Happy Msimbe, Acting Director of the Legal Services Division at the Ministry of Social Development, Gender, Women and Special Groups, recently revealed that the Tanzanian government is considering labelling rape and sodomy as non-bailable crimes. 

She shared this at a meeting that brought together experts and legal stakeholders from different government agencies with the goal of formulating suggestions for the Criminal Procedure Law. The opinions garnered from the meeting, will be used to support the case for denying bail to those accused of rape and sexual offences. This, Msimbe noted, is a pathway to reducing such crimes and protecting children, women and men from acts of violence.

An officer with the National Prosecution Office, Ignas Mwinuka, explained that the intention to have no option of bail for the crimes of rape and sodomy has also been examined in various laws. He added that a study conducted showed that some of the defendants who are released on bail jumped bail, while others made peace with the families of the victims.

“If you ask public opinion, they agree to the fact that such perpetrators should not be granted bail as the acts are against traditions and morals,” he said.

Articles 130 and 131 of Tanzanian law prohibit rape, and offenders are liable to be punished with life imprisonment and a fine. According to Tanzanian police, there were 11 499 reported incidences of violence against children in 2021. Of these, 5 899 were rape cases and over 1 000 were sodomy cases.

Calls to make rape a non-bailable offence are not limited to Tanzania.

The African National Congress Women’s League in South Africa made a similar call in 2020. “We feel that the Criminal Procedure Act must be amended to place all gender-based violence offences under schedule six. This will assist in making sure that it is difficult for the accused persons to be released on bail,” said the league’s Tholi Ngwenya.

In Nigeria, the Federal Capital Territory Minister of State, Dr Ramatu Tijjani Aliyu, announced that laws to ensure that established cases of rape are no longer bailable are in the offing.

“Let me assure you that laws will soon be rolled out to serve as deterrent to culprits that are guilty or people found culpable of abusing the girl-child. Unlike before, where the rape cases were bailable, now we are working towards making it not a bailable offence anymore,” she said in 2020.

A Nigerian governor, Nasir El-Rufai, also noted that the government was considering such an amendment. However, two years after these public announcements, the legislative changes have not been made.

The major stumbling block to these amendments, say legal experts, is the perception that an accused person is innocent until proven guilty in court, hence the notion that you cannot deny them bail unless there's a flight risk or likelihood that they will inflict further harm.

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