17 November 2017

Tanzania: Why Court Jailed Actress Lulu for Two Years

Photo: Daily News
Actress Elizabeth Michael Kimemeta

There are number of questions from members of public as to why Actress Elizabeth Michael Kimemeta, alias Lulu, was sentenced to only two years imprisonment for an offence relating to killing of another person.

In her case, Lulu had been charged with manslaughter, in relation to the death of former Bongo Movies Star Steven Kanumba in 2012. Manslaughter is one of the offences of homicide.

There are two general types of homicide, murder and manslaughter. There is a clear distinction between these two crimes. Murder requires an intention to kill or an intention to commit grievous bodily harm.

Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human being with malice aforethought.

This state of mind may, depend upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Most societies consider murder to be an extremely serious crime and for any conviction harsh punishments for the purposes of retribution, deterrence, rehabilitation, or incapacitation is provided.

In most countries, the convict of murder faces life sentence, but in a few, the death penalty is imposed. Manslaughter is a killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity.

It is a legal term for homicide considered by law as less culpable than murder. It may be voluntary and involuntary manslaughter. In voluntary manslaughter, the offender had no prior intent to kill and acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed.

The most common type of voluntary manslaughter occurs when one is provoked to commit the homicide. Under the Tanzanian laws, murder is an offence committed against section 196 of the Penal Code, Cap 16. Such provision provides death by hanging as the only sentence to whoever got convicted of murder.

While manslaughter is an offence committed against section 195 of the same Penal Code. However, the sentence for a convict of manslaughter is life sentence as a maximum punishment.

This means that the offence of manslaughter does not fall under the Minimum Sentence Act, like any other offences such as murder, armed robbery, rape, among others. The Minimum Sentence Act, Cap 90, is the Act, which provides for the imposition of minimum sentences in respect of specified offences and for related matters.

The provision under which a person is charged which provides the sentence to be imposed upon conviction. For example, under the Act, the punishment for murder is death by hanging, for armed robbery is 30 years imprisonment and for rape is 30 years in jail if the victim is of over 10 years old and life sentence if the victim of rape is under the age of 10 years.

This is a mandatory or minimum sentencing, meaning a statutorily specified penalty that automatically follows a conviction for the offense, often with a minimum mandatory term.

It is a type of sentencing in which a judge must give a set sentence, the lowest amount of punishment a person must receive. But this Act does not apply to manslaughter.

Under such circumstances, therefore, when one is convicted of manslaughter, the sentence provided falls squarely under the discretion of the sentencing authority, of course, after taking into consideration several factors.

The life jail term, which is the maximum sentence, could be provided to the offender is the circumstances were so close to murder. Otherwise, the judge use his or her discretion to determine what sentence is to be imposed from life sentence to conditional discharge of the offender.

Therefore, the term "sentencing" can be defined as a post-conviction stage in a criminal trial where a judge or a magistrate is required to determine or assess or evaluate a legal sanction and actually impose the same on a person found guilty of an offence.

In other words, sentencing can be said to mean a way courts deal with a person after he has pleaded guilty or has been found guilty in a criminal trial. In Tanzania, a criminal trial may either be a summary trials or trials on indictment.

So, when the sentencing authority determines the proper sentence to be imposed, he or she has to consider both aggravating and mitigating factors. Aggravating factors are premised on the seriousness of the alleged offence.

Initial factor in determining seriousness of the offence, involves four levels of culpability, including the intention to cause harm: highest culpability where offence planned, the worse the harm intended the greater the seriousness.

Another element is recklessness as to whether harm is caused: proceeds giving no thought to obvious risk of harm, the knowledge of specific risks entailed by actions, but does not intend to cause the harm resulting and negligence culpability increased.

This has to do with the accused deliberately causes more harm than necessary for the commission of the offence, or the accused targets a victim who is vulnerable such as a youth, old age or due to job.

However, under mitigating factors, the law allows courts to reduce a sentence if a person pleads guilty. If the court gives a discount for a plea of guilty, the judge or magistrate must state what the sentence would have been without the guilty plea.

The issue of remorse or contrition should be taken into account at this point along with other mitigating features such as admissions to the police in interview, degree of provocation, self-defense, guilty plea, and etc.

Basically, mitigating factors reduce the seriousness of the offence or the offender's culpability.

Generally, among the factors to be considered include youth, pressing personal or family needs, vulnerable or immature, psychiatric illness or problems, provocation, good character, showing general improvement in behavior and offence uncharacteristic or let yourself down.

Other factors could be the difficult or deprived background, having family responsibilities, supportive family or partner, currently in work or training or prospects of work or training, the lapse of time since commission of the offence, cultural demands, ignorance of the law and reasonable man test.

For young offenders, rehabilitation is the principal consideration in sentencing. The considerations that must be taken into account when sentencing a young offender includes, the need to strengthen and preserve the relationship between the child and the child's family.

Other factors are the desirability of allowing the child to live at home, the desirability of allowing the education, training, or employment of the child to continue without interruption or disturbance and the need to minimise the stigma to the child resulting from a court determination.

More on This

Actress Lulu Ready to Serve Time

Bongo actress Elizabeth 'Lulu' Michaels, who once drove Kenyan gospel musician Bahati crazy with love, has said that she… Read more »

See What Everyone is Watching

Copyright © 2017 Tanzania Daily News. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.

AllAfrica publishes around 700 reports a day from more than 140 news organizations and over 500 other institutions and individuals, representing a diversity of positions on every topic. We publish news and views ranging from vigorous opponents of governments to government publications and spokespersons. Publishers named above each report are responsible for their own content, which AllAfrica does not have the legal right to edit or correct.

Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica. To address comments or complaints, please Contact us.