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Legal Digest – 31 October 2016

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New Revised Immigration Fees issued for Citizens of the East African Community Member States

Ministry of Home Affairs has issued the Immigration (Amendment) Regulations 2016 as published through the Government Notice (G.N) No 246 of 19 August 2016 which are to be read together with the Immigration Regulations of 1997.

  • Amends the fees schedule and reduces the fees payable by citizens of the East African Community Member states to obtain residence permits or pass.
  • Introduces new categories of residence permits for Diaspora Investors specific employment by specific employer and for parties/witnesses in Courts or Tribunals.
  • Introduces new categories of passes for Dependants, Students and Migrants of African descent from bordering countries.

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Ministry of Lands warns Banks on sale of mortgaged properties
  • 60 days’ notice must be issued
  • Registrar to issue 30 days’ notice prior to registration
  • Property not to be sold below 75% of market value
  • Lenders are breaching the law
  • Ministry to strongly enforce the law
  • No transfers without full compliance

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Rules on oil, gas policy being debated

Energy and Minerals deputy minister Dr Medard Kalemani said the government was taking the local content issue seriously for the benefit of Tanzanians.

The government has said it is in last stages of preparing regulations for the local content policy on the gas and oil. He was speaking on the sidelines of a local content meeting on natural gas with a theme ‘Using finite resources to achieve sustainable development.’ He said stakeholders were discussing draft regulations before endorsing the document for practical use.

“We expect the regulations to come into effect next year and work simultaneously with the content policy for the benefit of locals.” He also spoke about the construction of a liquefied natural gas (LNG) plant which is in initial stages. He said the project will be carried out on at least 20,000 hectares. According to him, 18,000 will be for the construction of industrial parks and the remaining for the LNG plant.

He explained that the LNG plant project will cost $30 billion and is expected to create 10,000 jobs for locals and additional 8,000 jobs upon its completion. He said at least 20 Tanzanians would study master’s degrees in gas and oil abroad and build capacities of others to ensure that when the LNG plant construction ends in 2025 as projected, the majority of people will have skills required in the business.

Meanwhile, National Economic Empowerment Council executive secretary Bengi Issa said a study had been conducted on the benefits of the local content in the construction of the LNG plant. She said the study showed that the country still faces a shortage of people skilled in gas and oil matters and that there is a need to increase efforts to build capacity of more people to be able to provide services in security, food and health.

Law compelling EAC states to prosecute human traffickers passed

The East African Legislative Assembly (EALA) has enacted a law that will compel its five countries to prosecute those involved in human trafficking. The Anti-Trafficking in Persons Bill, 2016, comes into force after a global report showed that human trafficking was prevalent in Kenya, Uganda, Tanzania, Burundi and Rwanda.

The Bill was moved by Ms Dora Byamukama and received affirmation from the entire House as it resumed for its second meeting of the 5th session in Zanzibar, Tanzania.

“The object of the Bill is to provide a legal framework for the prevention of trafficking in persons, protection mechanisms and services for victims of and development of partnerships for co-operation to counter trafficking in persons in the community,” said a statement from the EAC secretariat.

The law will be operational once the Heads of State in the respective countries assent to it in line with Article 63 of the Treaty of the Establishment of the EAC. In the event that all the Presidents sign, it shall become an Act of the Community, being superior to other laws on the same matter. According to the statement, the debate on the Bill was preceded by the tabling and presentation of a report of the committee on Legal rules and privileges on the EAC Anti-Trafficking in Persons Bill, 2016.

In comparing the magnitude of the problem in these countries with others, the committee referred to the Trafficking in Persons Report published yearly by the Department of State of the United States (US).

The report ranks all countries in the world into four categories dubbed “Tiers” basing on the respective government’s efforts against trafficking as measured by the Trafficking Victims Protection Act of 2000 standards. There are four tiers.

The key parameters considered in ranking countries are actions taken in the prosecution, protection and prevention sections of trafficking in persons of that country.

Tier 1 comprises countries whose governments fully meet the victims’ protection standards while Tier 2 encompasses countries that do not fully comply with the rules. Tier 3 on its part do not fully comply with the minimum standards and are yet to make significant efforts to do so.

According to the Trafficking in Persons Report, published in 2016, Kenya and Uganda are grouped under Tier 2, Rwanda and Tanzania under Tier 2 watch list, while the Republic of Burundi falls under Tier 3. During the public hearings and interactions in the partner states, stakeholders called for tightening of the Bill.

They further suggested the proposed minimum penalty of ten years of imprisonment for offenders engaged in trafficking in persons was too lenient and that it should be stepped up.

For Burundi, the legislators were told that parents should be encouraged to take measures towards keeping their children within the family set-ups, while respective Embassies and missions abroad, should be tasked with liberating and repatriating victims found within their respective stations of duty.

In Tanzania, EALA members were tasked to ensure the Bill provides for the protection of disabled people and for the protection of witnesses. They further called on the law to criminalize perpetrators, promoters and facilitators of the offence.

While in Rwanda, legislators were urged to ensure the Bill provides a provision for return of trafficked persons from the hosting partner State. This, they suggest should be preceded by a risk assessment and with due regard for his/her safety to the home country. “The EAC partner States should form specialised units or focal point offices to handle various aspects of human trafficking like child labour, and prostitution,” the members were informed.

The committee also noted that the Republics of Burundi, Kenya, Uganda and the United Republic of Tanzania, have specific laws on counter-trafficking in persons and which are in tandem with the UN Protocol. However, the penalties for offences under the joint law differ from one jurisdiction to another.

The Republic of Rwanda is yet to enact a specific law on counter trafficking in persons even though, offences and penalties for trafficking in persons are provided for under the Penal Code.

Tanzania, Swiss Government Chart New Diplomatic Path

On October 21, 1966, Tanzania and Switzerland entered into a partnership to help each other create a juster society, support economic growth and reduce poverty. But that relationship has for years now been facing a major hurdle in the fight against economic crime with Tanzania claiming an increasing number of its citizen were using banks in the European nation to stash away billions of shillings in stolen funds.

From politicians and senior government officials to well-connected individuals and private business players, many Tanzanians have apparently joined the global fray to take advantage of the Swiss banking secrecy loophole to hide ‘black money’. That secrecy, which dates back to a 1934 law that made it a crime to reveal a client’s identity, has helped to turn Switzerland into the world’s biggest tax haven and asset management centre. But as Tanzania and Switzerland celebrated the 50th anniversary of bilateral ties last week, the two nations signed a Memorandum of Understanding (MoU) in a fresh bid to tackle tax evasion among other economic crimes.

This will see the two sharing intelligence at a time the global campaign against economic crime gathers momentum. In a veiled reference to the bad reputation Switzerland has earned globally as a tax haven of choice for the world’s most corrupt, the Swiss Ambassador said her country had no interest in illegal money. She, however, noted that policies governing her country prioritised the preservation of integrity and confidence of the financial sector.

Previously, Tanzanian authorities were forced into a wild-geese-chase, thanks to the legal barrier that shielded Swiss bank account holders against scrutiny. But under the new deal, the Swiss ambassador said such information would only be released upon request by the country, unlike in some cases where private investigations were the sources, albeit revealing figures without names.

In 2013, Ms Mattli’s predecessor, former Swiss ambassador to Tanzania Olivier Chave was quoted as saying Tanzania had not presented official requests for assistance in investigating locals with offshore accounts. That raised questions on the country’s political will to go after black money with the opposition leading the push for action.

Special Bill on paralegals to be tabled

In the envisaged November Bunge session, the Parliament Committee on Constitution and Legal Affairs will table a special proposed Bill to seek legal recognition of paralegals’ within the country. If at all the Bill is enacted to law, paralegals will be mandated to represent their clients at primary courts.

The committee’s chairperson revealed that the paralegals play a major role at assisting and educating the masses on legal matters at grass roots level, but their contribution is yet to be officially recognized.

“We are expecting to table the Bill in the coming parliament session. If enacted, it will play a pivotal role at enhancing their performances, especially in assisting deprived women in rural areas to realise and receive their legal rights,” he said. He added, there is a poor understanding of basic human rights in most of rural areas within the country. He underscored the need for the government to recognize the work accomplished by volunteer paralegals in speeding up the legal system in the country.

He underscored the need for the government to recognize the work accomplished by volunteer paralegals in speeding up the legal system in the country.

Project manager Ramadhan Masele with the Legal Service Fund (LSF), the main organisers of the event, said were at least 4,500 paralegals currently voluntarily assist people through 160 different paralegal units.

Around the World

No Brexit without Parliament OK, UK’s High Court rules
Britain’s High Court of Justice unanimously ruled that Parliament must first approve the issuing of Article 50, the formal declaration to separate from the European Union.

The court ruling said that Prime Minister Theresa May did not have the constitutional power to trigger Article 50 of the Treaty on European Union, which would formally begin the negotiations of Britain’s exit from the EU and give it two years to do so. The government argued that May had the power to issue Article 50 under her royal prerogative, but the court ruled that Parliament must approve the move given its effect on domestic law.

Uber facing hundreds more claims from drivers for back pay
Uber is facing the likelihood of several hundred more legal claims from taxi drivers who believe they have been wrongly classed as self-employed and are owed backdated holiday pay and missing wages.

Lawyers for two former drivers who last week won an employment tribunal judgment that they were in fact employed as workers and should therefore benefit from the minimum wage, holiday pay and sick pay, said they were preparing to lodge multiple new cases with the same court.

Paris climate agreement becomes international law
The Paris Agreement to combat climate change becomes international law in November — a landmark demonstrating that countries are serious about tackling global warming amid growing fears that the world is becoming hotter faster than scientists expected.

So far, 96 countries, accounting for just over two-thirds of the world’s greenhouse gas emissions, have formally joined the accord, which seeks to limit global warming to 2 degrees Celsius (3.6 degrees Fahrenheit). Many more countries are expected to come aboard in the coming weeks and months.

Rights groups: Facebook deleting posts on human rights abuses
A coalition of more than 70 rights groups sent a letter to Facebook asking for clarity on the social media website’s “policy on removing video and other content, especially human rights documentation, at the request of government actors.” The letter, signed by groups including the American Civil Liberties Union (ACLU), 350.org and the Indigenous Environmental Network [advocacy websites], points to specific instances of removal and suppression of human-rights related content.

Former Iranian prosecutor sentenced to 135 lashes for corruption
A former prosecutor general of Tehran described by activists as a serial human rights abuser has been sentenced to 135 lashes for financial corruption. The ex prosecutor, was found guilty of “seizing and wasting public funds” while he ran Iran’s social welfare organisation under the then president Mahmoud Ahmadinejad, his close ally.

UN official criticises Australia’s plan for lifetime ban on refugees who travel by sea
The UN high commissioner for refugees has said it is “profoundly concerned” by Australia’s plan to ban for life any asylum seeker who has attempted to reach the country by sea. “Seeking asylum is not ‘illegal’,” said Thomas Albrecht, the UNHCR’s regional representative in Canberra. “Refugees need and deserve protection and respect.

The basic human right of every person to seek asylum from persecution is not diminished by their mode of arrival. Those forced to flee persecution need and deserve conducive conditions of protection, and a sustainable long-term solution.” Albrecht said the policy of offshore processing did not diminish Australia’s legal responsibility for people who sought asylum in the country.

Why the Rolls-Royce investigation is so important to the SFO
One of Britain’s most celebrated companies is facing potential prosecution over allegations it spent years hiring middlemen who paid bribes all around the world. For the company, prosecution could mean tremendous reputational damage.

For any individuals implicated, it could mean jail. It is a humiliating prospect for a £13bn company widely regarded as one of the jewels of British business. Rolls-Royce is considered so essential to the UK’s economic wellbeing that the government retains a so-called “golden share” that allows it to veto decisions it perceives to threaten the national interest.

South Africa court orders release of Zuma corruption report
The High Court of South Africa ordered the release of a report on corruption allegations against President Jacob Zuma. The country’s former Public Protector, concluded the report into the possibly corrupt relationship between Zuma and an influential family last month, shortly before the expiry of her seven-year term.

The report was scheduled to be released in mid-October, but Zuma’s lawyers made a bid to block the publication of the report. The report recommends a commission of inquiry headed by a judge be set up within 30 days to investigate alleged influence peddling in government.