Defences in criminal offences.

Bonafide claim of Right – section 9 of Penal Code. It arises where the Act done or omitted to be done by a person in respect of property was done in exercise of an honest claim of right and without intention to defraud. If the defense is pleaded successfully the accused is not criminally responsible. He/She will be acquitted. See Hanne Ndologa vs. Sengula Chisonela [1992] TLR 1.

Mistake of Fact: Section 11 of Penal Code. The sanction is to the effect that a person is not criminally responsible for act or omission to any greater extent than if the real state of things had been such as he believed to exist. 

Exception: see proviso to section 11 of the Penal Code.

COMPULSION: Section 17 of Penal Code. It is a defense of criminal liability. It is invoked when a person is compelled to do or omit to do the act by threats on the part of the other offender or offenders who instantly want to kill him or do him grievous badly harm if he refuses. In order for the defense to succeed, the threat must not be of future injury.

SELF DEFENCE: 

Is a defense of another and property – section 18 of the Penal Code. If they are pleaded successfully, a person will not be criminally liable. 

Note: section 18B(1) of the Penal Code requires one to use force in self defense, defense of another or property which is 

reasonable. Excessive force is punishable under section 18B (2) of Penal Code. 

If excessive force in self defense causes death of another, the person who has caused such death will be guilty of manslaughter. See section 18 B(3). Self dense; defense of property or defense of person causing death which is not punishable in law is provided under section 18C (1) (a)-(c) of the Penal Code.

KILLING ON PROVOCATION: section 201 of the Penal Code. 

The provision of section 201 of the Penal Code are to the effect that if a person causes the death of another in the heat of passion caused by sudden provocation before such passion is guilty of manslaughter. Thus, if a person pleads it successfully in offence of murder, he will be found guilty of manslaughter. Further in grave provocation on, such provocation is a mitigating factor in manslaughter cases and the court should exercise leniency. See Valerian Sail vs. Republic [1990] TLR 87

INTOXICATION: Section 14 of the Penal Code.Generally, it is not a defense to any criminal charge. However the accused person can plead successfully the defense of intoxication under the following circumstances: 

i). Where the state of intoxication was caused without his consent by malicious or neglect act of another person. In these circumstances, the accused will be discharged. See section 14 (3) Penal Code. 

ii). Where the person charged was by reason of intoxication, insane, temporarily or otherwise during the commission of an act or omission. In this circumstance the provisions of Penal Code and Criminal Procedure Act relating to insanity shall apply i.e the Court will be required to make special finding to the effect that the accused did the act or made the omission charged but reason of his insanity is not guilty of the offense. i.e special finding of guilty but insane.

INSANITY: – Section 13 Penal Code.

This defense exonerates the accused from criminal liability. In order to be pleaded successfully it must be shown that the accused did the act or omission through any disease affecting his mind to the extent of being incapable of understanding what his is doing of knowing that he ought not to do the act or make the omission. If the court is satisfied on the evidence on record that the accused did the act or omission while laboring under insanity, it is under section 219(2) of Criminal Procedure Act may lead to make special finding to the effect that the accused did the act or omission charged but by reason of his insanity is not guilty of the offence. i.e special finding of guilty but insane what court will do then – see section 220(3). 

Note: the defense of insanity must be raised at the time when the person is called upon to plead. see section 219(1) of Criminal Procedure Act.

ALIBI:- section 194(4),(5) and (6) of Criminal Procedure Act.

It refers to the evidence that proves that an accused person was in another place at the time of commission of an offence and so could not have committed it. In the case of Charles Samson vs.Republic [1990] TLR 39, the Court of Appeal of Tanzania held that where the Court does not take cognizance whatsoever of alibi, both in summing up to the assessors and in the judgment, it amounts to mistrial and a consequential miscarriage of justice.

NOTE: Procedure before accused relies on alibi in his defense:

i). he or she must give a notice to court and prosecution of intention to rely on defense of alibi before hearing of the case. 

See section 194(4) of Criminal Procedure Act. 

ii). Where notice before hearing of the case of the intention to rely on alibi is not given, then the accused is required to furnish the prosecution with the particulars of alibi at any time before the close of prosecution case.