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Legal Digest – August 2016

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Tanzania High Court rules against child marriage, Govt appeals

A landmark court ruling raising the legal age of marriage for girls in Tanzania to 18 will have little impact in ending child marriage if parents continue to marry off their daughters for bride price rather than educating them, campaigners have said.

The High Court of Tanzania ruled recently that two sections of the Law of Marriage Act that allow girls to marry at 15 with parental consent and 14 with the permission of a court, were both unconstitutional.

“This ruling is a headway toward solving the problem, but it cannot by itself be the solution to child marriages,” said Hellen-Kijo Bisimba, a women’s rights campaigners and lawyer with the Legal and Human Rights Centre.

Bisimba said more was needed to be done to tackle poverty and change the perception that girls are an economic burden on their families or a commodity to be traded for bride price-or dowry.

The High Court ruling was made in response to a petition filed earlier this year by Rebecca Gyumi, founder of Msichana Initiative, a local charity promoting girls’ rights. The group argued that the Marriage Act violated girls’ rights to equality, dignity and access to education as granted by the constitution.

The court ordered the government to amend the Marriage Act within the next year and ruled that the legal marriage age for men and women should be recognized as 18 years.

The Attorney General (AG) has appealed the decision drawing severe criticism from various legal and human rights lawyers, including world renowned professor of Law, Esaac Shivji, who wrote an open letter to the AG.

Pastoralists Call for Law Amendment

Pastoralists have urged the government to amend the Livestock Identification, Registration and Traceability Act (2010) and the Compulsory Destocking Order under the Grazing Act of 2010.

One of the pastoralists said the Compulsory Destocking Order under the Grazing Act allows district livestock officers to force pastoralists to reduce the number of his/her cattle which in their opinion was against the constitution which gives right of possession to every Tanzanian.

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National Flag must be respected

Local government leaders, who raise a worn-out national flag, face punitive measures as the Government Printing Department moves to crack down on abusers of State symbols in a bid to restore national dignity.

The Chief Government Printer, Mr Kassian Chibogoyo, told a news conference that the measures would also be taken against the leaders who fail to raise and lower the national flag timely. Normally, the flag is raised at 6:00 am and lowered at 6:00 pm.

“I call upon individuals, particularly journalists to take pictures of the raised outdated flags at the offices of local leaders and bring to us so that we take measures against them,” Mr Chibogoyo said.

The Government Printer further revealed that there were widespread mistakes by some private printers on getting the right colours when producing the national flags. “For instance, he said, most printers don’t get it right on the blue colour on the flag. Instead they make it dark blue, which is legally wrong,” he said, noting that the Constitution states that it is only the President who has powers to modify the flag.

“Being responsible for producing and overseeing the quality of the national symbols, I will not be ready to see people tampering with them,” he said.

Draft Policy on EA taxes scrutinized

Domestic tax harmonisation in the East African Community (EAC) remains delayed because its draft policy is still under scrutiny from fiscal experts and the partner states. According to information received the document had not been endorsed due to the likely shortcomings, including lack of a legal backing and that the tax harmonisation in the bloc will have to wait for advice from various fiscal experts, including the International Monetary Fund (IMF).

Although harmonisation of domestic taxes is well articulated in the EAC Treaty, with all member countries having signed protocols committing themselves to the process, there is no working policy on the matter already in place.

Although the focus was earlier on excise taxes, the group will now cover all domestic taxes being Income Tax, Value-Added Tax (VAT) and Excise Tax.

Although all member countries to the Community have ratified the Customs Union and Common Market protocols,the two key documents for enhanced economic integration, there were still some challenges in implementation including failure to harmonise taxes.

Hundreds flout procurement plan

The Public Procurement Regulatory Authority (PPRA) has warned 361 public institution and agencies over delays to comply with norms that require submitting General Procurement Notices (GPNs) based on the Annual Procurement Plan for financial year 2016/2017.

Based on the Procurement Act No.7 of 2011, all public institutions are required to submit their GPNs to be published in the Tanzania Procurement Journal (TPJ) to allow a one stop centre, but over 70 percent of institutions had not met the requirement.

“This creates loopholes for corruption, violation of procurement law and allows embezzlement of public funds,” Dr Matern Lumbanga, PPRA Board Chairman said. Addressing members of the press, the Chairman said such tendencies also can damage duties of the regulator to overseeing public procurements.

The Controller and Auditor General (CAG) report for the financial year 2014/15 submitted in parliament detailed that over TZS 8.5bn procurements made by various institutions had not been included in the annual procurement plan. He explained that the government decision to push for all institutions to publish their GPNs was aimed at creating a more transparent environment which promotes accountability.

“It’s unfortunate that only 28.6 percent of companies had submitted their procurement notes. The number is equivalent to 145 out of 506 registered institutions and agencies,” he said.

Mr Lumbanga went on to note that the same institutions which had not submitted the notes had meanwhile published their procurements in various newspapers contrary to the law.

“The law requires all institutions to submit the GPNs one month prior to undertaking any of the procurements listed in the general procurement notes,” Dr Laurent Shirima PPRA Director General noted. He said as the matter of fact, the agencies violate the Public Procurement Act and it’s an offence as stipulated in the legislation No 104 (2 c). “The authority is hereby warning all the institutions which have not abided by the law to immediately submit their GPNs or else legal actions will be taken including taking them to court,” Mr Shirima explained.

Lawyers nod to competitive procedure for Justice posts

Lawyers have welcomed the government’s invitation to legal practitioners to apply for the High Court Justice posts, describing the move a big step towards a transparent judiciary. The government, through the Judicial Service Commission, has introduced new procedures for recruitment of judges of the High Court, a move that has seemingly thrilled both private advocates and officials from the Attorney General’s Chambers.

The Commission has in its public advertisement requested eligible people with prerequisite qualifications as provided for under Article 109 (6) (7) of the Constitution of the United Republic of Tanzania to apply for appointment as High Court Judges.

“Those meeting the qualifications will be summoned for interview under the procedures to be provided by the Commission and those involved will be informed accordingly,” reads part of the advertisement.

Around the World

French court suspends burkini ban
Mayors do not have the right to ban burkinis, France’s highest administrative court ruled this month. Officials say banning the burkini – worn mostly by Muslim women – is a response to growing terror concerns and heightened tensions after a series of terror attacks. More than 30 French towns have banned burkinis, which cover the whole body except for the face, hands and feet.

Labour leader candidate Owen Smith sparks outrage after threatening to BLOCK Brexit

Labour leadership candidate Owen Smith has been condemned after he vowed to try to block the people’s will over Brexit and force a second EU referendum.

In a keynote speech, Mr Smith, who is challenging far left leader Jeremy Corbyn, insisted that a Brexit deal would require another vote from the British people. The threat has been seized on by the Tories who said it was proof that Labour “cannot be trusted” and are “out of touch”.

Germany court: lawsuits against Volkswagen may proceed

The District Court in Braunschweig, Germany, ruled that a collective complaint against Volkswagen AG (VW) may move forward. Like US-style class-action lawsuits, the collective complaint was launched on behalf of multiple investors who lost money following the diesel emissions cheating scandal. Unlike US-style class-action lawsuits, a German court must choose one case to decide and then apply to the ruling to other cases.

Brexit May Impact Your Intellectual Property Rights

Among patents, trademarks, designs and copyrights in Europe, Brexit will impact trademarks and designs most significantly. The EU trademark (EUTM), formerly the community trademark or CTM, and community design are both tied to the EU. In their current form, neither an EUTM nor a community design would provide rights in any country outside of the EU.

Facebook Wins Appeals Court Legal Victory in Europe Over Privacy Concerns

The court ruled the Belgian Privacy Commission cannot stop Facebook from tracking non-Facebook users that visit its pages. Facebook has won a legal victory in Europe after the Court of Appeal in Belgium ruled in a privacy case that Belgium’s  Privacy Commission does not have jurisdiction over Facebook when it comes to tracking. The dispute relates to tracking the online activities of non-Facebook users in Belgium who visit Facebook users’ public pages.

European news publishers will be given the right to levy fees on internet platforms such as Google if search engines show snippets of their stories, under radical copyright reforms being finalised by the European Commission.

The proposals, to be published in September, are aimed at diluting the power of big online operators, whose market share in areas such as search leads to unbalanced commercial negotiations between the search engine and content creators, according to officials.