Indirect participation in commission of a crime in Tanzania (parties to a crime) by Johnson Yesaya

 

PRELIMINARY

Commission of a criminal offence can be done when an offender is actually at a scene or when an offender is not exactly at the scene depending to how they participated in commission of that crime. The English law classifies parties to an offence in four groups, one is principal in the first degree, second is principal in the second degree, third is accessory before the fact and fourth is accessory after the fact. A principal offender in the first degree is a one who actually commits a crime physically by his own hand, or through a hand of unsuspecting agent or through a hand of an innocent party. 

A principal offender in the second degree is a one who aid or abet the commission of an offence. Abetting or aiding commission of a crime must be proved through determining the intentions of a person who aided commission of that crime.  Abetting a crime without knowledge cannot form part of the offence, a person is guilty of abetting a crime if, at  the  time of commission of an offence, he  rendered  effective aid  to  the  principal  offender  or  else  must  be  present  and  in  some  way  lend  encouragement  to  him in  what he  is  doing,  in  addition  v/hen  the  existence  of  a  particular  intent  forms  part  of  the definition  of  the  offence,  a  person  charged  with  aiding  the  commission  of  the offence  must  be  shown  to  have  known  the  existence  of  the  intent  on  the  part  of  the  person  so aided.

Accessory before the fact involves counseling,  procuring  or  commanding another person  to  commit  an offence which  is  committed in  consequence  of  such  counselling,  procuring  or  commandment.  A person to be liable for being an accessory before the fact, it must be proved that, he actually participated in making a plan on how offence is to be committed and he approved the commission of that offence. A fact that an offence is committed not as planned or agreed is not an excuse to the commission of a crime, is immaterial.

Accessory after the fact is a person who has knowledge on the commission of an offence but will fully aid, abet or enables an offender to escape hands of justice. This group includes all people who attempts or cause to escape a person lawfully held under custody, those who prevents lawful arrest and those who assist criminals to confuse security organs on details of criminals. 

The laws of Tanzania, The Penal Code  do not adopts the classification of parties to the offence as classified in English Laws. In Tanzania, there is only two groups, first is principal offender as provided under section 22 and accessory after the fact under section 387 of the same code. In Tanzania, a person aiding or abetting, procuring, counseling or commanding another to commit offence is a principal offender. Accessory after the fact is another group which includes offensive activities done by an individual to enables an offender to escape hand of justice.

INDIRECT PARTICIPATION IN A CRIME COMMITTED IN TANZANIA

The commission of a crime not necessarily require existence of an offender at a scene, in some cases, an offender may commit an offence through hand of another without him being physically involved. The following are the circumstances through which a person can be criminally responsible for an indirect participation in a crime committed in Tanzania.

Aiding or abetting commission of a crime. A person can be criminally liable for aiding or abetting commission of an offence. Acts or omission which intends to help or to enable commission of any crime falls within aiding or abetting crime as provided under section 22(1)(c) of The Penal Code.

In Imani Charles Imango v. Republic  an appellant was not at the actual scene where offence was committed but he was involved in taking a victim to the room where she was raped, and he intentionally left the original offender in a room with a victim and he closed the door from outside on his way out. They both convicted and sentenced to life imprisonment, appellant aggrieved by the decision of High Court unsuccessful appealed to court of appeal on a ground that he was not involved in a crime. The appeal was dismissed and it was cemented that, the acts of appellant was an actual aid to commission of an offence of rape.

Counseling or procuring commission of an offence. Counseling or procuring is indirect participation in the crime. A person who convince another to commit an offence, and when such offence is committed as convinced or otherwise, a person who involved in counseling is an offender who deserve a punishment same as one which will be imposed to an actual person who physically committed such crime.  Section 24 of The Penal Code  provide descriptions on how a person can be involved in procuring commission of an offence. 

Conspiracy to commit offence. In Tanzania, conspiracy falls under section 22(1)(a). Since Tanzania classifies parties to an offence in only two categories,  a person who conspire commission of an offence is a principal offender who secretly plan to do something unlawful or harmful, it doesn’t guarantee that, every member who conspire commission of an offence will be there to commit offence, even those who will not be part of actual commission of an offence, their participation in planning how and when the offence will be committed, form parties to an offence criminally liable for conspiracy. 

Accessory after the fact. A person can also be part of the crime for being an accessory after the fact. A person who willful and with knowledge that a person has committed offence but offensively he proceeds to help or enable him to escape justice commits an offence of being accessory after the fact as provided under section 387 of The Penal Code . For this offence to be established, knowing that a person has committed offence is not enough to create offence but there must be struggle it help to enable an offender to escape. 

In  the  case  of  Andrea  Nicodemo  v.  Republic   the accused  persons  were charged  for  theft. They were both convicted, one was convicted as an accessory after the fact. During commission of an offence, first offender stole a bicycle and second offender kept that bicycle in his house before it being recovered by police. They both removed pedals to change the shape of the bicycle. In their appeal, High Court held that, to be  convicted  as  an  accessory  after  the  fact  an  accused  must  not  only  know  or  have  reasons to  know  about  the  offence  but  also  must  take  steps  for  the  purposes  of  enabling  the  offender  to escape  punishment.  In  this  case  there  was  no  evidence  that  the  second  accused  took  such  steps and his  conviction was therefore, quashed

CONCLUSION

Superior or command responsibility. This is an indirect commission of an offence by an officer through another basing on the administrative position he hold. Take an example an O.C.S who order police to kill unlawfully, he can be responsible for the offence committed under his orders. This is common to police officers, military personnel and security systems. A person is liable to offences committed by his subordinate officers under his orders. The case of Republic v. Christopher Bageni of Tanzania, is a best example of superior or command responsibility.

REFERENCE

STATUTES

1: PENAL CODE CAP 16 R:E 2002

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

CASE LAWS

1: IMANI CHARLES IMANGO v. REPUBLIC CRM APPEAL No 382 of 2016

2: ANDREA NICODEMO  v.  REPUBLIC 1976 HCD

ONLINE SOURCE

https://encyclopedia.lexroll.com/encyclopedia/principal-in-the-first-degree/  (Accessed: 22JAN 2021 at 10:29)

https://www.britannica.com/topic/principal-in-the-second-degree (Accessed: 22JAN 2021 at 10:33)

https://criminal.altmanllp.com/accessory-before-after-the-fact.html (Accessed: 22JAN 2021 at 10:29

https://www.law.cornell.edu/wex/accessory_after_the_fact (Accessed: 222 JAN 2021)