1 - Law Concepts, Offences & Elements of Criminal Liability.ppt

PASIANSI WILDLIFE TRAINING INSTITUTE
MODULE CODE: WLTO5103
MODULE NAME: WILDLIFE
CONSERVATION LAWS AND POLICIES
2019 - 2020
MAKUNGA, J. E
August 29, 2022 MAKUNGA J. E - PWTI, 2019 1

Concepts Related To Wildlife
Laws, Offences and Elements of
Criminal Liability

Meaning of Law
 To religious people, the term law is closely
associated with God's commands or directives or
rules contained in Holy Books, thus 'law of nature'
(i.e. law proclaimed my a supernatural beings, e.g.
ancestors, spirits, goddess and etc.).
 But, to social scientists, lawyers, politicians and
economists, the term 'law' relates with the command
of the sovereign (state) and its various institutions,
thus 'law of science' (i.e. peoples' will or agreed
system and standards of conduct). However, the
area of concern in this brief outline is the 'law of
science'.

Meaning of law cont.…
Summary: Law means a set of rules and
norms or a standard of pattern of behaviour
to which every individual in the society has
to conform to.
Laws/rules ought to be obeyed, otherwise,
the violator of such laws/rules or standards
behaviour can be taken to court, tribunal or
other formal/informal institution or person
and get punished/sanctioned.

Function of Law
General functions of law:
a) To structure and distribute public powers to both
individual personnel and organs/institutions of
the state (e.g. Judiciary, Legislature and
Executive; or powers of the president as
opposed to powers of the DPP or Attorney
General and etc.
b) To regulate private relations or dealings (e.g.
land law, contract law, marriage) and etc.
c) To provide a way of resolving or avoiding
conflicts/disputes in the society.

Function of law cont….
Specific functions of law:
i. To maintain public order, e.g. criminal law
ii. To regulate human and state dealings and
cooperation/interaction, e.g. law of contract,
international laws, etc.
iii. To act as a medium of dispute resolution, e.g. law of
tort, procedural laws etc.
iv. To protect public morality, e.g. criminalizing
homosexuality, prostitution, pornography, etc.
v. To regulate governmental powers, e.g. constitutional
law, administrative law
vi. To protect individual rights and freedom, e.g. bill of
rights, anti-discrimination legislation.

Classification of Law
By classification of law we mean, branches or types
or divisions of laws. Laws may be classified into two
(2) major categories;
1. Municipal laws
 These are national or local laws enacted by
legislative bodies in Tanzania. Municipal laws are
also divided into two (2) groups;
a) Public law and Private law
 Public law, is the law which deals with the
relationship between the state and individuals, the
distribution and exercise of public powers.

Classification of law cont….
 Braches of public law are Constitution law,
Administrative law, Regulatory law (e.g. EWURA &
TCRA laws), and Criminal law (e.g. Penal Code).
While,
 Private law/ Civil Law, is the law which governs
relationships between private individuals, for
example, law of contract, tort law, property law,
succession (and trust) law, and etc.
 Private laws usually do not involve the government,
and are laws that allow one private entity to sue
another private entity in a civil lawsuit.

Classification of law cont....
b) Substantive law and Procedural law
 Substantive law, defines how the facts in the
case will be handled, as well as how the crime is
to be charged. It is the set of laws that governs
how members of a society are to behave.
 Procedural laws, provides the process that a
case will go through (whether it goes to trial or
not). The procedural law determines how a
proceeding concerning the enforcement of
substantive law will occur.

2. International laws, these are laws which
govern intercourse or relations between
sovereign states, or individuals and
sovereign states at international level,
e.g. law of high seas, diplomacy, and
international crimes (e.g. genocide,
crimes against humanity, and etc.).
International law may be divided into two
classes;

 Private international law, is the set of rules entered
into by the governments of various countries that
determine the rights and regulate the intercourse of
independent nations.
 For examples, family law matters, recognition of
judgment, torts (a civil wrong that causes a claimant
to suffer loss or harm), contracts, etc. “Private
international law is the body of conventions, model
laws, national laws, legal guides, and other
documents and instruments that regulate private
relationships across national borders.

Public international law, is the body of rules
that is legally binding on States and
international organizations in their
interactions with other States, international
organizations, individuals, and other
entities.
It covers a range of activities; such as,
diplomatic relations, conduct of war, trade,
human rights and sharing of oceanic
resources.

For example, international law sets out legal
obligations, responsibilities, and rights of one
State against another. This aspect of
international law is based on sovereign
equality. In other words, each State is a
sovereign and each State is equal to, and
independent of, all other States.
This means that when international law
regulates the relations between States, it
applies equally to all States.

Nature of Legal System in Tanzania
 Tanzania’s legal system is based on the English
Common Law system. Most nations today follow one
of two major legal traditions: common law or civil law.
The common law tradition emerged in England during
the Middle Ages and was applied within British colonies
across continents.
 Common law is generally uncodified. This means that
there is no comprehensive compilation of legal rules and
statutes.
 It is the system of jurisprudence that is based on the
doctrine of judicial precedent, the principle under which
the lower courts must follow the decisions of the higher
courts, rather than on statutory laws.

Nature of legal system in TZ cont….
 These precedents are maintained over time through
the records of the courts as well as historically
documented in collections of case law known as
yearbooks and reports.
 The precedents to be applied in the decision of
each new case are determined by the presiding
judge. As a result, judges have an enormous role in
shaping American and British law.
 Civil Law, in contrast, is codified. Countries with
civil law systems have comprehensive, continuously
updated legal codes that specify all matters capable
of being brought before a court, the applicable
procedure, and the appropriate punishment for
each offense.

Sources of Law
 Sources of law refer to the origins from which rules of
human conduct come into existence and derive their
legal force. Originally, they included customs which were
then developed and transformed into precedents,
legislation and interpretations of both:
i. Constitution
ii. Acts of Parliament
iii. Customary laws
iv. Case laws
v. Law Reports (TLR, HCD, EALR, Commonwealth Reports)
vi. By-Laws/Subsidiary Legislation
vii. Orders/Circulars

Sources of law cont….
1. The Constitution
 This is the fundamental law of the land. There
are basically two Constitutions in the United
Republic of Tanzania. There is the Tanzania
Mainland Constitution referred to as the
Constitution of the United Republic of
Tanzania, 1977 as amended severally, which
includes issues of the union and the
Constitution of Zanzibar which applies only to
matters of Zanzibar issues.
 Before the present Constitution, Tanzania
mainland had five constitutions while Zanzibar
had three.

2. Statutes/Acts of Parliament /Local Laws
 These are sets of written law or statutory laws
passed by the parliament of Tanzania since
independence in 1961 and sets of laws passed
by the colonial legislative council.
 All sets laws are subject to the basic law of the
land which is the Constitution of the United
Republic of Tanzania of 1977 as amended
severally.
 Apart from ‘Acts’ there are other written laws
passed through delegated powers and
commonly referred to as “subsidiary, subordinate
or delegated legislation”.

Defining statutory law:
 These are laws passed by local legislature and are
called “Acts’ to refer to laws passed by the local
legislature as from the period of independence in 1961
and those passed by colonial legislative council are
called ‘Ordinances’.
 However, as of 2002, through an Act of Parliament, The
Laws Revisions Act of 1994 Chapter Four of the laws of
Tanzania [R.E. 2002,] all legislations previously known
as Ordinances, (laws enacted before independence i.e.
laws enacted by colonial administration-Orders in
Council, commonly referred to as Ordinances) are now
legally recognized as Acts.

3. Case Law/ Precedents/Jurisprudence
 This is yet another important source of law in
Tanzania. These are cases arising from the
decision of the High Court and Court of Appeal.
They are either reported cases or unreported.
Therefore, they form the basic precedents of
Tanzanian laws and bind lower courts thereto.
 Reported cases in Tanzania can be found in a
number of Law Reports. Between 1957 and
1977 cases reported from the High Court of
Tanzania and the East African Court of Appeal
appeared in East Africa Law Reports.

The main sources of Tanzanian court decisions:
i. The High Court Digest (HCD)- the digests are the
collection of cases decisions.
ii. The Tanganyika Law Reports (TLR) - this is the
collection of cases decided by the High Courts and
Court of Appeal (Supreme Court) of Tanzania.
iii. Unreported Cases of the High Court and Court of
Appeal.
iv. The East African Court of Appeal (EACA) - this is a
collection of cases decided by the then East Africa
Court Appeal which was dissolved by the disintegration
of the then East Africa Community.
v. Others: The All England Reports, King Bench, Queens
Bench,

4. Customary and Religious Laws
 Customary and/or religious law is another of law that
makes another authority to Tanzanian sources of
law. Customary law and Islamic law is established
under section 9 of the Judicature and Application of
Laws Act, Chapter 358 of the Laws of Tanzania [R.E.
2002] (JALA).
 These are sets of rules developed through customs,
practices and/or usages of Tanzanian ethnic tribes
and they are accepted by Tanzanian as binding
rules. The customs were accepted by the colonial
regime thus accepted to be applicable in ‘native
courts’ to native parties.

 At independence these rules continued to be binding
and were made part of the laws of Tanzania in all
courts having exclusive application at the primary
courts.
 The application of customary laws is only limited to;
i. Civil cases particularly on issues of marriage,
succession, inheritance, land and family relations.
ii. Customary law applies only to members of the
community concerned.
iii. Customary law applies only when there is no
written law, does not conflict with statutory law and
as of today’s conception, to circumstances which
are not disgusting to principles of human rights.

 To date customary laws include: Codified customary
laws, Islamic laws and other religious laws.
i. Codified customary laws or Statutory Laws
 These are sets of rules codified under the procedure
set forth in the Judicature and Application of Laws
Ordinance. They include a few of rules on the laws of
person, rules of inheritance in some tribes, and rules on
wills. Declaration) Order (Numbers one to eight), 1963.
ii. Islamic Laws
 These are few sets of law which apply to Moslems
inhabiting in Tanzania but they are not applied in its
whole fashion as it is in Islamic legal system countries.

 It empowers courts to apply Islamic law to matters of
succession in communities and parties that
generally follow Islamic law in matters of personal
status and inheritance.
iii. Personal and Other Religious Laws
 Much as the application of Islamic law is in place
and enjoy application in Tanzania courts through
Section 9(1) of the Judicature and Application of
Law Ordinance of 1961. The courts, particularly the
Primary courts and High Court of Tanzania have
been liberal to apply other rules from personal and
other religion in dispensing justice where written
laws do not provide for solution.

5. Received Laws
 Received Laws established under Section 2.3 of The
Judicature and Application Laws Act, Chapter 358 of
the Laws of Tanzania [R.E. 2002] (JALA).
 “Received laws” is a system which is not indigenous to
but which has been imposed or accepted in a given
state/ country. These are laws which were introduced
in Tanganyika by the British colonial regime.
 For the smooth and soothing (calming) operations, the
British colonial government imported various laws in
the territory which formed part of the overall legal sub-
systems of respective colonies pegged to the imperial
(royal) system.

6. International Law (Treaties and Conventions)
 International Law is another source of law in Tanzania.
This is a sum of total of norms accepted by
international community to regulate relations among
the states
 This comprises of the Treaties and Conventions
signed and then ratified by the Parliament. However,
International Treaties and Convention are not self-
executing.
 Once signed, they are subjected to ratification process
which involves the National Assembly and the
President. Once ratified, they become enforceable in
the courts of laws.

 Thus, when ratified, they become part and parcel
of the Act of Parliament and can apply the
conventions and treaties to which Tanzania is a
party in the Courts in Tanzania.
 The basic source of international law, among
others are treaties and conventions, e.g.
Convention On International Trade on
Endangered Species Of Flora And Fauna
(CITES), Convention on Biological Diversity
(CBD), United Nations Framework Conventions
on Climate Change (UNFCCC), Kyoto Protocol
(KP), Ramsar Convention etc.

References
i. Shadrack, A., (2011). Department of Public Law,
School of Law (Formerly, Faculty of law) at
the University of Dar es Salaam. (CTL CLASS –
OCTOBER 27, 2011)
ii. Farrar and Dugdale (1990) Introduction to Legal
Method. 3rd. London: Sweet & Maxwell. (ref.
Chapter1).
iii. Shivji, I.G., et al (eds), Constitutional and Legal
System of Tanzania: a Civics Sourcebook, Dar es
Salaam: Mkuki na Nyota Publishers, 2004.
iv. URT (no date ). Tanzania Human Rights
Jurisprudence. Retrieved from:
“http://hrlibrary.umn.edu/research/TanzaniaB.html”

Offences and Elements of Criminal Liability
 Crimes are offences against the state. Criminal
Offence is any action which constitute a serious
offence against an individual or the state and is
punishable by law.
 An offense, meaning "a punishable act. “The noun
offence comes from the Latin word offendere,
which means “strike against.” Any time you break
a law or a rule it is an offence against that law or
rule.
 Criminal law are laws which provide punishments
to all offences against the State.

Elements of criminal liability cont….
 A person cannot usually be found guilty of a
criminal offence unless two elements are
present: an actus reus, Latin for guilty act; and
mens rea, Latin for guilty mind.
 Both these terms actually refer to more than just
moral guilt, and each has a very specific meaning,
which varies according to the crime, but the
important thing to remember is that to be guilty of
an offence, an accused must not only have
behaved in a particular way, but must also
usually have had a particular mental attitude to
that behaviour.

 An actus reus can consist of more than just an
act, it comprises all the elements of the offence
other than the state of mind of the defendant.
 Depending on the offence, this may include the
circumstances in which it was committed, and/or
the consequences of what was done.
 For example, the crime of rape requires unlawful
sexual intercourse by a man with a person without
their consent. The lack of consent is a surrounding
circumstance which exists independently of the
accused’s act.

Mens rea is the Latin for ‘guilty mind’ and
traditionally refers to the state of mind of the
person committing the crime.
The required mens rea varies depending on
the offence, but there are two main states of
mind which separately or together can
constitute the necessary mens rea of a
criminal offence: intention and recklessness.

 Intention is a subjective concept: a court is
concerned purely with what the particular
defendant was intending at the time of the
offence, and not what a reasonable person would
have intended in the same circumstances.
 Recklessness, means taking an unjustified risk.
Its legal definition has radically changed in recent
years. It is now clear that it is a subjective form of
mens rea, so the focus is on what the defendant
was thinking.

Strict criminal liability
Strict criminal liability is criminal liability
without proof of fault. Liability is strict if it
does not require proof of fault or mens rea
as to an aspect of the offence.
Strict liability is a legal term referring to the
holding of an individual or entity liable for
damages or losses, without having to
prove carelessness or mistake.

Strict criminal liability cont….
 When pursuing a legal action for liability, the
plaintiff must generally prove that the defendant
was somehow at fault, whether by negligence or
direct fault, for the damages incurred by the
plaintiff.
 A driver who is held strictly liable for using a
motor vehicle without insurance must have been
driving the car intentionally (else she would not
count as ‘using’ it); liability is strict as to the lack
of insurance, since she is guilty even if she was
(reasonably) sure that she was insured.

 Other examples of strict criminal liability includes:
i. Wildlife cases e.g. poaching,
ii. Traffic offences; in many places, it doesn’t
matter whether the driver knew she went over
the speed limit, the plain fact that she did
typically justifies a conviction.
iii. Dog bites; the defence for strict criminal liability
is provocation especially for animal attack.
iv. Damages caused by domesticated animals

v. Statutory rape; laws make it illegal for anyone
to have sexual intercourse with a minor (with
minimum age). This is a strict liability crime
because even if the offender believed his/her
partner was of legal, consenting age s/he is
still guilty.
vi. Selling alcohol to minors; is a strict liability
crime because a person who sells alcohol to
minors (with minimum age) can be convicted
even if s/he believed the minors were old
enough to buy alcohol.

Categories of Offences
 There are many different types of crimes but,
generally, crimes can be divided into four major
categories, personal crimes, property crimes,
inchoate crimes, and Statutory Crimes:
i. Personal Crimes – “offenses against the
Person”: These are crimes that result in
physical or mental harm to another person.
Personal crimes include: Assault, battery, false
Imprisonment, kidnapping, homicide, Rape
e.g. statutory rape (sexual assault).

Categories of offences cont….
ii. Property Crimes – “Offenses against Property”:
These are crimes that do not necessarily
involve harm to another person. Instead, they
involve an interference with another person’s
right to use or enjoy their property. Property
crimes include:
 Larceny (theft), robbery (theft by force) - this is
also considered a personal crime since it results
in physical and mental harm, burglary, arson,
embezzlement, forgery, false pretences, receipt
of stolen goods.

iii. Inchoate Crimes – “Inchoate” translates into
“incomplete”, meaning crimes that were
begun, but not completed. This requires that a
person take a substantial step to complete a
crime, as opposed to just “intend” to commit a
crime. Inchoate crimes include:
 Attempt – any crime that is attempted like
“attempted robbery”, solicitation (a request for
something, usually money) , conspiracy.

iv. Statutory Crimes - a violation of a specific
state or federal statute and can involve either
property offenses or personal offense.
Statutory crimes include: alcohol-related
crimes such as drunk driving (DUI), Selling
alcohol to a minor.
 The crimes listed above are basically prohibited
in every state, but each state is different in how
the law is written, how the behaviour is regulated
and the penalties that each crime potentially
carries.

Felonies Vs Misdemeanors
 Felonies are the most serious classification of crimes,
punishable by incarceration (imprisonment) of more
than a year in prison and in some cases, life in prison
without parole or capital punishment. Both property
crimes and person crimes can be felonies. Murder,
rape, and kidnapping are felony crimes. Armed
robbery and grand theft can also be felonies.
 Misdemeanors are crimes that do not rise to the
severity of a felony. They are lesser crimes for which
the maximum sentence is 12 months or less in jail.
The distinction between misdemeanors and felonies
lies within the seriousness of the crime.

Felonies Vs Misdemeanors
 But some crimes that are usually treated as
misdemeanors in the courts can rise to the
level of a felony under certain circumstances.
 For example, in some states, possession of
less than an ounce of marijuana is a
misdemeanor, but possession of more than an
ounce is considered possession with intent to
distribute and is treated as a felony.

Infractions Vs Capital Crimes
 Infractions are crimes for which jail time is
usually not a possible sentence. Sometimes
known as petty crimes, infractions are often
punishable by fines, which can be paid without
even going to court.
 Capital crimes are those which are punishable
by death. They are, of course, felonies. The
difference between other classes of felonies and
capital felonies is the fact that those accused of
capital crimes can pay the ultimate penalty, the
loss of their life.

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