A defense of necessity in Tanzania. By Johnson Yesaya

Necessity arises where an individual is forced by circumstances to transgress the criminal law.  The defense of necessity may apply when an individual commits a criminal act during an emergency situation in order to prevent a greater harm from happening.  In such circumstances, Tanzania legal system may excuse the individual’s criminal act because it was justified, or finds that no criminal act has occurred. Although necessity may seem like a defense that would be commonly invoked by accused seeking to avoid criminal charges, its application is limited by several important requirements.

In most jurisdictions, “necessity” is not a defense unless the following elements are clearly proved without any doubt;

Emergency situation is among key elements to justify a defense of necessity. An accused must reasonably have believed that there was an actual and specific threat that required immediate action, a defense of necessity will not be established if there is no proof to emergency situation which triggered the offence committed by an accused person. 

For-instance, “A” is driving a truck full of explosive materials, un-expectedly a truck start to catch fire near crowded area, “A” decides to over speed a truck to un-crowded place, while on the way “A” causes death of a person.

On an example above, a defense of necessity may be applied successful if “A” proves necessity and his intention to escape causing greater harm to people due to explosive materials in a truck which were to explode in any time. He was trying to escape greater harm but un-expectedly he caused death.

No Realistic Alternative.  An individual committed a crime must prove that he had no other realistic options available to him at the time the criminal act was committed.  If he did, his criminal actions would not be justified. This does not mean, however, that no alternative whatsoever must exist. Generally, the individual will always have the option to simply let the greater harm occur and refrain from acting criminally, but courts have determined that this is not a “realistic” option. In the example, for instance, if the bus driver had access to an emergency braking device that was designed to stop the bus when the regular brakes failed, he would not be justified in committing a criminal act to prevent collision because he had a realistic alternative available to him.

No greater harm.  Common law and other legal system of the world have set a standard of “harm” which justify a defense of necessity, in many jurisdictions, a harm caused during exercising a defense of necessity should not be greater than an original danger which triggered to be done an emergency action to curb existed danger. A defense of necessity will be invalid if a defendant caused a greater harm in solving emergency situation.

An example from page one at the first point applies here, take an example if “A” would have caused death of several people on his way to escape crowd, necessity will not be a defense in his situation because the standards set criteria that, no greater harm should occur in curbing emergency situation..

No involvement in a threat.  Any defendant claiming the defense of necessity cannot have contributed to or caused the threat that they were later seeking to avoid by committing the criminal act. Thus, if the bus driver had been advised by his mechanic that the brakes on his bus were failing, but decided not to have them replaced, he could have difficulty claiming the defense of necessity because his failure to act responsibly contributed to the threat he faced.

In United Republic of Tanzania, a defense of necessity is contained under section 18, 18A, 18B and 18C of Penal Code . A right to self defense cannot be separated from a defense of necessity, section 18 of penal code provides that,

“a person  is  not criminally  liable  for  an  act  done  in  the  exercise  of  the  right  of  self  defence or  the  defence  of  another  or  the  defence  of  property  in  accordance  with the  provisions  of  this  Code”.

An individual is allowed to use deadly force in case his or her life is in danger, or in case he/she is protecting his/her property or properties of another. Self defence is subject to limits as provided by section 18B (1), (2) and (3), a person exercising a right to self defense must avoid to use excessive force to cause a death.

A person will not be held criminal responsible in case of self defense or defense of necessity unless he/she use excessive force which causes death.

REFERENCE

STATUTES

Penal Code Cap 16 R:E 2002

ONLINE SOURCES

https://www.lawteacher.net/cases/necessity.php

https://www.justia.com/criminal/defenses/necessity/

https://legal-dictionary.thefreedictionary.com/Necessity+defense