RETROSPECTIVE OPERATION OF LEGISLATIONS

INTRODUCTION

Meaning of retrospective operation

Retrospective means looking back, contemplating what is past. This word is usually applied to that legislation of the parliament which is made to operate upon some subject matter such as contracts or crime which existed before the passage of the Acts, and they therefore called retrospective law . A retrospective law is that which is enacted to make illegal a transaction or dealing that had taken place before its coming into force or to legalize such transaction or delay. 

There are number of provisions in different Acts in Tanzania including the Constitution that prohibits retrospective operation of the law, for example Section 37 (2) of the Interpretation of Laws Act , provides that no by-law shall have retrospective operation.

The constitution of United Republic of Tanzania , under Article 138 (1), prevents retrospective effect of tax statute in Tanzania. Similarly Article 13(6) (c) prohibits retrospective operation of the Penal statute, where an individual should not be punished for an offence which does not exist.

What is actually meant by retrospective operation can be illustrated by the following  example, In  Tanzania  a  law was  passed  in 2016  but  it  was intended to  cover offenses which had been  committed in an earlier  period that is December 2000.

The presumption against Retrospective operation of the legislation

This is fundamental legislative principle reflects the common law presumption that Parliament intends legislation to operate prospectively rather than retrospectively. Simply expressed, the essential idea is that the law looks forwards not backwards.

However, the presumption can be displaced if the legislation expressly states that it is intended to apply retrospectively or if that intention is clearly implied in the words of the legislation . For example Section 42 of the Penal code , reads “A person may be prosecuted for, and convicted of, an offence under section 39, section 40 or section 41 notwithstanding that any intention, act or omission constituting such offence was formed, done, omitted to be done or took place prior to the coming into operation of the Written Laws (Miscellaneous Amendments) Act, 1970”. This provision seems to have a retrospective operation.

At common law, the general presumption is a rule of construction applied by the courts in the interpretation of legislation. It fits in with the general approach adopted by the courts of limiting the statutory invasion of established rights . 

A well known statement of the presumption against retrospectively was articulated in Maxwell on the Interpretation of Statutes. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication . However, this statement has been criticized for being ‘too dogmatically framed and for purporting to describe as a rule something that is really no more than a presumption which, in a particular case, may be outweighed by other factors .

Courts  in  East  Africa, Common Law generally and in Tanzania in particular have  had  to  deal  with cases involving  laws which were supposed  to  operate retrospectively and  the  way  courts  have  dealt  with issues arising  from  such  situations  can  be illustrated  by the following cases:-

In S.S Makorongo V Severino Consigilio , wherein the Court dealt with the issue of the retrospective effect of legislation, in that case, the amendment to section 5 (2) (d) of the Appellate Jurisdiction Act, 1979, [Cap. 141 R. E. 2002]. On the retrospective effect of legislation, the Court considered the provisions of section 10 (2) of the Interpretation of Laws and General Clauses Act, 1872 Cap. 1 R. E. which states:- 10 (2) Subject to the provisions of subsection (1) every Act shall come into operation on the date of its publication in the Gazette or, if it is provided either in such Act any other written law that it shall come into operation or some other date, on that date. On the retrospective effect of legislation, the Court held that, the general rule of law is that unless there is a clear indication either from the subject matter or from the wording of the Act of Parliament, that Act should not be given a retrospective construction.

In Yew Bon Tew V Kndaraan Bas Mar , in which the Privy Council held: “… Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used…..”

The East Africa Court of Appeal considered the issue of the retrospective effect of legislation in the case of Municipality of Mombasa versus Nyali Ltd , where Newbod, J.A, held that, “Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by legislation. In seeking to ascertain the intention behind the legislation the courts are guided by certain rules of construction. One of these rules is that if the legislation affects substantive rights it would not be construed to have retrospective operation unless a clear intention to the effect is manifested; whereas if it affects procedure only, prima facie it operates retrospectively unless there is good reason to the contrary. But in the last resort it is the intention behind the legislation which has to be ascertained and a rule of construction is only one of the factors to which regard must be had in order to ascertain that intention…..”.

In Halimoja Kavira v. R , accused was convicted of possessing a Government trophy without an owner ship certificate and of failing to report his possession of that trophy to the Game Division, c/ss 41(2), 49(1) and 48 Fauna Conservation Ordinance, Cap. 502. The Ordinance was enacted in 1964. Accused claimed that he had inherited the tail from his father 1940, and there was no evidence to the contrary. It was held that “Like any other penal statute, the Ordinance has no retrospective effect; therefore, even if the wild beast tail had been a Government trophy, there was no obligation on the appellant to report when it came into his possession.

In Omari Manamba v. R , the appellant was convicted of stealing by a person employed in the public service c/s 270 and 265 of the Penal Code. He was sentenced to 2 years’ imprisonment and therefore appealed on the sentence. It is a well established  rule of statutory interpretation that a statute would not be made to act  retrospectively unless specifically or by necessary inference it is found that  it applies retrospectively where it affected existing right or obligation unless it affected matter of procedure only.” His lordship then continues:  “Section 4(1) – (1) Any person who, after the date of coming into operation of this Act, is convicted of a scheduled offence whether committed before or after such date of coming into operation shall be sentenced to imprisonment………” the underlined words leave me in no reasonable doubt that this Act was intended to act retrospectively by necessary implication form the wording of the statue itself. Therefore, the trial court was right in convicting him and passing a sentence under Act.

REFERENCE

BOOKS

Geddes, P., (2011). Statutory Interpretation in Australia (7th Ed). Butterworths: Lexis Nexis

Langan, J.P. (1969). Maxwell on the Interpretation of Statutes (12th Ed). Sweet & Maxwell publishers: London

STATUTE

Interpretation of Laws Act [Cap 1 R.E 2002]

Penal Code [Cap 16 R.E 2002]

CASE REFFERED

S.S Makorongo v. Severino Consigilio, Civil Appeal No. 6 of 2003 (CA) (unreported).

Yew Bon Tew v. Kndaraan Bas Mar [1983] I AC 553

Municipality of Mombasa v. Nyali Ltd [1963] E. A. 371 

Halimoja Kavira v. R [1968] HCD 458

Omari Manamba v. R [1971] HCD 394