What is a crime?
To date there is no agreed definition of the term crime. Various writers have tried to define this term differently depending on their philosophical outlook and other various material factors in the society they come from.
Some criminologists, namely Michael J, and Mortimer J, define the term crime as;
“…The most precise and least ambiguous definition of crime is that which define it as a behaviour which is prohibited by the criminal code….this is the only possible definition of crime…”
Criminal Law and Social Science New York, 1933, at p. 2.
Another legalistic definition says crimes are;
“…Wrongs which judges have held or parliament has from time to time laid down as sufficiently injurious to the public to warrant the application of criminal procedure to deal with them…” Smith, J.C. and Hogan Criminal Law 6thEd.
According to Osborn, P.G. in his concise law Dictionary 5th Ed. Crime is defined as;
“…An act, default or conduct prejudicial to the community, the commission of which the law renders the person responsible liable to punishment by a fine or imprisonment in special proceedings…”
In Kenny’s Outline of Criminal Law 17th Ed. At p.5 there major characteristics of crime are pointed out;
i) That it is a harm brought about by human conduct which the sovereign power in the state desire to prevent.
ii)That among the measures of prevention selected is the threat of punishment.
iii)That the legal proceedings of a special kind are employed to determine the guilty of the accused before being punished.
Is a branch of public law (public law include; Administrative law, Constitutional law, and Criminal law) and it is designated to protect the interest of the public.
It defines the duty, which a person owes to the society in contrast to civil law, which primarily concerned with rights of individuals among themselves.
In criminal law it is the state, which prosecutes. When we talk of criminal law is that where the state is directly interested. The end result of any criminal offence procedure is to determine whether the person is guilty or innocent.
There is a difference between crime and morality. As you know each society has its morals. However you may find that sometimes morals and crimes coincides.
Morals emerged earlier than the state and law. Morals and customs regulated the relations of people during the primitive mode of production. Where there is a class society the dominant system of moral is that of the ruling class. This is so because by the use of apparatus of ideological influence, political and legal institutions the dominant class strives to impose its morals on the whole society.
At one point there was an attempt to extend criminal law to morals. “This however has led to some legal problems. In the case of Shaw V. DPP [1962] AC 220, Shaw published a “Ladies Directory” in order to help prostitutes to get customers and he was charged, interalia, with conspiracy to corrupt public morals. He was convicted of this offence, and the Court of Criminal Appeal and the House of Lord upheld his conviction. Lord Simonds at page 267 said he entertained no doubt that in the sphere of criminal law;
“…There remains in courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard against attacks which may be more insidious because they are morals…”
We see that this decision was extending criminal law to morals. However this decision did not stand the test of time. The case of Knuller L.T.D. V DPP [1973] AC 435reversed the position. In this case the House of Lords emphasized that the courts did not have residual powers to extend criminal law by creating newer offences and widening existing ones, to enforce good morals.
You have to note that many of the rules enforced by criminal law have nothing do to with morality, and many of the rules of morality are not enforced by criminal law.
Law consists of rules established in a specific way by the state organs and fixed in legal acts. Morals however do not include just norms but also concepts, views and feelings.
Legal acts consist of the will of the class in power while moral may include this will in the form of public opinion.
Moral norms embrace a sphere of relations that is considerably broader than that regulated by law.
Law and morals are also based on measures of coercion but these differ. In morals coercion takes the form of public opinion. Moreover, moral norms do not regulate in advance specific measures and form of coercion.
In the event of violation of law, however, corresponding law enforcement agencies are obliged to take measures envisaged by the law.
Sources of Criminal Law
1. The Constitution
The constitution provides for the rights and duties of its citizens. The constitution of Tanzania for example provides for the presumption of innocence to the accused person. The constitution is the basic source of criminal law.
2. Statutes
Statutes consists of Acts of Parliament and Subsidiary legislation. The laws that were passed by the legislature council in the colonial period are referred to as Ordinance, whereas, after independence laws passed by the parliament are known as Acts of the Parliament. The major source of criminal law is the penal code (cap 16). This was introduces in the country in 1930.
There are other statutes, which cover specific crimes or group of crimes e.g. The Prevention of Corruption Act, Economic and Organized Crimes Control Act, The Road Traffic Act. Persons or bodies to whom power has been delegated by the Parliament make subsidiary legislations. Normally this power is delegated to the Minister, Local Government Authorities, and Public Corporation. The reason for delegating power is to fill in more details giving effect to the principles of enabling Act. These subsidiary legislations cover vast areas of life such as commerce, health, sanitation etc. in these legislations penal provisions are always provided for defaulters.
3. Common Law of England, Doctrine of Equity and Statute of General Application.
The laws we have in Tanzania are either whose we inherited from the colonial masters or have been enacted after independence. The laws of Tanzania are based on English Jurisprudence in which Common Law, Doctrine of Equity and Statutes of General Application forms an important part. This is another source of criminal law in Tanzania. The basis of this is the Tanganyika Order in Council of 1920, section 17 (which is commonly known as reception clause) which provides that; criminal jurisdiction in
Tanganyika, so far as circumstances admit, shall be exercised in conformity with the Criminal Procedure and Penal Code of India and where the same was not applicable, the courts were to apply Common Law, Doctrine of Equity and Statute of General Application in force in England on or before 20th day of July 1920. This position was reintegrated after independence by the reproduction of the section in section 2(2) of the Judicature and Application of Laws Ordinance 1961. In addition the Penal Code allows the application of the Common Law and Doctrine of Equity in the circumstances specified in section 3(1) PC.
4. Precedent/Case Laws
The lower courts are bounded by the decisions of the superior courts. This is the practice of the inferior courts in common law jurisdiction. This being so, the decisions of the former East Africa Court of Appeal, the Court of Appeal of Tanzania and important decision of the High Court of Tanzania on important matters are also a source of criminal law.
5. International Law
The basic sources of International Law among others are treaties. These treaties however before binding to the country they have to be incorporated in the Local Act and this Act must be passed by the parliament. Some of these treaties deal with international criminal law. Some of the most outstanding international crimes are;
War crimes:
The Geneva Convention (I-IV)
Piracy on the High Seas:
The Convention of High Seas, 1958
The Seizure of Aircraft and Other Attack on the Security of Civil Action:
The 1950 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971. Montreal Convention for the Suppression of Unlawful Act Against the Safety of Civil Aviation.
Salve Trade:
The Slavery Convention of 1920 as amended in 1953. the supplementary Convention on the Abolition of Slavery, Slave Trade and Institution and Practices similar to slavery, 1966, the Convention for the Suppression of Traffic in Person and the Exploitation and the Prostitution of other 1956.
The Nature and Function of Criminal Law Under Different Modes of Production.
i) Primitive Mode of Production
In the primitive mode of production there was no law let alone criminal law. the law emerged together with classes.
ii) Slave Mode of Production
In this society there were two classes;
ü The slave who were the main class
ü Slave owner.
The law in the slave mode of production was used for two major functions; the suppression of resistance put by the slaves and other exploited strata of the population. E.g. The Greco-Lation Antiquity produced the law book of Gortyn, The Helensis. In Rome the Law of the Twelve Tablets, The Lex Aquilia and the Corpus Luis Civile. The codes offered a statutory definition of conduct constituting a danger to society (criminal law) conduct, which entitled the consequence, held out by the law and enforced by a sovereign power. Severe coercion e.g. death penalty were resorted to only against slaves.
The slave master could kill a slave of his own with impunity whereas the killing of a slave owned by another merely entailed the payment of compensation. The second function was the protection of the slave owner’s property. Ferocious sanctions were afflicted on offences against property. This was intended to safeguard the institution of private property and social order relying on this institution. In graver cases there was punished with death. E.g. In Rome according to the law of twelve Tablets, for gravest theft, a freeman was reduced to slave whereas the slave had to suffer death. Milder case theft was maiming the offender.
iii) Feudal Mode of Production
Chronologically, the feudal state belongs to the Middle Ages (5th -17thA.D). This was also a class of society;
a) The big land owner
b) Mass of peasant Labour.
The main functions of criminal law were;
To put down resistance on the part of the exploited peasant masses as well as anti-feudal uprisings of the urban population.
Protecting feudal ownership of land and providing various forms of compulsion of the peasant to offer their labour for landlord.
iv) Capitalist Mode of Production
The main functions of criminal law include;
The protection of the political foundations of the capitalist society.
To put down the resistance of the working class and other masses.
To take reprisals against political opponents.
Protection of private property.
Establishment of the general conditions for the functioning of the capitalist economy.
In the capitalist era criminality grew to a mass phenomenon and in particular offences against property showed an upward trend and manifested itself in entirely new forms.
Most offenders were workers, jobless and other poor people e.g. offences like corruption and extortion, industrial espionage sabotage etc were on the forefront.
v) Socialist Mode of Production
Criminal Law here is used for two main purposes;
To protect the socialist state system against opposition;
To protect the socialist property and its relation.
Property which was owned by private person was nationalized and taken by the state. Thus laws were enacted to safeguard the new property relations. The only effective method was the use of criminal law to control resistance or counter-revolution.
