Q&A with FB Attorneys

Simba Yanga fans fight in public

My brother is a Simba Sports Club fan. A few weeks ago, while watching a match between Yanga and Simba in a bar, he exchanged harsh words with a Yanga fan which led to a fight between the two. Other fans who were watching the match arrested the two and took them to the Police station. He was granted Police bail but has been told by the Police that they will be taken to court and charged with the offence of fighting in public. There are two things I would like to know from you. Is there an offence called fighting in public if none of the two involved in the fight sustains an injury and have not even complained or reported the incident to the Police? Was it lawful for the fans who were not victims of the fight to arrest my brother and take him to the Police? Was this arrest not illegal?

RS, Arusha

Fighting in a public place is an offence under section 87 of the Penal Code. The offence is called affray and it attracts a sentence of imprisonment for 6 months or a fine of TZS 100,000. Section 5 of the Penal Code defines a public place broadly to cover any building, public way or conveyance to which the public are entitled or permitted to access either without any condition or upon condition of making any payment. Hence, a bar falls within the definition of a public place. Section 16(1) and 14(1)(a) of the Penal Code confers powers on a civilian to arrest a person who in his presence commits a breach of the peace. Fighting in public is a breach of the peace for which a civilian is allowed to arrest without a warrant. It does not matter that those involved in the fight have not complained to the Police or have not sustained injury.

Incest by children under the age of 18 years

I found a daughter of my co-wife who is 17 years old having sexual intercourse with my son who is 15 years old. I reported the incident to the Police for them to charge the girl with the offence of having prohibited sexual relationship with my son because she is older than my son. To my surprise, Police refused to charge the girl on the ground she is under 18 years and cannot commit prohibited sexual intercourse of incest. Does this mean girls under 18 are allowed to sexually abuse boys who are younger than them?

LK Tabora

The Police are right. Under section 160 of the Penal Code which establishes the offence of incest by females, only females of or above the age 18 years can commit the offence of incest by female. While a girl under 18 cannot commit incest by female, a boy under 18 years, can by virtue of section 158 of the Penal Code, commit the offence of incest by male. The age of a boy can only be relevant in assessing the proper sentence to be imposed when he is found guilty of the offence but for girls, their age determines their capacity to commit the offence of incest by female. This means your son who is younger than her sister can be prosecuted for incest by male but his sister who is 17 years cannot be prosecuted for the offence of incest by female even if she is the one who might have incited the boy to have sexual intercourse with her.

Forced to work on Saturdays

I am a youth who has recently secured a job on permanent term contract in a local company based in Southern Tanzania. According to the Company’s Human Resources Policy, Saturday is a working day. However, I am a Christian of Seventh Day Adventist who does not work on Saturday because of my faith, Saturday is regarded as a Holy Day meant for worship and rest. Our company’s head of Human Resources is questioning me for absenteeism from work on Saturdays. Despite telling him that Saturday is my worship day, he does not want to understand. The head of HR has intimated that he will deduct the Saturdays I have not been going to work from my annual leave days which means I will have zero balance of annual leave every year. I feel I am being treated unfairly and wish to know if the employer is allowed to force me to work on Saturdays which is my worship day. Secondly, advise me on the legality of my consent to allow Saturdays to be deducted from annual leave and not have annual leave every year.

AM, Songea

Employees who worship on Saturdays have the right to rest on Saturdays. The right to worship is guaranteed by Article 1 of the Discrimination (Employment and Occupation) Convention, 1958; Article 19(1) of the Constitution of Tanzania and section 7(4)(g) of the Employment and Labour Relations Act. An employment policy or practice which denies an employee the right to worship or keep his faith is a nullity because such a policy or practice contravenes not only the Constitution of Tanzania which is the superior law of the land but also the Employment and Labour Relations Act from which all the employment policies and practices derive their validity. It is wrong for the employer to offset the employee’s right to rest on Saturday for worship from his annual leave. The right to rest on Saturday for those who worship on that day and the right to annual leave are two distinct rights. Moreover, under section 31(6) of the Employment and Labour Relations Act, an employer is not allowed to require an employee to work for a continuous period of two years even if the employee is paid double for working during the time he was supposed to be on annual leave. So, your arrangement with the head of HR not to take annual leave is unenforceable.

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