INSTITUTIONAL DEMOCRATIC PRACTICE, HUMAN RIGHTS AND THE POLICE FORCE’S ACCOUNTABILITY IN TANZANIA

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Deo J. Nangela

Abstract

This article discusses some aspects of human rights protection and the police force in Tanzania. Essentially, it focuses on the way human rights norms are being or should be implemented within  our domestic legal structure and its democratic institutions. The article emphasises on the need for the police forces to respect the fundamental human rights of individuals as well as addressing all forms of human rights violations, this being part and parcel of institutional democratic practice and accountability. In other words, it argues that the role of the police forces in the field of human rights is of two-way traffic: that is to say, they have to promote human rights whenever they execute their roles of policing but, at the same time, they have to guard and act against any violation of the same rights.

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NANGELA, Deo J.. INSTITUTIONAL DEMOCRATIC PRACTICE, HUMAN RIGHTS AND THE POLICE FORCE’S ACCOUNTABILITY IN TANZANIA. THE LAW SCHOOL OF TANZANIA, [S.l.], v. 2, n. 1, june 2018. Available at: <http://journal.lst.ac.tz/index.php/lst/article/view/21>. Date accessed: 12 dec. 2018.
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References

1 The author is an Advocate of the High Court of the United Republic of

Tanzania. All views expressed in this
article, save where a direct quotation has been made are his own. The article

emanates from a revised version of
a paper once presented in a workshop on ‘Institutional Democratic Practice and

Accountability: The Tanzanian Police
Force and the Protection of Human Rights’.
United Nations High Commissioner for Human Rights Centre for Human Rights,

(UNHCR) ‘International
Human Rights Standards for Law Enforcement’- A Pocket Book on Human Rights for

the Police, Geneva, a p.3,
(available from

http://www.ohchr.org/Documents/Publications/training5Add1en.pdf. (Accessed on

25th May 2017).

2 See the case of Rev. Mtikila v. Attorney General, [1995] TLR 3. In this case

the High Court made it clear that human
rights are inherent in an individual and should not be considered to be a

creation of the state or its organs. See
also F.Viljoen, International Human Rights Law in Africa, 2nd edn (Oxford:

University Press, 2012) at pp. 4-6, where
among other things the author noted the difference between human rights, human

rights law and International
Human Rights Law.

3 According to Article 29 (1) of the Universal Declaration of Human Rights,

(UDHR) 1948: “Everyone shall be
subject only to such limitations as are determined by law solely for the

purpose of securing due recognition
and respect for the rights and freedoms of others and of meeting the just

requirements of morality, public order
and the general welfare in a democratic society.”(The UDHR was adopted and

proclaimed by the General Assembly
Resolution 217 A (III) of 10th December, 1948).

4 See ‘Economic Development and Human Rights: Towards a Children – Related

Human Development’, (available
from http://www.npasec.gov.ps/economic_development.htm (as accessed on 3rd

March 2016). See also S.E. Mchome,
‘Human Dignity: The Source of all other Rights and Freedoms’ (2003) 1 Nyerere

Law Journal, 13-20 at 13. It is also
reiterated within the Universal Declaration of Human Rights, 1948, that

‘recognition of the inherent dignity and the
equal and inalienable rights of all members of the human family is the

foundation of freedom, justice and peace.’
See the Preamble to the Universal Declaration of Human Rights (UDHR), 1948).

5 For a detailed discussion on this, see T. Hopkins, ‘Policing in an Era of

Human Rights’ Alternative Law Journal 32
(4) (2007), 224.

6 Article 28 of the Universal Declaration of Human Rights states: “everyone is

entitled to a social and international
order in which the rights and freedoms set forth in this Declaration can be

fully realised.”

7 See Independent Commission on Policing for Northern Ireland, A New

Beginning: Policing in Northern IrelandThe Report of the Independent

Commission on Policing for Northern Ireland, Northern Ireland, (1999) at p.18
(Available from http://cain.ulst.ac.uk/issues/police/patten/patten99.pdf.

(Accessed on 25th May 2017).

8 The United Nations International Task Police Force, (as quoted in the

Commonwealth Human Rights Initiative Report,
(hereafter C.H.R.I’s Report) - ‘The Police, The People, The Politics: Police

Accountability in Tanzania’, C.H.R.I., (2006)
at p.1. (Available from

http://www.humanrightsinitiative.org/publications/police/tanzania_country_repo

rt_2006.pdf.
(Accessed on 25th May 2017).

9 Ibid.

10 [2006] UKHL 55.

11 Ibid, at Para 129.

12 See Hopkins, Op.cit fn 6.

13 See R. Makaramba, (as quoted in the C.H.R.I Report, Op.cit fn 9, at p.47.)

Currently Mr. Makaramba is a Judge of
the High Court of Tanzania. By the time the C.H.R.I Report was being prepared

he was one of the Commissioners
in the Commission on Human Rights and Good Governance (Tanzania).

14 According to the Bureau of Democracy, Human Rights and Labour, citizen’s

complaints against the police inaction
or slowness to investigate and prosecute crimes have been common. (See Country

Reports on Human Rights
Practices, Bureau of Democracy, Human Rights and Labour. Tanzania Country

Report on Human Rights Practices
2004, (2005), (available from

http://www.state.gov/g/drl/rls/hrrpt/2004/41630.htm. (Accessed on 25th May

2017).

15 According to the Independent Commission on Policing for Northern Ireland,

‘the police force should take steps to
improve its transparency…. The presumption should be that everything should be

available for public scrutiny
unless it is in the public interest-not the interest of the police- to hold it

back.’ (See The Independent Commission on
Policing for Northern Ireland, (Op.cit fn 8, at p.36).

16 Ibid.

17 See the C.H.R.I. Report, (Op.cit fn 9, at p.2)).

18 In Tanzania, the Legal Sector Reform Programme (LSRP) has a component that

looks onto the needs within the
Police Force that should be addressed to make the Police Force more up to date

and well aligned with the
internationally accepted standards of law enforcement organs.

19 According to the C.H.R.I Report, the sad part of our case is that most

citizens associate the police with impunity.
However, the report argues that it is necessary to create a web of

accountability through which police must be
held responsible. They must be accountable to their government and their

community in which they serve.
Existence of private as well as institutionalised monitoring mechanisms such

as the Human Rights Commission,
Commission of Inquiry or other structures such as the police force service

commission or an oversight committee
of the parliament are all important in ensuring accountability and can restore

confidence to the citizenry. (See,
Op.cit fn 9 at p.1).

20 See section 5 of the Police Force Act, [Cap. 322 RE 2002]. It is crucial,

however, to state here that currently there is
a growing number of private and security (firms) guards that have been trained

to function as auxiliary police.
These need to be trained in matters pertaining to respect for human rights

too. The incident which took place in
Geita Gold Mine recently where a school girl was forced by two private

security guards to have intercourse with
a dog clearly shows how the problem of human rights violation by these private

security guards can be immense.
Auxiliary police forces are also being employed by various municipalities and

they have been rampantly
harassing the small businessmen/women (commonly called the “Machingas” in

Kiswahili language) in an effort
to “clean up” neighbourhoods, an exercise that manifestly reveal use excessive

force. Such acts of harassment,
which involve indiscriminate beating of suspected individuals, are utterly

unacceptable ways of treating fellow
human beings and constitute a gross violation of human rights and the existing

laws.

21 See Iqbal Isamail Sodawala v. The State of Maharashtra, (1975) 3SCC 140

(India).

22 For instance, the International Covenant on Civil and Political Rights

(ICCPR), 1966, (Adopted 16 Dec. 1966, entered
into force on 23/3/1976, G.A. Res.2200A (XXI), UN Doc.A/6316. (1966), 999

U.N.T.S. 171; The African Charter
on Human and Peoples Rights (AfCHPR), 1981, (adopted on June 27, 1981 and

entered into force on 21st Oct.1986,
O.A.U. Doc. CAB/LEG/67/3 Rev. 1. The United Nations Convention on the Rights

of the Child, 1989, (adopted on 20th Nov. 1989, entered into force 2nd

September 1990, G.A. Res.44/25, 44 UN GAOR, Supp. (No.49), UN. Doc.
A/44/49,at 166). There are also other important instrument such as the

Standard Minimum Rules for the Treatment
of Prisoners (Adopted by the First United Nations Congress on the Prevention

of Crime and the Treatment of
Offenders, held at Geneva in 1955, and approved by the Economic and Social

Council by its resolution 663 C
(XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977) and The United Nations

Standard Minimum Rules for NonCustodial Measures (The Tokyo Rules), 1990,

G.A.Res.45/110 of 14 Dec. 1990. It is crucial for the provisions of all
these international instruments to be fully reflected within the existing laws

in Tanzania if at all our participation
in human rights protection is to be sound and effective. The HRC Report has

noted that Tanzania has failed to
pass the necessary domestic laws to formalise most of its international

obligations into law. (See the C.H.R.I.
Report’s Op.cit fn 9, at p.8). For instance, it has failed to ratify The

United Nations Convention Against Torture and
Other Cruel and Inhuman or Degrading or Punishment, 1984, (adopted 10

December, 1984 and entered into force on 26 June 1987, G.A. Res. 39/46, 39 UN

GAOR, Supp. No.5, UN Doc.A/39/51, at 197 (1984).

23 For instance, The Criminal Procedure Act, 1985 [Cap.20 RE 2002], contains

procedural aspects geared at ensuring
respect for human rights. A simple example relates to modes of searching a

suspected male or female offender
under section 26 of the Criminal Procedure Act. The section ensures that human

dignity and respect for decency
is strictly observed. Only a woman police is allowed to search a female

suspect and must strictly do so with
regard to decency. Section 33 of the same Act does limit the number of hours

within which a person may be
detained before being produced in court for trial. Minimum hours to

interrogate suspects are also provided for
under this law. The problem however may be resting on the actual observance of

these procedures.

24 It is crucial to state here that even if the Constitution currently has the

Bill of Rights; realisation of what it has
guaranteed is a difficult journey which even runs against what it professes.

For instance, the jurisdiction to
adjudicate matters relating to Human Rights in Tanzania is solely vested on

the High Court and worst still
the bench must be composed of three judges. (See L.X. Mbunda, ‘Limitation

Clauses and the Bill of Rights in
Tanzania,’ Lesotho Law Journal, 4(2) (1988) 153; See also the Basic Rights and

Duties Enforcement Act, 1994, [Cap.3,
RE 2002] which provides for the procedural route that ought to be followed in

the course of enforcing the basic
rights and freedoms. This is yet another complication of what ought to have

been simplified due to its sensitivity.
See also Maina, Op.cit fn 2 (especially pp.3&4 titled ‘Independence and the

Struggle for a Bill of Rights’ where the
author in detail explains the struggle for the adoption of the Bill of Rights

in our 1977 Constitution.

25 See the cases of Attorney General v. Lesinoi Ndeanai &Two Others, [1980]

TLR 214; and Hatimali Adamji v. E .A.P &T
Corporation, (1973) LRT n.6. For more about the historical part on the Bill of

Rights in Tanzania see Maina, Op.cit
fn 2, at pp. 3 - 14.

26 See L.X. Mbunda, ‘The Support Structure Theory and Its Application in

Securing Basic Human Rights in Tanzania’
– A paper presented at a Human Rights Seminar to commemorate the 40th

Anniversary of the Faculty of Law,
University of Dar-es-Salaam, 7-9th February, 2002, p. 2.

27 According to Maina the word ‘harassment is [generally] defined as troubling

or annoying continually.’ See
Maina, Op. cit fn 2, at p.128. For more noted shortcomings of Sungusungu Maina

captures the matter in detail
where he has enumerated different malpractice of the Sungusungu in Tanzania

(at pp. 512-513).

28 These are the ‘young urban unemployed rural immigrants who are struggling

[in the urban centres] for economic
survival through petty trade and who are fighting for the rights to have

access to national resources’). See G.
Mpangala, -”Peace, Conflicts, and Democratization Process in The Great Lakes

Region: The Experience of
Tanzania” Research Report on Research Project, Institute of Development

Studies, University of Dar es Salaam
(1999) at p.45.

29 Visit Issa Michuzi Blog(at

http://issamichuzi.blogspot.com/2008_03_01_archive.html) where a naked

‘Machinga’
features as a victim of gross human rights abuse by the city auxiliary police

in Dar-es-Salaam, an incident which
took place in March, 2008.(As accessed on 11/03/2009).

30 See A Report presented at the 1st Sub-Saharan Executive Policing Conference

International Association of Chiefs
of Police (IACP), Durban, South Africa, 27-30 August, 2000 titled: ‘Crime And

Policing Issues in Dar Es Salaam
Tanzania Focusing on Community Neighbourhood Watch Groups - “Sungusungu”’ at

p. iv, (available from

http://www.unhabitat.org/downloads/docs/1825_12883_sungusungu.pdf), (as

accessed on 25/05/2017). See also the cases
of Ngwengwe s/o Sangija and 3 Others v. Republic, High Court of Tanzania at

Mwanza, Criminal Appeal No.72 of
1987 (Unreported); Miperesi K.Maingu v.Hamisi Mtongori and 9 Others, High

Court of Tanzania at Mwanza, Civil
Case No.16 of 1988 (Unreported) (These cases are fully reproduced in Maina,

op. cit fn 26 at 513&523.

31 Act No. 9 of 1985 [Cap. 20, RE 2002], see section 11 and section 14.

32 [Cap. 322, RE 2002], see sections 27, 139, section 141.

33 Act No.9 of 1989 [Cap. 111 RE 2002], see section 4 of this law.

34 According to section 11 (1) of this law, when making an arrest, the police

officer or other person making the
arrest shall actually touch or confine the body of the person being arrested,

unless there be a submission to the
custody by word or action. It thus means that an arrest could be effectuated

by:actual use of force to restrain the
individual concerned; stating to the individual that he or she is being

arrested; or By words or conduct making
it clear that force will be used if necessary in order to restrain the

individual.

35 For instance an offence of Aiding in acts of mutiny or aiding a prisoner of

war to escape, an offence of intimidation,
desertion of children and many others enlisted in the first schedule to the

Criminal Procedure Act are offences
that demand a proper warrant of arrest to be sought from a magistrate or other

designated officers under section
13 of the Act before an arrest is effected. However, police are under certain

circumstances permitted to arrest
without a warrant –see section 14 of the Criminal Procedure Act, [Cap. 20 RE

2002].

36 See sections 30 to 33 of the Criminal Procedure Act (Cap.20, RE 2002).

Section 33 provides that Officers in charge
of police stations shall report to the nearest magistrate, within twenty-four

hours or as soon as practicable, the
cases of all persons arrested without warrant within the limits of their

respective stations, whether or not such
persons have been admitted to bail.
37 See fn 31 and 32 above.

38 Op. cit fn 32.

39 Ibid, at p. iv.

40 See the C.H.R.I’s Report, Op.cit fn 9 at 26.

41 For instance, police officers are granted immunity under section 29(6) of

the Prevention of Terrorism Act which
states that an officer who uses such force as may be necessary for any

purpose, in accordance with this Act, shall
not be liable, in any criminal or civil proceedings, for having, by the use of

force, caused injury or death to any
person or damage to or loss of any property. Likewise, section according to

section 38 (8) of the same Act police
are exonerated from liability of whatever nature that may arise out of seizure

of property made in good faith.
See also Section, 3 of the Preventive Detention Act, [Cap. 361 RE 2002] Which

prevent questioning of any order
made under it in court; Section 26 of the Emergency Powers Act, [Cap. 221

RE.2002] which insulate all persons
acting under it from criminal proceedings; Section 78 of the Penal Code,

[Cap.16, RE. 2002] which provides that
authorised people may use all force to disperse a riotous crowd and they will

not be criminally or civilly liable
for any death or injury occasioned.

42 See the UNHCR Pocket Book, Op.cit fn 1 at p.7.

43 See the ‘Code of Conduct for Law Enforcement Officials, G.A. res. 34/169,

annex, 34 U.N. GAOR Supp. (No. 46)’ at
186, U.N. Doc. A/34/46 (1979).

44 This may however be a prolonged route since all criminal cases fall within

the purview of the DPP who is
an appointee of the President. Although the Criminal Procedure Act provides

for a room to undertake private
prosecutions, rarely has this door been used by private advocates and even

those who might have tried to do so
have come across a number of hurdles including threats from anonymous people.

(See the C.H.R.I Report, Op.cit
fn 2 at p.36).

45 See the Tokyo Declaration made by the World Medical Association, 1975. The

definition is also quoted in Maina,
Op.cit. fn 2 at p.84.

46 United Nations, Treaty Series, Vol. 1465, p. 85, Adopted by resolution

39/46 of 10 December 1984 at the thirtyninth session of the General Assembly

of the United Nations. The Convention is open for signature by all States,
in accordance with its Article 25.

47 See Article 3.

48 In January 2009, the Minister for Home Affairs Hon. Masha has been quoted

arguing that the country has not
ratified the said Convention because it contradicts with its laws and cited

other ‘big’ nations that like the United
State have not done so on similar grounds. However, in actual fact it is the

laws of this country or those ‘other big
states’ that contravene the provisions of this International Convention. See

The Zimbabwean, ‘Tanzania: “Torture
convention contradicts country laws”’. (Available from

http://www.thezimbabwean.co.uk/index.php?option=com_
content&task=view&id=18132&Itemid=108 or

http://www.ppmedia.com/ipp/guardian/2009/01/30/130601.html
(Accessed on 19th May 2017)).

49 See the ICCPR, Article 7.

50 Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975. U.N.

Doc. A/10034 (1975) (Available
from http://www.unhchr.ch/html/menu3/b/h_comp38.htm. (Accessed on 19th May

2017) Article 3 of this declaration
provides that:
No State may permit or tolerate torture or other cruel, inhuman or degrading

treatment or punishment.
Exceptional circumstances such as a state of war or a threat of war, internal

political instability or any other
public emergency may not be invoked as a justification of torture or other

cruel, inhuman or degrading
treatment or punishment.

51 For instance, the four Geneva Conventions of 1948 governing the laws of war

prohibits it under their common
Article 3.

52 See Article 2 of the UN Declaration Against Torture, 1975, Op.cit fn 51.

53 Ibid, Article 6.

54 Cap. 16. [ RE 2002].

55 Maina, has documented at length a number of cases that involved torture

perpetrated by security forces and the
police in Tanzania. (See Maina, Op.cit fn 2, at pp.91-127). In November, 2002,

17 detainees died while in Police
Custody in Mbarali, Mbeya Region, Tanzania, due to suffocation.

56 See the C.H.R.I, Op.cit fn 9 at 15.

57 Cap. 16, [ RE 2002].

58 See Article 5 of the UN Declaration Against Torture, op. cit. note 51,

which provides that ‘training of law
enforcement personnel and of other public officials who may be responsible for

persons deprived of their liberty
shall ensure that full account is taken of the prohibition against torture and

other cruel, inhuman or degrading
treatment or punishment. This prohibition shall also, where appropriate, be

included in such general rules or
instructions as are issued in regard to the duties and functions of anyone who

may be involved in the custody
or treatment of such persons.’

59 See the US law on the protection of torture victims- The Torture Victim

Protection Act, 106 Stat.73 (1992), 28
U.S.C.A, S.350, (Notes).

60 See Center for Constitutional Rights, ‘The Death Penalty is a Human Rights

Violation: An Examination of the
Death Penalty in the U.S. from a Human Rights Perspective’ (Available from

http://ccrjustice.org/sites/default/files/
assets/files/CCR%20Death%20Penalty%20Factsheet.pdf. (Accessed on 25th May

2017).

61 See the C.H.R.I’s Report (op. cit. fn 9 at 17).

62 See Legal and Human Rights Centre Report, Annual Report, 2003 –Tanzania,

(2004) at p.5.
63 See Legal and Human Rights Centre Report, Annual Report, 2003 –Tanzania,

(2003).

64 See A. Bhoumik, ‘Democratic Response to Terrorism: A Comparative study of

the United States, Israel and India,’
Denver Journal of International Law & Policy 33 (2004-2005), 285.

65 See Y. Alexander, (ed) International Terrorism: Political and Legal

Documents, (Dordrecht/Boston/London: Martinus
Nijhoff Publishers, 1992) at ix. See also E. Chadwick, Self-Determination,

Terrorism and the International Humanitarian
Law of Armed Conflict, (Dordrecht/Boston/London: Martinus Nijhoff Publishers,

1996) at p.2.

66 See M.C. Bassiouni, ‘Legal Control of International terrorism: A policy-

Oriented Assessment’ Harvard International
Law Journal 43 (2002), 83.

67 See De Than, C. & Shorts, E. International Criminal Law and Human Rights,

Sweet &Maxwell, London, 2003, at p. 231.

68 The Human Toll of Terrorism, US Department of State,

.Indeed, things like mobile phone
technology and the Internet have contributed to the expansion of the

international element of terrorism since
these (e.g. the internet) have to a great deal demolished the barriers to

information and communication and
things can be organised very quickly. The bombings of the American Embassies

in Nairobi and Dar-es-Salaam in
1998 took place in a very short span of time though the two were locate far

apart.

69 See Alexander, op. cit. fn 65.

70 See J.A.R. Nafziger, ‘The Grave New World of Terrorism: A Lawyer’s View’

Denver Journal of International Law &
Policy, 31 (2002-2003) 1-22 at p.8; See also Bhoumik, Op.cit. fn 64 at p.287;

See also De Than, C. & Shorts Op.cit. fn 67 at p. 232.

71 See A. Cassese, Terrorism, Politics and Law, (London and Guildford: Billing

& Sons Ltd, 1989), at 5. There is also a
reasonable body of precedents from human rights courts such as the European

Court of Human Rights (ECHR)
in relation to this topic.

72 Section 14(1) of the UK Prevention of Terrorism (Temporary Provisions) Act,

1984. (Now repealed and replaced
by the of 2000 Act.

73 The Federal Bureau of Investigation’s Definition of Terrorism.

74 Act No. 21 of 2002.

75 However, defining each act that constitutes the offence of terrorism is a

kind of approach that has been favoured
in many treaties on combating this vice. (See Nafziger, Op.cit. fn 70).

76 See Cassese, Op.cit. fn 71 at p.6.

77 See De Than & Shorts, Op.cit. fn 67.

78 See R.C. Kumar, ‘Human Rights Implications of the National Security Laws in

India: Combating Terrorism while
Protecting Civil Liberties’ Denver Journal of International Law & Policy , 33

(2003-2004) 195-222.

79 See Bekink, B. ‘A dilemma of the twenty-first century state: Questions on

the balance between democracy and
security’ African Human Rights Law Journal 5 (2005) PP.406-423. Indeed, as De

Than & Shorts contends, there is
a dilemma in discussing ‘the extent to which it is possible or desirable to

regard terrorist suspects as having
different (or maybe lesser) human rights than other persons.’ See De Than &

Shorts, Op.cit fn 67 at 252.

80 Ibid, at p.408.

81 Ibid. This duty is fully recognised by the Universal Declaration on Human

Rights, 1948 as it requires governments
to protect the people’s human rights and puts in place the principles that

need to be followed.

82 See De Than & Shorts, Op.cit fn 67, at p.231, where it is argued that ‘[d]

emocratic States face a real problem in
maintaining their security and safety of their citizens without cutting too

far into the human rights of their
citizens.’

83 Ibid, at p.254. In some countries (e.g. the United States) suspects have

been detained in Guantanamo Bay, Cuba,
without trial or right to legal representation. This is a controversial move

which has seen opposition from various
activists who (correctly I suppose) argue that ‘protection against terrorism

should not be achieved through
processes whereby human rights and accepted constitutional principles, such as

the rule of law and democracy,
are ignored.’ (See Benkik, Op.cit fn 79 at 409).

84 See the Case of McCann v. UK, (1995) 21 EHRR, 97.

85 See Section 244 down to section 253. See also section 224, section 226 and

section 236.

86 See the Preamble to the Prevention of Terrorism Act, No.21 of 2002.

87 See E. Tamila, ‘Enacting Law on Terrorism in Tanzania: Examining a New

Legislation,’ Nyerere Law Journal, 1
(2003), 61.

88 See Section 5-10 of the Prevention of Terrorism Act, No.21 of 2002.

89 See section 28 & 29 of the Act.

90 See section 29 (5) of the Act.

91 See Section 29 (6) of the Act.

92 According to section 29 (6) of this law ‘[a] police officer who uses such

force as may be necessary for any purpose,
in accordance with this Act, shall not be liable, in any criminal or civil

proceedings, for having, by the use of force,
caused injury or death to any person or damage to or loss of any property.’

93 See Section 31 of the Act.

94 Ibid.

95 See Mbunda, Op.cit. fn 27, at p.3.