Introduction
The law in Tanzania provides for various kinds of penalties that can be meted out. The Penal Code is the main statute providing for criminal offences. It outlines the types of punishments that may be inflicted by a court. These include death, imprisonment, corporal punishment, fines, forfeiture, compensation and giving security to keep the peace. Tanzania’s wildlife legislation provides for administrative, pecuniary and custodial penalties.
Fines
Section 29 of the Penal Code provides the general guidelines for the issuance of fines under Tanzanian law. Where no sum of money is expressly provided for as to the extent of a fine, the court may impose an unlimited amount of money as a fine, provided that the fine imposed shall not be excessive. The Wildlife Conservation Act does not provide fines for the offences of failing to inform an authorised officer of one’s disqualification to hold a permit and wilfully obstructing or assaulting an authorised officer in the exercise of his duties. Only prison terms are provided for and the provision of the Penal Code as to determining the amount of fine to be issued will apply.
The wildlife legislation in Tanzania also provides for compensation and reimbursement as forms of pecuniary punishments similar to fining. The Marine Parks and Reserves Act provides that where a person causes damage to any fish, aquatic flora, subsurface formation or mineral, he shall be liable to pay for the value of the resources damaged or the cost of restoration of the resources damaged in addition to any other penalty in the Act.
The Zanzibar Forest Resources Management and Conservation Act provides that where any forest produce has been damaged, injured or removed in the commission of an offence, the offender shall pay compensation equivalent to the value of the produce. An offender under the Forest Resources Management and Conservation Act is also required to pay 10 times the amount of any royalties and other fees which, had the act constituting the offence been authorised, would have been payable in respect thereof. Further, the offender is required to reimburse the Forest Authority for any costs incurred in the seizure, storage, maintenance and removal of confiscated goods or any other costs incurred in connection with the offence.
The Wildlife Conservation Act does not always provide for an express monetary figure as a fine but provides for fines in terms of the value of the animal or trophy against which an offence has been committed. The significance of such a provision is that the fines payable are adjustable without requiring the rigorous processes that come with the amendment of the law.
The highest fine provided in this manner is a fine of ten times the value of a trophy for the offence against a trophy whose value exceeds Tshs. 1,000,000 (USD 457). In computing the fine, the court shall rely on a certificate of value of trophies as prescribed by the Minister. The certificate is admissible if it is signed by the Director or by a wildlife officer of the rank of wildlife officer and shall state the value of the trophy or trophies involved in the proceedings.
The highest monetary fine provided for in the Wildlife Conservation Act is a fine of not less than Tshs. 5,000,000 (USD 2,283) for offences relating to fraudulently dealing with licences and permits. The highest monetary fine under the National Parks Act is Tshs. 500,000 (USD 228) for the offense of hunting, capturing or wounding an animal in a national park. Under the Marine Parks and Reserves Act, the highest penalty is a fine of Tshs. 200,000 (USD 91) for the offense of failing to make a report of killing or wounding a non-domesticated animal in a marine park. The highest fine for offences against wildlife in the Forest Resources Management and Conservation Act is Tshs. 300,000 (USD 137).
Imprisonment
Article 15 of the Constitution of Tanzania guarantees every person the right to freedom and to live as a free person. No person is to be arrested, imprisoned, confined, detained, deported or otherwise deprived of his freedom except under circumstances and in accordance with procedures prescribed by law and in the execution of a judgment, order or a sentence given or passed by the court following a decision in legal proceeding or a conviction of a criminal offence. The Penal Code provides that a person liable to imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment, or where the court so determines under the Community Service Act, to community service under a community service order.
The wildlife legislation in Tanzania provides for prison sentences. Prison sentences in some instances are provided as alternatives to payment of fines or in addition to payment of fines. The highest prison term in the Wildlife Conservation Act is a term of not less than 20 years and not more than 30 years for the offense of possession, buying, selling or otherwise dealing in trophies of animals whose value exceeds Tshs. 1,000,000 (USD 457). This prison term is to be meted out in addition to the payment of a fine of ten times the value of the trophy.
Section 86(2)(b) of the Wildlife Conservation Act also provides for a very high prison term of not less than 20 years and not more than 30 years for the offence of possession, buying selling or otherwise dealing in a trophy of an animal whose value does not exceed Tshs. 100,000 (USD 45). This prison term is to be served in alternative to payment of a fine of ten times the value of the trophy in question.
The highest prison term in the National Parks Act is not less than 3 years and not more than 7 years for the offences of hunting, killing, capturing or wounding an animal in a national park without authority or without a licence. The Marine Parks and Reserves Act provides a penalty of 2 years imprisonment as the highest prison term for the offence of failing to report the killing or wounding of a non-domesticated animal in a marine park. The highest prison term in the Forest Resources Management and Conservation Act is a term of not less than 6 months for most of the offenses under the Act.
Forfeiture
Article 24(1) of the Constitution gives every person in Tanzania the right to own property and to the protection of their property held in accordance with the law. This right is therefore not absolute and any illegally held property is subject to confiscation or forfeiture. Tanzanian law allows for both subject matter and instrumentally forfeiture.
(a) Subject Matter Forfeiture in Tanzania
In Tanzania, the Penal Code gives guidance on subject matter forfeiture. It provides that when a person is convicted of an offence the court may, in addition to or in lieu of, any penalty which may be imposed, order the forfeiture to the Republic of any property which has passed in connection with the commission of the offence, or if the property cannot be forfeited or cannot be found, of such sum as the court shall assess as the value of the property.
The Wildlife Conservation Act provides for subject matter forfeiture in Section 111(1)(a) by stating that where a person is convicted of an offence under the Act, the court shall order forfeiture to the government of any animal, livestock or trophy in respect of which the offence was committed.
The Marine Parks and Reserves Act provides that the court may, in addition to any other penalty order a person convicted of an offence under the Act to forfeit to the Government any article or thing illegally possessed within a Marine Park or Reserve and any animal, fish, aquatic flora, vegetation, sand, mineral aquatic substrate or any other thing taken from a Marine Park or Reserve or any product of that thing.
(b) Instrumentality Forfeiture in Tanzania
On instrumentality forfeiture the Wildlife Conservation Act provides that any weapon in the possession or under the control of the accused person at the time when the offence was committed, whether or not there is any evidence to show that the weapon was actually employed by the accused in the commission of the offence shall be forfeited. Further, any article or thing used for the storage, processing, preparation, cooking or otherwise dealing with an animal, game meat or trophy and any vehicle, vessel, aircraft, tent, camping equipment or other article or thing used in the commission of the offence or for the conveyance or comfort of the accused while engaged in the commission of the offence shall be forfeited.
The National Parks Act provides that where any person is convicted of an offence, the court may order that any animal, weapon, explosive, trap, poison, vehicle or other instrument or article made use of by such person in the course of committing the offence shall be forfeited to the Government.
The Marine Parks and Reserves Act allows instrumentality forfeiture by stating that the court may order a convicted person to forfeit to the Government any weapon, explosive, trap, poison, vehicle or any other instrument used by that person in the cause of committing an offence. Section 96(1)(b) of the Forest Resources Management and Conservation Act provides that anything used in the commission of the offence under the Act shall be forfeited.
(c) Procedure on Forfeiture in Tanzania
The Criminal Procedure Act of Tanzania gives guidance on the procedure to be followed for forfeiture in criminal trials. Section 351 provides that where a person is convicted of an offence and the court which passes sentence is satisfied that any property which was in his possession or under his control at the time of his apprehension was used to commit or facilitate the commission of the offence, the court may order that that property be forfeited and it shall be disposed of as the court may direct.
Where the court orders the forfeiture of any property but does not make an order for its destruction or for its delivery to any person, the court may direct that the property shall be kept or sold and if sold, the proceed thereof be retained until some person establishes a right thereto. If no person establishes such a right within six months from the date of forfeiture, the property or the proceeds thereof shall be paid into and form part of the Consolidated Fund.
The Wildlife Conservation Act provides that the court shall order forfeiture notwithstanding the fact that the vehicle, vessel, aircraft, weapon, article or thing to be forfeited was owned by a person other than the accused. However, the owner of the item may apply for it and the court may release it to him if satisfied that the owner did not know that the item was used to commit the offence or if in the circumstances the court finds it just and equitable that the item should not be forfeited. The Wildlife Conservation Act further provides that an animal, livestock, trophy, weapon, vehicle, vessel, aircraft or other article forfeited to the Government shall be placed at the disposal of the Director and shall be deemed to be the property of the Government.
Compounding Offences
The most common administrative penalty in Tanzanian wildlife legislation is compounding offences. Compounding an offence refers to an out of court settlement of a criminal offence where the accused person admits to having committed the offence and the victim or prosecutor accepts a sum of money in compensation for the offence. The accused is effectively acquitted of the offence upon payment of the sum of money. Compounding of offences can only be done where the law expressly provides for it. The Penal Code prohibits the unlawful compounding of offences.
Under the Wildlife Conservation Act, the Director is given the powers to compound offences in respect of which no minimum sentence of a fine or imprisonment is prescribed under the Act. The offence is compounded by requiring the offender to pay a sum of money which shall not be less than Tshs. 200,000 (USD 91) and not more than Tshs. 10,000,000 (USD 4,566). Further, the offender must have admitted in writing to having committed the offence and agreed to the offence being compounded. The Director is required to give a receipt for any sum paid for compounding an offence.
Where a person is aggrieved by a decision given as to the amount of money to be paid for compounding an offence, he may appeal to the High Court within 30 days. The Director is required to file periodic returns to the Director of Public Prosecution (DPP) on all offences that have been compounded under the Wildlife Conservation Act.
The National Parks Act provides that any Tanzania National Parks Authority officer may compound any offence committed under the National Parks Act or regulations made thereunder. The offender must admit in writing to the commission of the offence and agree to it being compounded. An offender shall be required to pay a sum of money not exceeding Tshs. 100,000 (USD 45) when the offence is compounded and shall be issued with a receipt by the officer compounding the offence. Section 28 of the National Parks Act gives a conflicting provision as to the amount to be paid when an offence is compounded. It provides that the amount of money to be paid by the offender shall not exceed Tshs. 200,000 (USD 91).
Under the Zanzibar Forest Resources Management and Conservation Act, the Forest Administrator is given powers to compound offences under the Act where the offender makes an admission in writing. When the offence is compounded, the offender shall be required to pay a sum of money equal to the fine specified in the Act for the offence together with all reasonable expenses the government may have incurred in the seizure, storage, maintenance or removal of any article seized in connection to the offence. The Forest Resources Management and Conservation Act further provides that the compounding of an offence thereunder shall be a bar to further penal proceedings against that person in respect to that offence.
The Marine Parks and Reserves Act does not have any provisions for compounding of offences.
Denial, Withdrawal and Cancellation of Licenses and Permits
Another form of administrative penalty under the wildlife legislation in Tanzania is the refusal to issue licenses and permits and the cancellation, variation, suspension or withdrawal of licenses and permits that have already been issued. The Wildlife Conservation Act empowers the Director, a wildlife officer or licensing officer, for any good reason, to refuse to issue any person with a certificate, license, permit or written permission under the Act. A certificate, licence, permit, written permission or other written authority may also be cancelled, varied or suspended for good cause.
The reasons for refusing to issue, cancelling, varying or suspending these documents include fraud, forgery, misrepresentation and previous convictions of the applicant. A person aggrieved with the refusal, cancellation, variation or suspension of permits and licences may appeal to the Minister within 30 days of the decision being made.
The Wildlife Conservation Act further provides that the Director may withdraw an authorisation for wildlife breeding, game ranching, game farming or running of wildlife zoos, sanctuaries and centres where the person to whom the authorisation is given is convicted of an offence under the Act or where he contravenes any of the terms and conditions of the authorisation.
The Marine Parks and Reserves Act provides that no permit, licence or certificate shall be issued to any person who has been disqualified because of past contravention or suspension for breach of the Wildlife Conservation Act, the National Parks Act or any other law relating to wildlife until the authorised officer specifically lifts such disqualification.
The Zanzibar Forest Resources Management and Conservation Act provides for cancellation of licenses issued as a penalty when a person is convicted of an offence under the Act. This is in addition to other penalties provided under the Act.
Civil Remedies
The Marine Parks and Reserves Act provides for civil remedies for violations of provisions under the Act. Section 36 provides that nothing in the Act shall affect the right of the government or any person to sue for and recover compensation in respect of damage or injury caused by an offence against the Act.
Repeat Offenders in Tanzania
In Tanzania, the wildlife legislation provides for higher penalties for repeat offenders. The Marine Parks and Reserves Act doubles the penalty for a repeat offender. Further, it significantly increases the penalty for a person who commits any other offence under the Act. The Zanzibar Forest Resources Management and Conservation Act provides that if any person is convicted of an offence under that Act within 2 years of a previous conviction under the same Act he or she shall be liable to double the fine or double the imprisonment term or both.
