To what extent common law are sources of criminal law in Tanzania by Johnson Yesaya

 PRELIMINARY

No one can be charged with an offence which is not established by statutes, but in other circumstances, common law and precedents are applicable to handle criminal matters when there is a gap to the domestic statutes. Common law and precedents forms a vital part in criminal law since they compliment legislations, precedents are vital in establishing rules and principles not well established or expressed in a statute. Many laws in Tanzania originated from India and England (common law), in 1920, through Tanganyika Order in Council, many statutes from English laws were adopted to be applicable domestically in case there is  a legal gap.

TO WHAT EXTENT PRECEDENT AND COMMON LAW ARE SOURCES OF CRIMINAL LAW IN TANZANIA

Common law includes all English statutes, doctrine of equity and statutes of general application. English laws plays a big role in criminal law in Tanzania until today, section 17 of Tanganyika Order in Council , which is basically “Reception clause”, stated that, criminal  jurisdiction  in  Tanganyika, so  far  as  circumstances  admit,  shall  be  exercised  in  conformity  with  the  criminal  procedure  and Penal  Codes  of  India  and  where  the  same  were  not  applicable  the  courts  were  to  apply  Common Law,  The  Doctrines  of Equity  and  Statutes  of  General  Application  in  force  in  England  on  or before  (The  20th  day  of  July  1920). This is a legal basis of application of common law in Tanganyika until now. 

The position of reception clause is still the same until today, The clause in Tanganyika Order in Council is now copied in The Judicature and Application of Laws Act , section 2(3) where a High Court of Tanzania is given power to apply common law, doctrine of equity and statutes of general application when it is necessary for the administration of justice. The Penal Code of Tanzania , section 3(1)(a) allows applications of common law in case an offence committed fall within scope of common laws, the provision explains that, provisions of penal code will not be barrier to the application of common law.

The actual application of common law was in the case of Hasham  Hamir  Juma  V. Republic , an appellant in this case was charged and convicted of a common law offence of making false statement to police. On appeal before High Court, while confirming  the conviction, the Court held that, regarding section 3(1)(a) of Penal Code , offence  against  the  Common  Law  of  England  is  punishable  in  this territory,

Precedents forms vital part in criminal law in Tanzania. Precedents are all decisions/judgment/rulings of the court which have introduced new principles or rules concerning criminal matters. Case laws are used to determine at future, the cases with same facts and subject matter to a precedent. When a precedent is laid by High Court, other subordinate courts are bound to follow such decisions in deciding future case. All criminal cases decided by Superior Courts (High Court and Court of Appeal) forms part of the criminal law since the future criminal cases will be determine basing on a roadmap laid by those former cases. 

CONCLUSION

Application of common law domestically depends on lacuna in law, when there is a law covering a particular issue in Tanzania, common law cannot be used unless there is satisfying reasons to that effect. Apart from precedents and common law, constitution, statutes, and international laws are also source of criminal law. The Constitution of United Republic of Tanzania , under Article 13, it impose a presumption of innocence to every charged with criminal offences until proved guilty by court. This provision lay important basis in procedure of handling criminal matters

REFERENCE

STATUTES

1: PENAL CODE CAP 16 R:E 2002

2: CRIMINAL PROCEDURE ACT, CAP 20 R:E 2002

CASE LAWS

1: HASHAM HAMIR JUMA V. REPUBLIC (1934) TLR 195

2: ANDREA NICODEMO  v.  REPUBLIC 1976 HCD

ONLINE SOURCE

https://www.britannica.com/topic/common-law  (Accessed: 25 JAN 2021 at 10:29)

https://www.britannica.com/topic/principal-in-the-second-degree (Accessed: 25 JAN 2021 at 10:33)

https://dictionary.cambridge.org/dictionary/english/precedent (25 JAN 2021)