Legal Digest – 30 December 2016

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Editors to spread word on new media law

The Tanzania Editors Forum (TEF) will soon embark on a countrywide tour to educate media practitioners about the recently endorsed Media Service Act of 2016 so as to deepen their knowledge and understanding of the new legislation.
The tour, according to TEF, will involve awareness creation initiatives to be conducted through workshops, seminars, and conferences.

The Media Services Bill, 2016, was endorsed by the National Assembly on November 5 this year with the state aim of transforming journalism from an occupational to a professional industry.

President John Magufuli officially signed it into law hardly ten days after the parliamentary endorsement (November 15).
The Act parades provisions for professionalism in the media industry, and also creates frameworks for regulation of media services and other related matters. The law will be applied mainly in Tanzania mainland.

Among other things, it forbids individuals to publish, sell, offer for sale, import, produce or distribute print media in any manner unless they are licensed to do so. On journalistic accreditation, the law prescribes that a person shall not practice as a journalist unless that person is accredited.

The law was approved and endorsed in a bit of a hurry, despite vehement pleas from media stakeholders for the process to be extended so that more views could be collected on its many clauses.

Rejection of residence permits
  • Imposition of additional charges if applicant already in country
  • Outright rejection if already working

Under the Non-citizen (Employment Regulations) Act 2015 and Immigration Act an expatriate is required to have both a work and residence permit prior to commencing work. In the last few days, the Immigration authorities have realised that a number of employees are still entering Tanzania with a business visa whilst their work and residence permits are being processed.

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Why Anti-Corruption Law is not tough enough

The anti-corruption law is not tough enough because it does not compel culprits to surrender money they steal from the government. The Minister of State in the President’s Office (Public Service Management and Good Governance), Ms Angella Kairuki, said plans were underway to amend the Prevention and Combating of Corruption Act of 2007 as part of efforts to step up the war on corruption.

“The amendment will make the law more specific and make it possible for punitive action to be taken according to the severity of the offence committed,” she said.

The law currently does not give the Prevention and Combating of Corruption Bureau powers to recover proceeds of corruption. The government also cannot confiscate culprits’ property without proof being provided in court linking it with corruption. This, according to analysts, provides corrupt officials with a loophole to hide the loot they acquire through corruption.

Tanzania has also enacted the Whistleblower and Witness Protection Act in 2015 to encourage people to volunteer information on crime.

PCCB director general Valentino Mlowola said the agency had stepped up the pace of investigating and prosecuting corruption cases, adding that he expected the prevalence of grand corruption to be drastically reduced in the next few years.

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Lawsuit threatening TZ elephants revived

A US federal court revived a lawsuit brought by big game hunters who challenged the US Fish and Wildlife Service’s ban on the import of elephant hunting trophies from Tanzania.

The determination of the case could have a significant impact on elephant poaching in the country. A poaching crisis saw Tanzanian elephant population decline to 43,521 in 2013 from 142,788 in 2006 representing a decline of more than 60 per cent.

In the Selous-Mikumi ecosystems the situation was worse with the population dropping from 70,406 in 2006 to 13,084 in 2013. It is this worrying poaching trend that prompted the US Fish and Wildlife Service to issue a temporary ban on elephant hunting trophies in 2014, which is the subject of the legal wrangle.

The legal challenge of the ban first brought by the Safari Club and the National Rifle Association was dismissed in 2014 on grounds that no member of either group actually had applied for and been denied a permit to import elephant trophies and therefore lacked standing to bring a case. But the hunters’ advocacy groups appealed, arguing that the Fish and Wildlife Service’s ban was final and that their members had no obligation to exhaust administrative remedies.

In a 15-page opinion issued this month, a three-judge panel from the US District Court for the DC Circuit agreed and remanded the case to the lower court.

“For its part, Safari Club insists that seeking a permit would have been futile given that the Service had determined and publicly announced that no permits would be issue for Tanzanian elephants killed in 2014,” Judge David Tatel wrote in the opinion.

The Fish and Wildlife Service previously had allowed trophy imports after making determinations that repatriation of such items “would not be detrimental to the survival of the species.”

Forum fails to strike deal on Dar work permit fee

Kenyans will have to wait longer for easier immigration rules in Tanzania after a meeting between officials from the two countries resolved to tackle the problem by next March.

The meeting under the Joint Commission for Co-operation (JCC) had been expected to resolve the persistent reluctance by Tanzania to scrap residence and work permit fees as is expected by the East African Community. But Tanzania argued it needed more time to realign the demands within the provisions of the new laws, which require foreign nationals to pay fees for work permits.

Kenya’s Foreign Affairs secretary Amina Mohamed and her Tanzanian counterpart, Augustine Mahiga, endorsed the decision to extend discussions until March 2017, saying it will allow time to iron out the issues.

“Arising from this, the meeting advised the relevant authorities from the two sides to meet by March, 2017 with a view to address the issues,” said a dispatch from the meeting.

The JCC between Tanzania and Kenya had been dormant for six years, stalling discussions on immigration and other issues affecting relations. When President John Magufuli visited Nairobi in November, he authorised his team to restart the talks.

Illegal fishing – government mulls tougher laws

The government is planning to amend laws governing the fisheries sector by changing some offences to economic sabotage, which attracts stiffer penalties.The Minister of Agriculture, Livestock and Fisheries, Dr Charles Tizeba, stated that current fisheries laws and regulations have loopholes that hamper effective prosecution of people caught practising illegal fishing.

The fisheries sector is managed mainly by two laws, namely the Fisheries Act, 2003 and the Deep Sea Fishing Authority, Act 2009. Dr Tizeba said ministry officials were preparing amendments which were expected to be tabled in Parliament at its next sitting in February under a certificate of urgency.

The government’s decision, he said, followed failure of the current penalties to curb illegal fishing, which is threatening the fishing industry in Tanzania.

“We have lost almost all cases of illegal fishing by using dynamite because of the definition of explosives and proof required… this is why we need to change the law,” Dr Tizeba said.

He said 1.5 tonnes of fish killed with explosives were recently seized in Dar es Salaam, but the suspects managed to escape arrest. “Even if these people are caught and charged, the penalty is either a six-months prison sentence or a fine of only TSH 200,000. This paltry fine is akin to a government levy. Imposing such a fine on people who have illegally caught fish worth tens of millions of shillings is a joke.”

Dr Tizeba said there was a need to make laws tougher by changing some offences to economic sabotage. “If someone is aware that if they are arrested and charged they could be jailed for 15 years they will think twice before engaging in illegal fishing. Public sensitisation is also needed on the impact of illegal fishing.”

Data protection law coming

The government is planning to enact a personal data protection law that will require all local firms and people to keep their data.Permanent Secretary in the Ministry of Works, Transport and Communication Faustine Kamuzora said that once enacted the law would guard the country against data hacking.

“We need to draw a line between people who collect data and those who own it,” he told Tanzanian and Chinese journalists who toured the Dar es Salaam Internet Centre (DIC) at the Tanzania Communications Regulatory Authority (TCRA) offices.

Prof Kamuzora said the bill was in early stages of preparation. He hopes that when it is ready and passed into a law it will spur investment. He called upon information and communication technology companies to increase investments to meet the growing local market and those in neighbouring countries such as the Democratic Republic of Congo and Mozambique. He said the DIC was built with a USD 35M (about TSH 77.9B) concessional loan from the Chinese government. The loan will be paid in 25 years.

Experts say hackers may be motivated by a multitude of reasons, such as profit, protest, challenge, recreation, or to evaluate system weaknesses to assist in formulating defences against potential hackers.

Tough conditions for foreigners eyeing land for business in Tanzania

Tanzania is working on a new land policy that will reduce leases of land owned by foreigners from 99 years to 33 years.The Draft National Land Policy, which has been subjected to public scrutiny by the Ministry of Lands and Settlement Development, is expected to be adopted early next year. If passed into law, foreign investors in Tanzania will be allocated land for a maximum period of 33 years. In addition, foreigners will only hold land for investment.

The policy defines a foreign investor as a person who is not a citizen of Tanzania or a body corporate whose controlling interest is in the hands of non-citizens.There have been many instances of foreigners applying for land and not utilising it for the stated purpose. To curb such cases, foreign investors will be required to register with the Tanzania Investment Centre (TIC) to acquire land.

“To purchase a parcel of land from individuals or companies, once the buyer and seller have agreed upon the price, the seller is required to surrender the land title to the Commissioner of Lands in order to re-issue it in the name of TIC, which will eventually prepare a derivative right for an investor,” reads the draft. This however is also the case at the present.

The government intends to protect the rights of Tanzanians and will also ensure the land occupied is being used for the purpose attained.

State to ban raw product exports

Export of raw materials may soon be outlawed as a strategy to encourage investors to process all products domestically, the Prime Minister, Mr Kassim Majaliwa has hinted.

The PM, speaking during his tour of Arusha-based Mount Meru Millers, said the government was determined to encourage processing of especially agricultural produce domestically to create more jobs and accelerate economic growth.

“We are mulling over the ban of raw product exports and encourage domestic industries to invest in factories that will consume the available raw materials…investors should now improve their production capacities to meet the domestic demand for finished goods,” said Mr Majaliwa.

“We don’t see any need to export sunflower seeds and other agricultural produce… we need industries that can consume all the raw materials and create more jobs for our people,” Mr Majaliwa said, urging the investor however to improve and maintain good relations with farmers.

Italy accredits envoy to EAC bloc

The Italian Government has appointed Counsellor Roberto Mengoni as Italy’s Permanent Representative to the East African Community.

The Envoy (Roberto Mengoni), who is also the Italian Ambassador to the United Republic of Tanzania, presented his letter of accreditation signed by the Italian Minister for Foreign Affairs and International Cooperation, Hon. Paolo Gentiloni, to the EAC Secretary General, Ambassador Liberat  Mfumukeko, this month at the EAC Headquarters in Arusha, Tanzania.

Welcoming Ambassador Mengoni to the EAC Headquarters, the Secretary General commended the Italian Government and people for showing interest in furthering the existing cooperation between Italy and the Community.

Ambassador Mfumukeko briefed the Envoy on the key millstones recorded in integration process and pledged to link up the envoy with the the East African Business Council through which Italian investors could explore available opportunities.

On his part, Amb.  Mengoni commended the EAC Secretariat for spearheading the integration agenda and highlighted a few areas that the Italian Government was interested in supporting the EAC, especially the Renewable Energy sector. He disclosed that his government was pushing for a policy change on Africa that will see a more robust engagement with the continent and the EAC.

Around the World

Woman awarded €37,500 over skin damage from ‘high-end’ cosmetic.
A woman, who developed permanent facial skin damage after using a “high-end” cosmetic product on the recommendation of a beauty therapist, has been awarded €37,500 damages against the salon in the Circuit Civil Court.
The Judge said the cosmetic company had failed to carry out a skin analysis or a patch test on Ms McLaughlin’s skin before recommending the product and had therefore failed in its duty of care.

Fake US embassy in Ghana shut down after 10 years issuing visas
Authorities in Ghana have busted a fake US embassy in the capital Accra run by a criminal network that for a decade issued illegally obtained authentic visas. Until it was shut down, the sham embassy was housed in a rundown, pink two-storey building with a corrugated iron roof and flew an American flag outside. Inside hung a portrait of the US president, Barack Obama. It was not operated by the United States government, but by figures from both Ghanaian and Turkish organised crime rings and a Ghanaian attorney practising immigration and criminal law.

Migrants should swear an oath of allegiance when they arrive in UK
Migrants should swear an oath of allegiance as soon as they arrive in the UK, an official review has recommended as it warned that Muslims increasingly do not identify themselves as being British. An 18 month review by Dame Louise Casey has found that the “unprecedented pace and scale of recent immigration” has had a significant impact on many communities. It warns that parts of Birmingham, Blackburn, Burnley and Bradford up to 85 per cent of the local population is Muslim, with many holding “very socially Conservative views” about women and homosexuality.

One billion accounts may have been breached in latest Yahoo attack
Yahoo has warned that more than one billion user accounts may have been affected in a newly revealed cyber attack, one of the biggest data breaches in history. The US company said the hack, which happened in August 2013, was uncovered when law enforcement agencies handed over Yahoo user data stolen by a third party earlier this year. Users names, emails, phone numbers and dates of birth could have been accessed, along with passwords and answers to security questions, although people’s bank details had been protected, Yahoo said. The latest figures show that the company has around one billion users a month – meaning this attack will affect most of Yahoo’s customers worldwide.

Scotland to unveil single market Brexit plan this week
Scotland will publish proposals for how it can remain in the European single market after Britain leaves the European Union in order to avoid the “national disaster” of a “hard Brexit”, the Scottish government said. British Prime Minister Theresa May has said she will trigger Article 50 of the Lisbon Treaty, the formal process of leaving the EU, by the end of March to kick off two years of exit talks. However, her plans for those negotiations have been shrouded in secrecy and businesses and investors fear Britain might seek a “hard Brexit” where controlling immigration takes priority over access to the European single market.

EU charges Facebook with giving ‘misleading’ information over WhatsApp
The European commission (EC) has filed charges against Facebook for providing “misleading” information in the run-up to the social network’s acquisition of messaging service WhatsApp after its data-sharing change in August. The charges will not have an affect on the approval of the $22bn merger and is being treated completely separately to other European cases against Facebook, but could lead to Facebook being fined up to 1% of its global turnover in 2014 when the merger was approved, which was greater than $10bn for the first time.

Apple and Nokia Battle Over Cellphone Patents
Nokia, the Finnish company that was the world’s largest cellphone maker until its business was decimated by Apple and makers of Android-based phones, claims none of Apple’s iPhone features would exist without its inventions, which were made over many years and after billions of dollars were invested in research. For the past five years, Apple has paid Nokia a modest royalty for the use of its patents. But with that pact about to expire on Dec. 31, Nokia wants Apple to keep paying for that portfolio, and is demanding that Apple license additional patents. Apple is refusing to pay Nokia’s price and has accused it of extortion.

China adopts law on traditional medicine
China’s top legislature adopted a law on traditional Chinese medicine (TCM) to give TCM a bigger role in the medical system. The Law on Traditional Chinese Medicine was approved at the end of a seven-day session of the National People’s Congress (NPC) Standing Committee which concluded this month. According to the new law, county-level governments and above must set up TCM institutions in public-funded general hospitals and mother and child care centers. Private investment will be encouraged in these institutions.

Countries with the most draconian abortion laws in the world
Around the world, 58 of 196 countries provide abortions on request, and 134 of 196 countries only allow abortions to preserve a woman’s physical health.Six countries — El Salvador, Malta, the Vatican, Chile, the Dominican Republic, and Nicaragua — still refuse abortions to women under any circumstances, even if it’s to save her life. It means that under many circumstances, such as rape, incest, or if the fetus has a severe abnormality, women still must bring a pregnancy to term. Developing countries, which have the strictest laws around ending a pregnancy, have the highest unsafe abortion rates. It is estimated that around the world, 78,000 deaths result from unsafe abortions every year. These are the countries with the strictest abortion laws around the globe.