFICATION FOR THE REVIEW

1.3.1 Since the enactment of SOSPA, there have been a number of concerns that

the law is, among other things, discriminative in nature, not clear,
philosophy to guide the punishment of sexual offenders is not clear, and
old practices still dominate the process of implementing SOSPA. A r

number of issues have been raised, for instance, the definition of rape is
not properly crafted as it covers only men. What is the position of tow
where a sixteen years old boy is for example engaged in a sexual
•ti

12

*
 intercourse with an adult woman who simply wants to take advantage of
the immaturity of the boy, whether an offence of rape is committed as is
the case in other countries?16

1.3.2 Furthermore, consent to sex has not been defined by the law hence leaving
the whole issue of consent open to different approaches and prejudices.
There are also concerns that the law provides stiff penalties for sexual
offences thereby opening up opportunities for blackmail or compromises
out of the formal system of criminal justice consequently defeating the
purpose of the sexual offences law.

1.3.3 Some individuals including legal professionals think that the punishment
meted out to boys of under eighteen years of age who commit rape more
than twice or are recidivists17 is destructive to the boys concerned than
being of any correctional value.

1.3.4 In some cases people feel that SOSPA is in any case not an effective tool to
address the problem of sexual offences in the country. This is the debate
about the role and limits of law as a tool of social engineering.

1.3.5 There are further concerns about the disharmony between the objectives of
the laws of the child, Law of Marriage Act and those of the sexual offences
law. For example, the Law of Marriage Act, in exceptional circumstances,
permits a girl below the age of eighteen but above fourteen years of age to
be married while the Penal Code provides that even if married, the
marriage cannot be consummated until the girl attains the age of fifteen
years.

16
The laws in the United Kingdoms, Scotland and Australia treat such a case as Rape. Laws in
such countries are gender neutral so as to canvass all fitting cases of sexual offences.
17 Section 131(2)(c) Penal Code.

13
 1.3.6 The whole legal framework seems unclear to many people. Also, the legal
framework is, at times, seen as being contrary to the various international
and regional instruments on children to which Tanzania is a party. These
instruments include the United Nations Convention on the Rights of the
Child 1989 and the African Charter on the Rights and Welfare of the Child
1990.

1.3.7 Therefore, based on the above concerns, the need arose to undertake a
comprehensive review of SOSPA and other related laws and make
recommendations for reforms where necessary in order to improve the
situation on the ground. It is in this context that the terms of reference
were developed whose objective is to lead to a comprehensive \c^>
framework on the law relating to sexual offences following the outcome of
the review.

1.4. METHODOLOGY

1.4.1 The Commission divided the process into two stages. In the first stage, the
Commission considered the substantive law around sexual offences while
in the second stage the Commission dealt with the wider questions raised
by the implementation of sexual offences law including relevant
administrative and procedural aspects of sexual offences law
management. In that context this Report marks the second stage of the
implementation of the terms of reference. It is essentially a combination of
the findings generated during stage one and the field visits.

1.4.2 Thus, in this Report, the Commission reviews the findings on a number of
issues that arose from the discussion of the law and the field visits.

14
m
m
^-^•*^"'-g"-'-i%"*M!>£Jte*wa>^^ -
 1.4.3 It was correctly observed by Victoria Law Reform Commission18 in its
Report that what needs to be stated right from the beginning is the fact
that much as the law is being evaluated at this stage, changes in the law
do not necessarily alter the way in which criminal trials are conducted or
make it easier for people to report sexual offences to the authorities.
Factors like the judicial, legal profession, police and community attitudes
to sexual offences and to victims of sexual offences all affect the extent to

which the criminal justice system responds to the needs of the victims.
Community attitudes to sexual offences and the victims also affect the
willingness of the victims to report sexual offences, seek assistance and
support. Programs to help victims report cases and cope with criminal
justice system's process all matter in this regard. The Commission is now
convinced more than ever before that the statement is true and reflects

what is going on in Tanzania as the Report will show.

1.4.4 During the field visits the Commission consulted many people including
victims of sexual offences, police, prosecutors, defence lawyers, judicial
officers, and with groups that provide advocacy and assistance to sexual
offences victims. The goal of the field visits was to consider the extent to
which the reforms made so far have effectively responded to the needs of
the victims of sexual offences and propose changes to improve the system.
The Commission also addressed the administrative or procedural changes
that are necessary to ensure that the criminal justice system is responsive
to the needs of the complainants in sexual offences cases.

18Victoria Law Reform Commission, "Sexua! Offences: Law and Procedure", Discussion Paper, 2001.

15
1.5. LITERATURE REVIEW AND ANALYSIS OF WEB BASED

INFORMATION

1.5.1 The Commission carried out literature review and analysed the
information available from the Internet. Literature through library and
Internet-based information proved very useful in understanding and
leading the process that culminated to this Report. The list of the
references is included at the end of this report.

1.6. TABLES AND CHARTS

1.6.1 Several Tables and Charts have been included in this Report.
Abbreviations below are employed by the Police Force to present their
information in a precise and concise way:

TIR - Total Incidents or Cases Reported

C - Convicted

U - Undetected

NFA - No Further Action (i.e. refused)

D - Discharged under section 38 Penal Code
P - Prosecuted

A - Acquitted

T - Transferred to another Police Station

NOD - No Offence Disclosed r

OD - Other Discharges a.

16

••
1.7. FIELD, LIBRARY, ARCHIVAL AND INTERNET RESEARCHES

1.7.1 The Commission conducted field visits in Dar es Salaam, Mwanza,

Morogoro, Kigoma, Mtwara, Arusha and Tanga. Through these

visits the Commission organised meetings and collected and
collated information on various issues. The meetings were attended
by members of the regional defence and security committees, local
government officials, representatives of faith based and civil
societies and ordinary citizens.

1.7.2 The Commission conducted library and Archival Research for

purpose of getting various literatures covering the area.

1.7.3 The Commission also conducted an internet research especially for

purpose of making comparative studies with the foreign
jurisdictions.

17
m
m

m-
 CHAPTER 2

OVERVIEW OF THE SEXUAL OFFENCES IN TANZANIA

2.1 Introduction

2.1.1 The Sexual Offences Special Provisions Act, 1998 was enacted as an
amending piece of legislation. It was specifically enacted to amend
provisions of several written laws on aspects of sexual offences.
Apart from effecting amendments of provisions of law, Sexual
Offences Special Provisions Act also created completely new sexual
offences and procedures into existing laws. Amongst the pieces of
legislation that were substantially and procedurally affected by the
Sexual Offences Special Provisions Act, include:
1. Penal Code, Chapter 16 of the Laws of Tanzania;
2. Criminal Procedure Act, 1985;

3. Evidence Act, 1967; and

4. Children and Young Persons Act, Chapter 13 of the Laws of

Tanzania;

2.1.2 Following the enactment of the Sexual Offences Special Provisions

Act, sexual offences and attendant procedures stands as follows.-

2.2 Rape- Section 130 of the Penal Code

2.2.1. This offence occurs when a male person to rape a girl or a woman.
A male person commits the offence of rape if he has sexual
intercourse with a girl or a woman where-

18
 (a) A woman who is raped is not his wife, or if the woman is his
wife that woman is separated from him. He commits this
offence if the woman has not consented to sex at the time of the

sexual intercourse. In law, spouses are regarded to be lawfully

separated even if the separation is arranged by the family or
clan members;

(b) An offence of rape is still committed the consent of a woman

has been obtained by the use offorce, threats or intimidation by
putting her in fear of death or of hurt or while she is in unlawful
detention;

(c) consent of a woman has been obtained at a time when she was

of unsound mind or was in a state of intoxication induced by

any drugs, matter or thing, administered to her by the man or
by some other person unless proved that there was prior
consent between the two;

(d) with a consent of a woman when the offender knows that he is

not her husband, and that her consent is given because she has
been made to believe that he is another man to whom, she is, or
believes herself to be, lawfully married;
(e) with or without consent of the woman when the woman is

under eighteen years of age, unless the woman is his wife who
is fifteen or more years of age and is not separated from the
man. *

2.2.2 Rape is also committed where: '

•

(f) a man in a position of authority, takes advantage of his official

m
position, and commits rape on a girl or a woman in his o-ih:ul

19
w
 relationship or wrongfully restrains and commits rape on the
girl or woman;

(g) a person on the management or on the staff of a remand home

or other place of custody, established by or under law, or of a
women's or children's institution, takes advantage of his
position and commits rape on any woman inmate of the remand
home, place of custody or institution;
(h) a man, being on the management or staff of a hospital, takes
advantage of his position and commits rape on a girl or
woman;+

(i) a traditional healer takes advantage of his position and commits

rape on a girl or a woman who is his client for healing purposes;
(j) a religious leader takes advantage of his position and commits
rape on a girl or woman.

2.2.3 Clarification of Proof of rape

2.2.3.1 Amendments made on sexual offence by the Sexual Offences

(Special Provisions) Act, 1998 [SOSPA]19were designed to bring
several changes on existing laws governing sexual offences. Before
1998, any woman who was enslaved by strange ideas and beliefs
and allowed a medicine-man to have intercourse with her in the

hope that the sexual act was the medicine-man's way of examining
her pregnancy could not be allowed by law to complain of rape.20

2.2.3.2 The High Court in the case of Kabulungu Juma21 was of the view
that the evidence as adduced at trial court by one Beatrice Kayemba
(P.W.I) did not prove commission of rape by the appellant.

l9Cap 101; originally Act No. 4 of1998,

20 KOROSSO J in Kabulungu Juma Vs. Republic 1991 TLR 154.
21 Vs. Republic [1991] TLR 154.

20
 According to P.W.I herself, she had agreed being inter-coursed by
the appellant whose male organ was smeared with white powder.
The appellant assured P.W.I that sexual act with her on her bed in
her house would ascertain whether the child was naturally
positioned in her womb. High Court decided that P.W.l's
voluntary consent to sexual intercourse by the appellant vitiates the
offence of rape. SOSPA sought to protect the dignity of women
from such medicine-men.

2.2.3.3 SOSPA was also designed to bring clarity on sexual offences for
instance on the debate as to when penetration is deemed complete
for purposes of the offence of rape. Following the amendments, the
law came out clearly that penetration however slight is sufficient to
constitute the sexual intercourse necessary to the offence. Evident -
of resistance such as physical injuries to the body will no longer be
necessary to prove that sexual intercourse took place without
consent.

2.2. 4 Stiff Punishment Prescribed for rape-

2.2.4.1 SOSPA was clearly designed to tighten the punishment for rape. A
review of cases that were decided before the enactment of SOSPA
in 1998 showed that courts had wide discretion when sentencing
those convicted of rape. For example in the case of Shiku Salehe vs
Republic n The appellant was charged with and convicted by a
subordinate court of the offence of rape contrary to sections 130
and 131 of the Penal Code.23 Appellant was appealing against the
conviction and the sentence of five years imprisonment..

22
987] TLR 193 (HC).
23 i.e. before Penal Code was amended by SOSPA in 1998

21
9
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2.2.4.2 Following the amendments brought by SOSPA, any person
convicted of rape is now liable to be punished with imprisonment
for life, and in any case for imprisonment of not less than thirty
years with corporal punishment, and with a fine, and shall in

addition be ordered to pay compensation of an amount determined

by the court, to the person in respect of whom the offence was
committed for the injuries caused to such person.

2.2.5 Punishment for Rape to a boy offending for the first time
Where the offence is committed by a boy who is of the age of
eighteen years or less, if he is a first offender, he shall be sentenced

to corporal punishment only. Where however the victim of the

offence of rape by a first offender boy or even a second offending

boy, is a girl under the age of ten years, the offending boy shall on
conviction be sentenced to life imprisonment.

2.2.6 Punishment for Rape to a boy offending for the second time

If the convicted boy is a second time offender, he will be sentenced

to imprisonment for a term of twelve months with corporal

punishment.

2.2.7 Punishment for Rape to a boy offending for the third time

On the other hand, where the convicted boy commits the offence

for a third time and is recidivist offender, he shall be sentenced to

life imprisonment

22
 2.2.8 Gang rape- Section 131A of the Penal Code

This offence is committed where rape is committed by one or more

persons in a group of persons, each person in the group committing
or abetting the commission of the offence of rape.
2.2.9 Punishment for Gang Rape
Punishment for the offence of Gang Rape is imprisonment for life,,
regardless of the actual role an offender played in the rape.

2.2.10 Attempted rape- Section 132 of the Penal Code

SOSPA brought some clarifications on how the offence of

"Attempted Rape" can be manifested for purpose of trial and
possibly conviction:

(a) threatening a girl or a woman for sexual purposes. The

threatening offender here shall be liable to for imprisonment of
not less than ten years.24
(b) a person of authority or influence in relation to the girl or
woman applies any act of intimidation over her for sexual
purposes. The offending person of authority shall be liable to
for imprisonment of not less than ten years.25
(c) making any false representations for her for the purposes of
obtaining her consent. The person making false representation
shall be liable to imprisonment for life.26
(d) representing himself as the husband of the girl or woman, and
the girl or woman is put in a position where, but for the
*«

occurrence of anything independent of that person's will, she

24 Section 132 (3), Penal Code.
"-Section 132(3), Penal Code.
26 Section 132 (3), Penal Code.
m
•hi

23
m
 would be involuntarily carnally known. The offender
representing himself as a husband shall be liable to
imprisonment for life.27

2.3 Abduction- Section 133 of the Penal Code

An offence of Abduction in Tanzania is committed where any

person, with intent to marry or have sexual intercourse with a

woman of any age, or to cause her to be married or to have sexual
intercourse with any other person, takes her away, or detains her,
against her will. The maximum punishment envisaged here is
imprisonment for seven years.

2.3.1 Abduction of Girls under sixteen- Section 134 of the Penal Code

An offence is committed where any person unlawfully takes an

unmarried woman under the age of sixteen years out of the

custody or protection of her parent or other person having lawful
care or charge of her and against the will of the parent or of that
person is guilty of an offence.

2.4 Sexual assault on persons and indecent assaults on women- Section 135 of the
Penal Code

An offence is committed where any person who, with the intention

to cause any sexual annoyance to any person utters any word or
sound, makes any gesture or exhibits any word or object intending
that such word or object shall be heard, or the gesture or object

27
Section 132(3), Penal Code.

24
 shall be seen, by that other person commits an offence of sexual
assault and is liable on conviction to imprisonment for a term not
exceeding five years or to a fine not exceeding three hundred
thousand shillings or to both the fine and imprisonment. Where a
charge for sexual assault relates to a boy or girl under the age of
eighteen years, it shall be no defence to the charge that the boy or
girl consented to the act constituting the assault.

2.5. Defdcment of idiots or imbeciles- Section 137 of the Penal Code

The offence of defilement of idiots or imbeciles is committed where

any person who, knowing a woman to be an idiot or imbecile, ha^
or attempts to have unlawful sexual intercourse with her in
circumstances not amounting to rape, but which prove that the
offender knew at the time of the commission of the offence that the
woman was an idiot or imbecile, is guilty of an offence and is liable
to imprisonment for fourteen years, with or without corporal
punishment.

2.6. Defdcment by husband of wife under fifteen, etc. -Section 138 of the Penal
Code

2.6.1 Defilement by husband of a wife is committed where any person

who, being married to a woman under the age of fifteen years, has
or attempts to have sexual intercourse with her, whether with or
t
without her consent, before she has attained the age of fifteen years,
is guilty of an offence and is liable to imprisonment for ten years.

25

•
2.6.2 On their part, parents or guardians of a girl under fifteen commit
an offence where being a parent of or having custody of a woman
under the age of fifteen years parts with the possession, or
otherwise disposes of, the girl with the intention that the girl shall,
while still under the age of fifteen years and whether with or

without her consent, have sexual intercourse with her husband or

knowing it to be likely that the woman will, while still under the
age of fifteen years, have sexual intercourse, is guilty of an offence

and is liable to imprisonment for ten years.

2.6.3 Other persons not related to a girl under fifteen may also commit
an offence where the person concerned procures or attempts to
procure any married woman under the age of fifteen years with

intent that she shall have sexual intercourse with her husband,

whether with or without her consent, when she is under the age of

fifteen years. The punishment here is liability to imprisonment for

ten years.

2.7. Marriage of a Girl under 15 in accordance with tribal or religious customs

The law on sexual offences in Tanzania allows any person of

African or Asiatic descent to marry or permit the marriage of a

woman under the age fifteen years in accordance with the custom

of the tribe or religion where it is not intended that the marriage

shall be consummated before the woman attains the age of fifteen

years. It is not an offence person of African or Asiatic descent who

in accordance of his customary or religious belief to give or receive

26
 money or presents in consideration, or on the occasion, of tho
marriage.28

2.8. Acts of gross indecency between persons- Section 138A of the Penal Code
2.8.1 Gross indecency is defined by the sexual offences part of the law of
Tanzania to mean any sexual act that is more than ordinary but
falls short of actual intercourse. Such acts may include
masturbation and indecent physical contact or any indecent
behaviour that is not accompanied with physical contact. Any
person who procures or attempts to procure the commission by any
person of, any act of gross indecency with another person, commits
an offence and liable on conviction to imprisonment for a term of
not less than one year and notexceeding five years or to a fine not
less than one hundred thousand shillings and not exceeding three
hundred thousand Tanzanian shillings.

2.8. 2 Where the offence of gross indecency is committed by a person of

eighteen years of age or more in respect of any person under
eighteen years of age, a pupil of a primary school or a student of a
secondary school the offender shall be liable on conviction to
imprisonment for a term not less than ten years, with corporal
punishment, and shall also be ordered to pay compensation of an
amount determined by the court to the person in respect of whom
the offence was committed for any injuries caused to that person.

Section 13 8-(6) of the Penal Code, Cap. 16,

m

27

*i<
2.9. Sexual exploitation of children- Section-138 B of the Penal Code

A person is liable upon conviction to imprisonment for a term of

not less than five years and not exceeding twenty years if he
commits the offence of exploitation of children. This offence is
committed in the circumstances where the offender -

(a) knowingly permits any child to remain in any premises for

the purposes of causing such child to be sexually abused or
to participate in any form of sexual activity or in any obscene
or indecent exhibition or show; or

(b) acts as a procurer of a child for the purposes of sexual

intercourse or for any form of sexual abuse, or indecent
exhibition or show; or

(c) induces a person to be a client of a child for sexual

intercourse or for any form of sexual abuse, or indecent
exhibition or show, by means of print or other media, oral
advertisements or other similar means; or

(d) takes advantage of his influence over, or his relationship to, a

child, to procure the child for sexual intercourse or any form
of sexual abuse or indecent exhibition or show; or
(e) threatens, or uses violence towards, a child to procure the
child for sexual intercourse or any form of sexual abuse or
indecent exhibition or show; or

(f) gives monetary consideration, goods or other benefits to a

child or his parents with intent to procure the child for
sexual intercourse or any form of sexual abuse or indecent
exhibition or show.

28
2.10 Grave sexual abuse- Section 138C of the Penal Code

2.10.1 The offence of Grave sexual abuse is committed where any person
without the consent of the victim, does any act, by the use of his
genital or any other part of the human body or any instrument or
any orifice or part of the body of another person for sexual
gratification and the act complained of does not amount to rape1
under section 130 of the Penal Code. The punishment for the
offence of grave sexual abuse is imprisonment for a term of not less
than fifteen years and not exceeding thirty years, with corporal
punishment. In addition the offender shall also be ordered to pay
compensation of an amount determined by the court to the person
in respect of whom the offence was committed for injuries caused
to that person.

2.10.2 Punishment increases where grave sexual abuse is committed on a

person under fifteen years of age. The punishment in this case is

imprisonment for a term of not less than twenty years and not
exceeding thirty years, and the offender shall in addition be

ordered to pay compensation of an amount determined by the

court to any person in respect of whom the offence was committed

for injuries caused to that person.

2.11. Sexual harassment- Section 138D of the Penal Code

Penal Code as amended by the Sexual Offences Special Provisions

Act, 1998 now illustrates circumstances where the offence of sexual

harassment can be deemed to have been committed-

hi

it.

29
 (a) Any person who, with intention, assaults or by use of criminal
force, sexually harasses another person, or by the use of words

or actions, causes sexual annoyance or harassment to such other

person. The offender here shall be liable on conviction to

imprisonment for a term not exceeding five years or to a fine
not exceeding two hundred thousand shillings or to both the

fine and imprisonment. In addition the offender may also be

ordered to pay compensation of an amount determined by the
court to the person in respect of whom the offence was

committed for any injuries caused to that person;

(b) utters any word, makes any sound or gesture, or exhibits any

object including any organ whether male or feminine to insult

the modesty of any woman

2.12 Unwelcome Sexual Advances at Places of Work- section 138 D of the Penal

Code

Unwelcome sexual advances by words or actions used by a person

in authority, in a working place or any other place, constitutes the
offence of sexual harassment in Tanzania. Prosecution of this

offence can only be carried out if the complaint is made by the

alleged victim at any time within sixty days of the occurrence of the
event constituting the offence.

2.13. Procuration for prostitution- Section 139 of the Penal Code

Punishment for the offence of procuration of prostitution is

imprisonment for a term of not less than ten years and not

30
 exceeding twenty years or to a fine of not less than one tumuYc.I
thousand shillings and not exceeding three hundred thousand
shillings or to both the fine and imprisonment. The offence of
procuration for prostitution is committed where any person-
(a) Procures another person (male or female) to become, within or
outside, the United Republic, a prostitute;
(b) procures, or attempts to procure, any person under eighteen
years of age, to leave the United Republic, whether with or
without the consent of that person, with a view to the
facilitation of prohibited sexual intercourse with any person
outside the United Republic
(c) removes, or attempts to remove from the United Republic, that
person, whether with or without the consent of that person, for
prostitution;

(d) procures another person to become an inmate of a brothel, or to

facilitate the frequenting of a brothel elsewhere,
(e) bring, into the United Republic, any person under eighteen
years of age with a view to prohibited sexual intercourse with
any other person,

(f) detains any person without the consent of that person in any
brothel or other premises with a view to prohibited sexual
intercourse or sexual abuse of thatperson.

2.14 Trafficking of person- Section 139Aof the Penal Code

This offence is committed where any person engages in the act of

buying, selling or bartering of any person for money or k - •
other consideration. An offender on conviction is liable to

31
 imprisonment for a term of not less than twenty years and not
exceeding thirty years and a fine of not less than one hundred
thousand shillings and not exceeding three hundred thousand
shillings or to both the fine and imprisonment. In addition the
offender may be ordered to pay compensation of an amount to be
determined by the court.

2.15 Other Sexual Offences

Other sexual offences under the Penal Code include-

I. Procuring Rape,29 which is committed by any person

resorting to threats or intimidation procures or attempts to
procure any girl or woman to have any prohibited sexual
intercourse. A householder can commit an offence if he

permits the defilement of girl under twelve years of age on

his premises;30

II. Male person living on earnings of prostitution or

persistently soliciting;31
III. Woman living on, or aiding, prostitution;32
IV. Keeping a house, room, set of rooms or place of any kind
whatsoever for the purposes of prostitution;33
V. Attempts to procure abortion;34and
VI. Procuring own miscarriage;35

29 Section 140 of the Penal Code.

30 Section 141 Ibid.
31
Section 145 Ibid.
32
Section 146 Ibid.
"Section 148 Ibid.
"Section 150 Ibid.
35
Section 151 Ibid.

32
 2.16 Amendments of Procedural Aspects of Sexual Offences

Amendment of Sexual Offences in 1998 brought also changes on

procedural and sentencing laws.

2.17 Minimum Sentencing Laws

Where a court convicts a person in a case which involves sexual

offence under the Sexual Offences Special Provisions Act, 1998, the
court concerned will be required to pass a sentence as prescribed in
that Act and in accordance with the Minimum Sentences Act,
1972.36

2-18 Restrictions on Open Courts

2.18.1 Amendment of the Sexual Offences laws in 1998 brought changes

on openness of the court to the members of the public. Following
the legislative changes, evidence of all persons in all trials involving
sexual offences is to be received by the court in camera. The
changes brought further restrictions on reporting of proceedings.
The evidence and witnesses involved in these proceedings is
prohibited from being published by or in any newspaper or other
media.37

2.18.2 Likewise, where a child of less than eighteen years of age is a

witness, a victim or an accused or a co-accused in a case involving a
sexual offence, the child shall be tried in camera and separately

Section 168 (6)-Criminal Procedure Act, 1985.

"Section I86(3)ofCPA, 1985.

33
*
 from the adult co-accused, or the evidence of the child shall be

adduced in proceedings conducted in camera.38

2.19 Power of A Superior Court to Enhance Punishment

The seriousness with which sexual offences are viewed following

the amendment of sexual offences in 1998 is reflected in the power

to enhance sentences passed by subordinate courts. Where the

High Court revises the record of proceedings in a subordinate court
involving a sexual offence, it may if it considers that the justice of
the case so requires inflict a punishment greater than that which the
convicting court might have imposed but which the High Court
could impose if the matter were to come to it on appeal as if the
matter were in fact on appeal.39

2.20 Compensation in cases of Sexual Offences

Compensation is one of the sentencing tools which came out very

clearly from the amendment of sexual offences in 1998. When a
court convicts, an accused person of a sexual offence, that court is

in addition required to also make an order requiring the convict to

pay such effective compensation as the court may determine to be
commensurate to possible damages obtainable by a civil suit by the
victim of the sexual offence for injuries sustained by the victim in

the course of the offence being perpetrated against him or her.40

38 Section 3-Children and Young Persons Act, Cap, 17.

39 Section 373-(5) of the CPA, 1985.
40 Section 348A CPA, 1985.

34
 2.21 Evidence of a child in aCase involving Sexual Offences

Law of evidence was also affected by the amendment of sexual

offences. Where in criminal proceedings involving sexual offence
the only independent evidence is that of a child of tender years or
of a victim of the sexual offence, the court shall receive the
evidence, and may, after assessing the credibility of the evidence of
the child of tender years of as the case may be the victim of sexual
offence on its own merits. This change does away with strict
requirements for corroboration of the child's evidence. The law
now directs the trial court to proceed to convict, if for reasons to be
recorded in the proceedings, the court is satisfied that the child of
tender years or the victim of the sexual offence is telling nothing
but the truth.41

<n
Section 127 Law of Evidence Act, 1967.
m

35
m
 CHAPTER THREE

RESEARCH FINDINGS

3.0. INTRODUCTION

In this chapter an attempt is made to address the situation the

Commission found on the ground in respect of each of the sexual
offences in Tanzania.

3.1 THE STATE OF THE IMPLEMENTATION AND

EFFECTIVENESS SINCE THE SOSPA AMENDMENTS

3.1.1. As stated in chapter one, in 1998, Tanzania undertook

comprehensive amendments of various laws that had a bearing on
sexual offences. This was done through the SOSPA. The

amendments were geared to protect and safeguard the integrity

and dignity of women and children in matters pertaining to sexual
activities. This was considered a fitting response to sexual offences

which were on the increase in the country. Below is the

presentation of the information collected during the field visits
intended at gauging the effectiveness of the amendments brought
by SOSPA. The information is based on the questions which were
asked during the visits and the analysis of various documents on
the issues.

3.1.1.1 During the visits, the Commission held discussions around the

mischief of the amendments effected by SOSPA, namely, to provide

a framework that reflected the nature of sexual offending as it is

committed and which was capable of convicting and punishing the

36
 guilty thereby protecting the integrity and respect of women and
children. The main question was whether, ten years after, the
amendments have achieved that aim and what effect have the
amendments had in tackling sexual offences and protecting the
public at large. Another aim of the amendments was to offer
greater protection to the most vulnerable members of the society
especially children and those with mental disabilities and therefore
the issue was whether the amendments have achieved that aim.

3.1.1.2 The discussion and analysis thereof indicate that, despite some
successes in a few areas, the framework brought about by the
SOSPA has largely not succeeded in protecting the integrity rf
women and children as anticipated because of several reasons.

3.1.1.3 Other than in respect of the offence of rape, other sexual offences
are largely unknown to most people both in urban and rural areas.
The situation is even more serious in rural areas. In some cases
people may have a rough idea of what the sexual offences are all
about but the details of each offence in question would be wanting.
This makes it difficult to effectively investigate and prosecute the
wide ranging sexual offences provided for by the law. This was
reflected on the fact that most participants and respondents in the
review exercise knew, for example, that rape was an offence but the
details or ingredients of this offence were not known except, the
aspect of sexual intercourse without consent.

3.1.1.4 The discussions that preceded the SOSPA amendments seem to

have captured the general thinking of most of the people about die
law, namely that the law was about punishing rape and "winking"

37
 (translated kukonyeza in Swahili). This word dominated the public
discussions during the period preceding the enactment of the
amendments on the law to increase and clarify the range of sexual
offences. From the consultative visits, the Commission noted that

most people, prejudicially, restricted the SOSPA to offences

designed to curb lewd winking. In that way, the seriousness of the
law is, unjustifiably so to speak, eroded.

The Commission observes that the best way to address this

challenge is to translate the law into Kiswahili and continue to

provide public education and awareness to people through various
media including but not limited to radio and television programs,
newspapers, seminars, conferences, banners, booklets and other
forms of publications. These initiatives should be done in
Kiswahili.

3.1.1.5 Most of the people who had audience with the Commission to
gauge the experience and practice on the SOSPA associate the
amendments on sexual offences with women activism mainly

through a renowned non-governmental organization known as

TAMWA and therefore regarded the amendments on sexual
offences as intrinsically biased against men. This perception
negates the resolve to enforce the law with the seriousness it
requires, creating a lack of dedication towards enforcement of this
law. Unfortunately this view is also held by some law enforcement
officers whose primary responsibility is to enforce the law or to

supervise the enforcement of the law.

 The Commission observes that the best way to address this matter
is through more focused and balanced public education and
awareness programs across the country and at all levels.

3.1.1.6 Traditions and customs among the various communities in

Tanzania still play a major role in making the amendments made
on sexual offences in 1998 ineffective. Strongly held traditional and
community prejudices generally drive some members of the society
not to report sexual offences either because such members do not
view the conduct prohibited as an offence or that even if it is
prohibited, the views of the community are that such cases should
first be sorted out within the family or community in question
before any other person is involved in the matter. In this way, most
of the sexual offences are condoned and hardly get to the
knowledge of the law enforcement organs.

The Commission observes that public education and awarenesses

key to freeing the minds of the people who still cling to their
traditions and customs even if the same are inimical to the rights
and welfare of the victims of sexual offending.
The Commission further observes that shame and stigma also play
a significant role in making the law not to be effectively enforced.
In this regard the Commission is of the view that the best way to
address the challenges brought about by issues of shame and
stigma is to resort to mechanisms similar to those employed in the
area of HIV and AIDS. These would include setting up crisis
reporting and counselling centres and such other initiative :ht-.i

39
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 will help to "break the silence" and encourage victims of sexual
offending to report.

Further, it is necessary to start offering specialized training to

investigators, prosecutors and magistrates on how to handle sexual
offences cases. This will add value to the current system of

investigations, prosecutions and adjudication and also assist to

change the mindset of the law enforcement institutions towards
sexual offending.

The Commission observes the necessity to develop and issue

guidelines to all actors involved in sexual offences case
management as to create predictability on the manner such cases
are to be handled and processed within the social, medical and
criminal justice platforms.

3.1.1.7 On its part, the legal framework in the country has areas which
create law enforcement challenges or loopholes. For example, the
regulations and rules made under the Education Act42 allow a
person who impregnates a school girl to be punished with either a
fine or imprisonment not exceeding six months.43 If the culprit is a
child then the Corporal Punishment Act44 would normally be called
into play and corporal punishment applied. In some cases law
enforcement officers choose to charge the offenders under these
regulations and avoid the more serious provisions of Section 130 of
the Penal Code. It should be noted that pregnancy is, in almost all
cases, proof sexual intercourse and considering the fact that most

42[ CAP. 353 R.E 2002.]

43 Primary School (Compulsory Enrolment and Attendance) Rules, G.N. No. 280 of 2002.
44 CAP. 17 R.E. 2002.

40
 school girls are below 18 years, then the provisions related to rape
are relevant.

The Commission observes that selective enforcement of the

law is mostly occasioned along the followings aspects:
• Sympathy for the culprit and hence an attitude of
lenience towards him;

• Collusion among witnesses and sometime with law

enforcement and judicial officials, especially when some
elements of corruption are involved;

• Lack of technical know-how on the part of law

enforcement and judicial officials especially on issues
related to court practice and procedures; and

• Laxity on the part of law enforcement and judicial

officials in relation to the investigation and judicial
process.

3.1.1.8 The inconsistency in the enforcement of the law also applies to a

situation where one law allows early marriages with the approval
of the court from the age of 14 years (the Law of Marriages Act)
while the other law is punishing early marriage and sexual
intercourse below 15 years (the Penal Code).45 The Commission
noted in this aspect that many people hold the view that the
consent by parents is sufficient to allow a girl under 18 years to be
married. The requirements for the court order and notice under the
Law of Marriage Act seems to be ignored in practice, mostly ot ;- of m

CAP. 16R.Ii. 20(12.

m

41
m
m
 ignorance about their necessity before such a marriage could be
contracted.

3.1.1.9 In any case some if not most parents of children who fall pregnant
while in school feel that the law is not doing justice to them
considering the amount of money they spend on the education of
their children only to find that unscrupulous people make their
children pregnant before they complete their studies. Most of these
families are poor in the first place and had hoped that by educating
their children at least the door would be half open to success. They
see these hopes shuttered when their child is taken out of school by
reasons of pregnancy.

The Commission observes that in relation to selective enforcement

of laws, provisions of the Primary School (Compulsory Enrolment

and Attendance) Rules46 on a impregnating a school girl be
repealed and replaced with the following provisions:

(i) Any person who impregnates a school girl below the age of
eighteen years shall be dealt with in accordance with the provisions
of Part II, Chapter XV of the Penal Code; provided that the
provisions of the Children and Young Persons Act shall apply to all
proceedings involving a person who is less than eighteen years old.

(ii) Any person who lures or do any other thing to make a

school child to resort to other activities such as to watch cinemas,

videos or any other thing while such a child was supposed to be in

school shall be guilty of an offence.

46 G.N. No. 280 of 2002.

42
 3.1.1.10 In relation to child marriages the Commission observes that it had
made recommendations way back in 1986 on how challenges
revolving along customary marriage practices can be addressed.
The Commission had noted then that:

"It is also the opinion of this Commission that non

registration of customary law marriages is the major cause
ofabuse ofthis institution.... most ofthe problems that are
blamed upon the institution of Customary Law Marriages
are in fact caused by ineffective control of the practice
stemmingfrom non-registration and poor administration of
these marriages...

The law requires that all marriages must be

registered, however celebrated (s.43 LMA, 71)."

Based on the above findings the Commission had recommended

that the system of registering marriages be improved so that there
is sufficient control of marriages including those contracted in
customary forms. Indeed, the Commission is also of the view that
the deficiencies in the marriage systems can be abated if the control
system of marriages is operationalised to the letter.

3.1.1.11 With regard to minimum age for marriage, the Commission noted
that the age of marriage set by law is too low and against the spirit
of international instruments on the protection of the rights of
children and thus necessary to change the situation. It thus
recommended as follows:

43
m
 "2.1.2 That a new minimum age for marriage should be 21
years for both males and females. This will entail an
amendment to section 13(1) of the LMA, 71.

2.1.3 The provisions of section 13(2) of LMA, 71 also

should be amended. In place of 14 years there should be
substituted for 18 years as the later conforms with the UN
recommendation far minimum agefor marriage.

2.1.4 Section 17 of the LMA, 71 should be deleted."

The Commission observes that recommendations contained in

early reports of the Commission remain valid and need to be

implemented although some leverage can be made in relation to
the age of marriage, which the Commission recommends eighteen
years, this being the age of majority, for both females and males.
This is the position also taken by the Commission in its report on
the law relating to children in Tanzania in 1994.

3.1.1.12 Some members of the public, including judicial and law

enforcement officials like Judges and Magistrates, Prison Officers, Police
Officers and regional and district executives holding the opinion opposing
long minimum sentences for all cases regardless of how or the
circumstances under which individual offences were committed. Most

think that the law should have been designed in such a way that
punishments in sexual offences cases should be differentiated based on
merits and circumstances of each case.

44
 The Commission is of the views that the issue of punishment for
sexual offences should be studied critically so that the right formula
for punishing sexual offenders is designed and applied. Generally,
it is better if a sentencing policy is adopted in all aspects of
punishment of offenders to create coherence in the way
punishments are organised in Tanzania.

3.1.1.13 The language of the law is among the bigger challenges afflicting
the effectiveness of the amendments of the sexual offences brought
about by SOSPA. Very few people who are targeted by the law
(victims, witnesses, accused persons) are conversant with the
English language and therefore would not know what the law
actually intended or how to operationalise it. This challenge is also
being faced by some of the criminal justice enforcement officers
especially at the lower levels where majority of officers are largely
holders of very basic qualifications, and sometimes, not necessarily
those related to law.

In this regard the Commission recommends that the law should be

translated into Kiswahili and that guidelines on how to go about
implementing the law should be issued, also in Kiswahili.

3.1.1.14 Despite the above challenges, there is a general appreciation that

having the law in place is in itself asuccess. There is a general fear
of the punishment prescribed by the law and in places like Kigoma
Region ofTanzania there were testimonies to the effect that without
the law the situation would have been worse. The challenge
therefore is to ensure that those areas which make tho h
ineffective are addressed.

45
3.1.1.15 The Commission also wanted to gauge if there were any particular
aspects of the sexual offences legislation which have worked
particularly well and the factors for such a performance. Generally,
the Commission notes that the concentration of reporting and
processing of sexual offences is confined in rape, attempted rape,
defilement and unnatural offences. This is demonstrated by

statistics received from the police and prisons as well as discussions

during the visits. This is, however, not to suggest that other sexual
offences are not being committed or that the law has worked well
in the areas of rape, attempted rape, defilement and unnatural
offences.

3.1.1.16 The Commission noted that offences are being committed almost in

all areas of the sexual offences law. For example, procuration for
prostitution, trafficking of persons, procuring rape, permitting
defilement of girls under 15, sexual harassment, detention in
premises of brothels, male persons soliciting for immoral purposes,
abortion, cruelty to children and indecent assault of boys under 14
are offences which are committed in various parts of Tanzania but
are not reported.

3.1.1.17 Discussion with targeted groups from Kigoma, Arusha and

Mwanza, for example, indicated that the sexual offences in the
statute book which have so far remained

unreported/investigated/prosecuted are committed. These offences

are either tolerated or people simply ignore them.

46
 Based on these findings it can generally be concluded that there is
no particular aspect of the sexual offences legislation which has
worked particularly well and there are many factors for such a
performance.

3.1.1.18 The Commission singles out the following offences as rampant but
rarely reported:

3.1.1.18.1 Trafficking in persons- Consultative meetings in Kigoma and

Mtwara revealed that people especially young girls were being
trafficked to places like Arusha, Dar es Salaam, Mbeya and
Mwanza to be placed in brothels and bars for sexual purposes.
Some of those who were trafficked are known to the local
communities but no action is being taken to control the situation.
Being trafficked too far off places away from their homes, most of
the trafficked girls end up being destitute and eventually enslaved
into prostitution.

The Commission notes with satisfaction that the law on human

trafficking takes into account this problem. However, it appears to
the Commission that there is need to improve intelligence in this
area and more sharing of information among actors so that the law
enforcement and order institutions are able to identify and process
cases of trafficking in person which are mostly done in very
discreet ways or means.

47
3.1.1.18.2 Living on the earnings of prostitutions.- The law on this area and
law enforcement in general in that respect have in almost all
aspects failed in addressing the problem of prostitution and actions
against prostitutes are seen as "harassment", even by some of the
law abiding citizens. Despite the law, prostitution is a daily
occurrence in many areas, both rural and urban. The analysis on
why prostitution is on the rise and probably uncontrollable is also
to be found in an article by ILO/IPEC, titled Tanzania Children in
Prostitution: A Rapid Assessment.47

3.1.1.18.3 During the field research the Commission spoke to many people
who are of the view that a better method beyond criminalization
should be developed, including decriminalization, licensing,
certification and counselling to address the challenges of
prostitution in the country.

The Commission observes that prostitution should continue to be

criminalized but counselling and guidance to prostitutes should be
provided.

3.1.1.18.4 Cruelty against children: - It was submitted that the media almost
every day carry stories of children being manhandled by their
parents, guardians, relatives or teachers. Yet, official statistics
available at the police, courts and prisons show that such cases are
few. The Commission's survey indicates that cruelty against
children is on the rise and specific interventions need to be taken to

47 ILO/IPEC,Tanzania Children in Prostitution: A Rapid Assessment, ILO, Geneva, Switzeiland, 2001.

48
 control the situation. One of the rising cases in this aspect includes
dumping of newly born babies.

3.1.1.18.5 Among the measures proposed to curb the growing trend of

cruelty to children is to enforce the law that is already in place on
top of a sustained public education and awareness on the impact of
cruelty to children both physically and mentally. These ties well
with the recommendations of the Commission made in 199448-

i. In order for child abuse to be minimized, there is a need for

the society to be educated on the effects of child abuse on the
child's mental and physical development. Moulding asound family
where parents and children understand one another and the nee Ts
of the children taken care of can do this. Thus, the upbringing of
the child should be through reasonable corrective measures and not
through torture of any kind.

ii. There is strong need to increase the number of children

homes to take care of children who are abandoned or whose
parents are dead and without any relative to look after them.

m. It should be the duty of every person to co-operate in

detecting child abuse in its early stages so as to assist the children's
mental and physical development and to build up a "reformed" and
not a "deformed" generation. It should be a legal duty to report
cases of child abuse to Welfare Officers.

The Commission repeats on the above recommendations made in

1994 Report

The Report ofthe LRCT on the Law Relating to Children in Tanzania, 1994 m

49
 3.1.1.18.6 Abortion cases.- Commission's survey has indicated that cases
related to abortion and associated offences are on the increase in

the country. Yet, convictions related to such cases are almost nil
despite the common knowledge that such practices are rampant in
homes and health institutions. The very day the Commission was
in Kigoma for public consultations, a school girl died as a result of a
failed attempted abortion which was carried out in a private
dispensary. The girl died on arrival at Regional Hospital where she
was referred. The Medical Officer dutifully arranged for Police
Officers who arrived and arrested the person who brought the girl
to the Regional Hospital. Nothing was said about the health
practitioner who carried out the illegal abortion but those who
participated in the discussion agreed that abortion cases were many
in the Region and Commission thinks the same can be said of other
regions in Tanzania.

3.1.1.18.7 Commission's survey indicates that school children or students

followed by prostitutes are among the major groups that
participate in illegal abortions. For school children, the problem is
one of the fears of consequent expulsion from school once proven
that they were pregnant. The fear also extends to the person who
impregnates a girl under eighteen years, which is an offence of rape
and is a subject of imprisonment for 30 years among other
consequences. In this situation both the school girl and the man
responsible for the pregnancy tend to work towards abortion and

50
M
 in almost all cases using unofficial medical channels, and
sometime, the so called "bush doctors".

The Commission observes that among the measures that should be

taken to reduce incidences of illegal abortions should include
improved control measures for the medical and health

practitioners, increased intelligence in this area, and more

awareness raising on reproductive health issues among school
going children. Strengthened prosecutions of people who make
school girls pregnant will also go a long way towards reducing the
challenges associated with abortions. Further, medical practitioners
should be required, by their own rules, to report cases of
individuals seeking abortions related to a school girl or otherwise
they risk being prosecuted for concealment of a crime (misprision
of offence) or being accessories before and after the fact.

3.1.1.18.8 Rape of female children out of belief in witchcraft: - Cases of

sexual abuse of female children by people who believe in witchcraft
are gaining momentum in many areas of Tanzania. This situation is
perpetuated by people who claim to have traditional powers to
advise others on how they can become rich, succeed in business or
employment, cure themselves against deadly viruses and diseases
such as HIV and AIDS, or sometime how to rid oneself of bad
omens. Among the means to achieve these is the advise to have
intercourse with a female who is still a virgin and for convenience,
a child. Backward as it is, some people hold the view that the
advise is true and works and thus end up sexually molesting

51
 female children, in some cases, infecting them with HIV and

sometime killing them.

3.1.1.18.9 Several measures have been recommended to improve law

enforcement in this area, yet Commission thinks that the challenges

remain in the enlightenment of some members of the society on
issues related to riches, business, employment, and sickness among

other things. Obviously in the situation of poverty this task is a

mammoth one and would need concerted efforts by many players
such as government officials, educationists, religious bodies and
counsellors among others. The Commission noted that among the
areas mentioned as being rampant for causing children to be
molested or killed for rituals include the natural resources sector.

The Commission recommends that the natural resources sector

should come up with programs specifically aimed at saving

children from the mining rituals. This can be done through
educating those involved in the exploitation of natural resources on
how they can search for, for example, minerals, signs of availability
of minerals in a given area, and the use of science and technology
in the mining business. This strategy should also be applied to all
other sectors which have become the springboard of rituals or
sacrifices involving children.

3.1.1.18.10 Consent: - The amendments brought by SOSPA are believed by

some of the legal professionals to have implicitly strengthened the

various aspects of consent in sexual offences. However, the

52
 Commission wanted to know if, taking into account the experience
on the ground, the new concept of consent assisted the
investigations and or prosecutions of sexual offences such as rape.
3.1.1.18.11 Indeed, the issue of consent has continued to be a challenging one
especially because of different customs and traditions among the
tribes and the communities of Tanzania. Some communities stili
encourage their children to engage in early sex through traditions
such as initiation of children to adulthood [kuchezwa ngoma)49 and
concept like the child has become of age or matured (mtoto
amekua).50 These traditions and concepts revolve on a girl child
attaining puberty and hence mature enough to engage in sexua'
intercourse and bear children. Under these traditions young girls
are not expected to unnecessarily say "no" to a man approaching
them as a future husband. In the circumstances, parents in such a
traditional system will be more than willing to pursue dowry than
recourse to criminal punishment and would only approach law
enforcement institutions if the dowry remains outstanding.
The Commission observes that consent in this kind of a system
becomes obscured and girls become victims of the training whose
essence is not even clear to them. In this regard suggestions are
being made to keep on educating the public about the dangers of
such a system. One way of being effective is to deliberately
infiltrate members of communities which believe in such traditions,

49
Practiced mostly among the costal tribes in Dar es Salaam, Lindi, Mtwara, Pwani and Tanga as v\ ell a:
regions like Moroeoro.
ibid

53

Am
•^•Bfi"**K(WHid.'
 co-opt some of them and use them as agents of change for the
benefits of the girl child.

3.1.1.18.12 Children in schools: - Challenges related to primary schools

children being made pregnant by unscrupulous people are not

uncommon despite calls by the government, parents and all well

wishers for stern action to be taken against such people. The
challenges are mostly occasioned partly because of the loopholes in
the law and the fact that some parents, we were informed in
Morogoro and Kigoma, also entice their children to be married at
an early age in order to raise money through payment of dowries.

3.1.1.18.13 On the part of the law, the regulations and rules made under the
Education Act requires a person who impregnates a school girl to

be punished with either a fine or imprisonment not exceeding six

months.51 If the culprit is a child then the Corporal Punishment Act

would normally be called into play and corporal punishment

applied.52 In some cases law enforcement officers choose to charge

the offenders under these regulations and avoid the more serious

provisions of Section 130 of the Penal Code.

3.1.1.18.14 It should be noted that pregnancy is, in almost all cases, a proof of
sexual intercourse and considering the fact that most school girls
are below 18 years, then the provisions related to rape are relevant.
The Commission noted that selective enforcement of the law is

mostly occasioned along the followings aspects:

Primary School {Compulsory Enrolment and Attendance) Rules, G.N. No. 280 of 2002.
Cap. 17 [R.E. 2002]

54
 Sympathy for the culprit and hence an attitude of lenience
towards him;

Collusion among witnesses and sometime with law

enforcement and judicial officials, especially when some
elements of corruption are involved;

Lack of technical know-how on the part of law enforcement

and judicial officials especially on issues related to court
practice and procedure; and

Laxity on the part of law enforcement and judicial officials in

relation to the investigation and judicial process.

The Commission is of the views that provisions of the Primary

School (Compulsory Enrolment and Attendance) Rules53 on
impregnating a school girl be strengthened as proposed in the Bill:
3.1.1.18.15 There has also been questions as to whether the law compels that a
child who is made pregnant be expelled from school which means
kept out of school permanently or merely excluded for a specified
duration and resume studies once she has delivered. Expulsion of
primary school children is governed by regulation 4 of the
Education (Expulsion and Exclusion of Pupils from Schools)
Regulations54 while exclusion is governed by regulation 7 of the
same Regulations. The expulsion of a pupil from a school may be
ordered where-

G.N. No. 280 of 2002.

G.N. No. 295 of 2002.

55
 a. the persistent and deliberate misbehaviour of the pupil is
such as to endanger the general discipline or the good name
of the school; or

b. the pupil has committed a criminal offence such as theft,

malicious injury to property, prostitution, drug abuse or an

offence against morality whether or not the pupil is being or

has been prosecuted for that offence; and

c. a pupil has entered into wedlock.

3.1.1.18.16 Generally, the views are that these provisions defeat the whole

purpose of education. Ironically, the children mentioned in these

provisions targeted for expulsion indeed need education more than

anything else to make them grow and develop as useful members

of the society.55 International and regional instruments require

every child to be protected, developed to his or her full potential

and not to be discriminated.

The Commission observes that the act of expelling or excluding a

child from school defeats these essential pillars of the best interest

of the child. It has therefore being suggested that the regime that
underpins children who have come into conflict with the law under
the Children and Young Persons Act be strengthened such that
children covered by G.N. No 295 of 2002 are handled therein and
thereby assist them to continue with studies even though through

55 In any case some members of the public feel that the current law is discriminating children from poor families because
those from well to do families can afford to take their children to private schools to continue with studies which is not the
case for the poor families. In this kind of a situation it is only fair that the current law is evaluated and where possible
children who fail pregnant while in school should not be condemned twice through pregnancy and then expulsion. This
certainly is not in tune with (he principle of the best interest of the child as required by international and regional
instruments as well as the country's policy on child development.

56
 the approved school system. This can be done by amending
Regulation 4 thereof and strengthening it with the new provisions
as proposed in the Bill:

The Commission further observes that in the same context some

amendments are required in the Children and Young Persons Act
to accommodate this development. Regulations also need to be
developed for the proper operationalisation of Children and Young
Persons Act. This however can await the outcome of the Children's
Act which is being developed.

3.1.1.18.17 The Commission also wanted to know if anybody, either in the

society or law enforcement system has experienced any transition,:
difficulties in moving from the old to the new legal framework on
sexual offences. As far as the society is concerned it appears that
there are many difficulties which are being experienced as far as
understanding what the law actually means and how it can be
operationalised. In this way the benefits that the new law would
have brought to bear are rarely pursued. This situation is largely
associated with the inadequacies in the way the members of the
society were involved before the law was enacted and the fact that
the law remains in English, a language that is not understood by
many people in the country.

3.1.1.18.18 In Morogoro, the Commission was told "this is a law for the
lawyers and activists, not an ordinary man". Interestingly, even •

some of the local government officials who are closer to the people
(grassroots) knew very little about the law, largely because o\- the
language used. The Commission concluded therefore that the

57
II
Mi"
 failure to translate the SOSPA provisions in Kiswahili is a serious
language barrier in the implementation of the law and many did
not see if there was any difference between the old and the new
law.

The Commission therefore is of the view that laws should generally

be enacted in Kiswahili and, if need be, translated into English.
Laws which are already in English should be translated into

Kiswahili and priorities should be given to laws which concern

everyone in the society such as SOSPA.

3.1.1.18.19 In respect of the minimum and maximum sentences provided by

the current law on sexual offences, almost everywhere the
Commission visited people raised different views about the
sentences and whether such sentences were effective in addressing
sexual offending. The general view was that the punishments were
severe enough but have not helped to keep on check or reduce
sexual offending in the country.

3.1.1.18.20 Some members of the community think that the severe

punishments have become a recipe for people to negotiate when a

person is accused of a sexual offence. In this way a person would

rape and beg the victim or her family members to forgive him and
offer to pay the victim of the family for his "sins". Negotiations

would go on without the knowledge of lav/ enforcement

institutions and if a deal is struck then that marks the end of the

matter. Such cases would only be taken to the police and courts if

the culprit failed to pay agreed sum to the victim or the family,
sometimes including those who facilitated the negotiations.

58
3.1.1.18.21 Unfortunately, some law enforcement officials seem also to
condone this approach and would advise the parties involved to
discuss the matter among themselves as an aspect of sympathising
with the accused person. This practice is rampant in rural areas
where the law enforcement institutions are largely absent or
difficult to reach or where the inspection and supervisions of such
institutions are weak.

3.1.1.18.22 On the part of law enforcement officials, the Prisons Service

strongly argued for a change in the minimum sentence practice
since the current system has no rehabilitation value and largely has
transformed the Service into a mere custody for sexual offenders.
This also contributes to the problem of congestions in prisons as
long sentence offenders keep on increasing. It can be said that the
inefficiency in the sexual offences law enforcement is a "blessing in
disguise" since if it were the other way round prisons would have
been overflowing with sexual offenders. On their part both judicial
and police officers are of the view that the sentencing regime is
indeed ineffective and unlikely to help the country in its resolve to
address sexual offending in the near future.

The general recommendation made by all the institutions,

including Social Welfare Department is that there is need to review
the sentencing regime and come up with a clear policy on various
methods and ways of addressing criminality, especially in the area
of sexual offences. In the meantime, the Chief Justice can be
empowered to make sentencing guidelines to be applied at all
levels of the judicial sentencing system.
P

59
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3.1.1.19 Analysis of Statistics on Conviction Rates

3.1.1.19.1 The Commission consulted and analysed statistics received from

the Police, Courts and Prisons. Consultations found a general
consensus that conviction rate of sexual offences is rather low as
clearly depicted by the statistics made available to the Commission
by the Police Headquarters, Judiciary and Prisons Headquarters.
Chart 1 illustrates the situation analysis based on Police Statistics
for the year 1999, 2006 and 2007. The chart shows that
approximately 40.3% of cases reported to the police were taken to
court for prosecution of which only 40% ended up in conviction,
which is 16.3% of all cases that were reported to the police during
the period.

3.1.1.19.2 Records made available to the Commission show that 48.9% of all
cases which were reported to the police were dropped for lack of
evidence among other things. There are many reasons which have
been cited for such a big drop out of cases without prosecution
including lack of cooperation from victims (especially on rape and
particularly when the matter is negotiated between the victim and
the assailant), false reporting, corruption and ignorance of the law
among others. The statistics (refer to Table 23) also show that more
offences were reported in 2007 compared to 2006 and 1999. This
could be an indication that the awareness level is rising although it
could also explain cases of reports which are not genuine as
depicted by the rate of acquittal and discharge. It is important to
note that 67% of all cases that were reported during this period
(refer to Table 23) involved rape allegations.

60
 CHART 1: POLICE STATISTICS FOR 1999, 2006 AND 2007 onSEXUAL
OFFENCES

25000 | 20545

20000 -

15000 -

11518

10000

5000

^
Q0" ^
*S>* ^
# -^
v?>" ^
r *> ^
<?
y
J* <f ^ /' ^ ^ ^
#

Source of Information: Tanzania Police Force Headquarters

3.1.1.19.3 Percentage-wise the above chart can be translated as shown in
Table 1 below. The Table shows that the numbers of incidents that
were undetected is almost half of the incidents that were reported.
This by all standards is an anomaly that needs to be investigated to
find out why such a trend is recorded. This will enable the police to
take remedial actions consonant with the findings in that regard.

The Commission observes that there is a need for law enforcement

agencies to evaluate their performances in the area of handling
sexual offences so as to find the bottlenecks and improve

61

II
m
performances. In the meantime the Commission is of the views
that:

i. if the reason is one of lack of cooperation from victims

because the matter has been negotiated and settled between
the individuals involved; then the police should take action
against those who reported the matter for compounding the
offence under section 111 of the Penal Code;

u. if the issue is one of false reporting then the police should

prefer charges against those who falsely report under section
110 of the Penal Code as well as under the Police Force and

Auxiliary Services Act; a new section however is needed for

the offence of false reporting as proposed in the Bill;

in. in the event the matter is one of corruption, the arm of the
Prevention and Combating of Corruption Bureau should be
extended to such cases so as to stump out the corrupt
elements that make mockery of the criminal justice system;
and

iv. Public education and awareness should be pursued

vigorously to address issues of ignorance of the law, among
other challenges facing the implementation of the sexual
offences law.

62
 TABLE 1: PERCENTAGE INDICATORS OF THE TREND IN

PROCESSING SEXUAL OFFENCES INCIDENTS

CATEGORY TIR C A D OD U NFA NOD

INCIDENTS 23545 3845 2255 984 2432 11518 1757 754

PERCENTAGE 100 16.3 9.6 4.2 10.3 48.9 7.5 3.2

3.1.1.20 Age of Criminal Responsibility and Sexual Offences:

3.1.1.20.1 Section 15 of the Penal Code was amended to provide that a person
under the age of ten years is now considered immature (doli
incapaxi) and therefore automatically not a subject of criminal law
instead of previous age of seven. The law now is to the effect that a
person aged ten but fewer than twelve years is also not criminally
responsible for his acts or omissions unless proved that he had
capacity to know that what he was doing was wrong.
3.1.1.20.2 The increase of immature age from seven to ten years was
considered along the need to promote the best interest of the child
principle in Tanzania. It can generally be observed that the concept
is spelt out in the Convention on the Rights of the Child 1989,
which calls for nations to establish a minimum age below which
children shall be presumed not to have the capacity to infringe the
criminal law56, but the Convention does not set a specific age, and it
varies greatly. The Convention however requires the age to be set r

as higher as possible.

3.1.1.20.3 No specific concerns were raised during public consultations on the

age of criminal responsibility. Many agreed that ten years as the

56
The Convention on the Rights of the Child, 1989.
p

63
m
 cut-off age for criminal responsibility is reasonable. The argument
was that children may grow faster body-wise but this does not
mean that they have matured and able to understand the
consequences of the things they do. In most cases they are rather
victims than culprits for lack of mental growth to enable them
appreciate their actions. Several recommendations were then made

on how children should be helped get out of criminality.

3.1.1.20.4 Some members of the public however raised concern over children
who are increasingly involved in criminal activities including
sexual offending.

In this aspect the Commission recommends as follows:

i. strengthening the education system so that every child goes

to school and is taken through a curriculum that enables him
to be educated and also learn good manners and how to
become a better citizen for the country;

11. strengthening the role of families, communities and religious

institutions on upbringing of children;

in. strengthening institutions responsible for children who come

into conflict with the law, namely remand home, juvenile
courts and approved schools and equip them with program
that continue to educate a child who has come into conflict

with the law to become a better citizen; and

iv. re-evaluate and strengthen the role of the Social Welfare

Department as a central pillar in the process of addressing
child criminality in the society.

64
 3.1.1.20.5 Almost all respondents agreed that it is wrong to channel children
through a system that involves the police, regular courts and
prisons and that such a system is not only outdated but does more
harm than good to the society.

3.1.1.21 Incapability to have sexual intercourse

3.1.1.21.1 A person under twelve years is "presumed" incapable of having

sexual intercourse.57 Indeed this takes into account a second limb of
the doli incapaxi principle on the physical capacity of a child to
commit certain crimes requiring abilities of a more mature quality.
Public consultations over the presumption raised concerns about
child to child sex as a phenomenon that is on the increase am
children. Concerns were also raised on whether the best option is to
change the presumption from one that is conclusive as is section
15(3) of the Penal Code to one that is open to determination on
merits (rebuttable) along the provisions of section 15(2) of the Penal
Code.

3.1.1.21.2 In other jurisdictions presumption that person under twelve years

is "presumed" incapable of having sexual intercourse may be
rebutted as shown in Appendix 1 in relation to the United States of
America. However, many respondents agreed that the solution to
this is not about punishing those involved in child to child sex but
rather to pursue the recommendations made pursuant to the issues
related to age of criminal responsibility. In addition many *
respondents suggested more focused programmes on reproductive m

57 under section 15-(3) of the Penal Code.

65
 health to teenagers who are more prone to engaging in child to
child sex are needed.

3.1.1.22 Belief about the age of the girl or woman

3.1.1.22.1 Section 153 of the Penal Code states that except where it is
expressly stated otherwise, belief about the age of the girl or
woman is immaterial in cases relating to sexual offences. Thus, it is
immaterial for the accused to raise the defence of an honest belief

that the girl was above the age58. Almost all the investigators
consulted by the Commission were of the view that, despite the
guidelines provided on how to implement the provisions of the
Children and Young Persons Act the issue of age remains
complicated in Tanzania because of lack of birth records especially
in rural areas. Lack of birth records creates a challenge when the
victim and the accused had actually agreed to sexual intercourse
but subsequently allegations surface as to the age of the girl. In
some of the cases some of the girls "appear older" than their actual
age and illiteracy and ignorance about legal requirements among
other problems lead some men to engage in sexual intercourse with
a girl more on the basis of how she looked than her actual age.
There have been instances where a girl would also lie about her age
to show that she is a "big girl". All these are challenges which
investigators have to contend with.

The Commission observes that since the age for a girl to engage in
sexual intercourse has been set at eighteen years it might be
reasonable to reinstate the test of "apparent age" and allow the
58
Section 153 Penal Code.

66
 court to punish the offenders based on the circumstances of each

case. The idea here is that much as the law should continue to

punish sexual intercourse with a girl under eighteen years, the

court should still be given discretion in determining a suitable
sentence in situation where the girl, for example, allegedly
"consented" and, all factors about her age taken into account, was
of the apparent age of eighteen years. This also takes into account
the fact that in some communities girls are initiated into
womanhood at a rather younger age and the teaching during such
initiation push girls and men in the communities concerned to
sexuality and hence commission of the offence of rape as a
consequence.

Further, a girl who is under eighteen years of age and "consents" to

or solicit sexual intercourse should equally be taken to have done
something that brings her into conflict with the law and should be
handled under the provisions of the Children and Young Persons
Act. This aspect however requires that the system of Approved
Schools need to be improved to handle such children.

3.1.1.23 Rape and its punishment

3.1.1.23.1 Sections 130, 131 and 131A of the Penal Code retain the offence of

rape but have been improved, more so, with an attempt to clear the
ambiguities of the law of rape, especially the requirements of
consent, penetration and resistance which were singled out as
among the reasons why rapists were escaping punishment, ihu

at

67
m

m
r-ttovTAt. l j-mt' -tj tfWjfn*
 sections also address non-consensual sexual intercourse between

separated couples, gang rape and rape by boys under eighteen

years.

3.1.1.23.2 Rape is now based on circumstances as enumerated in section 130-

(2) of the Penal Code to include a man having:

a. non-consensual sexual intercourse with a girl or a

woman, including with a wife who is at the time

separated from the assailant regardless of how the

marriage separation is obtained or arranged59,

b. sexual intercourse as a result of use of force, threats,

intimidation or fear of the victim's life or limb, or

while the girl or woman is in unlawful detention,

c. sexual intercourse with a girl or woman of unsound

mind or in the state of intoxication unless there is

evidence of prior consent between the two60,

d. sexual intercourse with a girl labouring under a belief

that the man is her husband,

e. sexual intercourse with a girl or a woman under

eighteen years unless lawfully married and is over
fifteen years of age or above.

3.1.1.23.3 Penetration, no matter how slight, is sufficient to constitute sexual

intercourse.61 Absence of resistance or physical injury on the part of

59 Section 130(4) Penal Code.

The phrase "unless there is evidence of prior consent between the two" covers onlystate of intoxication
and not where the woman is of unsound mind.
61 Section 130(4) Penal Code.

68
 the victim is irrelevant to prove or establish that the sexual
intercourse was without consent.62 The maximum punishment for
rape is imprisonment for life, the minimum being imprisonment of
not less than thirty years with corporal punishment, and with a
fine, and in addition payment of compensation of an amount
determined by the court, to the person in respect of whom the
offence was committed for the injuries caused to such person. This
punishment includes boys who are recidivists.63

3.1.1.23.4 The punishment for a boy who is eighteen years or less, if a first
offender, is corporal punishment, if second time offender, is
imprisonment for a term of 12 months with corporal punishmr-. '
The punishment for a person (whether an adult or a boy under
eighteen years) raping a girl child of under ten years is life
imprisonment as a minimum65. The punishment for gang rape is
life imprisonment regardless of the roles played by the assailants,
and whether or not the member of the gang is a boy, girl, man or
woman66.

3.1.1.23.5 Though not apparently clear why subsection 3 was added to

section 130 of the Penal Code67, a person in authority, manager and
staff of a correctional or custody facility, hospital as well as a
religious leader and traditional healer who takes advantage of his

62 Section 130(4)(b) Penal Code. p

63 Section 131{2)(c) Penal Code.
64 Section 131(2)(a) and (b) Penal Code. **
65 Section 131(3) Penal Code.
66 Section 131A Penal Code. I*
Note that rape as defined in section 131(1) does encompass all individuals who commit rape regardless of their s-idlus. u,

The section does not make any distinction between those in authority and other rapists. Subsection 3 therefore appears
redundant.
m

69
 position and commits rape on a girl or woman is liable to be

punished as a rapist68.

3.1.1.23.6 There is no doubt the amendments on sexual offences brought in

1998 extensively defined the offence of rape. The Commission
wanted to establish whether the extensive provisions are

understood by the perpetrators, victims, witnesses and agencies

handling rape cases and thus they are being used correctly. The
changes on sexual offences in 1998 also included marital rape in the
definition of rape. Amongst the significant changes brought by the
1998 amendment of sexual offences was the abolition of the offence

of defilement of girls under eighteen years. The Commission

sought to know whether the offence of defilement should be
restored.

3.1.1.23.7 Amendments of sexual offences introduced the offence of rape by

persons in authority or otherwise position of trust. The

Commission investigated whether this offence was understood by

those who are most likely to fall foul of it? Are the victims

knowledgeable about it? How are these provisions working in

practice especially in view of the other provisions on sexual

corruption? The Commission sought opinion of the public on the

punishment for rape; whether the punishment is realistic and

deterrent?

3.1.1.23.8 During the field visits the Commission learnt that although most of
the participants were aware of the offence of rape they were not

conversant with all the circumstances enumerated in the law. Most,

Section 131(3) Penal Code.

70
 (over 90%) of the participants associated rape and the use of force.
Even some police and judicial officers had difficulties in explaining
the elements of rape as per SOSPA which then meant a number of
challenges when it came to enforcement of the law. Furthermore,
most people associated the offence of rape only with the
punishment of thirty years or life imprisonment.

The Commission observes that there was a general agreement

amongst the participants that most people only understood the
laws after falling victim either by being a perpetrator, survivor,
witness and or being related to perpetrators, survivors and or
witnesses of the offences falling under SOSPA. There is neod kv
more awareness raising programs to make the society understand
the law of rape.

3.1.1.23.9 As to punishment, some members of the public consulted thought

the punishment was too harsh and left no discretion to the court to
determine how the offenders were to be punished along the known
principles of punishment namely reformation and rehabilitation.

As with other sexual offences punishments, the Commission is of

the view that the punishment for rape may be retained but courts
should be given discretion to determine the right punishment
without being tied down to the minimum sentences system.

31.1.24 Marital rape.

3.1.1.24.1 The Commission found a general misunderstanding of the concept •

Hi

of marital rape. In Tanga for example, one of the participants

71
 questioned: "how was it possible for a man to be held liable for
having sexual intercourse with his wife?" Another one in Arusha
stated: "... the law should clearly state how and when can a couple
be separated because separation under the SOSPA is not defined
the same way as in the Law of Marriage Act; yet the Law of
Marriage Act requires the marriage to be consummated. The
provisions of the law should be synchronized so that the
community understands what marital rape is all about", he
concluded.

3.1.1.24.2 Majority of the members of the public only understood what

marital rape is, after the Commission made several clarifications. A

considerable number still maintained the view that marital rape

should only apply to separated couples while a few were of the
view that marital rape should extend to even couples who arc still
married so as to protect all women. Some participants thought the
whole issue is elitist and hardly reflected the true situation on the
ground. In any case, it was clear that such cases were rarely taken
to the police and attempts were mostly in reconciling the parties
without state involvement.

It is the Commission's opinion that the issue of marital rapes needs

further and wider discussion within the community for in all
occasions that the issue came up there were concerns of culture and
religious practices and beliefs from the participants which due to
time constraints could not be explored further.

72
3.1.1.25 Sexual Corruption versus rape by persons in authority.

3.1.1.25.1 Rape by persons in authority or trust was seemingly confused with

sexual corruption covered by the Prevention and Combating of
Corruption Act, 2007. Members of the public consulted told the
Commission that the sexual corruption was a common one and
there was no way of terminating it as it happened at a personal
level with some kind of consent. Some participants attributed this
to poverty and the rising levels of unemployment, where it is
difficult for people to report solicitation of sex in exchange for jobs
or to keep a job, for they need the jobs and at times they do not
even know that there are legal provisions that protect them. Fc-^
participants were of the view that this was an indication that there

was general lack of morality and professionalism because those in

authority know they are committing offences but continue to take
advantage of the ignorance of those seeking employment.

3.1.1.25.2 In Arusha the Commission was told that rape by persons in

authority or trust was an offence that was also commonly
committed by women to young men who sought employment in
offices commanded by women. Some participants pointed out that
sometimes even a subordinate female employee would incite their
male superiors to a sexual relationship in order to keep a job and
sometime such manoeuvring would cause in-house fighting among
female staff over a particular boss.

3.1.1.25.3 The general opinion was that sexual corruption is not committed by
men alone but also by females. However, there was a general
agreement that sexual corruption was usually unreported and
m

73
m
 challenged the Prevention and Combating of Corruption Bureau in
its resolve to end corruption of this nature.

3.1.1.25.4 The Commission clarified that rape by a person in authority or trust

was different from sexual corruption and that it entailed more the
use of one's authority or trust to obtain sex from a subordinate, an
inmate, a patient, a school girl, a follower, a house maid, a person
on guardianship among others. On this clarification many
participants agreed that this was not a serious problem in offices
though it could happen. There is need for the National
Prosecutions Services to clarify the distinction between rape by
persons in authority or trust and sexual corruption covered by the
Prevention and Combating of Corruption Act, 2007.

3.1.1.25.5 The general views were also that ethical standards are failing in
many areas and the challenge is for the government to revamp the
system of codes of conduct and ensure that it is enforced. The

current codes of conducts were viewed as lacking in enforcement.

It is the Commission view that there are a number of Codes of

Conduct which are fairly recent and current. The problem seems to
be failure to enforce them. Therefore effective enforcement of

Codes is recommended.

3.1.1.26 Challenges in Addressing Defilement Cases

3.1.1.26.1 Almost all participants told the Commission that there is need to
review the abolition of defilement of girls under eighteen years and
the introduction of statutory rape in its place. Many expressed their

74
 indignation of the way the law deals with the offence of statutory
rape, the punishments meted out for the same and the fact that

even when the cases occasionally involved young persons it is only

the boy who is punished.

3.1.1.26.2 During the sessions with the Commission the participants gave
accounts on how difficult it was to deal with these kinds of case;,:

"...in most occasions parents only report when they do not like the
young man or after the girl has become pregnant or when the boy
refuses to marry her..." commented a participant in Kigoma, a
magistrate in Arusha, a local government official in Morogoro and
a police officer in Dar es Salaam.

3.1.1.26.3 Most police officers who gave account on how in a number of

occasions the girls would refuse to cooperate with the prosecution
side because in their opinion the girls concerned had not been
raped but had consensual sexual intercourse, and that, in any case,
the men involved would be their boy friend. The only problem,
according to observations on the ground, is the fact that the law
does not recognize that a girl under eighteen years can consent. I n

such a situation it becomes futile to take the case to court since the

"star witness" would turn hostile.

3.1.1.26.4 In Mtwara, participants accounted for all the rape cases they knew
of to be statutory rape, where young men found themselves being m

convicted of rape while they were "innocently" engaging in a

sexual relationship with "their girl friends". One participant m

commented: "...it is strange to expect the people to understand thai

a girl who has completed primary school cannot be allowed to
m
m

75
m
m
 consent to have a sexual relationship. As for the parents, as soon as
they find out about the relationship they know they have a
potential suitor for their daughter; how can that be rape? The girl is
not even in school anymore!"

3.1.1.26.5 Another participant in Dar es Salaam added: "...in a situation

where HIV/AIDS is rampant it is better the girl gets married. In any
case if she fell pregnant what does it help to punish the man with
imprisonment; who will take care of the pregnancy and the child
once born? Better then to take all of them to prison because they
will then have the care provided for by the state. Otherwise it is
unfair to punish the man and leave the parents to care for the girl,
her pregnancy and eventually the mother and her baby...."

The Commission is of the view that this challenge may be

addressed first, by giving the courts the discretionary powers to
determine the right sentences instead of the current provisions that
give the minimum sentences. Secondly, it must be made clear to
girls also that they are not allowed to engage in sex below the age
of eighteen years unless they are lawfully married. In this regard, a
provision should be added in the Penal Code to the effect that a girl
who engages in sexual intercourse outside lawful wedlock shall be
dealt with under the provisions of the Children and Young Persons
Act.

76
3.1.1.27 Women who engage in sexual intercourse with boys be charged
with rape

3.1.1.27.1 On other fronts, some of the male participants were of the view that
the SOSPA is in any case a discriminatory law for it only protects
the women and forgets that men could also be victims of sexual
abuse by women. Even when it is about protecting children the law
only protects the girl child and not the boys. Most male
respondents supported the phraseology of gang rape that punishes
rape by both men and women. This phraseology was seen
progressive considering that there was concern about the issue of

older women who engage in sexual relationships with boys undo"

the age of 18 years.

The Commission observes that it is crucial that boys were also

protected, regardless of the magnitude of damages caused, from
abuse by adult women who may demand sexual pleasure from
such boys. The provisions to that effect should be as proposed in
the Bill.

3.1.1.27.2 The Commission notes that in countries like Australia and South

Africa, the sexual offence language is largely neutral (punishes both

male and female offenders). Section 124 of the Criminal Code Act

1924, Chapter Xiv & Xx of the Australian State of Tasmania

provides for 'Sexual intercourse with a young person under the age
of seventeen (17) years', Section 124 of the 'Criminal Code Act 1924: W

I**

77
m

MM
 '(1) Any person who has unlawful sexual intercourse with
another person who is under the age ofseventeen (17) years is
guilty of a crime.

(2) It is a defence to a charge under this section to prove that the

accused person believed on reasonable grounds that the other
person was ofor above the age ofseventeen (17) years.

(3) The consent ofaperson against whom acrime is alleged to have

been committed under this section is a defence to such a charge
only where, at the time the crime was alleged to have been
committed

a) that person was ofor above the age offifteen (15) years and the
accused person was not more than 5 years older than that person;
or

b) that person was ofor above the age oftwelve (12) years and the
accused person was not more than 3 years older than that person.'

Based on the above example, it is suggested that the language of

the sexual offences law should be gender neutral regardless of the
fact that women are probably the ones who suffer more as a result
of being subjected to various forms of sexual offending by their
male counterparts.

78
3.1.1.28 Severity of Punishment for Rape being used as a weapon to settle
personal scores

3.1.1.28.1 During the field visits the Commission noted that most members of

the community knew that the offence of rape attracted a severe

punishment, of thirty years imprisonment or life imprisonment
depending on the circumstances. There was agreement across the
board that though there was no significant reduction of rape cases
the severe punishments do act as a deterrent, as one participant in
Kigoma noted, if the law was not there the situation would have

been worse. However, participants were of the view that the severe
punishments for rape under the SOSPA were actually acting as ;
catalyst for unscrupulous members of the community to frame
other people for the offence either as revenge or as a form of
blackmail. A participant in Dar es Salaam reported "the thirty years
imprisonment has been used by some members of the families of
the girl to force men into marrying girls just to escape from being
taken to court. Observations were made by participants in almost
all the areas visited by the Commission of some police officers and
court officials who use severity of the punishment for the offence to
get extort money from offenders in order to avoid criminal
prosecution.

3.1.1.28.2 In Arusha the Commission was also told that the provisions of the
law on rape were becoming a tool to settle land disputes, whereby
if two people had a land dispute one would coach a daughter or w

any other female relative to falsely accuse a party to land dispute (»

w
that he raped her. The person against whom the false report is

fa.

79
 made would be arrested and upon conviction he would be out of
the picture for a long time and in that way the dispute is settled in
favour of the disputant who had used the girl to falsely report on a
rape that never occurred. The Commission further heard about

incidents of rape linked to land dispute in Manyara region but

could not verify them immediately.

3.1.1.28.3 In some areas, the excessive punishments were also the cause for
not reporting and rape cases being handled locally especially when
relatives, neighbours or friends are involved.

The Commission noted reservations among the participants on the

way child to child sex was punished without taking into account
the age of the perpetrators and the victims. Participants thought
that the government should review this situation, improve on the
law on the children and young persons and punish both the boy
and the girl who engage in sexual activities below the age of
eighteen years according to the best interest of the child principle.
Likewise the fact that the law leaves no discretion for the

magistrates or judges to determine the appropriate punishments

was seen as a serious anomaly.

3.1.1.28.4 Some participants viewed thirty years for the punishment of rape
as excessive and most of the participants suggested between seven
to fifteen years as appropriate punishment for rape if the girl is
above fifteen years, and for those adults convicted of raping
children fifteen years and below the punishment should be
minimum thirty years imprisonment. It was also suggested that the
law should be framed in such a way that it allows for the

80
 magistrates to hear and consider any mitigating factois t\.
determine whether the offenders should be treated with the

minimum sentence or a higher one.

In general, it is the Commission's opinion that there is very little

understanding of the provisions of the rape law by the
perpetrators, victims and witnesses. Furthermore, the concerns

which were raised by the participants, by and large explain why

the rate of reporting and processing in court is considerably low. In
this regard, for the law to be effective, measures are needed that
harmonise the law and also take into account what people think
about the law. Social engineering through law can only be effective
if all the players agreed that the law is fair and it is for the common
good.

3.1.1.28.5 As for statistics the following table illustrates the situation as of 1999,
2006 and 2007.

W
m

m
 TABLE 1: RAPE CASES AS OF 1999, 2006 AND 2007

YEAR TIR C A D OD u NFA NOD T

1999 2657 466 295 84 204 1287 167 136 18
% 17.54 11.10 3.16 7.68 48.44 6.29 5.12 0.68
2006 4278 817 470 212 610 1664 328 159 18
% 19.10 10.99 4.96 14.26 38.90 7.67 3.72 0.42
2007 8894 902 528 297 733 5745 454 205 30
% 10.14 5.94 3.34 8.24 64.59 5.10 2.30 0.34
TOTAL 15829 2185 1293 593 1547 8696 949 500 66
% 1180 R.17 3.75 9.77 54.94 6.00 3.16 0.42

14000 - -
12000 •- • 1999

10000 — • 2006
r
n
8000 - - • 2007
I
6000 •- • TOTAL |
1
4000 —
1
2000 -f
0 -r^~—i
rfT ^n _n .mi rf ^-T _n

TIR C A 3 OD U NFA NOD T

Source of Information: Tanzania Police Force Headquarters

3.1.1.29 Attempted rape

3.1.1.29.1 Section 132 of the Penal Code makes improvement on the law of
attempted rape as to its circumstances and punishments thereof. It
is an offence of attempted rape if with intention to procure

prohibited sexual intercourse with any girl or woman a person

manifests his intention by:

a. threatening the girl or woman for sexual purposes,

82
 being a person in authority or influence in relation to
the girl or woman applies any act of intimidation over
the girl or woman for sexual purposes,

c. making false representations to a girl or woman for

the purposes of obtaining her consent, or

d. pretending to be the husband of the girl or woman

such that the girl or woman is put in a position where,
if it was not for anything independent of the
pretender's will he would have raped the girl or
woman.

3.1.1.29.2 The punishment for attempted rape is thirty years imprisonment

except for attempted rape by those who make false pretences or
pretend to be husbands in order to obtain sexual intercourse with a
girl or woman whose punishment is ten years and above. In this
regard, the Commission wanted to gauge whether the
circumstances enumerated for attempted rape are adequate and
well understood by the perpetrators, victims, witnesses and
agencies handling rape cases.

The Commission noted that like the rest of the provisions of the law
on sexual offences there was a general lack of understanding
among the participants of the ingredients of attempted rape. While
most of the discussions were about rape very few participants
actually talked about attempted rape. The general picture gathered
from the visits is that most attempted rape cases go unreported

83
*
 because of the lack of understanding among members of the
communities of the ingredients of attempted rape.

3.1.1.29.3 Few observations were made about the coverage of the law on
attempted rape. Some participants asked on how the intention to
procure prohibited sexual intercourse can be proved considering
that it is the offender who knows what he wanted to do at the time

of threatening, intimidating, making false representations and

pretending to be the husband of the victim. Further, a few people
inquired on whether it was also attempted rape for a person to
attempt to have sexual intercourse with a woman through threats
directed at a different issue (change of mind). The point here is that
a person may threaten or intimidate a woman for a different reason

and, on subduing the woman and seeing the opportunity, would

then attempt to rape her. For example, a man may threaten to beat
up a woman who is indebted to him as a way of enforcing the
repayment of the debt. As a result of the threat the woman becomes

so threatened such that the man becomes obsessed with her beauty
and hopelessness situation and thus attempts to rape her. Would
this be a situation of attempted rape? Indeed, on the strict
construction of the attempted rape provisions, the answer is no
because the threat or intimidation must have been for sexual

purposes, which was not the case in this situation.

3.1.1.29.4 There were also cases which were pointed out of friends or even
bar maids facilitating the rape of a woman, or cases where a
woman would arrange for a woman to meet a man in her house

knowing that the intention of that man is to have carnal knowledge

84
 of the unsuspecting woman, only that by sheer luck the woman
targeted escapes the ordeal.

3.1.1.29.5 Participants were informed that, as far as the woman who arranged
the incident is concerned; such cases were more of procuring rape
which is a separate offence. However, as far as the man is
concerned, it would depend on how proximate it was for the girl to
be raped. If proximate, then the court would have to look at the
facts and decide whether to convict as a case of attempted rape or
one of accessory before the fact (procuring rape) or conspiracy to
procure rape.

In this context, the law of attempted rape need to be aligned to Mu

offence of rape as the principle offence. The Commission is of the
view that the offence of attempted rape is best handled using the
concept of "proximity" than by itemizing aspects which constitute
attempted rape as is currently the case with section 132 of the Penal
Code.

3.1.1.29.6 Participants also wanted to know more specifically whether section

132(2) of the Penal Code was an addition or a clarification of what
is stated in section 132(1) of the Penal Code as a case of attempted
rape. The two provisions provide-

"Section 132 (1) Any person who attempts to commit rape commits the offence
ofattempted rape, and except for the cases specified in subsection (3) is liable
upon conviction to imprisonment for life, and in any case shall be liable to
imprisonment for not less than thirty years with or without corporal
punishment.

85
 (2) A person attempts to commit rape if, with the intent to procure prohibited
sexual intercourse with any girl orwoman, he manifests his intention by-

fa) threatening the girl or woman for sexual purposes;

(b) being a person of authority or influence in relation to the girl or

woman, applying any act of intimidation over her for sexual purposes;

(c) making any false representations for her for the purposes of obtaining
her consent;

(d) representing himself as the husband of the girl or woman, and the girl
or woman is put in a position where, but for the occurrence of anything
independent of that person's will, she would be involuntarily carnally known.

(3) Wliere a person commits the offence of attempted rape by virtue of

manifesting his intention in the manner specified in paragraph (c) or (d), he

shall be liable to imprisonment for life and in any case for imprisonment of not
less than tenyears.

On this issue the Commission clarified that the two subsections

were intended to be separate cases of attempted rape although the

wording of subsection 2 thereof appeared jumbled in some ways.
In a nutshell, the Commission concludes that the law on attempted
rape has historically been a confusing area in sexual offences.
Judicial interpretation may help further to clarify this area.

3.1.1.29.7 Punishment for Attempted Rape

3.1.1.29.8 On the punishment of attempted rape, most participants thought

that the punishment of thirty years was excessive. Logically, cases
of attempts should normally attract a lesser punishment compared
to a complete offence.

86
3.1.1.29.9 Further, participants did not understand why the punishment for
those who make false representations or pretences for purposes of
procuring sexual intercourse could be as low as ten years; this
seemed to confuse most of the participants. The Commission
however explained that the government viewed threats and
intimidation as being more serious than the false representations
and pretences.

Generally, the Commission is of the views that the punishment for

attempted rape needs to be reviewed along the other
recommendations to review the sexual offences punishments and
allow the court to exercise some discretion in the manner sentence;
are imposed to offenders.

3.1.1.29.10 Statistics for Attempted Rape Cases as of 1999, 2006 And 2007

2.1.1.29.11 Statistics on reported incidents and cases of Attempted Rape

reveals the following percentages:- 18.24, 16.77 and 11.59 of all the
cases reported in 1999, 2006 and 2007 respectively led to conviction
while 40.2, 18.9 and 24.06 of all the cases reported in the same years
were undetected. This is the same trend recorded in respect of rape
i

incidents.
•

f
«.

87

IB
 TABLE 2: ATTEMPTED RAPE CASES AS OF 1999,2006 AND
2007
YEAR XIR C A O OD U NFA NOD T
1999 296 54 33 9 22 119 38 19 2
% 18.24 11.15 3.04 7.43 40.20 12.84 6.42 0.68
2006 328 55 48 17 81 62 56 5 4
% 16.77 14.63 5.18 24.70 18.90
345 40 45 9 124 83
°/b 11.59 13.04 2.61 35.94 24.06 11.88 0.58 0.29
26 7
% 15.38 13.00 3.61 23.43 27.24 13.93 2.68 0.72

Source of Information: Tanzania Police Force Headquarters

3.1.1.30 Abduction.

3.1.1.30.1 Section 133 of the Penal Code creates the offence of abduction while
section 134 of the Penal Code creates the offence of abduction of a
girl under sixteen years. Abduction occurs where a person takes a
woman of any age away or detains her against her will so that he
marries or has sexual intercourse with her or to cause her to be
married or to have sexual intercourse with another person.
3.1.1.30.2 The punishment for abduction is imprisonment for seven years but
for abduction of a girl under sixteen years is not stated and
therefore the general punishment section is presumed to apply and
thus under section 35 of the Penal Code it is two years
imprisonment and or a fine as determined by the court.

3.1.1.30.3 The Commission gauged whether the law has assisted in

eradicating the practice of abduction among some members of
certain communities and whether the law on abduction and the

88
 way it is crafted is adequate, clear, understood and is being applied
correctly.

3.1.1.30.4 Statistics on Abductions

3-1.1.30.4.! Although many people interviewed demonstrated that abduction

was not aserious problems, the Commission chose to look at the
available police statistics which revealed the scenario shown in the
table below.

3.1.1.30.4.2 The table indicates agrowing trend from 384 cases in 1999 to 507 by
2007. This trend shows that abduction is still an issue and efforts
need to be directed to those who perpetrate it.

need to be eradicated through multiple approaches including

mtelligence gathering, continuous education and penalization (stick
and carrot approach) especially at this age of HIV and AIDS.
TABLE 3: ABDUCTION CASES AS OF 1999,2006 AND 2007

Source of Information: Tanzania Police Force Headquarters

89

•
 3.1.1.31 Sexual assault

3.1.1.31.1 Section 135 of the Penal Code is expanded to encompass a number

of incidents that are considered cases of sexual assault. A sexual

assault now means uttering any words, or making any sound or

gestures, or exhibiting any word or object intending that such word
or sound shall be heard, or the gesture or object shall be seen by the
intended person, with intention to cause sexual annoyance.

3.1.1.31.2 Subsection 2 of section 135 of the Penal Code appears to suggest

that consent is a defence in a charge of sexual assault. However,
( such a defence does not apply to a person who sexually assault
i boys and girls under the age of eighteen years even if they consent
to it. Punishment for sexual assault is five years imprisonment or a
fine not exceeding three hundred thousand shillings or to both fine
and imprisonment. In this regard the Commission queried whether

m the law of sexual assault was clear, understood by the perpetrators,

t victims, witnesses and agencies handling sexual assault cases and is

being used or applied correctly.

3.1.1.31.3 The Commission also wanted to know if the term "sexual

annoyance" is clear in the minds of those who might fall foul of the
circumstances enumerated for sexual assault as well as victims and

whether there been any effect resulting from the abolition of the
«M

offence of indecent assault.

3.1.1.31.4 On whether the term "sexual annoyance" is clear in the minds of

those who might fall foul of the circumstances enumerated for

sexual assault as well as victims, and whether there been any effect
resulting from the abolition of the offence of indecent assault, the

90
 3.1.1.32 Defilement of idiots or imbeciles

3.1.1.32.1 Section 137 of the Penal Code protects idiots and imbeciles from
defilement. The offence relates to a person knowingly having or
attempting to have sexual intercourse with an idiot or imbecile in

circumstances which do not amount to rape. The punishment for

this offence is fourteen years imprisonment with or without
corporal punishment. In this regard the Commission wanted to
know if this offence is clear to law enforcers and whether the

offence is not the same as the offence created by section 130(2) of

the Penal Code on having sex with a girl or woman of unsound
mind.

3.1.1.32.2 Most participants agreed that idiots or imbeciles are the same as
people of unsound mind or with mental incapacitation. They also
agreed that such people, especially girls and women, are invariably
a subject of abuse by people looking for quick sex at night. These
assailants include drug abusers, drunkards and fellow imbeciles or f
idiots. There are allegations that in some places like Dar es Salaam
even the so called street children abuse imbeciles who mostly j[
mingle with them at night for shelter. The fact of abuse of the
female imbeciles is confirmed by their having been made pregnant *•
and moving around with their children. fi

3.1.1.32.3 The Commission was informed in Morogoro that in 1990s the

government issued a circular which required local government »
authorities and the social welfare department to be responsible for
problem of imbeciles and beggars. Yet, as time went by the circular
seems to be forgotten. The Regional Administrative Secretary of f

93

"rfinwtr-ta-j •*——••"-—""-~ •..-..••• ir -iff .i in•m_nMJ_JJ__=m.^^.g.-^^.^.-p,,.-^pp-^y^p-p^ muffllrrrlJlnllTWnflrrrDiKitM'il'infriTffl-'Ttr*m—•—i--niiinniTirii>iit>ixr

I
 Morogoro thus implored everyone who was in attendance in the
meeting to heed to the circular lest imbeciles will continue to be
victims of sexual abuse.

The Commission observes that as the trend of increased cases of

defilement of idiots or imbeciles the Commission is of the view that

the best way to handle such cases is for the local government
authorities in collaboration with CBOs, NGOs, FBOs and other

CSOs to establish centres where such people can be cared for

within their communities and families. Such centres are currently

few.

3.1.1.32.4 The Commission also probed the issue as to whether there is

anyone in the community who felt that this law is imposing an
undue restriction on the sexual freedom of those with mental

handicap or suffering from mental illness and whether they should

be allowed to enjoy sex as their human right. If so, how does the
law continue to protect them from exploitation or undue harm and
more so when they contract HIV and AIDS or bear children. These
questions proved very difficult to many participants but at least
some participants sympathized with people with mental disability.
It is indeed difficult to cause them to engage in safe sex such as the
use of condoms.

The general view is that the public and the government should
continue to evolve programs which protect those who have mental
disabilities as they are mostly prone to abuse and with higher
chances of contracting HIV and AIDS.

94
3.1.1.32.5 Statistics of Cases of Defilement of Idiots and Imbeciles

2.1.1.32.5.1 Statistically, the number of cases on imbeciles is not high as shown by

the table below. However, the current development in the country
suggests that such people need sufficient protection against individuals
who might be tempted to take advantage of their mental impairment.
Belief in witchcraft, for example, has always presented itself as a
challenge in Tanzania and with the government tightening grips on
witchcraft practices in some areas and more people becoming aware of
the witchcraft in the society, those who are imbeciles and or idiots may
become the only easy or soft target for the witchdoctors and their clients
to turn to for human body parts and or tissues, such as skin among
others. The danger might be far fetched but it is a real one.

TABLE 5: DEFILEMENT OF IDIOTS AND IMBECILES AS OF

1999, 2006 AND 2007

YEAR TIR C A D OD U NFA NOD T

1999 30 6 7 6 1 0 6 2 2
% 20.00 23.33 20.00 3.33 0.00 20.00 6.67 6.67
2006 50 9 8 7 6 14 4 2 0
% 18.00 16.00 14.00 12.00 28.00 8.00 4.00 0.00
2007 54 18 7 2 3 16 1 6 1
% 33.33 12.96 3.70 5.56 29.63 1.85 11.11 1.85
TOTAL 134 33 22 15 10 30 11 10 3
% 24.63 16.42 11.19 7.46 22.39 8.21 7.46 2.24

Source of Information: Tanzania Police Force Headquarters

95
 3.1.1.33 Defilement by husband of wife under fifteen years.

3.1.1.33.1 Section 138 of the Penal Code retains the offence of defilement by
husband of wife under fifteen years. Consent in this case is
immaterial. This is presumably so because the Law of Marriage Act
allows marriage of a girl under fifteen years69 but not below
fourteen years and the Penal Code would seem to be blessing such
marriages provided they are not consummated before the girl
attains the age of fifteen years.70

In principle the offence relates to a:

i. husband who has or attempt to have sexual intercourse with

a wife under fifteen years with or without her consent;

ii. parent who parts with a married girl under fifteen years so
that she can or is likely that she will have sexual intercourse
with the husband, and

iii. person who procures or attempts to procure a married girl

under fifteen years so that she can or is likely that she will
have sexual intercourse with the husband.

The punishment for defilement of wife cases is ten years

imprisonment.

3.1.1.33.2 In this regard the Commission wanted to know how these

provisions were working in practice and their application. Not

m
surprising, many participants picked issues with this law either

because it is absurd to allow a girl to be married at fourteen years

m

69 Section 13 Law of Marriage Act, Cap. 29 R.E. 2002.

m
70 Section 138(6) Penal Code.

96
m

m
3.1.1.34.2 The severity of punishment in the case of acts of gross indecency
against a person who is younger than eighteen years, or a primary
school pupil or a secondary school student is premised on the fact
that such people need protection. It is not clear, however, what
would happen if acts of gross indecency were to be committed by
people who are younger than eighteen years, or primary school
pupils or secondary school students among themselves. Would
there be an offence and what would be the punishment? Indeed,
the law does criminalise these acts regardless of the age of the
person who committed it. The difference is on punishment where a
more severe punishment would be inflicted to an offender of or
above eighteen years who commits acts of gross indecency against
a child under eighteen years, or is a primary school pupil or
student at secondary school level.

The Commission has made suggestion elsewhere in this report

about child to child sexual affairs to the effect that child to child

cases be treated under the Children and Young Persons Act. The
I
Commission thus makes the same suggestion in respect of act of
I
gross indecency committed among children or young persons.

3.1.1.34.3 Interestingly, although many of the participants agreed that acts of

I
gross indecency are on the increase, they expressed doubts as to
whether law was a viable option in addressing the problem. They
viewed this problem as part and parcel of the development of the
society, the interaction between culture and the fact that the world
is becoming a village and people would want to imitate the culture
of others sometime without questioning the value behind those

99

i
 cultures. They thus implored parents to be more vigilant and help
their children to grow with good manners. As for adults, the view

is to limit the matter to situation where there is no consent, in

public and all cases involving children whether in public or

private.

3.1.1.34.4 Statistics on Acts of Gross Indecency Cases

Statistically, the table below shows few cases of acts of gross

indecency being reported to the police. None was reported in 1999
while 9 cases were reported in 2006 compared to 7 in 2007.

TABLE 7: ACTS OF GROSS INDECENCY CASES AS OF 1999,

2006 AND 2007

YEAR TIR C A D OD u NFA NOD T

1999 0 0 0 0 0 0 0 0 0
% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2006 9 3 5 0 0 0 1 0 0
% 33.33 55.56 0.00 0.00 0.00 11.11 0.00 0.00
2007 7 2 1 0 0 1 3 0 0
% 28.57 14.29 0.00 0.00 14.29 42.86 0.00 0.00
TOTAL 16 5 6 0 0 1 4 0 0
% 31.25 37.50 0.00 0.00 6.25 25.00 0.00 0.00

~ ~

• 1999

• 2006

«2007

i °- II ... _;i
• TOTAL
TIR c A D OD U NFA NOD T

Source of Information: Tanzania Police Force Headquarters

3.1.1.35 Sexual exploitation of children

3.1.1.35.1 Section 138B of the Penal Code introduces a new offence of sexual

exploitation of children. It is an offence to permit, procure, induce,

lure, threaten or force a child below the age of eighteen years into

100
 sexual activity or abuse or in any form of obscene or indecent
exhibition or show, regardless of the media used.

3.1.1.35.2 The punishment for sexual exploitation of children is imprisonment

for not less than five years but not more than twenty years. The
Commission wanted to know if the law has been effective in the

light of developments in the internet arid entertainment industry.

Considering the poverty level in the country, how can one rate the
performance of the law in protecting children against exploitation.
Also, considering the level of child prostitution going on in many
places in the country are there any loopholes in the law and how
can they be fixed?

3.1.1.35.3 Indeed, during the field visits the Commission noted that not many
of the participants knew the provisions on the sexual exploitation
of children, more people were actually confusing sexual
exploitation and child labour.

3.1.1.35.4 There was also a complaint that it was difficult to protect children
from exploitation while there was no clear definition on who was a
I
child. Some participants indeed thought that children under i
eighteen years who were married were actually being exploited f
either by their parents who needed dowry or the husbands whose
interest was not so much on marriage but the fact that the girls
were still very young and mostly had not been involved in any
form of sexual intercourse. This situation, participant contended,
should have been criminalized by prohibiting marriages of a child
under eighteen years.

101

m
 The Commission noted further that although sexual exploitation of
children was rampant but it was severely under reported; this can
be attributed to the lack of knowledge of the law by those who are
supposed to protect children.

3.1.1.35.5 In most communities adults responsible for exploiting or

"pimping" children are known, and the areas where that are
rampant are also known by members of the community concerned
yet nothing seems to be done by both the community and the law
enforcement agencies. Some participants attributed the rampant
sexual exploitation of children to poverty, but there is also a clear
lack of a mechanism to protect children. The social welfare
department which would have been on the fore front is highly
understaffed and under-funded. There are no efforts to enforce

laws on the establishment and running of night clubs and bars and
the laws which designate such places as licensed premises
(including Police General Orders on such matters) and hence the
subject of regular police inspections seem to be falling in a deaf
ears. These areas are increasingly becoming accessible to children
and are at times located in open areas where children can easily go.

3.1.1.35.6 Statistics on Sexual Exploitation of Children Cases

Statistically, few cases have been reported to police as shown in the

table below.

102
 TABLE 8: SEXUAL EXPLOITATION OF CHILDREN CASES AS
OF 1999, 2006 AND 2007

YEAR TIR C A D OD u NFA NOD T

1999 1 0 0 0 1 0 0 0 0
% 0.00 0.00 0.00 100.00 0.00 0.00 0.00 0.00
2006 4 1 0 0 0 2 1 0 0
% 25.00 0.00 0.00 0.00 50.00 25.00 0.00 0.00
2007 11 4 0 0 0 6 1 0 0
% 36.36 0.00 0.00 0.00 54.55 9.09 0.00 0.00
TOTAL 16 5 0 0 1 8 2 0 0
% 31.25 0.00 0.00 6.25 50.00 12.50 0.00 0.00

20

• 1999
10 •• —
12006

^2007

i TOTAL
TIR OD U NFft NOD

Source of Information: Tanzania Police Force Headquarters

Based on these findings the Commission is of the view that more is

needed from the Police Force to ensure that all licensed premises are
inspected as required by the Police General Orders. Further, there is
a need to equip all the law enforcement agencies with the technical
know-how of dealing with all kinds of exploitation of children. This
should be done through focused training during the basic training
either in the Police Training Schools or Colleges as well as the
Institute of Judicial Administration and the Social Welfare Institute.

Social Welfare Officers should also take a proactive role in tackling

child exploitation. This should involve community reaching
programs incorporating a variety of tools such as brochures, posters,
visits to schools, bars as well as other places where it is known that
children are normally involved in activities that exploit them.
P

103

»
3.1.1.36. Grave sexual abuse

3.1.1.36.1 Section 138C of the Penal Code makes it a grave sexual abuse for a
man to use his genitalia or any party of his body or any other
instrument on any orifice (such as mouth and lips) or any other
part of the body of another person, in certain circumstances, in a
manner that would not amount to rape. These circumstances are:

i. without the consent of the person,

ii. with the consent of the person where the consent is

obtained as a result of use of force, threats,

intimidation or fear of person's life or limb, or while

in an unlawful detention,

iii. with the consent of the person but obtained at a time

the person was of unsound mind or in the state of
intoxication induced by alcohol, drugs, matter or

thing.

3.1.1.36.2 The punishment for grave sexual abuse is between fifteen years but
not above thirty years imprisonment plus corporal punishment and
compensation as determined by the court. If, however, the offence
is against a person who is younger than fifteen years, the
punishment is imprisonment for twenty years but not above thirty
years (corporal punishment not included) plus compensation to the
victim as determined by the court. The severity of punishment
again in this case is premised on the need to protect young people.

3.1.1.36.3 Some participants however wanted to know what would happen if

acts of grave sexual abuse were to be committed among or between

104
 people who are younger than fifteen years. Would there be an
offence and what would be the punishment? Indeed, the law does
criminalise these acts regardless of the age of the person who
committed it. The difference is on punishment where a more severe
punishment would be inflicted to an offender, regardless of his or
her age, who commits grave sexual abuse against a child less than
fifteen years.

The Commission has made suggestion elsewhere in this report

about child to child sex and act of gross indecency to the effect that
child to child and act of gross indecency cases be treated under the
Children and Young Persons Act. The Commission thus makes the
same suggestion in respect of cases of grave sexual abuse
committed among children or young persons.
•
3.1.1.36.4 As to the situation on the ground, many participants accepted that m

cases of grave sexual abuse are also on the increase and incidents were
cited of people forcing girls to have sex with dogs (one incident was
reported in Mwanza and was still being investigated of two white
males who forced a girl to have sex with their dogs. When the matter
was reported to police by the girl it appeared that the parents and
other witnesses colluded with the culprit through corruption to state
that the incident never took place). It was not clear however if such
cases were contemplated in this section or not because the wording of
the section does not appear to cover such cases.

105

1*
 The Commission is of the view that this area also needs the

intervention of the Police Force, Social Welfare Department as well

as the civil society in order to put on check the incidents of grave
sexual abuse especially to children, though not at present alarming.

3.1.1.36.5 Statistics on Grave Sexual Abuse Cases

Statistics, however, defeats any further argument on the matter. No

incident was reported in 1999 and 2007. Only two cases were
reported in 2006 and all led to conviction.

TABLE 9: GRAVE SEXUAL ABUSE CASES AS OF 1999, 2006 AND

2007

YEAR TIR C A D OD u NFA NOD T

1999 0 0 0 0 0 0 0 0 0

2006 2 2 0 0 0 0 0 0 0

2007 0 0 0 0 0 0 0 0 0

TOTAL 2 2 0 0 0 0 0 0 0

Source of Information: Tanzania Police Force Headquarters

3.1.1.37 Sexual Harassment

3.1.1.37.1 Section 138D of the Penal Code creates the offence of sexual

harassment. The offence entails either

i. an intentional sexual harassment through an assault

(including an act which does not amount to rape) or use of
criminal force, or

106
 ii. causing sexual annoyance or harassment through the use of
words or actions, or

hi. assaulting the modesty of a woman by illicit words, sound,

gesture, exhibition of organs or objects, or by intruding on
the privacy of a woman, or

iv. "unwelcomed" sexual advances by words or action by

persons in authority in workplace or any other place.

3.1.1.37.2 Aprosecution for this offence can only be mounted ifthe complaint
is made immediately and in any case not later than sixty days after
the occurrence of the event constituting the offence. The
punishment for sexual harassment is a maximum of five years
imprisonment or a fine of not less than two hundred thousand
shillings or to both fine and imprisonment while the court retaining
the discretion to award compensation to the victim.

3.1.1.37.3 The Commission noted that while most of the participants had a
elementary understanding of what sexual harassment was
I

generally, there were still a lot of questions as to how the law can m

be enforced. Most seemed sceptical on how they would, for

instance, report to the police when they were harassed in a market
m
place or bus stop by a person they have never seen before and are
likely to never see again.

3.1.1.37.4 Some of the participants were of the view that sexual harassment
was rampant due to idleness especially among men, the way
people dress and some of the programs shown in the media like
music videos and commercial advertisements, especially the effect

107
 of these on children. Since enforcement of the law is not well
understood, sexual harassment is still rampant in the public
transport system, in the hospitality industry and most public areas
like markets.

3.1.1.37.5 Participants also felt that the art of dancing that portrays sexuality
contributes to this offence especially when songs themselves carry
words which thereafter are used by people to harass others. In such
a situation the provisions of the law are rendered meaningless or
less effective.

The general view is that in order to address sexual harassment

effectively there is need to develop arrangements that make such
offences punishable within the areas they were committed, i.e. by
Ward Tribunals unless the matter is disputed by the assailants in
which case the matter would then be referred to court.

3.1.1.37.6 Statistics on Sexual Harassment Cases

The statistics in this area indicate a few cases reported as shown in

the table below.

108
 TABLE 10: SEXUAL HARASSMENT CASES AS OF 1999, 2006
AND 2007

YEAR TIR C A D OD U NFA NOD T

1999 46 11 9 8 4 5 6 3 0
% 23.91 19.57 17.39 8.70 10.87 13.04 6.52 0.00
2006 95 37 17 9 7 14 5 6 0
% 38.95 17.89 9.47 7.37 14.74 5.26 6.32 0.00
2007 39 8 6 5 5 12 1 2 0
% 20.51 15.38 12.82 12.82 30.77 2.56 5.13 0.00
TOTAL 180 56 32 22 16 31 12 11 0
% 31.11 17.78 12.22 8.89 17.22 6.67 6.11 0.00

TIR C D OD U NFA NOD T

Source of Information: Tanzania Police Force Headquarters

3.1.1.38 Procuration for prostitution

3.1.1.38.1 Section 139 of the Penal Code creates the offence of procuration for
prostitution. The offence revolves on a person who:

i. procures or attempts to procure any person to become,

either in Tanzania or elsewhere, a prostitute,

u. procures or attempts to procure any person under eighteen

years to leave or come to Tanzania for purposes of
facilitating illicit sexual intercourse; or

in. procures or attempts to procure any woman to leave her

usual place Tanzania with intent that she may, for the
purposes of prostitution, become an inmate of or frequent a
brothel either in Tanzania or elsewhere, or

109
 iv. detains a person in a brothel for purposes of illicit sexual
intercourse.

3.1.1.38.2 The punishment for this offence is imprisonment for not less than
ten years and not exceeding twenty years or to a fine of not less
than one hundred thousand shillings but not exceeding three
hundred thousand shillings or to both fine and imprisonment.

3.1.138.3 Considering the rampancy in incidences of prostitution involving

both men and women, young and old persons, the Commission
wanted to know how the society rated the performance of these
provisions and whether there were any specific concerns on the
offence. Alternatively, considering the difficulties in enforcing the
law in this area and the efforts to control HIV and AIDS through

the provisions of condoms to the so called "sex workers" among

others can decriminalization and adoption of other measures such
as counselling be a solution to the challenges of prostitution?

Views from the visits demonstrate that cases of prostitutions are

generally not taken seriously and that there is need to find a better
way of dealing with such cases.

The Commission also views that the issue of prostitution need

further debate since the current law on prostitutions appears weak.
The same argument applies to male person living on the earnings
of prostitution or persistently solicits for immoral purposes,
woman living on, or aiding prostitution and keeping brothels.

110
3.1.1.38.4 Statistics on Procuration for Prostitution Cases

In terms of statistics, only a handful of cases feature in police

records as shown below.

TABLE 11: PROCURATION FOR PROSTITUTION CASES AS

OF 1999, 2006 AND 2008

YEAR TIR C A D OD U NFA NOD T

1999 19 9 2 0 8 0 0 0 0
% 47.37 10.53 0.00 42.11 0.00 0.00 0.00 0.00
2006 35 11 1 10 3 10 0 0 0
% 31.43 2.86 28.57 8.57 28.57 0.00 0.00 0.00
2007 61 43 7 0 11 0 0 0 0
% 70.49 11.48 0.00 18.03 0.00 0.00 0.00 0.00
TOTAL 115 63 10 10 22 10 0 0 0
% 54.78 8.70 8.70 19.13 8.70 0.00 0.00 0.00

Source of Information: Tanzania Police Force Headquarters

3.1.1.38.5 Participants generally felt that people who being prosecuted for these
offences are generally those who are poor and they are just being
further victimized by the prosecution for a situation beyond their
means. In any case arrests around these areas are done selectively
though a police "swoop" particularly when there is an order or
national leaders visiting the areas. In these circumstances the law is
largely seen as being unfair.

Ill
 The Commission has already made suggestions in respect of

prostitutions generally that a better method beyond mere

criminalization should be developed, including counselling to
address the challenges of prostitution in the country.

31.1.39 Trafficking of persons

3.1.1.39.1 Section 139A of the Penal Code introduces the offence of trafficking
of persons. Persons covered by this offence are those who:

i. trade in other persons, for money or any other consideration,

n. promote, facilitate or induce the trading in persons

in. arrange for or assist a child under the age of eighteen years

to travel outside Tanzania without the consent of parents or

guardian,

iv. unlawfully facilitate the adoption of an unborn child or a

child under the age of eighteen years in hospitals, clinics,
women shelters, nurseries, day care centres,

v. recruit other persons to bear children (surrogate parenthood)

vi. falsify records of registration of birth (presumably to enable

trafficking of persons), or

vu. impersonates the mother or assist in the impersonation of

the mother of a child under the age of eighteen years.

31.1.39.2 The punishment for traffickers of persons is imprisonment for a

period of not less than twenty years but not more than thirty years
or a fine of not less than one hundred thousand shillings or both

112
 fine and imprisonment and compensation to the victim based on an
amount determined by the court. The Commission thus wanted to
know how these offences have worked in practice and whether the
law was in tune with the current international norms and practice
on trafficking of persons and in harmony with the recently enacted
Trafficking in Persons Act of 2008.

3.1.1.39.3 Testimonies in Kigoma and Mtwara indicated that people

especially young girls were being trafficked to places like Arusha,
Dar es Salaam, Mbeya and Mwanza to be placed in brothels and
bars for sexual purposes. In Arusha also there were testimonies of
girls being trafficked from the nearby region of Manyara to Arusha
for the same reasons. Some of those who were trafficked are known
to the local communities but no action is being taken to control the
situation.

3.1.1.39.4 Most of the trafficked girls end up being destitute and eventually
enslaved into prostitution because, by being trafficked to an
unfamiliar area or region, they can no longer afford the cost of
living outside prostitution.

The Commission notes with satisfaction that the proposed law on

human trafficking takes into accounts this problem and would •

suggest that section 139A be repealed in view of the Trafficking in

Persons Act 2008. However, it appears to the Commission that
there is need to improve intelligence in this area and sharing of
information among actors.

113
«
3.1.1.39.5 Statistics on Trafficking of Persons Cases

In terms of statistics the following table is illustrative of the

situation, only 3 cases were reported in 2007 and all were

eventually not detected. This suggests a significant challenge to law

enforcement institutions in the light of what is taking place in the

communities in relation to this offence.

TABLE 12: TRAFFICKING OF PERSONS CASES AS OF 1999,

2006 AND 2007

YEAR TIR C A D OD u NFA NOD T

1999 0 0 0 0 0 0 0 0 0

2006 0 0 0 0 0 0 0 0 0

2007 3 0 0 0 0 0 0 3 0

TOTAL 3 0 0 0 0 0 0 3 0

Source of Information: Tanzania Police Force Headquarters

3.1.1.40 Procuring rape.

3.1.140.1 Section 140 of the Penal Code creates the offence of procuring rape.
The offence is committed by any person who:

i. by threats or intimidation procures or attempts to procure

any girl or woman to have prohibited sexual intercourse
within or outside Tanzania,

ii. by false pretences or representations procures any girl or

woman to have prohibited sexual intercourse within or
outside Tanzania, or

114
 iii. applies, administers to, or causes to be taken by a girl or a
woman any drug, matter, or thing with intent to stupefy or
overpower her so as to enable any man to have prohibited
sexual intercourse with her.

3.1.1.40.2 Punishment for procuring rape ranges between ten and twenty
years imprisonment or a fine of not less than one hundred

thousand shillings but not more than three hundred thousand

shillings or both fine and imprisonment plus compensation as
determined by the court.

3.1.1.40.3 The Commission wanted to know from the visits whether the
incidences specified in these provisions were taking place in
Tanzania and how effective the law is in controlling them and
punishing the offenders. Also the Commission wanted to know if
the offence was to be committed, how different it would be with
the offence of rape considering that a procurer is a principal
offender by virtue of the principle of parties to an offence under the
Penal Code

4.1.140.4. As to whether the procurer is likely to be a part to the offence of

attempted rape, most investigators agreed with this observation
and that in most cases the investigation is premised on the
principle offenders and those who are accessories to the offence. If
they were to be prosecuted they would all be parties to the offence
of attempted rape. However, some investigators were of the view
that since there is a specific offence for such people it is better to
charge them with the specific offence notwithstanding the fact the
punishment thereof is lower than a charge based on attempted

115

*
 rape. In some cases it might be better to charge them in the
alternative so that in the event a charge on rape fails, then the court
could consider convicting on procuring for rape.

The Commission is of the view that the offence of procuring rape is

essential only where the process ends with an attempt to procure
rape. If the procurement is complete then the matter should be
treated as an attempted rape and the person involved should be a
party to such offence of attempted rape.

3.1.1.40.5 Statistics on Procuring Rape Cases

So far only 3 cases were reported in 1999 and were all acquitted as
the table below shows.

TABLE 13: PROCURING RAPE CASES OF 1999, 2006 AND 2007

YEAR TIR C A D OD U NFA NOD T

1999 3 0 3 0 0 0 0 0 0

2006 0 0 0 0 0 0 0 0 0

2007 0 0 0 0 0 0 0 0 0

TOTAL 3 0 3 0 0 0 0 0 0

Source of Information: Tanzania Police Force Headquarters

The Commission observes that such a low reportage of offence of

procurement of rape and resulting high acquittal rate calls for more
education and awareness raising especially on the part of women
so that they can take action against such incidents. There is a

general feeling among members of the communities that such

incidents are not as few as they have so far been reported.

116
 3.1.1.41 Permitting defilement of girl under fifteen71 years on Premises

3.1.1.41.1 Section 141 of the Penal Code creates this offence where the owner '
i

or occupier of premises or any other person having or assisting in

i

the management or control of the premises commits an offence of

permitting defilement of a girl under fifteen years if he or she ,
induces, permits or make the girl resort to the premises for '
purposes of unlawful sexual intercourse with a man. *
•

3.1.1.41.3. Punishment for permitting defilement of girl under fifteen years on

premises is a general punishment of two years imprisonment. The •
Commission sought to test these provisions with the people during •
the visits. The Commission wanted the views on whether it was

rational if in the case of rape a belief about the age of a woman is

not a defence while in this case of permitting defilement the belief
about age could be a defence? Is the test on the belief one of
"honesty" or "reasonableness"? Is the law consistent considering I
that if a girl below eighteen years was to be lured into a sexual
intercourse in any premises that will be rape or at least procuring
rape by virtue of sections 130 and 140 of the Penal Code?

3.1.1.41.4 As with other cases on rape the general view was that a number of
premises are used to make girls under eighteen years to engage in
illicit sex. These cases are however rarely reported for various
reasons including the lack of knowledge that a separate offence
existed on the owners of premises who allow people to use the
premises in sexual activities involving young children.
71
The marginal notes and the proviso in the revised laws on the section reads twelve years but m<
the section itself refers to fifteen years. Before revision the age threshold was twelve years under
section 141 of the Penaf Code.

117
m
m
 The Commission is of the view that since having or attempting to
have sexual intercourse with a girl under eighteen years is
generally an offence, then section 141 of the Penal Code should be
amended to reflect the general spirit of SOSPA that a girl under
eighteen years cannot be involved in any sexual activity and
therefore a person who owns a premise and allows a girl under
eighteen years to be sexually known (or an attempt thereof) in such
premises is committing an offence of allowing a girl of that age to
be raped (or attempted to rape as the case may be) in such
premises.

3.1.1.41.5 There was no response on why belief of age was a defence or

whether the test was one of "honesty" or "reasonableness" even
among lawyers who took part in the discussion. The Commission
however is of the view that the test should be one of reasonableness

consistent with case law on such a test.

In the end the Commission is of the views that it is the duty of the
Police Force to inspect all licensed premises in order to fish out
cases involving girls under the age who are allowed into such
premises for sexual purposes. It is also the duty of owners of
premises to report all cases of persons attempting to procure entry
into their premises for purposes of defiling a girl under eighteen
years.

118
 3.1.1.41.6 Statistics on Permitting Defilement of Girl under Fifteen Years
on Premises Cases

Statistics maintained by the Police Headquarters on the offence of

defilement of girls under fifteen on the premises shows a decrease
of cases compared to the situation in 1999.

TABLE 14: PERMITTING DEFILEMENT OF GIRL UNDER FIFTEEN

YEARS ON PREMISES CASES AS OF 1999, 2006 AND 2007
YEAR TIR C A D OD u NFA NOD T
1999 22 4 0 5 0 10 1 2 0
% 18.18 0.00 22.73 0.00 45.45 4.55 9.09 0.00
2006 0 0 0 0 0 0 0 0 0
% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2007 2 1 0 0 0 1 0 0 0
% 50.00 0.00 0.00 0.00 50.00 0.00 0.00 0.00
TOTAL 24 5 0 5 0 11 1 2 0
% 20.83 0.00 20.83 0.00 45.83 4.17 8.33 0.00

Source of Information: Tanzania Police Force

Headquarters

3.1.1.42 Permitting defilement of girl under sixteen years on Premises.

It was argued that section 142 of the Penal Code creates the offence
of Permitting defilement of girl under sixteen years on Premises 72
whose difference with the offence of permitting defilement of girl
under fifteen years on premises is the age threshold pegged at the

72 The marginal notes and theproviso in the revised laws on the section reads twelve years butthesection itself refers to
fifteen years. Before revision the age threshold was twelve years under section 141 of the Penal Code. But through the
ongoing updating of laws the problem has been identified and rectified.

119
 age of fifteen years and under the age of sixteen years and the
defence to the offence being a belief that the woman was of or
above the age of sixteen years.

The Commission holds the view that, in regard to the reasoning

advanced in respect of section 141 of the Penal Code, the two
sections [i.e. sections 141 and 142] covers specific scenarios but such
scenarios make little sense in view of the provisions of section 131
(2)(d) of the Penal Code, thus need to be harmonised.

3.1.1.43 Detention in premises or brothels

3.1.1.43.1 This offence is created under section 143 of the Penal Code. The

detention must be with the intent to make the woman (and girl if
one reads sections 144 of the Penal Code as part of section 143
thereof) have sexual intercourse with any man against her will or
provide sexual services to customers (in a brothel).

3.1.1.43.2 Magistrates are allowed to come to the rescue of women and girls
detained in premises or brothels if they have information to that
effect. Punishment for detention in premises or brothel is a general
punishment of two years imprisonment. The Commission tested
these provisions against especially section 139 of the Penal Code
which also entails detention in brothels.

3.1.1.43.3 Many participants held the view that, with limited intelligence
sharing, it was difficult to pursue such cases unless someone made
a complaint to that effect. Such complaints are rare but there is a
general hope that the enforcement of the proposed law against
trafficking in person might add value to this area as well.

120
 Otherwise many participants saw very little differences between
this offence and the offence of section 139 of the Penal Code on
procuration for prostitution although it is broader and covers even
cases where prostitution is not involved. However, by definition a
brothel is a place for prostitution (danguro).

3.1.1.43.4 Statistics on Detention in premises or brothels

Statistically, no case was reported in 1999, 2006 and 2007 in respect

of this offence. Yet, people who deal with challenges related to
trafficking in persons believe that a number of girls are being
detained in brothels to provide sexual services to customers.

The Commission observes that more education, awareness and

intelligence are needed in this area in order to enable the
government to take appropriate measures thereof.

3.1.1.44 Male person living on the earnings of prostitution or persistently

solicits for immoral purposes

3.1.1.44.1 Section 145 of the Penal Code punishes men who promote
prostitution or solicits for immoral purposes. The offence is tied to
a man living wholly or in part on the earnings of prostitution or
who in public places persistently solicits or importunes for immoral
purposes. Magistrates are again allowed to order the arrest of such
males living on the earnings of prostitution or persistently
*

121
m
m
 soliciting for immoral purposes if they have information on oath in
respect of the offence.73

3.1.1.44.2 Punishment for the offence of Male person living on the earnings of
prostitution is a general punishment of two years imprisonment

but for a repeat offence imprisonment and corporal punishment

may be ordered.

4.1.1.44.3 Again in this area no case was reported in 1999, 2006 and 2007 in
respect of this offence although the general feeling is that such
offenders (homosexuals) are there but are not being taken seriously
by the communities and law enforcers.

The Commission observes that there is the need for more

education, awareness and intelligence sharing in this area in order

to enable the government to take appropriate measures thereof.
Further, amidst the challenges facing the prostitution industry, a
better method beyond criminalization should be developed,
including counselling to address the challenges of prostitution in
the country.

There is also need to define what the term immoral purposes

means as not everyone understood the meaning of the words
"immoral purposes" in actual terms for law enforcement purposes
and whether they cover solicitation for unnatural offences. The
interpretation could in essence be done through judicial
interpretation, thus there is no need to amend the law at this point

73 Section 147 Penal Code.

122
 in time. It is in addition better if the law on this aspect was made
gender neutral.

The Commission also views sections 145 and 146 be merged as they
cover the same subject matter.

3.1.1.45 Woman living on, or aiding prostitution

3.1.1.45.1 Section 146 of the Penal Code penalizes any woman who lives on or
aids prostitution. Punishment for woman living on or aiding
prostitution is a general punishment of two years imprisonment.
Magistrates are allowed to order the arrest of a woman living on or
aiding prostitution if they have information on oath in relation to
the offence74. This offence is understood by almost everyone the
Commission had an opportunity to meet. Comments made in
respect of other areas touching on prostitutions were also made in
respect of this offence. There was a general view that a better
mechanism be developed that also takes into account the challenges
faced by the society and government in controlling HIV and AIDS.

3.1.1.45.2 Statistics on Offence of Woman living on, or aiding prostitution

Statistics maintained by Police Headquarters showed that no

incidents were reported between 1999, 2006 and 2007. This again
means more education; awareness and intelligence are needed in •

this area in order to enable the government to take appropriate m

measures thereof.

74
Section 147 Penal Code.

123
m
 The Commission observes that a better method beyond mere
criminalization should be developed, including counselling to

address the challenges of prostitution in the country.

3.1.1.46 Keeping a Brothel

3.1.1.46.1 By section 148 of the Penal Code, keepers of rooms, set of rooms or
places for purposes of prostitution commit an offence and they may
be punished to two years imprisonment. The question that the
Commission pursued was whether the law is in tune with realities,

especially the fact that most of the prostitution incidents do not

necessarily take place in humbly built brothels only but also taking
place at other dignified places, including in five star hotels,
personal houses, mansions as well as in cars and along the beach
facilities or open but abandoned/uncontrolled spaces. Also, the
Commission wanted to know if it is not a good idea to find other
means of addressing the problem of prostitution in the country
since the strict application of the law on brothels is likely to
discriminate the poor who cannot afford to take their "picks" to
guest houses among other places.

3.1.1.46.2 Participants are divided on the offence of keeping brothels amidst

the fact that almost all agree that prostitution is a challenge whose
solution is not criminalisation alone but goes beyond the law and it
touches many aspects of life, economics and the society in general.

124
 The Commission believes that a better method beyond mere
criminalization should be developed, including counselling to
address the challenges ofprostitution in the country.

3.1.1.46.3 Statistics kept by Police Headquarters statistics show that no

incidents on brothels were reported between 1999, 2006 and 2007.
However, many participants expressed the view that there au-
many brothels around the country. Some of these brothels are
licensed premises along the guest houses spirit while others are
located in secret places and are operated to clients who know them
or are referred there by known clients. Some brothels are said to
keep permanent girls and women who provide services to clients a*
a fee payable mostly to the owners of the brothels.

The Commission is of the view that investigation needs to be

carried out to verify the context of premises and facilities used for
prostitutions in various parts of the country so that the best way on
how they can be handled is devised. Further, more education,
awareness and intelligence sharing are needed in this area in order
to enable the government and communities to take appropriate-
measures thereof.

3.1.1.47 Conspiracy to induce unlawful sexual intercourse

3.1.1.47.1 Conspiring to induce any woman, by means of false pretence or

other fraudulent means, to permit a man to have unlawful sexual
intercourse with her is an offence punishable with two years
imprisonment by virtue of Section 149 of the Penal Code. The

125
•
m
 Commission was not able to gauge the effectiveness of these
provisions as against the general provisions on conspiracy and as
to why it was thought necessary to maintain a separate section on
conspiracy to induce unlawful sexual intercourse.

3.1.1.47.2 It should be noted that if a person conspired to induce the rape of a

girl or a woman and was to be handled under section 384 of the
Penal Code such person would have suffered imprisonment for
seven years, which is higher than two years imprisonment.

The Commission observes that it is better to leave the general

provisions on conspiracies to operate in these instances unless a

higher punishment is desirable.

3.1.1.47.3 Statistics on Conspiracy to Induce Unlawful Sexual Intercourse

Cases

Statistics from Police Headquarters show that this offence rarely

features in police records as shown below. No cases were reported
in 1999 and 2006 as only 4 cases were reported in 2007 resulting to 2
convictions, 1 discharge and 1 case was dropped at the police level.

TABLE 15: CONSPIRACY TO INDUCE UNLAWFUL SEXUAL

INTERCOURSE CASES AS OF 1999, 2006 AND 2007

YEAR TIR C A D OD u NFA NOD T

1999 0 0 0 0 0 0 0 0 0

2006 0 0 0 0 0 0 0 0 0

2007 4 2 0 1 0 0 1 0 0

TOTAL 4 2 0 1 0 0 1 0 0

Source of Information: Tanzania Police Force Headquarters

126
 3.1.1.48 Attempts to Procure Abortion, procuring own miscarriage, and
supplying drugs or instruments to procure abortion.

3.1.1.48.1 Sections 150, 151 and 152 of the Penal Code create these offences. It
is an offence under section 150 of the Penal Code to attempt to
procure the miscarriage of a (pregnant) woman regardless of the
means used. Punishment for these offences is fourteen years. It is
also an offence under section 151 of the Penal Code for a pregnant
woman to attempt to procure her own miscarriage and the *
punishment for that attempt is imprisonment for seven years. •
m

3.1.1.48.2 Further, section 152 of the Penal Code criminalizes anyone wnu
supplies or procures for another person anything that he or she
knows is likely to be used for abortion. Punishment for this offence
is three years imprisonment.

3.1.1.48.3 The Commission wanted to know how the society felt about these
issues and the response was varied among participants. Many felt
abortion, other than for health reasons, was bad as it claims the

lives of many young girls who fall pregnant each year either while
in school or engaging in acts of prostitution or as a result of being
raped.

3.1.1.48.4 Criminalization of abortion has also led to an underground

"abortionists" who, because they are ill-equipped, cause many girls
to suffer or die as a result of abortions or attempts thereof. There
were also views on how young girls are gradually becoming
knowledgeable of medicines and herbs whose concoction or

127
 mixture may induce an abortion. The danger is that such medicines
or herbs may cause permanent damages to the body of or even kill
the girls who use them.

It is a view that, while it is not yet ripe to legalise abortion, ways

must be found to ensure that no one dies as a result of an abortion
or an attempt thereof. This may be done through focused education
in schools, regular inspection of health facilities and more
intelligence in this area. Further, there is need to beef up
intelligence and law enforcement in hospitals and dispensaries in
order to put on check illegal abortions. Many cases of illegal
abortions go unnoticed by the law enforcers hence making it
difficult to control abortions. Yet, the matter is delicate and must be
handled with care so as not to force women who, unintentionally,
fall pregnant to go underground and use incompetent medical
personnel or the concoctions referred to above to their detriment.

3.1.1.48.5 Statistically, the general picture is as shown in the table below.

128
 TABLE 17: CASES OF ATTEMPTS TO PROCURE ABORTION,
PROCURING OWN MISCARRIAGE, AND SUPPLYING DRUGS
OR INSTRUMENTS TO PROCURE ABORTION AS OF 1999,2006
AND 2007

Source of Information: Tanzania Police Force Headquarters

70

• 1999

• 2006
m
• 2007
m
• TOTAL

TIR
- - - J _. y.. m
m
OD NFA NOD

Graphic Presentation ofAttempts to Procure Abortion

*
m

129

m
 • 1999

• 20O6

m 2007

• TOTAL

TIR C A D OD U NFA NOD T

Graphic Presentation of Procuring own Miscarriage

• 1999

• 2006

«2007

• TOTAL

TIR OD NFA NOD T

Graphic Presentation of Supplying Drugs or Instruments to

Procure Abortion

3.1.1.48.6 It will be noted from the above data that abortions featured more

prominently in 2006 despite the fact that 71% of the reported

incidents were eventually discharged by the courts, presumably for

lack of evidence. Otherwise cases of supplying drugs or

instruments to procure abortion were evenly distributed across all
the sampled years with majority of cases being undetected.

130
 3.1.1.49 Unnatural offences

3.1.1.49.1 Section 154 and 155 of the Penal Code improve on the previous
sections on unnatural offences. It is an offence for a person to either

i. has carnal knowledge of any person against the order of

nature,

ii. have carnal knowledge of an animal, or

iii. permit a male person to have carnal knowledge of him or

her against the order of nature.

3.1.1.49.2 The punishment for unnatural offences is imprisonment for life, '
minimum being thirty years provided that if the offence is •
committed against a child under ten years the offender shall be
•
sentenced to life imprisonment (at the minimum). Attempting to
commit an unnatural offence attracts imprisonment for a term not
less than twenty years. •

3.1.1.49.3 Participants agreed that unnatural offences are on the rise in all '
regions visited by the Commission. The prevalence of this offence
can also be attributed to how the offences have been given various •
names and are commonly discussed. In Kigoma and Dar es Salaam •
unnatural offences have been given such colloquial names as tigo,
kukimbizana, kubip, and kisamvu cha kopo among others. All these *
names depend on where one stays but they all mean one and the
same thing, namely, anal sex, which is an offence.

3.1.1.49.4 In Tanga participants told the Commission that unnatural offences

were a common thing even if they were not reported. This was due
to the fact that it was somewhat an accepted practice among some

131

m
 quarters. In Mrwara the Commission was told unnatural offences
were there but not so rampant.

3.1.1.49.5 The Commission also noted that indecent practices between males
are an offence that is largely confused with unnatural offences.
Indecent practicesbetween males refer to acts between males which
if seen by a third party he or she would be morally offended. The
only problem here is that if the act is taking place outside the view
of a third party it would be difficult to tell whether it was indecent
or not. Naturally, an act without a spectator cannot be indecent
because indecency arises from someone seeing it and being morally
offended.

The Commission is of the view that Unnatural offences (s. 154);

Attempt to commit unnatural offence (s. 155); and indecent

practices between males (s.157) are distinct offences and therefore
no overlap to sustain a review

3.1.1.49.6 A participant in Arusha noted that, there seems to be a contradictionin

the way unnatural offences are dealt with: ".. .we are busy
criminalizing unnatural offences while televisions are full of
programmes that glorify "homosexuality" and being "gay". The
participant continued to inform the Commission that due to this laxity
in enforcement a lot of young men are being trafficked to areas where
unnatural offences are somehow accepted.

132
 In that regard, it is the general view that law enforcers should
employ zero tolerance to all cases related to unnatural offences.
This is the only way the message will go across the society that
unnatural offences as covered by the law are bad and will not be
tolerated.

3.1.1.49.7
In terms of statistics, the figures are also revealing as shown below.
TABLE 18: UNNATURAL OFFENCES CASES AS OF 1999, 2006
AND 2007

YEAR TIR C A D OD U NFA NOD T

1999 491 70 41 8 43 284 44 0 1
% 14.26 8.35 1.63 8.76 57.84 8.96 0.00 0.20
2006 512 87 66 9 39 272 39 0 0
% 16.99 12.89 1.76 7.62 53.13 7.62 0.00 0.00
2007 567 88 57 16 17 327 59 0 3
% 15.52 10.05 2.82 3.00 57.67 10.41 0.00 0.53
TOTAL 1570 245 164 33 99 883 142 0 4
% 15.61 10.45 2.10 6.31 56.24 9.04 0.00 0.25

Source of Information: Tanzania Police Force Headquarters

3.1.1.50 Indecent assault of boys under fourteen.
3.1.1.50.1
Section 156 of the Penal Code makes it an offence to "unlawfully
and indecently" assault aboy under the age of fourteen years. It is
no defence that the boy consented to the act of indecency.
Punishment for this offence is imprisonment for life.
m

m
133

m
m
3.1.1.50.2. Indecent assault of boys under the age fourteen is a problem that
seems to be on the rise especially in urban areas though it is not
sufficiently reported, the lack of reporting is partly explained by the
fact this offence takes place in secrecy like many other cases related
to indecency. There must be a third party who had witnessed the
incident and made a report or the boy himself should make a report
about the incident. Without such a report it is difficult to know if a
boy has been indecently assaulted. In any case, the general view
from the visits is that the law should protect boys who are younger
than eighteen years as is the case with girls.

The Commission is of the opinion that boys under eighteen years

should be protected and therefore that the age threshold should be
adjusted to eighteen years. Further, the challenges facing this
offence, especially on reporting and the way the law enforcement
agencies treat such cases need to be discussed by the Police and
Social Welfare Department in order to find a better way that will
make boys report such incidents. The section also needs
harmonization of the age thresholds between its subsections. All of
them should refer to eighteen years.

3.1.150.3 In terms of statistics, the following table shows the picture in

relation to the offence.

134
 TABLE 19: INDECENT ASSAULT OF BOYS UNDER FOURTEEN
CASES AS OF 1999, 2006 AND 2007
YEAR TIR c A D OD u NFA NOD T
1999 22 8 4 1 1 3 2 2 1
% 36.36 18.18 4.55 4.55 13.64 9.09 9.09 4.55
2006 17 8 3 0 0 4 2 0 0
% 47.06 17.65 0.00 0.00 23.53 11.76 0.00 0.00
2007 6 3 1 1 0 0 1 0 0
% 50.00 16.67 16.67 0.00 0.00 16.67 0.00 0.00
TOTAL 45 19 8 2 1 7 5 2 1
% 42.22 17.78 4.44 2.22 15.56 11.11 4.44 2.22

i
40
i
- - —
- •

j 30 • 1999

• 2006
20
- - - —

*2007

• TOTAL

TIR C A D OD U NFA NOD T

Source of Information: Tanzania Police Force Headquarters

3.1.1.51 Indecent practices between males

3.1.1.51.1 Section 157 of the Penal Code penalizes indecent practices among
male persons, whether in private or public. Punishment for
indecent practices is five years imprisonment. This offence is in
many cases confused with unnatural offences and even at the level
of some the police officers it was not clear as how the two offences
differed.

The Commission is of the view that clarifications are needed to

enable smooth enforcement of the law in this area. The clarification
should be to the effect that the offence covers only practices
between males, other than those related to unnatural offences,
which if seen by a third party he or she would be morally offended.
Further, it is the general view that law enforcers should employ

* *

135

#(ii

Itt*
 zero tolerance to all cases related to indecent practices. This is the
only way the message will go across the society that such offences
as covered by the law are bad and will not be tolerated.

TABLE 20: INDECENT PRACTICES BETWEEN MALES CASES AS OF

1999, 2006 AND 2007

YEAR TIR C A D OD u NFA NOD T

1999 2 0 0 0 0 0 2 0 0

2006 0 0 0 0 0 0 0 0 0

2007 2 0 0 0 0 0 0 2 0

TOTAL 4 0 0 0 0 0 2 2 0

Source of Information: Tanzania Police Force Headquarters

3.1.1.52 Incest by males or females.

3.1.1.52.1 Sections 158 -161 of the Penal Code enhance punishment for incest
by males or females to a minimum of thirty years imprisonment if
the female or male subjected to incest by male or female is below
eighteen years of age and twenty years imprisonment if the victim
is eighteen years and above.

3.1.1.52.2 It is important to note that if the offender was in a position of

guardianship, the court may remove the victim from the offender's
guardianship and appoint another guardian. Charge for incest can
only be mounted with the consent of the Director of Public
Prosecutions. This offence however does not appear to be rampant
as depicted by the table below and the Commission was indeed
informed that such cases are very rare.

136
 TABLE 21: INCEST BY MALES OR FEMALES CASES AS OF 1999,
2006 AND 2007

YEAR TIR c A D OD u NFA NOD T

1999 9 3 1 0 0 1 2 2 0
% 33.33 11.11 0.00 0.00 11.11 22.22 22.22 0.00
2006 1 0 0 0 0 1 0 0 0
% 0.00 0.00 0.00 0.00 100.00 0.00 0.00 0.00
2007 5 3 0 1 0 1 0 0 0
% 60.00 0.00 20.00 0.00 20.00 0.00 0.00 0.00
TOTAL IS 6 1 1 0 3 2 2 0
% 40.00 6.67 6.67 0.00 20.00 13.33 13.33 0.00

H999

12006

'2007

I TOTAL

Jllj_j
U NFA NOD

Source of Information: Tanzania Police Force Headquarters

3.1.1.53 Cruelty to children.

3.1.1.53.1 Section 169A of the Penal Code introduces the offence of cruelty to
children essentially aimed at protecting children against harmful
practices such as female genital mutilation. Forms of cruelty to
children vary from female genital mutilation to assault, ill
treatment, neglect, and abandonment of children. The punishment
for cruelty to children is imprisonment for a term not less than five
years but not exceeding fifteen years or a fine not exceeding three
hundred thousand shillings or to both fine and imprisonment plus
an order tocompensate the victim as determined by the court.
3.1.1.53.2 Many people interviewed in relation to this offence were sceptical
about the effectiveness of the law especially onareas such asfemale i

137

•:'••-- •^>S'»>-*.«^»mirtl*=i&^tai=*5q|^£j|au*4»flfe*J^»,,.
 circumcision or otherwise known as female genital mutilation
(FGM), assault and ill treatment of children.

32.1.1.53.3 There have been many reports in the media on how children are
assaulted or ill-treated by their teachers or parents and some of
them have either been killed or seriously wounded. Similarly, FGM
is talked about in a number of places although there are indications
that the practice is gradually going to the bin which is an indication
that public education and outcry against such practices are being
heeded to by members of the communities where such practices
were available.

The Commission observes that these efforts should be continued until FGM

is eventually wiped out. In the meantime, more education, awareness and

intelligence sharing are needed in this area in order to enable the
government and communities to take appropriate measures thereof.

3.1.1.53.4 Statistics from Police Headquarters show that a number of cases

have been reported to the police in this area as shown in the table
below.

TABLE 22: CRUELTY TO CHILDREN CASES AS OF 1999, 2006

AND 2007
YEAR TIR c A O OD U NFA NOD T
1»»» 13 7 2 O 1 1 2 O
°/b 53.85 15.38 O.OO 7.69 7.69 15.3S O.OO O.OO
200A 22 S 3 1 1 5 2
«S«j TO. 91 13.S4 4.55 •*. 55 22.73 9.09 4.55 O.OO
2007 17 7 3 O O 3 2
<**> 41 . IS 17.65 O.OO O.OO 17.GS 1 1 .76 1 1 .76 O.OO
52 23 8 X. 2 9 « 3 O
»/a 44.23 15.38 1.92 3.85 17.31 11.54 5.77 O.OO

I JOO6

1 IOTAL

UFA. NOD

Source of Information: Tanzania Police Force Headquarters

138
3.1.1.54 SOSPA Awareness Level

3.1.1.54.1 On the issues related to the awareness level, the situation on the

ground shows that the awareness of sexual offences and the

procedures to handle them among the members of the public and
various government officials is still very low. The situation can be
attributed to the fact that there is very little knowledge of the law;

people are only aware of the offence of rape and even that offence
is not exhaustively known. The various institutions and officers
that are supposed to deal with sexual offences or educate members
of the public on the same are not themselves adequately aware of
the law.

3.1.1.54.7 The general public in all regions the Commission visited is sceptical
of how the police and the courts deal with the cases including the
fact that the cases are investigated for a very long time and take an
even longer time to finish. That situation has also led to under
reporting of sexual offences cases and or settling the same locally.

The Commission found out that in urban areas there is an increase

of awareness of sexual offences. However, there is also an increased

level of false complaints in urban areas compared to rural areas.

Elsewhere, we have recommended that in all cases of false

reporting then the police should prefer charges against those who
falsely report since this is an offence both under the Police Force

and Auxiliary Services Act and the Penal Code. Similarly, public
education and awareness should be pursued vigorously to address

issues of ignorance of the law, among other challenges facing the

implementation of the sexual offences law.

139

§i
3.1.1.54.8 False reporting is also a result of ignorance of the law in some
cases.

The Commission notes that the best way to address this challenge
is to translate the law into Kiswahili and continue to provide public
education and awareness to people through various media
including but not limited to radio and television programs,
newspapers, seminars, conferences, banners, booklets and other
forms of publications. These initiatives should be done in
Kiswahili.

3.1.2 Analysis of the data from the Police, Courts and Judiciary

3.1.2.1 Analysis of the data from the Police, Courts and Judiciary indicates
that out of the 28 sexual offences the Commission listed for

stocktaking only five of them namely Rape, Unnatural Offences,

Attempted Rape, Abductions, and Acts of Gross Indecency
featured significantly for judicial processing in the courts that were
able to submit statistics. This indicates also that only a minority of
sexual offences are processed in the court system. The majority of
cases also end up in acquittal of the accused persons. This
corroborates the facts the Commission gathered from the visits that
either the cases were not all that genuine or the investigation was
not thorough or that the prosecution was weak. It also connects
well with cases of victims settling their cases informally with their
assailants and hence opts not to proceed with the cases in court.

140
 FIGURE 1:SUMMARY OF PRISON SEXUAL OFFENCES POPULATION AS OF
FEBRUARY 2008
SEXUAL OFFENCES
PRISON POPULATION

REGION nmatet % Rank

ARUSHA 174 6.5 6
D'SALAAM 599 22.4 3
DODOMA 246 9.2 1
IRINGA 81 3.0 12
KAGERA 122 4.6 8
KIGOMA 57 2.1 14
K-NJARO 177 6.6 5
LINOI 66 3.2 11
MANYARA 30 1.1 18
MARA 69 2.6 13
MBEYA 47 1.8 16
MOROGORO 97 3.6 10
MTWARA 108 4.0 9
MWANZA 316 11.8 2
PWANI 51 1.9 15
RUKWA 31 1.2 17
RUVUMA 16 0.6 20
SHINYANGA 149 5.6 7
SINGIDA 19 0.7 19
TANGA 194 7.3 4
TOTAL 2669 100

TABLE 23: REGIONAL PRISON SEXUAL OFFENCES POPULATION AS OF

FEBRUARY 2008 (PART I)
NATURE OF THE DO • ma M l •no HOI HAta v i m H MB •n SUBT )7AL
SN OFFENCE •em COKV Con,
1 Jape Coo* Con.
18 110 46 404 21 136 35 28 54 53 25 IS 32 S1 25 27 18 56 2 25 4 355 863
2 *[temples Rape s 2 2 10 3 1 1 2 12 1 2
1
2 1 1 1 1 S
A ieiualAssault 1 2 2
1 4
5 >rilemeni oriels or unbecJss 9 29 1 1 2 1
Defilement Dr tiusBand or wife tinnier 2 1 44
S fifteen years 1 41 1 2 4 7 13 1 7 0 77

9 ie-ual exploitation of ChOdran 0 0

1 0 1

10 sexual Harrassment 0 9
2 1
2 1
0 0
12 f raffia ing or Persons
0 0

Parmming Defilement of Gm under rriieen

D 0 I
14
detention in Premises or Drrnhel
•
Kale person ii-ma on ma Barrings of
jrostitulion or persistently solicits for
16 m moral purposes

17
Woman iT-ig cm or aiding prosl riuncn I
(eepinga Broihel

19 nlercourse
•
Huemprs lo Pir>a,re ADomon

jupolTino drugs or instrument to proeu'e

22
1
3 1 3 3 2 4 25
nDecern assaui cl bo*s ynoer fourteen •
24 1 1 4
ndecenl madices natween males
1 1 1 1
1 2 a 6
1 3 1

impregnating a scnool girl 1 1 2 1 6 1 2

1 m

540 12 214 40 IS 62 to 30 27 4E 132 30 GS 24 e as

TOTAL OF REMANDEES &
CONVICTS PER REGION 174 599 246 ai 122 57 177 SS 30 es 4
><
Source: Prisons Services Department, February 2008
•

m
141 mi

m<

m
m<
 TABLE 24: REGIONAL PRISON SEXUAL OFFENCES POPULATION AS OF
FEBRUARY 2008 (PART II)
NATURE OF THE •ion oo.o XT • • « . .».«!. .W.NI • u w» ,„,„„ ,„,,„„, 1IN
ami 1 iT~n— I lu> OT>1
SN
Rape
OFFENCE **" '"'
• •r>
'"" • •- Coav • •<•> Co.. Kan Ca>. • •-> Conv n.~ Coav «•» c,„ • aia Co.v Kara COB. 1B1A°
IB 2 10 18 10 3 70 53 13
(uemplBO Papa 6 7 6 1 1 1 5 3 6
ABrjuttion 3 6
Sl"1"""' 1 1 1 0 7 6
Defilement nl motsorimOlnlei 1 1 18 1 112
6 »,„„,„' 27 1
lets ol a loss mdllliti 1
seiuaiaiplonation ofCn,irjr.n 1
„ra«B SiiualADuti 2 6 1 1 1
si.ui Harrassmam
1 1
Procntation ot Prostitution
Irallmling of Persons
Procuring Pipe
Psrmilling Datum enlol Girl .naarljtaan
0 0 0
Jllintion ,tt Premises or oroinnl

Ware person living on the earnings of

p-osliluliun orpersislentlj solitns tor
16

ft nman mm) on or aiOing om Slit.line

17
0

19 :°^Z"l'°""u"""""""""""
Attempts ro Proturi ADorl.on
Procuring nun miscBmage
Supp.ingarugiOMnstr.rn.ntsto procure
22
0 1 1
1 2 1 5 19
noet.nt assaun 01 bo,e under .ourteen
24 1 1 3 0 7
ncecBmprjciicesoen*iin maies

1 1 1
ncectb.fernBlas 1 1 1 1 3
0 0
mpiegneiing a schoolgirl
2 1 7 1
ndaoentA..ault(77'1
;h,ld • .alruction (???)
30 67 15 93 51 203 21 30 11 20 12 4 84 es 13 6 30 184

TOTAL OF REMANDEESS
CONVICTS PER REGION 97 108 316 51 31 16 149 19 194 2669
X
Source: Prisons Services Department, February 2008

142
 FIGURE 2: SUMMARY OF PRISON SEXUAL OFFENCES POPULATION PER
SEXUAL OFFENCE AS OF FEBRUARY 2008

NATURE OF THE SEXUAL GRAND

SN OFFENCE TOTAL %
1 Rape 1921 71.97
2 Attempted Rape 96 3.60
3 Abduction 16 0.60
4 Sexual Assault 13 0.49
5 Defilement of idiots or imbeciles 113 4.23
6 Defilement by husband of wife under fifteen 105 3.93
7 Acts of gross indecency 1 0.04
8 Sexual exploitation of Children 2 0.07
9 Grave Sexual Abuse 25 0.94
10 Sexual Marrassment 5 0.19
11 Procuration of Prostitution 0 0.00
12 Trafficking of Persons 0 0.00
13 Procuring Rape 0 0.00
14 Permitting Defilement of Girl under fifteen. 0 0.00
15 Detention in Premises or brothel 0 0.00
16 Male person living on the earnings of 0 0.00
17 Woman living on, or aiding prostitution 0 0.00
18 Keeping a Brothel. 0 0.00
19 Conspiracy to induce unlawful sexual 0 0.00
20 Attempts to Procure Abortion. 0 0.00
21 Procuring own miscarriage. 0 0.00
22 Supplying drugs or instruments to procure 1 0.04
23 Unnatureal Offences 263 9.85
24 Indecent assault of boys under fourteen. 12 0.45
25 Indecent practices between males 4 0.15
26 Incest by males 38 1.42
27 Incest by females 12 0.45
28 Cruelty to children 0 0.00
29 Impregnating a school girl 40 1.50
30 Indecent Assault (???) 1 0.04
31 Child Destruction (???) 1 0.04
TOTAL 2669 100.00

3.1.2.2 The interpretation of the above data indicates that:

3.1.2.2.1 Out of the 2669 sexual offence inmates, 1921 of them are in custody
for rape followed by inmates on account of unnatural offence (263
inmates), defilement of idiots and imbeciles (113 inmates),
defilement of wife under 15 years (105 inmates) and attempted rape
(96 inmates).

143

m
3.1.2.2.2 Out of 28 sexual offences listed for investigation in this work, 12 of
them do not have inmates in prisons. These offences include cruelty
to children and trafficking of persons.

3.1.2.2.3 Although it was not listed as a sexual offence, prisons statistics

show that there are 40 inmates on account of impregnating a school
girl. It was not possible to establish whether these school girls were
under or above 18 years, but if they were under 18 years, these
inmates should have been prosecuted of rape.

3.1.2.2.4 Indeed, an increase in the number of crimes reported and

subsequently finalized to create a prison data may suggest that
people are getting the message to deal with sexual offences head-
on. But, here is where one gets into the first problem, and that is,
data availability and reliability.

3.1.2.2.5 Indeed, availability of data is a serious problem in the criminal

justice sector. While it was finally possible to get annual data from
the Police Force and the Prisons Service, until this Report was
written, the Judiciary had generally not been able to generate all the
required data for all the regions except for the few courts. Two
reasons were assigned to this situation namely that the data
keeping system in various levels of the Judiciary is still largely
manually operated and secondly annual statistics are hardly
compiled. In such as situation, data has to be generated as and
when needed and in most cases it takes time to do this because of

shortage of manpower. The same situation can be said of the Police

and Prisons Services which took about two months to provide data
on the number of sexual offenders on incarceration.

144
 As a whole, the Commission concludes that the system available
for data management in so far as sexual offences are concerned is
weak, unreliable and makes it impossible to carry out an effective
assessment of the performance of the law and its institutions in an
objective way. In this aspect therefore, the Commission
recommends that crime statistics should be processed the same
way other statistics are processed by the National Bureau of
Statistics and that a system for interagency data sharing is urgently
needed.

In view of challenges related to data in the Judiciary, the Police,

Prosecutions and Prisons systems, the Commission is of the view
that data management system should be improved. In the
meantime, Part II of the Judicial Service Act 2005 be amended to the

extent that it specifies the duties of all officers in the judicial

administration at level and compel the relevant levels to produce
periodic returns including the consequence of not doing so.

One of the functions of the office of the Chief Justice as spelt out in
Part II of the Judicial Service Act 200575 is the aspect of supervision.
However the Act does not specifically require data management
and production as an aspect of administration. In this case, as
stated earlier, data or returns are generated as and when requested.
In the same regard, the provisions of the Police Generals Orders
and the Prisons Standing Orders on returns must be enforced to the
letter and all data collected and analysed must also be made
available to the National Prosecutions Services [and the National

75 Act No. 2 Of 2005.

P

.feU

145

a*
tfiHU T'-T ' •—>-
 Crime Research Centre] at the relevant level. Also, the [National
Crime Research Centre] National Prosecutions Services must
continue to pursue its programs intended to create an integrated
data management system so that it is able to capture, process and
share data on various issues related to criminal justice in the
country.

3.1.3 Experience from Other Countries

3.1.3.1 Sexual Offences Crisis Centres

Tanzania is not the only country faced with challenges in sexual

offences laws. Other countries around the world are also faced with

the similar challenges and are taking measures to address the

challenges. Most of these challenges relate to awareness issues. In
some countries there are a series of programmes aimed at
supporting the legal framework to deliver quality justice to the
victims and the perpetrators of sexual offences through more
awareness among other initiatives.

3.1.3.2 In the U.S.A. and U.K., there are 'Rape Crisis Centres' to advise the
rape victims. They also send experts to stay with the victims during
statement writing or interview by the police.76 They also advise
medical officers regarding types of evidence to be collected in
sexual assault cases.

3.1.3.3 Rape Crisis Centres also send experts to lecture at Medical Colleges
and Schools. Many hospitals in the U.S.A. now maintain "sexual

76 See for instance Dublin Rape Crisis Centre ( http://www.drcc.ie);0ttawa Rape Crisis Centre ( http://www.orcc.net);
Rape Crisis CapeTownTrust(http://www.rapecrisis.org.za); and Toronto Rape Crisis Centre (http://www.trccmwar.ca.).

146
 assault evidence kits" containing items like an instruction sheet for
the examining physician, packages of sterile cotton swabs and
envelopes marked for clothing, fibres, hairs, secretions, etc.77 All
these help to make sure sexual offences are meticulously handled
by the system.

The Commission observes that Sexual Offences Crisis Centres be

established at grassroots levels and such centres should be

connected to the general activities of the Social Welfare Department
at the respective levels. Tire Social Welfare Department should be
empowered so as to reach all levels of the Regional Administration
and Local Governments in its activities in this area. So far, the
Commission notes, the Social Welfare Department is ill equipped in
many areas, including, human and financial resources and logistics
to enable it discharge its mandate. This situation needs to be
addressed if the Department is to be effective in its work.
I
II

•
3.1.4 Anti-Rape Strategic Framework of South Africa m

2.1.4.1 In South Africa, after recognizing that law alone cannot help in the •

fight against sexual offences, the Government came up with

•
strategies like the Anti-Rape Strategic Framework78 which is based

77 Asexual assault evidence collection kit, for instance, contains commonly available examination tools such as:Detailed
instructions for the examiner; Forms for documentation;Tube for blood; sample; Urine sample container; Paper bags for
clothing collection; Large sheet of paper for patient to undress over; Cotton swabs for biological evidence collection; 1
Sterile water; Sterile saline; Glass slides; Unwaxed dental floss; Wooden stick for fingernail scrapings; Envelopes or boxes
for individual evidence samples; Labels.( see http://en.wikipedia.org/wiki/Rape_kit).
m
78 See Budget Vote Speech by Deputy Minister for Safety and Security Susan Shabangu, MP on Anti-rape strategy in
South Africa, on

http://www.saps.gov.za/_dynamicModules/internetSite/newsBuild.asp7myURL-716.

147

m
 on three pillars of prevention, reaction and support with short,
medium and long-term action. These types of strategieshelp to pull
together different systems to deliver the required services to sexual
offences victims and the perpetrators. Such strategies are lacking in
Tanzania.

The Commission observes that, considering the challenges of

sexual offences in Tanzania, it is necessary that an Anti Sexual
Offences Strategic Plan be implemented along the spirit of the
proposed policy on public safety and security which is being
prepared by the Government through the Ministry of Home
Affairs. The policy is already in advanced stages and will go a long
way towards making the country respond effectively to threats
including sexual offences.

3.1.5 Cooperation among Stakeholders

3.1.5.1 The Commission emphasizes those social vices like sexual offences
cannot be fought by law alone. Other social measures must be
brought into play as well. Similarly, the law enforcement organs
like the police cannot effectively enforce the law if they are not
assisted by or cooperate with other players such as the Social
Welfare Department and appropriate local government levels
among others. Evidence on the ground suggest that such
cooperation is very minimal and in any case there is no structure to
bring the much needed cooperation on board especially because

148
 institutions like the Social Welfare Department are not members of
the Defence and Security, albeit in the local government levels.

The Commission is of the opinion that a mechanism should be

designed, more suitably along the proposed policy on public safety
and security to ensure that all criminal justice actors communicate,
collaborate and cooperate in their endeavours to address
criminality in the society.

3.1.5.2 The Commission is aware of the existence of various committees at

the lowest levels of local government, in particular the committees

responsible for social or community affairs or law and order.

The Commission is of the opinion that one of those committees

should be charged with the duty to superintend sexual offences
issues and act as a liaising unit with other agencies. This
approach will make the communities be more proactive in affairs
that affect them than to leave the entire matter in the hands of the

police. After all, the clarion call at the moment is Community

Policing which entails neighbourhood watch. In this type of
policing the community becomes part and parcel of the solution to
criminal activities within the concerned community.

The chief functions of the unit should be

(a) to assist in the investigation of sexual offences in the local

areas and constantly liaise with law and order institutions
r
including the Social Welfare Department; m

149
m
 (b) to monitor and follow-up all investigations and
prosecutions of sexual offences with the law enforcement

agencies in the locality;

(c) to assist victims of sexual offences in the area to get justice

in accordance with the law;

(d) to disseminate public education on the law concerning

sexual offences;

(e) to make arrangements for the training of members of the

community on matters related to sexual offences;

(f) to formulate programs and propose by laws geared to

eradicate sexual offences especially those committed against
children and women and other vulnerable groups like the
disabled, the mentally-impaired, etc; and

(g) to recommend necessary changes to the law on sexual

offence to make sure that the law is attuned to meet the

challenges and exigencies of the time as experienced at local

levels.

3.1.5.3 The proposed system has the following advantages.

(a) The system will make local governments' part and parcel of the
system to deal with sexual offending. Sexual offences are
committed by people who are in most cases known to the local
communities.

150
 (b) The authorities will not easily mishandle sexual offence cases
because there would be a unit in the community that closely
watches the whole process of investigation.

(c) There would be efficient prosecution and handling of such cases

than the current system as availability of witness will be more
guaranteed if the matter is appreciated at the local levels.

(d) Victims of sexual offences will feel cared for by people who are
close to them.

(e) Public education on the law concerning sexual offence will be

enhanced.

The general outcome of these and other measures would be to

increase detection, prosecution and convictions in sexual offences

and hence uphold the general aim of the law which was to
"safeguard the personal integrity, dignity, liberty and security of
women and children."

3.1.6 LEGISLATIVE, ADMINISTRATIVE OR PROCEDURAL

CHANGES NECESSARY TO ENSURE THE CRIMINAL JUSTICE

SYSTEM IS RESPONSIVE TO THE NEEDS OF THE VICTIMS IN

SEXUAL OFFENCES CASES

Given the situation in the country, the studies and reports available
and the Commission's interaction with law enforcement organs
and activists in the area, the Commission has concluded that:

3.1.6.1 There are serious problems in the area of data compilation and •w

management. This makes it difficult to carry out any meaningful II

151
 research in the area of sexual offences. However, based on a field
visits, sampled perception surveys, and other analyses, the
Commission feels that the sexual offences law has managed to
address sexual offences to a small extent and for it to be effective
other measures need to be put in place to support the law in this
regard.

3.1.6.2 There is need to put in place a system for a comprehensive attempt

to carry out crime situation analysis or mapping. This will help to
gauge the extent laws were performing, good practices, black
sports among other things.

3.1.6.3 In the final analysis, to address sexual offences effectively, there is

need to go beyond the law and initiate other process that will make
the society take a holistic approach to sexual offences. An Anti
Sexual Offences Strategic Framework as in South Africa is one of
the useful approach to sexual offences. This will enable the
different systems operating on the ground to be integrated and
coordinated for effective performance.

3.1.6.3 Legislative changes necessary to ensure the criminal justice system

is responsive to the needs of the victims in sexual offences cases

3.1.6.3.1 Based on the analysis above, there is little doubt that a number of
interventions are needed to make the justice system respond
adequately to the challenges of sexual offences. These interventions
vary from legal and administrative to social in nature.

3.1.6.3.2 The Commission has addressed this area by looking at the clarity of
the law issue and the interconnectedness of the legal framework to

152
 be able to address sexual offences effectively. The Commission does
this bearing in mind what the Commission found during the field
visits

3.1.6.3.3 Clarity is one of the important goals for any analysis for law
reform, especially in the area of sexual offences. There are two
important issues in seeking clarity of the law in this context. Tho
first is that each sexual offence must be defined in such a way that
what it prohibits is directly stated.

3.1.6.3.4 It is instructive to note that each offence must be comprehensive in

scope; it should prohibit certain forms of conduct but nothing
more. Offences should not be unnecessarily duplicated and further
that there should not be open-ended sexual offences, a criticism
that seem to be levelled in respect of some sexual offences in
Tanzania as shown in this part.

3.1.6.3.5 The Commission notes that the law on sexual offences is more

improved than it used to be before 1998. Yet, if the clarity test was
to be applied then the following specific concerns become
pertinent, and suggestions have been made on how each concern
can be addressed.

3.1.7 Sexual Offence Law not that Simple to Understand

3.1.7.1 The law of sexual offences, despite the reform appears to have ?
become more complex and perhaps technical and in some cases
subjective than objective. For example, considering different
circumstances, education, environment and upbringing in the
communities, without guidelines, it is difficult for an ordinary w
m

mm

153
 woman or even man to objectively determine that the sexual
intercourse was:

a. a result of use of force, threats, intimidation or fear of the

victim's life or limb, or while the girl or woman was in unlawful

detention; or

b. with a girl or woman who was in the state of intoxication; or

c. with a girl or woman who was labouring under a belief that the
man is her husband.

3.1.7.2 Some countries such Scotland79, England80 and South Africa81 have
overcome this challenge by providing some guidelines on how all
these matters are to be interpreted by actors - the victims,
witnesses, social workers, police, prosecutors, and courts.

3.1.7.3 It should be noted that where a victim is in doubt as to what

happened to her or him, such a person will rarely go forward and

make a report about the incident. The same applies to witnesses
and other functionaries in the system.

79Scotiand Parliament, Explanatory Notes to ProtectionOf Children And Prevention Of Sexual Offences (Scotland) Act
2005, which can be downloaded from
http://www.articlel2.org/pdf/Explanatory%20Notes%20to%20Protection%200f%20Children%20And%20Prevention%200
f%20Sexual%20Offence%20 (Scotland)%20Act%202005.pdf
80 Office of Public Services Information, (OPSI), Explanatory Notes to Sexual Offences Act 2003, Queen's Printer of Acts
of Parliament, London, 2003. Can be downloaded from the web at cite http://www.opsi.gov.uk. Similarly, the Home
Office issued in 2004 a leaflet tilled Adults: Safer from Sexual Crime - The Sexual Offences Act 2003 which can be viewed
from http://www.homeoffice.gov.uk/documents/adults-safe-fr-sex-harm-leaflet.
81 South African PoliceService- Support to victims of sexual offences; Department of Health - Uniform national health
guidelinesfor dealing with survivorsof rape and other sexual offences; Departmentof Welfare - Procedural guidelines to
social welfare agencies and appropriate NGO's in assistingvictims of rape and sexual offences; Department ofJustice -
National guidelines forprosecutors in sexual offence cases; Department ofCorrectional Services - National guidelines on
Sexual Offenders. Allcan be downloaded from the Department ofJustice and Constitutional Development's website at
http://www.ju.stice.gov.za/policy/guide sexoff/soxoff guidelinesl998.htm

154
 It is thus recommended that comprehensive information packages
should be prepared, both in English and Kiswahili, by the Social
Welfare Department in collaboration with the National
Prosecutions Service and issued to people and law enforcement
institutions to assist them in the implementation of the law.

2.1.7.5 Inspirations can be drawn from other countries which have such

packages to help people understand the law on sexual offences and

assist in its implementation.

2.1.8 NEED FOR GUIDELINES ON ENFORCEMENT OF THE SEXUAL

OFFENCES

During the field visits the Commission confirmed that the absence

of guidelines on the implementation of the sexual offences law

impacted in many ways the implementation of the law in this
regard. Many areas would require guidelines to make law
enforcement more effective.

The Commission observes that apart from the general guidelines

each agency should prepare internal guidelines on its operations in
respect of sexual offences and submit them to the National

Prosecutions Service for concurrence. The Tanzania Police Force

has already started developing guidelines for investigators, the

draft of which is appended to this report. On the other hand, the
P
National Prosecution Service has also developed some guidelines
for Prosecutors, also appended to this report. The exercise should m

be completed so that these guidelines canbe implemented. -m

tut

155
3.1.9 NEED FOR CLARITY OF LAW ON RAPE

3.1.9.1 Though not necessarily a serious issue, some actors on the ground
could not see how:

a. sexual intercourse as a result of use of force, threats,

intimidation or fear of the victim's life or limb, or while the girl

or woman was in unlawful detention, or

b. sexual intercourse with a girl of woman of unsound mind or in

the state of intoxication, or

c. sexual intercourse with a girl labouring under a belief that the

man is her husband, or

d. sexual intercourse with a girl or a woman under eighteen years,

became separate categories of rape while in actual sense these are

situations which imply lack of consent, hence conclusion that they
are all examples of non-consensual sex. Suggestions have been
made that it would have been better if the law rather provided
circumstances or situations indicative of lack of consent in the

broadest sense.

It is in this regard that the Commission recommends that section

130 be amended as follows along the UK or Australian law that:

(1) A person commits an offence of rape if—

(a) he intentionally penetrates the vagina, anus or mouth of another

person with his penis,

(b) the other does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

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 (2) Whether a belief is reasonable is to be determined having regard
to all the circumstances, including any steps A has taken to
ascertain whether B consents.

3.1.9.3 Definition of "Consent" in the offence of Rape

3.1.9.3.1 Problem of the lack of the definition of "Consent" in the offence of

rape was pointed out during the field visits of the Commission. The
Commission found that most people were concerned about the lack
of definition for consent in the law. The Commission however

learnt that the lack of a definition was only a problem in borderline

cases, when a person who for one reason or another cannot consent
is said to have consented.

The Commission suggests that what amounts to consent should be

defined as proposed in the Working Bill.

3.1.10 SOSPA's Perceived Emphasis on the Female victims and Ignoring

Male Victims

3.1.10.1 As stated earlier, some people interviewed feel that the law is
discriminatory since it largely places emphasis on the female
victims and ignores male victims, though are few. **

3.1.10.2 If sodomy is for example obtained by force, will that be rape or just
an unnatural offence/offence against the order of nature? One
wonders whether it should be punished more severely than a
consensual sodomy.

Mtt>

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m
 The Commission is of the opinion that sodomy obtained by force,
fear, intimidation, misrepresentation, etc is more culpable than
consensual sodomy and therefore recommends that a section 154A
be added to the Penal Code to the effect that, without prejudice to
other provisions of the law, it is a grave sexual offence for a man to
penetrate the anus or mouth of another person by force. Any
person who is found guilty of this offence shall be punished to life
imprisonment in addition to be ordered to pay compensation to the
victim as shall be determined by the court.

3.1.10.3 Another example of differential treatment between males and

females is where a boy engages in a "childish consensual" sexual
intercourse with a girl (child to child sex). That will be rape as far as the
boy is concerned according to the current law. Questions have been asked
why punish a child boy and not the girl as they both could not be said to
have consented to the act as adults do. Should the girl also be punished
for taking part in a "childish consensual" sexual intercourse? What should
be the punishment? Suggestions have been made that both need some
form of education than punishment. This however entails that the system
sanctioned by the Children and Young Persons Act and the Approved
School is revamped and made to respond to the needs of children in
conflict with the law.

The Commission thinks that child to child sex be dealt with under

the provisions of the Children and Young Persons Act, as done in

countries like Uganda where child to child sex is dealt with under
the Ugandan Children Act.

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 The Commission is of the further view that if the law could be

made gender neutral the problem of older women having sexual

affairs with young boys and probably children would be
addressed. It is thus being recommended that sexual offences be
crafted in a gender neutral language, where possible, and a new
provision added as proposed under the Bill:

3.1.10.4 In other aspects, some people wanted to know what if a man who
is intoxicated is accused of rape - should the court presume that by
intoxicating himself, he foresaw the natural and probable
consequences of his actions. Indeed, but views were divided on this

matter some suggesting intoxication to be a mitigating factor in

sentencing while others found the issue a non starter.

In this regard, the Commission is of the view that intoxication

should not be a defence but may mitigate the sentence in the event
a policy is adopted that gives the court some sentencing discretion.

3.1.10.5 What about sexual acts between women? Sex acts between women

are not mentioned in Tanzanian law. Some men think this is a sign
of discrimination in the law.

It is strongly suggested that lesbianism be specifically prohibited by

the law, since it is largely an unnatural offence though not part of
what can be termed as carnal knowledge. Thus section 154(1) Penal
Code should be amended to that effect.
W

Generally, many of those interviewed so far in this area suggested

that the language of the law of rape should be neutral as in
countries like Uganda and South Africa, by the use of the phrase

159
 such as "any person". Secondly, guidelines will make it easy to
implement the law and take care of a few cases where the law is not
all that clear, i.e. on children involved in sexual acts among

themselves.

3.1.11 Sexual Intimidation

3.1.11.1 There are also feelings that the concept of intimidation needs
further expansion to cover persons who submit into a sexual act to
save another person. That means even if the threat, fear, force,
intimidation or detention is not directed to the victim but some

other person say a daughter or any member of the family of the

victim, the act of the victim yielding to sexual intercourse to save
the daughter or family member, notwithstanding, rape is
committed.

3.1.11.2 There is a view that section 131 be expanded to cover all cases of
intimidation which might result in a person to be raped.

3.1.11.3 Questions have also been asked about sexual intercourse arising
out of threats of extortion, public humiliation or disgrace to the
victim or someone else.

The general view is that threats of extortion, public humiliation or

disgrace to the victim or someone else connected to the victim be
construed as part of intimidation, hence rape.

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 3.1.12 Impact of Intoxication on Consent in Sexual Offences

3.1.12.1 Intoxication is recognised as a vitiating element in consent issue,

but questions have also been asked as to how does the court
determine that the victim was actually intoxicated (a subjective
element) and the accused should have known that fact (an objective
element) all of which are not stated in the law measure of the state
of intoxication.

3.1.12.2 The law says unless there was "prior consent", in such case, does
prior consent override the fact that the victim was intoxicated
during the sexual act especially taking into account that she is the
one complaining of rape? Suggestions are that these types of
drawbacks open up possibilities of some cases not being reported
or if reported are dropped by the police as the yardstick is unclear
and hence deny the victims the possibilities of having the case
determined by the court.

The Commission is of the view that some guidelines coupled with

focussed judicial interpretation on the matter should be sufficient to
clear any ambiguity that might arise in such scenarios. m

3.1.13 Unsoundness of mind

3.1.13.1 Unsoundness of mind is accepted as vitiating consent. But

questions have been asked about cases where a woman is
unconscious for reasons other than abuse or intoxication or where
she is asleep.

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3.1.13.2 Suggestions have been made that the law should be that any case
where the victim was unable to make a decision about whether or

not to consent to sex is rape. The law should invalidate possibilities

of apparent consent.

3.1.14 Fraud Generally

3.1.14.1 Discussions with participants in this study also indicate

possibilities of fraud other than when a traditional healer deceives
his (or her) patient that sexual intercourse is a cure. This is tied up
also with the issue of deception or mistaken belief about the nature
or purpose of the act, or about the identity of the person (other than
husband) proposing sexual intercourse.

3.1.14.2 Invariably, suggestions have been made to the effect that fraud
about the nature of the act, that is, the accused deceiving the victim

into believing that what will happen is a non sexual act of some
kind, when in actual sense what the accused does is a sexual
intercourse, should also lead to a charge of rape. The same applies
to when the accused has deceived the victim into believing that the
act is needed for one purpose, when the accused is actually
carrying it out for a completely different reason. It is suggested that
all these situations should be made a subject of rape.

3.1.14.3 Also, the issue of identity should be made wider than just
restricting it to husbands. Even women who are not married can
fall victims of misrepresentation by purported boyfriends or
acquaintances.

162
 The commission views that deception or mistaken belief about the
nature or purpose of the act, or about the identity of the person
(other than husband) proposing sexual intercourse should lead to
rape.

3.1.15 Compensation to the victim(s)

3.1.15.1 Compensation to the victim(s) is one of the major features of sexual

offences law. It has been difficult in some areas where an order of
compensation can be issued to verify the rationale of compensating
a person who is equally to blame for the act. For example, while it
is understandable if compensation is given to a person whose
sexual autonomy is invaded by another without consent, it is
difficult to find the logic of compensating a person as envisaged in
section 139A-(l)-(b)(iii) of the Penal Code on trafficking of persons.
3.1.15.2 Also, in respect of offence of Incest by females under section 160 of
the Penal Code, it is not clear who is the victim in this kind of an
offence because the female and the male counterpart would both be
guilty of incest because they both knew the facts about themselves.

It is thus being recommended that compensation should be paid •

only to true victims and not willing party participants in an illegal

act.

3.1.15.4 In other fronts the mechanism on which compensation is to be paid

to victims of sexual offences such as rape in particular leaves a lot
to be desired. In rape cases the convict is normally sentenced to life
imprisonment and ordered to pay compensation. In almost all cases
the compensation is to be paid at the completion of the

163
 imprisonment term. This situation is seen by many as window
dressing and does not help the victim in any way.

It is thus recommended the establishment of established Victim of

Crime Fund where funds are set aside to compensate victims of

crimes entitled to such compensation. The system could be created
through fines that are levied from different offences as well as
contribution by criminal through specific orders and government
subventions. The Commission notes that there are attempts to
establish a fund for persons who are trafficked vide the proposed
Trafficking in Persons Act. The general view however that is there
is no need for multiple funds. What need to be done is to establish a

Victim of Crime Compensation Fund either under the Criminal

Procedure Act or a separate Act of Parliament. The rest of the
procedures should be as recommended by the LRC in 1987.

3.1.16 Attempts and Actual Offences

3.1.16.1 In some cases attempts and actual offences have been lumped
together despite the fact that an attempt to commit a principal
offence constitutes a minor or cognate offence to the principal
offence as elaborated under section 381 of the Penal Code. Under

section 382 of the Penal Code a person who attempts to commit an

offence punishable by death or over fourteen years imprisonment is
guilty of an offence punishable by seven years imprisonment as a
maximum.

164
 Law of Attempt provided for under sections 381 and 382 of the
Penal Code should be applied to sexual offences like Attempted
Rape and hence allows normal application of the law as to
principal, minor and cognate offences, unless there is a good reason
to depart from this practice.

3.1.17 Lack of Clarity of Punishment to Boys who are Repetitive

Offenders

3.1.17.1 The law is not clear whether corporal punishment, fine and
compensation apply to a boy who has committed rape more than
two times or is a recidivist since section 131(2)(c) of the Penal Code
mentions imprisonment but again refers to subsection (1) which
includes corporal punishment, fine and compensation.

However, the Commission also recommends that the provisions of

the Children and Young Persons Act should apply to all children
who come into conflict with the law, regardless of their reoffending
character, since, in any case, a rapist is a man who is eighteen years
of age and above.

3.1.18 Lack of Clarity of Punishment to Boys who Attempt to Rape

3.1.18.1 A more problematic situation in relation to boys is with regard to
attempted rape. While a boy who commits rape as a first offender is
to be punished to corporal punishment only and the second time
offender to twelve months with corporal punishment, there are no

165

«*
 comparable provisions for other offences, including attempted
rape.

3.1.18.2 A boy who commits an attempted rape is liable to be punished to

thirty years imprisonment with or without corporal punishment.
The Court of Appeal in Goodluck Kyando vs. R82 found this
situation to be absurd and, taking a purposive approach, read into
the provisions of section 132 of the Penal Code the content of
section 131(2) (a), (b) and (c) of the Penal Code so that boys under
eighteen years are also protected in cases of attempted rape as
would have been for rape.

It is therefore suggested that the inconsistence should be addressed

in respect of all sections so that the intended protection or relief
applies consistently across all sections. However, the Commission
also recommends that the provisions of the Children and Young
Persons Act should apply to all children who come into conflict
with the law, regardless of the offence they have committed.

3.1.19 The Review of Rape by Persons in Authority under Subsection 3

of Section 130 Penal Code.

3.1.19.1 The offence of rape as defined in section 130(1) of the Penal Code
does not make any distinction between those in authority and other
rapists. In this context subsection 3 thereof appears redundant. If
however, the mischief was to ensure that those in authority are

punished more severely than other people who commit similar

82
Criminal Appeal No. 118/2003, Court of Appeal, Mbeya (Unreported).

166
 offences, then that should have been stated although still that
wouldn't have made little sense because of the minimum sentences
requirements. If the court had discretion in imposing the sentence,
then it would have made a good argument for the prosecution that
the rapist was also in the position of authority and used his
authority to rape the victim; very problematic but an interesting
argument to make. In any case Art 13 of the Constitution of the
United Republic of Tanzania83 prohibits discrimination, unless it is
a positive discrimination. Punishing those in authority more than
others would be contrary to the spirit of Article 13 of the
Constitution.

It is thus being recommended that since rape has no colour,

position, or status, the law should simply punish rape, and nothing
more.

3.1.20 Punishment for Rape of Girl Child under the Age of Ten Years
Not clear why the punishment for a rape of a girl child under ten
m
years as specified in section 131(3) of the Penal Code is lenient than m

that for the rape of a girl of ten years and above and a woman. The
punishment stated in respect of a girl child under ten years is life
imprisonment only (not specified whether this is minimum or not)
and that for a person who rapes a girl of ten years and above or a
woman is a minimum of thirty years imprisonment, plus corporal
punishment, fine and compensation as determined by the court. m

Even for attempted rape, in some cases, the minimum is thirty

83
Cap.2 RE 2002

167
m
 years imprisonment with or without corporal punishment84 and in
others the minimum is ten years imprisonment85.

It is recommended that the punishments for rape in these cases be

at par or, at best, vice versa. The recommendation made above also
applies to gang rape whose punishment appears lenient that where
rape is committed by an individual acting alone.

3.1.21. Abduction of a "woman of any age"

It is not clear why the abduction makes reference to a "woman of

any age" which impliedly leaves out a girl because both a "girl"
and "woman" have been defined under section 129A of the Penal

Code. Is a girl not a subject of abduction in the sense of section 133

Penal Code? There is need to harmonise the definition of "woman"

and "child" for purposes of sexual offences. In that context it is

recommended that the words "of any age" after the word woman
in section 133 be deleted.

3.1.23 Indecent Assault

Although the marginal notes to section 135 of the Penal Code make
reference to "indecent assaults on women" no such offence has

been created under that section. Could it be an omission because

this offence was there before revision of the Penal Code?

Suggestions made include the need to include the offence of

84 Sections 132(1) Penal Code.

85 Sections 132(3) Penal Code.

168
 indecent assault on women as was the case before the amendment
in 1998.

The Commission therefore recommends that the offence of indecent

assault be restored.

3.1.23.3 Suggestions have also been made that indecent assault should
contain voyeurism which covers cases where a person is secretly
observed for sexual pleasure where he or she had a reasonable
expectation of privacy (in the streets of Dar es Salaam, this is called
kupiga chabo or peeping or eavesdropping). It covers situations
where the voyeur intends to observe such acts for his own sexual
gratification or that of others which is different from watching _:._,
besetting under section 89A of the Penal Code. It covers cases •

where, for example, a peephole or camera is secretly installed or

I
indeed where a photographer takes indecent photographs of m

someone without their consent and, for example, posts them on the f
*
Internet or in a pornographic magazine.

It is thus being recommended that voyeurism be an aspect of

indecent assault or a separate sexual offence.

3.1.24.5 Defilement of Idiots and Imbeciles

It is also argued that it is not clear how the offence of defilement of

idiots or imbeciles can be committed since already sections 130 and
132 of the Penal Code penalise sexual intercourse or an attempt
thereof with a person of unsound mind who in principle includes
an idiot or imbecile. This appears also to be duplication.

169
•
 It is recommended to retain all the two provisions as they cover
two distinct offences.

3.1.25 Marriage of a Girl under 18 Years

3.1.25.1 There is a general challenge of the provisions which allow marriage

of a girl under 18 years as well as consummation of marriage with a
wife who is under eighteen years. Indeed, the Law of Marriages
Act allows in exceptional circumstances marriages86 for girls below
the age of fifteen and the SOSPA has merely accommodated this.

However, the argument is that generally girls below eighteen years

are still young and they should rather be going to school than
raising families at that age. Opinion is divided on this issue among
religions, tribes, traditions and even communities.

3.1.25.2 In Arusha the Commission had audience with two girls who were
both married between the ages of 8 and 12, below the age allowed
by the Law of Marriages Act even in exceptional circumstances.
Both of these girls were taken out of school, forcibly got married to
men much older than they were.

3.1.25.3 Child marriage does not only deny girls of their right to education,
it exposes them to domestic violence and abuse as was the case for
the two girls in Arusha. All this exposes girls to HIV and AIDS,

mortality, obstetrics fistula and other health problems associated

with early marriages, pregnancy and child birth and thus not

giving girls the protection they deserve.

Section 13 of the Law of Marriages Act.

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 3.1.25.4 This also raised issues of consent and who can consent, in the same
law that accommodates marriage of girls below the age of eighteen,
a girl below that age cannot have a consensual relationship outside
marriage. Some participants were of the view that there is need to
synchronise these provisions of the law.

3.1.25.5 Participants in Mtwara were concerned about the age of marriage

being eighteen and the fact that it's a criminal offence to engage in
sexual intercourse with a girl below the age of eighteen. Majority of
the rape cases reported in Mtwara are those of statutory rape, when
the Commission further inquired the participants shared that after
standard seven most girls do not continue with secondary
education and thus just at home, there is also a considerable
number of primary school drop outs. The Primary School
Compulsory Attendance Regulations under the Education Act only
protects primary school children they should be extended to cover
secondary school girls.

3.1.25.6 Most of the participants were of the view that one of the most
efficient ways to curb child marriages was through universal and
free secondary education where by the time the girls finish
secondary school they will be eighteen or around that age instead
of the current situation.

The Commission is also of the view that Tanzania should follow

international principles on this matter because it is a party to the *

Convention on the Right of the Child 1989 and the African Charter
on the Rights and Welfare of the Child, 1990. The Commission had

171

Ml
 recommended to the same effect in 1994 in its Report on matters

relating to children rights in Tanzania.

3.1.26 Acts of Gross Indecency

3.1.26.1 The section on acts of gross indecency does not define what "acts"
amount to "gross indecency" but state that such acts may be
committed in public or private. It also assumes consent between the
parties who commits such acts.

3.1.26.2 The offence appears to target cases of person having or attempting

to have consensual sexual intercourse in public or persons who
behave in a sexual manner, e.g. conduct oral sex in private or
public, such that a third party would be morally offended.

3.1.27.3 Yet, it is difficult to envisage a situation where a person commits

acts of gross indecency in private such as to attract the attention of
law enforcement agencies without being accused of invading one's
privacy, unless one of the parties to the act of gross indecency
complained. If a third party was to witness the act, then it is no
longer private.

The Commission is of the view that acts of gross indecency be

limited to public places. There is no good reason as to why should
the state become concerned with such acts if they are committed
between consenting adults in private provided acts do not involve
prohibited acts that constitute offences against the order of nature.

3.1.27.5 Further, some people have wondered whether an act of gross

indecency must be committed with "another person". Can't a

172
 person acting alone in public commit an act of gross indecency, e.g.
by masturbating or walking nude?

It is recommended that acts of gross indecency be defined or

guidelines be issued to provide clarity and also that a person acting
alone in public can commit acts of gross indecency. These happen
once in a while in public recreation places such as bars and along
the beaches, intoxication of the actors notwithstanding.
3.1.28 Defilement by Husband of Wife under Fifteen Years

It is argued that defilement by husband of wife under fifteen years

under section 138(1) of the Penal Code may look a redundant
offence in view of section 130(2)(e) of the Penal Code. Section 138(2)
of the Penal Code also may suffer from the same outlook because
the parties mentioned therein would be parties to the offence of
rape under section 22 of the Penal Code. With judicial
interpretation the outlook in respect of these sections may be
corrected.

The Commissions views that, the two sections deals with two
separate situations and thus all the provisions should be retained.

3.1.29 Permitting Defilement of a Girl under Fifteen Years

3.1.29.1 The marginal notes and the proviso in the revised laws under
section 141 of the Penal Code on permitting defilement of a girl
under fifteen years reads "under twelve years" but the section itself
refers to a girl "under fifteen years" - therefore inconsistent. Before
revision the age threshold was twelve years.

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m

m
3.1.29.2 It may however argued that a person who commits an offence
under this section is a party to the offence of rape or attempted rape
in view of section 130 and 132 of the Penal Code. In this case it has

sometime been suggested that section 141 of the Penal Code should
be repealed in view of sections 130 and 132 of the Penal Code.

The Commissions however observes that the provisions covers

separate scenarios to which no duplication or contradiction is seen.

3.1.30. Permitting Defilement of a Girl under Sixteen Years

It is also submitted that, the law on permitting defilement of a girl

under sixteen but above fifteen years is not clear in a number of
aspects.

i. The age threshold specified in the act is so narrow, that is

under sixteen but above fifteen years (difference of eleven
months and some days in between). The mischief is not
clear.

n. Knowingly permitting, allowing, inducing or otherwise

making a girl of above the age sixteen years but under
eighteen years or those fifteen years and below to have
sexual intercourse with a man is in itself an offence since the

person who is knowingly permitting, allowing, inducing or

otherwise making such a girl to have sexual intercourse will
be an accomplice to the offence of rape - the principle of
parties to an offence.

174
 111. The law on sexual exploitation embodies similar provisions
if the girl was to remain in the premises and participate in
sexual activity the owner, occupier or manager of the
premises would be guilty of sexual exploitation of the child.

However the Commissions observe that the sections deal with

separate circumstances and therefore no need for reform.

3.1.31 Detention in Premises or Brothels

3.1.31.1 Detention in premises or brothels provisions appear equally

problematic since they appear to restrict detention to a woman
excluding girls and presumes, wrongly so, that a woman is
detained only when her wearing apparel or other property
(personally acquired, lent or supplied) become impossible to
retrieve away from the premises hence making her unable to run
away from the premises. Yet, the owner of the premises can also
lock the premises such that the women inside cannot run away or
simply create such fear and intimidation such that it is impossible
for the women to run away. Again with active judicial
interpretation the matter can be cleared.
•
3.1.32 Male Persons Living on the Earnings of Prostitution or m

Persistently Soliciting for Immoral Purposes

3.1.32.1 There have been arguments that the offence of male person living
on the earnings of prostitution or persistently solicits for immoral
purposes is not different from the offence of procuration for
prostitution which covers male and female procurers.

175
m

m
3.1.32.2 It has been suggested that harmonisation should take place
between the two provisions, in which case then it is recommended
that the portion of section 145 on male person living on the
earnings of prostitution or persistently solicits for immoral
purposes be repealed such that male become procurers or parties to
an offence of prostitution.

The Commission however observes that the existing offences

should remain as it's as they cover two separate scenarios.

3.1.33 Procuring the Abortion of a Woman

3.1.33.1 Procuring the abortion of a woman under section 150 of the Penal

Code does not seem to be clear especially when the section refers to
"procure miscarriage of a woman" and "whether she is or is not

with child"87. Section 129A does not define the term "child" but

defines a "woman". However, the term "child" was defined by

section 138B (2) of Sexual Offences (Special Provisions) Act, 1998

but that specific provision (i.e. subsection 2) seem to have been

inadvertently omitted in the Penal Code. In any case this section

must also be read with section 219 of the Penal Code on when a

foetus becomes a child in which case it is not possible to procure

miscarriage of a child. This offence is called child destruction.

3.1.33.2 The idea of having section 150 of the Penal Code, the Commission
believes, was to address the practice whereby some individuals in

the society have become expert of procuring abortion of pregnant

women. Whether the court will read this provision along this

87 The team reads this phrase to mean "whether pregnant or not" as a more logical framework
for the section.

176
 mischief is not clear from the way the section is worded. It is also
not clear if the section covers cases where the abortion is complete
since the provision is crafted as if it is addressing cases of an
attempt and not abortion per se.

3.1.33.3 The same argument extends to section 151 of the Penal Code which
relates to a woman procuring her own miscarriage. In principle for
an abortion to take place the woman must have been pregnant in
the first place. If she was not, there would be no procurement of an
abortion.

It is thus recommended that the sections should be direct to the

mischief that it is an offence to cause a pregnant woman to ab. ri.

3.1.34 Indecent assault of boys under fourteen

3.1.33.1 It is also argued that section 156 of the Penal Code seems to be
contradictory on the age factor since subsection 1 thereof refers to
the age "under fourteen year" while in subsection 2 reference is
"under fifteen years".

3.1.33.2 It is not clear why the difference of one year between the two
subsections.

The commission notes that the contradiction has been taken into
account on the ongoing updating of laws. «

an

177
»
m
3.1.35 Indecent practices between males

It is not clear how section 157 of the Penal Code differs with section

138A of the code. They both penalise acts of gross indecency even
though the punishments are designed differently. The suggestion
being made is to harmonise the two sections.

3.1.36 Incest

3.1.36.1 The law of incest is not clear. For example, if sexual intercourse was

to be had with a woman below eighteen years under normal

circumstances that would be rape as defined under section 130 of

the Penal Code. That being the case, it is not clear why a man who

engages in sexual intercourse with his granddaughter, daughter,

sister and half sister below the age of eighteen years is committing

incest and not rape regardless of the fact that the punishment for

incest is thirty years. It is all about logic in the law.

3.1.36.2 Indeed it can be argued that a person who commits incest with a
girl who is below eighteen years will also be committing rape at the

same time. This however has to be made clear in the proposed

guidelines on sexual offences.

3.1.36.3 It also looks like women who commit incest are punished harsher
than men who do the same since, while a man is likely to be
imprisoned for twenty years, a woman in the same situation will be
imprisoned for thirty years in addition to being ordered to pay
compensation to the "victim". The logic again is missing.

It is thus recommended that incestuous situations be punished

same way regardless of gender.

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 3.1.36.5 Further, the law presumes a boy under twelve years is incapable of
having carnal knowledge of a girl or woman. It will even be more
difficult for a boy of ten years to have such experience, and if
indeed the boy did manage sexual intercourse, though
incestuously, then the offence ought to be different (perhaps rape
since calling it incest is to trivialise the magnitude of the problem
regardless of the punishment that is prescribed). In any case, the
society expects a woman who engages in sexual intercourse with a
child of ten years and below to be punished more than a woman
who engages in incestuous relationship with other adults.

3.1.36.6 There also seem to be a problem in the listing of incestuous

relationships. Section 14 of the Law of Marriage Act88 on prohibited
relationships seems broader.

In this situation it is recommended that the law of incest be

harmonised between the Penal Code and the Law of Marriage Act.

3.1.37. Cruelty to Children

Section 169A of the Penal Code introduces the offence of cruelty to

children aimed at protecting children against harmful practices
such as female genital mutilation. Yet this section is placed under
Chapter XVI of the Penal Code which deals with offences relating
to marriage and domestic obligations. In principle and going by the
definition of sexual offences preferred by SOSPA, female genital
mutilation is not a sexual offence.

Section 149 of the Law ofMarriage Act provides a defence, that isthe person charged did not know and
could not reasonably have discovered the relationship. Is it applicable toincest cases? m

179
*

m
 It is the Commission's view that section 169A could be made part
of Chapter XV and as a new section 138E thereto. At best, female
genital mutilation is more allied to offences under Chapter XXII of
the Penal Code dealing with offences endangering life or health.
Further, the law must be broadened to outlaw any form of FGM
whether to children or adults.

3.1.38 Missing Definitions

3.1.38.1 Some definitions which were brought about by SOSPA were not
included in the Penal Code. These definitions are proposed to be
included in the Penal Code as they will help to clarify some of the
issues in the Penal Code. These definitions are reproduced in the
Bill.

Once this is done, it is recommended that SOSPA be repealed since

all provisions brought by it would have been made part of the
relevant law that was targeted for amendment.

3.1.38.2 The law of criminal procedure and evidence also have their own

concerns that need to be addressed.

3.1.39 Past Sexual History

3.1.39.1 The law of evidence is still silent on the past sexual history of the
victim and there are no mechanisms to ensure that evidence of

character, which is admissible, if it was made an issue in the case, is

not used to harass victims in court or their witnesses. Continuing to

allow past sexual history has been viewed as one of the factors
making victims of sexual offences unlikely to come forward and

180
 report the offence for fear of being embarrassed during cross
examination.

3.1.39.2 Consequently the criminal trial is seen as continuing to be a forum

in which the victim is battered further by her assailant, now
teaming up with his lawyer in court. The issue is therefore how do
you strike a balance between the victim's right to access to justice
and the accused person's right to fair trial?

Recommendations have been made either to deal with the issue of

past history through written depositions or disallow it completely
because it docs not matter whether a woman (or even a man for
that purpose) has led life style that make other think she is morally
weak. Every person must be protected against unwelcome sex
regardless of his/her past history.

3.1.40 Corroboration

3.1.40.1 Though corroboration is no longer required in cases of rape, there

are still no clear guidelines on how the evidence of a single witness
should be treated. This creates reluctance on part of some
magistrates and judges to convict especially considering the fact
that the sentence for rape is seriously punitive.
3.1.40.2 Some judges and magistrates are of the view that if there were
guidelines on how such evidence should be evaluated (quality
assurance or safeguards) coupled with some discretion in
sentencing probably more borderline cases would have resulted in
a conviction on a single witness.

181
m
m
I1-jr* T*&*'Jr grTfr^.'-JlSfftl
3.1.41 Preparing Victims and Witnesses for Trial

Though trial is in camera, there is no mechanism that would help

the victim to be prepared for the said trial. Some victims view the
court encounter as an ambush and scary experience particularly
when defence lawyers start the normal requests for documents,
statements and exhibits. Suggestions have been made to allow a
more organized session on preliminary hearing in sexual offence
cases and to make especially the victim and witnesses understand
the nature of the proceedings that will unfold after the preliminary
hearing. This, many argue, is mostly possible if specialised police
and prosecution units and court were to be established.

3.1.42 Protection of Information/Communication

3.1.42.1 The law protects information between the advocate and client but
may not necessarily protect communication between the victim of
sexual offence and a counsellor (professional or non professional).
In these circumstances, some victims fear to "disclose too much"

even to counsellors hence making it difficult to assist the victims in

a meaningful way.

The Commission is of the view that this problem is compounded by

the fact that there is no law of social work especially on the duties
and responsibilities of a social worker as well as the protection of
information thereof. It is thus recommended that the Social Welfare

Department should start a process of gathering views on whether

there is a need to enact a law for the Department and what should

182
 be the content of the law, if any. In the mean time the Evidence Act
should be amended to allow communication between the victims of

sexual offences to be privileged communication to be tendered to

the magistrate only through written depositions. The victim may
not be cross examined on such information.

3.1.42.2 Section 373 CPA is not clear on what was intended because

procedures on revision are different from those on appeal. It is

suggested that, indeed, through guidelines, procedures should be
made easier when it comes to sexual offences but they should not
be made in such a way that they can hardly be utilized because
they are not clear.

3.1.43 The Police Form No. 3

There are also concerns on the management of PF 3. Generally,

concerns have been raised that PF. 3 is not helpful to the police and
the victims as well as the court and the medical profession. Health
professionals believe that their duty is to treat the patient first and
the information they collect from patients is confidential and
cannot be put in a public document like a PF.3. In this regard health
professionals feel reluctant to disclose too much in a PF.3.

It has been recommended that a joint meeting between social

workers, medical professionals, police officers, prosecutors and
court officials be organized to discuss the continued benefits of the
PF.3 and hopeful devise a better way on how to address medico
legal issues between the various actors in the process. This
m

183
m
 discussion could be formulated along the proposed guidelines for

investigators and prosecutors appended to this Report.

3.1.44 Names of Victims of Sexual offences

3.1.44.1 There are also concerns about names of victims of sexual offences

(including children) being published in newspapers while

investigation is continuing. The same concern has been raised in
respect of court records especially judgments which continue to
mention the names of sexual offences victims (including children).

In other jurisdictions such names are kept confidential for many

reasons, one of them being the possibilities of stigmatization. It is

recommended to use abbreviations such as A.B, K.J, etc. than true

names in sexual offences cases.

3.1.44.2 Based on the above findings the Commission concludes as follows.

3.1.44.2.1 The current law on sexual offences needs strengthening and

harmonization in the specific areas pointed in this Report (See
summary of recommendations sheet).

3.1.43.2.2 There is also need to beef up the provisions with requite guidelines
to make them understood by all people, not the legal professionals
alone.

184
 3.1.443.2.3 Administrative and social changes necessary to ensure the criminal
justice system is responsive to the needs of the victims in sexual
offences cases

3.1.44.3 Literature review in this area suggested that the struggle to combat
sexual offences in Tanzania is still far from being won. This has also
been confirmed by the field visits carried out by Commission. The
law, though in place, is still in need of improvements to make it
clearer and must be backed up by other systems to make it deliver.
Such systems include those related to policing, social work and
health.

3.1.44.4 Indeed, sexual offences are not an exclusive problem for one
institution. Addressing them requires a multilevel approach since
sexual offences are an outcome of a particular mindset of some
erring individuals in the society who develop a wrong perception
towards other people especially to women and children during the I

•
course of their socialization.

t
3.1.44.5 Stringent legal measures with their strong enforcement
mechanisms may definitely be useful in controlling such •

behaviours in society but that cannot achieve the desired results, m

unless legal measures are supplemented by a wide range of extra

legal preventive programmes developed in mutual co-operation
IT
and with assistance of government, NGOs, CBOs, FBOs, concerned
professional associations, and research institutions, among others, 9

in close collaboration with the police and other law enforcement m

institutions.

185

m
3.1.44.6 People consulted hold strong views that success in creating public
awareness regarding the imperatives of human rights among the
common mass, spreading, promoting and inculcating values of
equality, mutual respect and shared responsibilities between men
and women is one of the important ingredients for the evolvement
of an environment which would facilitate upholding gender justice
in society in general and forestalling sexual offences in particular.

3.1.44.7 It is in this recognition that organisations like WILAC, TGNP,

TAMWA, TAWLA among others have developed programs whose
main functions are to educate common women folk regarding their
rights and how to take precautions if they foresee any problem
which may lead them to sexual harassment or sexual victimization
of any kind. In some countries such organisation also discharge
another important function, namely to identify those people in the
locality who are a potential danger to women and girls for any
possible sexual offences. Once they identify the culprits, they
immediately bring the fact to the notice of the police for prompt
action against them.

3.1.44.8 Also, it is generally accepted that many actors on the ground such
as the police officers have limited knowledge on how to handle
sexual offences because of limited training in that area. It is thus

important that issues concerning sexual offences need to be

addressed in the training programmes of all officers particularly at
the basic level as well as in advanced training courses. Such
training should, in the first place, impart ground level
functionaries' greater knowledge and create awareness regarding

186
 the consequences of sexual violence, which in turn make them

more capable to detect and handle cases of sexual offences in a

befitting manner. Higher-level functionaries should also attend
appropriate training programmes relating to policy decisions in the
matter of handling sexual offenders as well as victims of sexual
crimes.

3.1.44.9 Based on these findings the Commission is of the views that:

3.1.44.9.1 Concerted efforts should be made towards ensuring that all actors
involved in sexual offence cases are adequately trained so as to
equip them with the requisite knowledge, skills and abilities in
handling such cases.

3.1.44.9.2 Continuing to create public awareness regarding the imperatives of

human rights among the common mass, spreading, promoting and
inculcating values of equality, mutual respect and shared
responsibilities between men and women are key towards reducing
and possibly eradicating sexual offences in the country.

3.1.44.9.3 Proper guidelines should be put in place to help create

coordination and synergy between different processes.

3.1.44.9.4 Considering the multiplicity of activities in the area of sexual

offences, it is important that a strategic framework is designed to
help actors coordinate their efforts. The framework could be in the
form of an Anti Sexual Offences Strategic Plan under the envisaged
policy on public safety and security.

Wm

187
m
3.2 RESPONSE OF CRIMINAL JUSTICE SYSTEM TO SEXUAL

ABUSE OF CHILDREN AND PEOPLE WITH IMPAIRED

MENTAL ABILITY

3.2.1 Research in this area indicates that there are limited challenges with
regard to sexual abuse of people with impaired mental ability. This
conclusion is reached based on the fact that nothing features
prominently in the research conducted neither in the area of sexual
offences nor in the police reports significantly indicating major
problems in the area of sexual abuse of people with impaired
mental ability. Yet, normal observations in streets and
neighbourhoods indicate that some people with mental disabilities
also engage in sexual acts either with other able person or other
persons with mental disabilities.

3.2.2. Indeed, during the field visits most participants agreed that idiots
or imbeciles, especially girls and women, are invariably a subject of
abuse by people looking for quick sex at night. These assailants
include drug abusers, drunkards and fellow imbeciles or idiots.
There are allegations that in some places like Dar es Salaam even
the so called street children abuse imbeciles who mostly mingle
with them at night for shelter. These situations attribute to the fact
that some of the female imbeciles have become pregnant and are
now moving around with their children.

Indeed, the problem of imbeciles and beggars is difficult to address,

but Commission was informed in Morogoro that way back in 1990s

the government issued a circular which required local governments

 and the social welfare department to be responsible for such
people. Yet, as time went by the circular seems to be forgotten. The
Regional Administrative Secretary of Morogoro thus implored
everyone who was in attendance in the meeting to heed to the
circular lest imbeciles will continue to be victims of sexual abuse.

3-2-3 It is thus recommended that a focused research is also needed in

this area as facts and actions on the ground are somewhat limited.

3.2.4 However, the area of children and sexual abuse continues to draw

attention and is indeed a challenged area. The challenges faced in

this area include child prostitution.

3.2.5 A study conducted by ILO in 200289 in Ruvuma, Mwanza, Dar es

Salaam and Singida indicated that child prostitution is still
rampant especially in tourist places like brothels, hotels,
guesthouses, disco bars, local brew shops, casinos and more
generally in the entertainment industry. Owners of these places are
said to utilize girls to attract more customers and the girls were
given false jobs. The report concluded that there is a ready-made
market and children are not sexually exploited only because they
are poor, but also because they are vulnerable to such pull factors.
These findings are shared by many people including the Police r

which generally acknowledge the problem.

3.2.6 Consultations indicate that the phenomenon of children engaged in *

prostitution is said to grow quickly and steadily, and in some *
places, developing largely unnoticed. A quick survey indicate that
P

ILO/IPEC, IPEC Country Profile: United Republic of Tanzania, ILO, Geneva, Switzerland, 2001.

189
m
 child prostitution is evident throughout the country, and highly
pronounced in major towns and at main truck/bus stops along the
highways especially where commercial activities are highly
centralized. The mere existence of the "sex clients" continues to

promote the sexual exploitation of children. The main customers of

the children are common men, medium and big businessmen,

bureaucrats from both public and private institutions, law

enforcers, tourists and foreigners. Many people, consciously or
unconsciously, are in one way or another involved in this problem.

3.2.7 Studies in Tanzania show that prostitution involves quite a number

of children who are 10-17 years old, do not have families, have
criminal records, have a history of drug abuse and very few social
skills, and lack parental guidance, love, affection and care. Child
prostitution is now becoming a more organized network along
major towns and streets. In Dar es Salaam, Kinondoni is known for
child prostitution. Those involved know each other, and sometimes
they know each other's phone numbers; thanks to the mobile
phone industry. If they happen to be in remand (being kept in
custody while further evidence is sought) they know who will bail
them out, and indeed they are bailed out in some cases by their
clients.

3.2.8 Child prostitution (mostly in urban centres) is commonly practiced

in brothels, bars, guest houses, tourist hotels, and along the streets.
It is also believed that the provisions of Children and Young
Persons Act on children living in difficult circumstances or in need
of care has failed to help the society fight child prostitution due to

190
 weaknesses in the legal arrangement. The provisions must be
improved if the struggle to eradicate child prostitution is to bear ,
any meaningful results in the long term.

3.2.9 The challenges in this area are many. The first revolves on the fact
that law enforcement has largely concentrated on addressing the ,
child prostitute and not the clients who are mostly male clients. "
This means law enforcement is not fully sensitized on the manner •
and ways of addressing child prostitution. The second challenge is
the fact that the industry thrives in situations of poverty where the
child is forced to become a bread earner because of her sexuality. In ,
this environment some see it a lesser evil compared to the poverty *
that surrounds the family. Third, public attitude towards child *
prostitution is still wanting. This is compounded by culture that
after puberty period a girl has become an adult (mtoto keshachezwa,
kakua). Many traditional rituals performed around sexuality dignify
early sex and thence make it difficult to address it as a crime as •
there would be fewer witnesses to testify to it unless one is read- I
handed caught.

3.2.10 It should noted that having sex with a girl under the age of 18,
unless otherwise married and is above 15 years, is rape and
punished for life. Prostitution is an offence as ofits own right, but if
it is involving a woman under 18 years, it becomes rape because
consent is immaterial. Yet, these provisions do not seem to have
helped the control of child prostitution.

3.2.11 Children also face other challenges. Cases have been reported both
to the police and in the media of children being raped. Sometime

191
 the child has been victim of own parents. It is documented by
LHRC that most of these cases are rarely reported as they are
handled within the family.

3.2.12 The conclusion that is drawn in all this cases is that the law has not

been effective in the protection of children against abuse and

exploitation; children are still among the worst affected by sexual
offences. More work needs to be done to help children from
becoming victims of sexual offences. The issue has been picked up
by the process to formulate a comprehensive public safety and
security policy. It is expected that once the policy is in place it will
enable the formulation of strategies to address the problems and
challenges faced by children in so far as sexual offences are
concerned. In that regard:

i. There needs to be a comprehensive strategy for dealing with

sexual abuse and exploitation of children. Other than having
provisions that protect children in the law there is need to

have measures outside the law that will reinforce the legal
provisions.

ii. The social welfare and department needs to be equipped

with the necessary manpower, technology and finances to be
able to do their jobs.

iii. Proper training for teachers, nurses, doctors and other

actors who come into contact with children on how to

recognize and deal with sexual abuse and exploitation of

children.

192
 iv. Children also need to be educated in the dangers they could
face from a very early age in their homes and in schools.

v. Law enforcement should also not be largely concentrated on

addressing the child prostitute alone but should also address
the clients who are mostly male clients.

3.3 RECORDED/REPORTED SEXUAL OFFENCES

3.3.1 As said earlier, availability of data on crimes generally in Tanzania

is a serious setback to any meaningful research. Information
from the Police, Courts and Prisons is difficult to get because of a
number of limitations. The National Bureau of Statistics does not

currently keep data on crimes although the 2nd Schedule to the

Statistics Act90 empowers the Bureau to collect such data. It is
pertinent that the Bureau starts to collect crime data and carry out
analysis of such data. These kinds of data are useful for planning
among other things.

3.3.2 Similarly, there is no information specifically kept by hospitals on

sexual offences such as rape, defilement among others. This
appears to be a serious problem at all levels of the health system as
there is no specific program to track such cases. Thus, hospitals or
health centres cannot also tell the frequency of cases received in
r
relation to cases of sexual offences handled by them. A suggestion
has been made to create a system that will enable tracking of such
cases at the level of hospitals or health centres. ft,

m
3.3.3

90
Cap 351.

193
 The Commission has concluded that a massive improvement is

needed in the data management structures at all levels of the

criminal justice system. Without this intervention, no useful data

will ever be available to help in the struggle to root out sexual
offences in the communities. The improvement should involve the
National Bureau of Statistics which should take actions that will

make data availability on cases generally more reliable.

3.4 INVESTIGATION AND PROSECUTORIAL GUIDELINES OR

PRACTICE

3.4.1 Sexual offences and the fear of sexual offences have a profound and
damaging effect on individuals and communities. It is in
recognition of this fact that some countries like South Africa, UK
and Scotland have comprehensive guidelines for each stage
involved in management of sexual offences cases.

3.4.2 For example, in South Africa, the National Policy Guidelines for
Victims of Sexual Offences was issued in 1998 to guide social
workers, police officers, health workers, Prosecutors, Courts and
correctional services in their day to day dealing with sexual
offences cases. The idea was to provide uniform national guidelines
for all role-players handling rape and other sexual offence cases. At
ground level departmental personnel have developed the
guidelines which apply to their daily work (e.g., police stations
have the police guidelines, health clinics have the health guidelines,
prosecutors have prosecution guidelines among others).This has
helped in reducing the level of secondary victimization, which is

194
 normally caused by arbitrary/haphazard approach to victims of
sexual offences. Secondary victimization normally leaves victims
with a sense of betrayal by the justice system.

3.4.3. The guidelines also contain an information brochure for victims

which set out in simple language the basic steps involved in the
legal process. Victims normally obtain additional information on
the process and the resources available to them in their area from
material prepared locally.

3.4.4 In Tanzania, the National Prosecutions Services and the Tanzania

Police Force are attempting to develop guidelines for investigation
and prosecutions (see annexure). These guidelines are not yet
operational since they have not yet been endorsed for use. At least,
this is a step in the right direction. Some of the matters covered in
the recommended guidelines include the responsibility of the first
police officer arriving at the scene; how to listen to and comfort the
victim; requirement of informing the victim of police procedures;
advising the victim of case confidentiality; explanation about the
medical examination; offer support to the victim; Completion of PF
3; medical examination of a child victim; handling of clothes and
other articles; duties of approved health care practitioner; medical
•
procedure; bathing or washing; how medical examination of the
victim is made; samples required; recording the victim's statement;
a.

setting the scene or how to conduct an in-depth questioning; sexual

offence statement checklist; medical examination (suspect); legal
requirements; preventing exhibit contamination; exhibit P
m
contamination; forensic science laboratory; guidelines to prevent

195
m
m
 contamination of exhibits; identification parades; Explanation of
procedure; Identification of suspect; referral to after care
counselling services; preparing the victim for court; etc.

3.4.5 Some NGOs have attempted to develop awareness materials to

assist the process of dealing with sexual offences cases. These
include WILAC which has issued a booklet entitled Understand

Your Rights under the Sexual Offences (Special Provision) Act.

The booklet aims at assisting public to know their rights specifically
women and children as provided for under the Sexual Offences
(Special Provisions) Act 1998 and challenges women and girls to
report sexual offence cases and seek legal advice from the available
legal aid centres. Recently, there was also a meeting of media
bodies on sexual offences and child matters. Several resolutions

have been made in attempts to help the course of justice in this

area. Such efforts are commendable.

3.4.6 The Commission notes and concludes that the general absence of
guidelines to assist in the management of sexual offences cases is a
serious matter that needs to be addressed. Such guidelines should
be developed as has been done in other jurisdictions such as the
South Africa's National Policy Guidelines for Victims of Sexual
Offences issued in 1998. The guidelines will serve two main

interlinked purposes:

a. To assist service providers with their work by being a

practical tool

b. Thereby to improve the experiences of victims in the

legal system

196
3.4.7. If these goals are achieved the result should also be an increased
processing and conviction rate and appropriate decisions being
taken on different issues involved in the management of sexual
offences cases.

3.5 PROSECUTORIAL OUTCOMES

3.5.1 On the prosecutorial outcome, there is an agreement that the

current conviction rate is low as depicted by the statistics received
from the Police, Courts and Prisons. Chart I illustrates the situation

based on Police Statistics for the year 1999, 2006 and 2007. It is
important to note that 67% of all cases that were reported during
this period involved rape allegations. The table shows that
approximately 40% of cases reported to the police were taken to
court for prosecution of which only 40% ended up in conviction,
which is 16.3% of all cases that were reported to the police during
the period. In any case 49% of all cases which were reported to the
police were dropped for lack of evidence among other things.
There are many reasons which have been cited for this situation
including lack of corporation from victims (especially on rape and
particularly when the matter is negotiated between the victim and
the assailant), false reporting, corruption and ignorance of the law
among others. ^
(W

3.6 LEGAL REPRESENTATION FOR VICTIMS

3.6.1 Victims of sexual offences are normally represented by the

Republic unless it is a private prosecution or is a case that is before

197
 a Primary Court. The investigations and prosecution systems are
being revamped through the Legal Sector Reform Program.
Already the National Prosecutions Service has been established and
is taking over cases from the investigators who were also doubling
as prosecutors for the Director of Public Prosecutions.

3.6.2 In the area of sexual offences suggestions have been made by

activists and legal professionals that it would be better also if a
specialised unit is given charge to prosecute sexual offences. The
argument that is made is premised on the fact that most sexual
offences are sensitive, tricky and require skills that are not available
just by being trained in law. Social work skills, skills in psychology
and medico-analysis are key to becoming an effective prosecutor in
sexual offence cases.

3.6.3 Research in this area and interview with Police Prosecutors, State
Attorneys and activists confirm this fact and generally indicate that
cases have been lost in court because essential skills are lacking
among the existing investigators and prosecutors. The
recommendations that have been made to improve this area
include a specialised court for sexual offences cases along the
commercial, land or labour court system and training of all staff -
court officials, prosecutors, police and social workers - deployed in
such court on how to deal with sexual offences cases. This will

include issuing guidelines to guide the sexual offence case

management process. The Commission thinks these

recommendations hold water especially when one looks at the

198
 trend in other countries that are also faced with the sexual offences

challenges such as in South Africa, United Kingdom and Australia.

However, considering the shortage of resources in Tanzania, the

Commission recommends that rather than establishing a
specialized unit, a system be created whereby the Social Welfare
Department is involved right from the stage the offence is reported
to the Police through to prosecution so that the social work skills
needed to pursue the investigations effectively are offered during
investigations and the subsequent stages. It is also a good idea if all
investigators were trained in social work to help them acquire the
requisite knowledge on how to handle sexual offending and the
victims thereof.

3.7 OTHER LAWS RELATED TO SOSPA

SOSPA effected changes in a number of other laws including the

Evidence Act, Criminal Procedure Act, Children and Young
Persons Act and the Minimum Sentences Act. The idea was to

make it possible for victims of sexual offences get justice without

too many technicalities and in a dignified environment.

3.7.1. LAW OF EVIDENCE

3.7.1.1 Corroboration is now unnecessary in criminal proceedings

involving sexual offences where the only independent evidence is I*

that of a child of tender years or the victim of the sexual offence.

The court should receive the evidence of a single child witness, md
bt,

may notwithstanding that it is not corroborated, proceed to convict

m

ttH

199
p

•^ml»rfa<-*-"-wn>^*A™M^_i^=dti
 on the basis of that evidence received on record if it is satisfied that

the child witness or victim of the sexual offence is truthful.91

However, the Court of Appeal in the case of Herman Henjewele vs.

R?_ argued that, though it is possible to understand why the
Parliament considered waiving the requirements of corroboration
in sexual offences. Indeed, it is difficult to appreciate the need to
waive the important safeguard of holding a voire dire or a trial
within a trial as required by section 127(2) of the Evidence Act.
However, the court did not rule on the matter though it noted
failure to carry out a voire dire would normally be a serious
omission.

The Commission is of the view however that whether

corroboration is needed or not of child evidence, the court must

still establish if the child is capable of understanding the

proceedings and indeed able to appreciate the facts and tell the
truth of what actually happened.

3.7.1.2 The Commission also note the development in the area of science
and technology especially DNA. DNA has been used to prove
many cases in countries like UK and the USA.

3.7.1.3 Tanzania has also introduced DNA testing facilities in the Chief
Government Chemist Agency but the facility is rarely used.

91Section 127{7) EvidenceAct Cap. 6 RE2002.

92 Criminal Appeal No. 164/2005, Court ofAppeal, Mbeya (unreported).

200
 It is the views of the Commission that DNA should used to prove
or disprove controversial cases. This however requires that all
officers involved should properly be trained on the analysis and
use of DNA in criminal proceedings.

3.7.2 CRIMINAL PROCEDURE

3.7.2.1 SOSPA also effected improvement in the way sexual offences were
to be addressed through criminal procedure.

1. Section 168(5) of the Criminal Procedure Act (CPA) requires

that when a court convicts an accused person of a sexual
offence, it shall pass the sentence as prescribed for the
offence in the Penal Code.93 Most of the sentences are

minimum sentences.

2. All courts with jurisdiction to hear cases of sexual offences

have equally been given the power to pass such sentences94.

3. Sexual offences cases must be heard in camera and that the

evidence and witnesses involved shall not be published in

any media. However such matter can be printed or
published in a bona fide series of law reports or in a
newspaper or periodical of a technical character bona fide

intended for circulation among members of the legal or

medical professions95. This is echoed in Section 3(5) of the
m

93 See also Section 5(h) Minimum Sentences Act, Cap. 90 RE 2002.

94 Section 170(l)(a) CPA.
95 Section 186(3) CPA. m

201
m
 Children and Young Persons Act96 though not as elaborate as
in the CPA.

4. In addition to any penalty which it imposes, the court

should make an order requiring the convict to pay such
effective compensation as the court may determine to be
commensurate to possible damages obtainable by a civil suit
by the victim of the sexual offence of injuries sustained in the
course of the offence being perpetrated against him or her97.

5. If justice so requires, the High Court has revision jurisdiction

to enhance punishment awarded by the subordinate court98.

3.7.2.2 Major concerns that have been raised in this area include the need

to develop a set of procedures that will be dedicated to the

investigation of sexual offences. The current provisions have been

criticized for not being sensitive to the plight of sexual offences
victims, hence a call for improvements. This can be done through
the Police General Orders.

3.8 SENTENCING

3.8.1 Procedure Act requires that the minimum sentences prescribed for
sexual offences must be applied by all courts in the event a person
is found guilty of a sexual offence. Some of the people interviewed
are however of the view that some sentences are severe and leave

no discretion to the court, especially, in borderline cases.

Suggestions have been made to the effect that some sentencing

96 Cap 13 R.E. 2002.

97 Section 348A CPA.
98 Section 373 CPA.

202
 discretion should be allowed provided proper guidelines are put in
place to help the court in arriving at just sentencing decisions.
There are also concerns about the procedures and assessment of
compensations payable to victims of sexual offences especially the
fact that compensation is assumed payable at the conclusion of the
imprisonment period. This is seen as a challenge especially for
cases which attract life imprisonment or longer sentences in
general.

To address all these challenges the government should develop and

implement a sentencing policy which will guide the courts and
other players in the process of criminal justice,

3.9 PERFORMANCE OF VARIOUS STAKEHOLDERS INVOLVED

IN THE IMPLEMENTATION OF SOSPA

3.9.1 THE JUDICIARY

3.9.1.1 Field visits and case law seems to suggest that the Judiciary takes
sexual offences seriously. However, as with other components of
the criminal justice system, the Judiciary lacks trained personnel to
handle sexual offences as a specialised entity of criminal law. Some
court officials have attended seminars on how to deal with sexual

offences issues but this is considered inadequate to enable them

develop the skills needed to handle such cases.
m
3.9.1.2 It has been suggested that a specialised court be established to deal
with sexual offences which therefore entails a specialised cadre of
court officials to deal with sexual offences cases. The Commission is

203
 of the view however that time is not ripe for such introduction
because of the paucity of resources. In this case it is better if
members of the Judiciary continue to receive the requisite training
to equip them with skills on how to handle sexual offences.

3.9.1.3 Further, it has been suggested that unless proper record keeping is
put in place, it will continue to be difficult to understanding how
the Judiciary is fairing in terms of discharging its obligations
towards sexual offences. This make it necessary to start re
evaluating the purpose and manner of keeping registers and
technology employed thereon.
3.9.1.4 The Judiciary however has noted with concern the inadequacies in
some provisions especially on corroboration and voire dire. The
Commission recommends these areas to be re-evaluated and

improved along the suggestions made by the court that guidelines

are needed to provide safeguards to matters of corroboration and
voire dire.

3.9.2 THE PROSECUTIONS SYSTEM

3.9.2.1 As with the court system, it can also be said that performance has
been fair from cases that have been processed at court but records
remain a big challenge. Although, the DPP is in charge of all
prosecutions in the court and is expected to get returns in respect of
cases, this has not been the case for a long time now as returns
continue to remain in the police circles with no proper feedback to
the DPP.

204
3.9.2.2 The Government however is carrying out wide reaching reforms in
the prosecution and investigation systems such that the DPP will
prosecute all cases. An office system is also being developed to
ensure that periodic returns are made to the DPP. Such returns will

be submitted to policy makers to enable planning and decision

making in respect of criminal justice. These efforts should be
sustained.

3.9.3 THE POLICE FORCE

3.9.3.1 Investigation of sexual offences, particularly rape cases, is generally

understood not to be a simple exercise and require extra
sympathetic handling of the traumatized victims. To get to the
truth, the investigators must try to establish proper rapport with
the rape victims and help the latter overcome shame, nervousness
and reluctance. It also requires that the investigator impresses on
the victim that he is concerned not only with the arrests and
conviction of the offender but also the victim's welfare. These are

not skills that are in abundance even with female investigators in

Tanzania.

3.9.3.2 Female victims also feel shy and embarrassed to answer delicate

questions posed by male investigating officers. It would be useful if

female investigating officers record the statements of rape victims
wherever possible. Unfortunately, the number of women police
personnel in the country is inadequate allow such officers to be
stationed in every police station.

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 3.9.3.3 In this situation the Police Force has not been able to escape
criticism on the way it handles sexual offences. Suggestions have
been made to establish a police unit that deals with sexual offences
in every station, employ more female police officers, train them in
supportive and sympathetic interviewing techniques as well as on
various skills needed to handle sexual offence cases. Uganda has
such a system and the visit by members from the office of the DPP
in Tanzania to Masaka Police Station in Uganda confirmed that the
arrangement is appreciated as being effective in addressing the
plight of women in sexual offence cases. In countries like Australia

also, increased use of female officers and specially trained 'Sex

Crime Units' have produced positive results.

It is thus recommended that the criticism that are currently levelled

against the Police Force require a positive response which include
the restructuring of the system dealing with sexual offences,
empowering officers through training and employing more trained
female police officers to handle sexual offences case especially on
women and children. It is also useful if counselling was to be
offered by a social worker to the victim of sexual offence before
such a victim is interviewed by the Police.

3.9.4 THE SOCIAL WORK SERVICE PROVIDERS

3.9.4.1 Social work in Tanzania is a regime that is shared by both public

and private actors. Public actors include the officials from the Social

Welfare Department as well as community development and rural

development units. All of these officials are trained on social work

206
 though for different purposes. They are normally expected to be
able to offer basic counselling services to the people in need and to
assist in matters that affect communities, i.e. sexual offences.

However, the reality is different. While, for example, Social Welfare

Officers have been commended in the way they handle marriage
matters, they have not been as effective in addressing issues
relating to sexual offences.

3.9.4.2 On the same note, Community Development Officers and Rural

Development Officers have not been able to assist in the alleviation
of sexual offences many of which take place in the communities
and in the course of development activities in such communities.
Analysts have argued that problems like child marriages, child
prostitutions and FGM take place in areas where many of these
officers are available but not indication is there to suggest that they
are taking action against such practices through different social
work programs and activities. Largely, this is attributed to paucity
in financial resources and infrastructure, but it could also be a case

of lack of initiatives.

3.9.4.3 At non government levels, social work activities are also minimal
except those offered by a few NGOs, FBOs and CBOs. In most cases
however, such activities have targeted legal assistance than social
work per se.

207

m
 It is recommended that some drastic measures need to be taken to

improve the various systems related to social work in the country.

The improvement should target the means to make them deliver
behavioural and attitude change programs, counselling services
and assistance to victims of sexual offences.

3.9.5 MEDICAL SERVICE PROVIDERS

3.9.5.1 Research indicates that availability of medical service to victims of

sexual offences is also a major problem. Medical services are not
available in every part of the country and there are indications that
some of the rape victims for example, treat themselves at their
homes because they cannot easily access medical services. For those
who can, the guarantee of being examined and assisted thoroughly
is also not there because most health centres lack essential facilities,
including kits and medicine.

3.9.5.2 Medical evidence is a crucial piece of information, which, though

not the only evidence which can prove or disprove rape, is required
by most judges and magistrates. It has been observed that some
doctors in hospitals and health centres, in some cases, hesitate to
give frank medical opinion in rape cases for fear of being required
to appear as a prosecution witness and being subjected to what
they perceive as embarrassing cross-examination. Also, the report
of the medical examination is sometime cursory or is not made
available in time. However, the PF 3 issued by the Police has been
criticised as being inadequate in terms of the content and its
purpose in sexual offences. A better form is being advocated by the

208
 medical professionals who also think that such a form should be
jointly developed.

3.9.5.3 The advent of HIV and AIDS also complicates the matter as far as
penetrative sexual offences victims are concerned. Forced sexual

intercourse play a role towards the spread of this pandemic

especially to women and child victims. Unless proper services
become available to victims of forced sex, chances are that a good
number of them will also become victims of HIV and eventually
contract AIDS. It is in this context that the law on HIV and AIDS,

namely HIV and AIDS (Prevention, Control and Treatment) Act,

2008, make it possible for all perpetrators of penetrative sexual
offences to be tested to establish their status for purposes of
criminal proceedings. The law also makes it possible for victims of
penetrative sexual offences to obtain health services at approved
centres if they have been infected with HIV. However, this is far
from being achieved in many areas of this country.

In the final analysis it is being suggested that the provision oi

medical services should be improved so that victims of sexual
offences are not victimised further by the absence of medical
services.

UN

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I**
3.10 TREATMENT OF COMPLAINTS OF SEXUAL OFFENCES AND

MEDICO- LEGAL SERVICES PROVIDED

3.10.1 TREATMENT OF COMPLAINTS OF SEXUAL OFFENCES

3.10.1.1 As stated in the preceding part, the quality of sexual offences

system largely need improvements to enable it treat sexual offence
victims more objectively and with the required dignity. Most
female victims and witnesses view the system as largely wanting in
procedures and structure hence a call for specialised units and a
change in procedures as stated in other parts of this Report.

3.10.2 MEDICO- LEGAL SERVICES

3.10.2.1 Suggestion have been made to the effect that the provision of
medical services should be improved so that victims of sexual
offences are not victimised further by the absence of medical
services. Currently, the services are not adequate both in terms of
quantity and quality. Yet, medical services are crucial in the
continuum of sexual offences case management. For example, the
administration of PF 3 has been singled out as one of the major
problems facing victims of sexual offences and therefore in need of
improvement through changes in the Police General Orders, where
all Police Forms originate.

3.10.3 THE ROLE OF SCIENCE AND FORENSIC INVESTIGATIONS

3.10.3.1 The use of forensic science in investigation in Tanzania in sexual

offences is not new and has been in place for many years through

210
 the services provided by hospitals and health centres, the
Investigation Bureau (IB) as to prints and impressions as well as the
Chief Government Chemist (CGC). There has been some
improvement, especially in the case of the IB following the
introduction of the DNA testing facilities. These facilities are
however stillnew and many people consulted believe that they can
help in unfolding some of the miseries in penetrative sexual
offences, if properly used. However, there is need to develop
regulations on the proper use and purpose of the DNA facilities to
take care of possible abuse.

3.10.3.2 One of the clear cases that vindicate the views that DNA would

have been of much help in the area of sexual offences is the case of
Sadick Msosi vs. R99. In this case the debate was among other things
i
whether the viscous found on the rape victim was among other
things caused by rape. The court disagreed with the medical report
on the matter. The Commission thinks that in such cases DNA

would have been a better avenue to clear the doubt, but chances are >

that samples taken from rape victims are never stored most because
of problems in the investigation kit related to such cases. New
guidelines are being developed by the Police Force for investigators
of sexual offences and perhaps these one will create clarity on
taking, examination and storage samples of rape victims. In this m
case, the Police Force should develop guidelines on investigation
AM
kit(s) for sexual offences.

«_>

99 (DC) Criminal Appeal No21 of2007, HC, Iringa, Unreported.

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—i-dj^i»»» 44-*i
3.11 REPORTS FILED TO THE POLICE AND COMPARED WITH
CASES TAKEN TO COURTS

As stated earlier on in this Report only about 49% of sexual offences cases
are taken to court and on those a similar percentage leads to conviction.
This rate may be low and calls for the improvement of the system as
suggested in the Report. However, other factors such as false reporting
and abuse of the criminal justice procedures caused for example by
corruption should not be ignored.

3.12 CASE MANAGEMENT PROCESS OF SEXUAL OFFENCES

3.12.1 BAIL

Bail is generally available to perpetrator of sexual offences. No one

seems to suggest that bail should be denied to perpetrators of
sexual offences. However, the general views among people
interviewed indicate that there must be clear guidelines on when
bail is and should not be available. Practice among courts differ in
many ways and some perpetrators been given or denied bail in
circumstances attracting the attention of the public.

The general view is that bail should be allowed to sexual offenders but
the process should be guided to ensure that the process does not
operate at the detriment of victims and witnesses. The key is to process
sexual offence cases quickly so that bail does not become the
management tool between charging and final disposal of the cases.

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3.12.2 CHILD AND EXPERT TESTIMONY

3.12.2.1 A lot has been written about how difficult it is for a child to tender

evidence in court, be it in the juvenile court or regular courts.

Writers in this area in Tanzania have alluded to the fact that courts

in Tanzania are not child friendly and make it difficult for children
who go to court either as in conflict with the law (accused) or
witnesses to fail to participate effectively in the proceedings. This
problem is mainly associated with the way the court rooms are
structured and the fact that the system of justice is still adversarial
regardless of the issues involved.

3.12.2.2 Suggestions have therefore been made to the effect that the setting
of court rooms and facilities especially when children are involved
should such as to make the child calm and able to tell the court

what happened. Some think a special room with essential

technology to enable communication without the child having to
physically meet his/her assailant would add value to the quality of
the justice system in addressing children's problems. Obviously,
there is a lot that is required to make sure that a child is able to
follow the proceedings. In South Africa, a claim by a child is taken
on its face value and the onus is not on the child but the accused to

prove that the issue complained of did not take place. This
arrangement is also being proposed for Tanzania although there is
some reluctance in some areas considering the potentials of abuse
for those interested in extortion or settling personal score. A
balance is therefore needed on the need to protect children and the
requirements of fair trial.
m

213
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m
3.12.2.3 With regard to expert opinion, no much use is being made in the
area of sexual offences of experts especially in social work. Medical
experts are used but the quality of expertise displayed seem to be of
doubtful quality especially because most medical professionals do
not want to be involved in criminal prosecutions as they see this as
taking their time away from their core business. One of the
problems that most medical professional cite is the fact that in court
they become grilled as if they are the ones who committed the
offence. They suggest that they would be willing to play their
dutiful role if such situation was to change. Their views are that
once they have submitted a medical report, the law should not
make it mandatory for them to tender it in court especially in an
environment where the progression of cases in court is most
uncertain.

3.12.2.4 In some countries expert reports are taken on their face value and
parties bear the burden of disproving them. This is what some
medical professionals would want to see in Tanzania.

214
 CHAPTER FOUR

CONCLUSION AND RECOMMENDATIONS

4.0 CONCLUSION

4.1 Sexual offences and the way the system is designed to handle such
offences are sensitive matters and usually evoke emotions and sentiments
not easy to resolve or address in work like this. The Commission, in this

context guided by the findings in this report, has arrived to the following
overall conclusions:

4.1.1 The sexual offences laws in place as introduced by SOSPA are still valid
and serving the purposes they were intended for despite the fact that
some provisions need improvements, harmonisation and strengthening.

4.1.2 Despite the conclusion in 1 above, there are generally no guidelines to

help the implementation and operationalisation of the laws in an objective
way. This has made it difficult for some of the actors to apply the laws as
they were intended.

4.1.3 Law alone cannot solve the sexual offences challenges. Other systems
need to be strengthened and used effectively in the process of addressing
sexual offences in the country. To be able to do this efficiently, there is
need to develop a strategic framework that will help to pull the different
systems together to deliver the services required in the management of
sexual offences.

4.1.4 Training and public awareness are still needed if the system is to respond
well to challenge of prevention and elimination sexual offences.

215
m

w
4.1.5. Data management remains a serious challenge in so far as all institutions
involved in prevention and elimination of sexual offences are concerned.
Without improvement in the data management system, it will continue to
be difficult for the government and other interested parties to gauge how
the laws and institutions are performing.

4.2 In view of the above conclusions, that the commission has the following
legal and non legal recommendations:

4.1 LEGAL RECOMMENDATIONS

4.2.1.1 It is the Commissions' view that the system available for data
management in so far as sexual offences (and other offences as well) are
concerned is weak, unreliable and makes it impossible to carry out an
effective assessment of the performance of the law and its institutions in
an objective way. To remedy this, the Commission recommends for
enactment of a special law on criminal research and data management
along the lines of the National Crime Research Centre Act of Kenya. The
proposed special law {National Crime Research Centre Act) should establish
a Crime Research Centre with the following functions:
a. facilitate the carrying out of research into the causes of crime and
its prevention and to disseminate research findings to other
institutions;

b. carry out co-ordinated research into, and evaluate the impact of,
programmes pursued by the agencies responsible for the
administration of criminal justice;
c. gather all crime related data;

d. carry out research into any criminal activity and in particular—

216
 (i) crime causation and prevention;
(ii) group or culture related crimes; ,

(iii) socio-political and economic causes of criminal

behaviour including drug trafficking, peddling or
addiction;
i

(iv) the modus operandi of persons engaged in any criminal

activity;

(v) juvenile delinquency;

i

e. carry out research into deviations from the criminal justice system
with a view to increasing the awareness and responsibility of the
community in the rehabilitation of criminal offenders; ,

f. carry out research into the efficacy and adequacy of criminal

investigation and prosecution agencies, the penal system and
i

treatment of criminal offenders;

g. disseminate its research findings through publications, workshops, '

seminars, the mass media and other appropriate means of '
dissemination;
r

h. communicate its research findings and recommendations to the all f

criminal justice actors communicate, collaborate and foster fc
cooperation in their endeavours to use research findings to address *
criminality in the society and formulation of appropriate policies
and planning based on research findings; tat

217
m
m
 i. liaise with any other research bodies within or outside Tanzania
engaged in the pursuit of similar or related research; and

j. do all such things as appear necessary or expedient for the

performance of its functions.

4.2.1.2 The Commission recommends that section 139A of the Penal Code

providing for trafficking of persons should be repealed because the

mischief it is designed to deal with is already well provided for by the
Trafficking in Persons Act 2008.

4.2.1.3 The Commission recommends for establishment of a Special Victims of

Crime Fund designed to compensate victims of crimes entitled to such
compensation. The fund could be created through fines that are levied
from different offences or from the public purse as proposed in Law
Reform Commission earlier report on "Statutory System of
Compensation to Victims of Crime" which was presented to Attorney
General and the Minister for Justice in May 1987, at paragraph 15 which
covers page 12 to 15 of the said report.

4.2.1.4 While a boy who commits rape as a first offender is to be punished to

corporal punishment only and the second time offender to twelve
months with corporal punishment. This graduated system of
punishment should be extended to other sexual offences like attempted
rape. Commission recommends for amendment of Penal Code to take on

board the graduated punishment to boys who attempt rape. However,

218
 corporal punishment should be dropped altogether as recommended in
other reports of the Commission.

4.2.1.5 It is proposed that current punishments for rape should be retained but
courts should be given more discretion to determine the right
punishment for the offender if convicted.

4.2.1.6 The Commission recommends that what amounts to consent be defined

by the law. That a person consents to sexual intercourse if the person

freely and voluntarily agrees to the sexual intercourse. Further that
consent should in law be negated by any of the following circumstances:
i
(a) if the person does not have the capacity to consent to the
sexual intercourse, including because of age or cognitive
incapacity, or »

(b) if the person does not have the opportunity to consent to the I
i

sexual intercourse because the person is unconscious or

asleep, or

(c) if the person consents to the sexual intercourse because of

threats of force or terror (whether the threats are against, or -»
the terror is instilled in, that person or any other person), or "*
(d) if the person consents to the sexual intercourse because the
person is unlawfully detained.

4.2.1.7 The Commission recommends that Penal Code should be amended to •**

punish a girl of under the age of 18 who engages in sexual intercourse W

outside lawful wedlock. The girl concerned should be dealt with in
m

219
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r—j=m -friMffmrfo'pift-tf il^-~'j-'^"BJ'a~JBi}':^i°^V^'

 accordance with the provisions of the Children and Young Persons Act
and be sent to approved schools if convicted.

4.2.1.8 The Commission further recommends that Penal Code should be

amended to specifically provide that any woman who has sexual

intercourse with a boy who is under the age of eighteen (18) years shall
be guilty of a sexual offence under the Code.

4.2.1.9 The commission recommends that the Penal Code should be amended to

punish any person who unscrupulously takes advantage of heavy

penalties under the sexual offences law to frame up or blackmail or
extort other people.

4.2.1.10 It is recommended that where a boy or a young person of under

eighteen years of age impregnates a school girl envisaged under the
Primary School (Compulsory Enrolment and Attendance) Rules,100 the
offender should be dealt with in accordance with procedure provided
under the Children and Young Persons Act, Cap. 13.

4.2.1.11 The Commission recommends that offenders under Sexual offences who

are children or young persons should be dealt under the provisions of

the Children and Young Persons Act.

,00G.N. No. 280 of 2002.

220
4.2.1.12 On the case of Compensation to victims of crimes, the Commission insist
on its recommendation as provided in its report101 on "compensation for
victims of crime"

4.2.1.13 The Commission recommends that the Primary School (Compulsory

Enrolment and Attendance) Rules102 which create the offence of

impregnating school girls should be amended to punish offenders in

accordance with the Sexual Offences provisions of Part II, Chapter XV of
the Penal Code and Children and Young Persons Act depending on the
age of the victim or offender.

4.2.1.14 The Commission recommends for amendment of Regulation 4 of the

Education (Expulsion and Exclusion of Pupils from Schools)
Regulations103 which was made under GN. No. 295 of 2002, to allow girls
who are impregnated while at school to continue with their studies at

schools or other centres to be designated by the Minister responsible for

education and vocational training.

4.2.1.15 It is recommended that Lesbianism should be specifically prohibited by

the law, since it is largely an unnatural offence though not part of what
can be termed as carnal knowledge. Thus section 154(1) Penal Code
should be amended to that effect.

The Law Reform Commission of Tanzania Report on the on the Statutory System of Compensation to
Victims of Crime, 1987.
I02G.N. No. 280 of 2002.
103 G.N. No 295 of 2002.

221
It

m
-•»•frf-HtpfcCnArjr.^ -.
4.2.1.16 Commission recommends that sodomy obtained by force, fear,
intimidation, misrepresentation; etc should be more culpable than
consensual sodomy. As such it should punished as rape.

4.2.1.17 It is recommended that definitions of "boy", "girl", "consent", "gross

indecency", "hospital", "injury", "man", "prohibited sexual intercourse",
"separated", "sexual abuse", "sexual intercourse", "sexual offence",

"woman", "women's or children's institutions" which appear under the

sexual offences (Special Provisions) Act, [Cap 101, RE 2002] should be
included in the definition part of the Penal Code.

4.2.1.18 The Law of Marriage Act and the Penal Code should be amended to
provide eighteen years for both boys and girls to be a minimum age for
marriages, as recommended at page 17 paragraph 2.1.1 and 2.1.3 of the
Law Reform Commission of Tanzania report on "Law of Marriage Act
1971" which was submitted to the Minister for Constitutional Affairs

and Justice April, 1994.

4.2.1.19 The commission recommends that the Authorities responsible for the
enforcement of sexual offences should prepare computerized DNA data
base that is accessible to those charged with the responsibility of
enforcement of sexual offences. To that end, Regulations should be made
under Criminal Procedure Act, 1985 to prescribe the establishment of a
computerized National DNA Data base system containing indexes of
DNA profiles for a crime scene index, missing/unidentified sexual
offenders' index, sexual offenders' index, suspects' index, unknown

222
 deceased persons' index, statistical index, and other index seen to be
relevant to prescribe.

4.2.1.20 Considering the challenges faced by rural communities in terms of

access to professional Medical Doctors, it is recommended that the

definition of a Medical Doctor be improved to include a rural medical

aide. Most communities are served by qualified rural medical aides who
in most cases are able to file reports that can be used in court or to
facilitate other criminal justice processes.

4.2.2.21 The Commission recommends for the repeal of SOSPA 1998.

4.2 NON-LEGAL RECOMMENDATIONS

4.2.2.1 The general picture gathered from visits in the selected district is that,
most attempted rape cases go unreported because of the lack of
understanding among members of the communities concerning the
ingredients of attempted rape. The Commission recommends for Public
education to members of the public to raise awareness and improve the
rate of reporting of incidents of attempted rape.

4.2.2.2 It is recommendation of the commission that the system of registering

customary law marriages should be improved to assist in the detection
of under-age marriages that are conducted under customary law. This
recommendation is inline with the Law Reform Commissions'
m
recommendation on registration of Customary Law Marriages contained te

in chapter three of its report on "Law of Marriage Act 1971" as rn

223

_.—Mh ."ii^-^rt^j&iiftti-iE^^-ii&iJij^.-p
 submitted to the Minister for Constitutional Affairs and Justice April,
1994.

4.2.2.3 It is recommended that provisions of the Police General Orders and

Prisons Standing Orders on returns must be enforced to the letter, and
all data collected and analysed must also be made available to the
National Prosecutions Services, the National Bureau of Statistics and the
proposed National Crime Research Centre.

4.2.2.4 The Commissions recommends that the Director of Public Prosecutions

should prepare guidelines on determination of consent where
intoxication is alleged in the investigation of the offence of rape.

4.2.2.5 The Commission recommends the preparation of the Sentencing Policy for
sexual offences after adopting a General Sentencing and Penal Policy as
recommended by the Commission in its Report on Long Term Sentences.

4.2.2.6 It is recommended that the Director of Public Prosecutions and other

Authorities responsible for the enforcement of sexual offences should
prepare guidelines on collection, processing and sharing of data on
various issues related to criminal justice in the country and specifically
provide-

(a) Step by step guide on how to manage a victim and an

investigation and to ensure that Police follow these Guidelines;

224
 (b) Information sharing, consultation with and collection of
evidence for the trial between the investigating officers and
prosecution prior to trial;

(c) Failure of the investigating officer to comply with DPP's

Guidelines should constitute misconduct as contemplated in the
regulations governing disciplinary matters;
(d) Formation of specialized investigative teams that can be moved
quickly to scenes of crimes to carry out investigations of
notorious incidents of sexual offences;

(e) Ensure that victims of rape and other sexual offences undergo
full forensic examination, DNA samples including collection of
medical evidence;

4.3 NON-LEGAL RECOMMENDATIONS FOR HEALTH CARE

PROVIDERS

4.2.3.1 It is recommended that all health care facilities should be so organized

as to deal with reported incidents of sexual offences;

4.2.3.2 The Commission recommends that health care practitioners should be

trained in handling sexual offences incidents, initial collection of
specimen and samples for evidential purposes and they could be given
such special designation as Sexual Offences Care Provider;

4.2.3.3 For areas with high incidents of sexual offences, the Commission
recommends designation of 24-hour special health facilities to deal
m
with any reported incident of sexual assaults and that health care

225
m
 facilities should set aside specific rooms for examination of victims of
sexual assaults;

4.2.3.4 The Commission recommends that the Chief Medical Officer in

consultation with the Director of Criminal Investigation should

prepare a Sexual Offence Examination Collection Kit to be used to

collect forensic specimens and prepare guidelines on how to preserve

and secure forensic specimens and keeping of proper register of the
forensic specimens;

4.2.3.5 It is recommendation of the Commission that all professionals and law

enforcement officers involved in the management of sexual offences
must be properly and continuously trained after under going a proper
selection and screening process;

4.2.3.6 The Chief Medical Officer, in consultation with the Director of

Criminal Investigation should prepare Special Guidelines for Sexual

Offence Care Providers for purposes of -
(a) Sensitization on the need to prevent secondary victimization of rape
complainants;

(b) Appreciation that forensic medical evidence is crucial for successful

prosecution of sexual offence cases;

(c) Appreciation that medical evidence is only of value if the medical

examination is properly conducted and all specimens for forensic
analysis are collected correctly and completely;
(d) Need for the Medical practitioners to avoid delays in examination of
victims of sexual assault;

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 (e) Need for the counselling of victims of sexual assault;
(f) Need for medical personnel to link up with investigation teams to
share information on the crime scene;

(g) Providing professional sanctions against medical personnel who fail to

abide by prescribed standard procedures;

4.2.3.7 The Chief Medical Officer, in consultation with the Director of

Criminal Investigation should prepare Special Training Manuals for

continuous training programmes for medical personnel who handle
forensic evidence for sexual offences so as to enable them to use state

of the art methods to examine victims of sexual offences, to give expert

evidence in court, to collect evidence on injury, documentation of
evidence and ability to present this evidence in the courts of law.

4.4. NON-LEGAL RECOMMENDATIONS TO CHECK JUVENILE

DELINQUENCY

4.2.4.1 It is recommendation of the Commission that the education system

should be strengthened, to enable every child to go to school up to the
age of 18. This change should be facilitated through curriculum review
geared at creating educated and learned citizens for the country with
adequate life skills;

4.2.4.2 The Commission recommends that Families, family values,

communities and religious institutions should make the upbringing of
m
children central to their respective values; te-

IM

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H
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4.2.4.3 It is recommended that Institutions responsible for children (e.g.
remand home, juvenile courts and approved schools) should be
expanded and strengthened to reform children and young persons
who come into conflict with the law and they should be equip with
programmes that continue to educate them to become better citizens;

4.2.4.4 The Commission recommends for strengthening the role of the Social
Welfare Department as a central pillar in the process of addressing
child criminality in the society.

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 REFERENCES

REPORTS

The Commission for Human Rights and Good Governance Report on Public
Hearing of Child Abuse 2006

The Law Reform Commission of Tanzania Report on the Law of Marriage Act
1971.

The Law Reform Commission of Tanzania Report on Statutory System of

Compensation to Victims of Crime, 1987.

LHRC: A Report on Research into the Practice of FGM in in Tanzania, Dar es

Salaam LHRC 2005.

New Zealand Law Commission, Preliminary Paper 27: Evidence Law - Character
& Credibility, Auckland, February 1997

Northern Ireland Human Rights Commission, Reforming the Law on Sexual

Offences in Northern Ireland: A Consultative Document - Response of the
Northern Ireland Human Rights Commission, NIHRC, Belfast, 2006.

Victoria Law Reform Commission, "Sexual Offences: Law and Procedure",

Discussion Paper, 2001.

MAGAZINE
W

Athumani, R, "Tanzanians to Decide on Pregnancies", The Citizen, Tuesday, 22 fa*

January 2008
m

229

m
•sltfH^-l- —---
 PAPERS

Andikalo, I., Legal Problems in the Application of SOSPA 1998 in the

Administration of Criminal Justice in Tanzania: A Case Study of Dar es Salaam,
UDSM, 1999.

Equity Tanzania and UNIFEM , Pro-Women Project on the Eradication of

Violence Against Women in Tanzania Report Assessment of Knowledge,
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Provisions Act 1998 in Dares Salaam Region in February 2001.

Haule D.P., The Reception of the Recently Enacted SOSPA No. 4 of 1998, UDSM,
1999.

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Act since its Implementation, HM The Stationery Office, London, 2006.

ILO/IPEC, IPEC Country Profile: United Republic of Tanzania, ILO, Geneva,

Switzerland, 2001.

ILO/IPEC, Tanzania Children in Prostitution: A Rapid Assessment, ILO, Geneva,

Switzerland, 2001.

Law Reform Commission of Tanzania Report on the Law Relating to Children in

Tanzania, 1994.

Law Reform Commission of Tanzania Report on the Law Relating to Marriage in

Tanzania, 1995.

Kulaya H, Violence Against Women and Law in Tanzania, UDSM 1999

230
Mukama J.D., Female Genital Mutilation in Tanzania: A Legal Appraisal of
SOSPA, 1998, UDSM 2002

Peter Rook QC, Sexual Offences Act 2003/ Vulnerable witnesses/ S41 Youth

Justice and Criminal Evidence Act 1999, UK Lecture series, 2005

Robert Ward CBE, et al, Rook and Ward on Sexual Offences: Law and Practice,

Sweet and Maxwell, London, 2004

Scottish Law Commission, Discussion Paper on Rape and Other Sexual Offences,
The Stationery Office, Edinburgh, 2006.

The Law Reform Commission, Report on Sexual Offences against the Mentally
Handicapped, Ireland, 1990.

Tibakweitira, A., Sexual Harassment and the Law in Tanzania: an Examination of

the Causes and Solutions, UDSM 2000

UK Home Office, Protecting the Public: Strengthening Protection against Sex

Offenders and Reforming the Law on Sexual Offences, HM The Stationery Office,
London, 2002.

UN Committee on the Rights of the Child, Concluding Observations of the

Committee on the Rights of the Child, Tanzania, U.N. Doc. CRC/C/15/Add.I56
(2001).

Legislation of INTERPOL member states on sexual offences against children at

http://www.interpol.int/public/Children/SexualAbuse/NationalLaws.

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