Legal Digest – March 2016

LRCT submits proposal to amend procurement laws

The Law Reform Commission of Tanzania (LRCT) has submitted a report to the government on how best the Public Procurement Act can be amended.

In mid-December last year, LRCT initiated the review by calling for recommendations, suggestions and opinions from the general public. The move came three weeks after President John Magufuli hinted in Parliament that the law would be amended to curb embezzlement of public funds.

The LRCT listed five thematic areas on which recommendations about the act would be focused: market fundamentals and dynamics of law, procurement process and procedural and institutional requirements, value for money, conflict of laws, and human factors (unethical conduct, personal interest and corrupt practices.)

The commission have been analysing the recommendations and will present them to the Cabinet for approval before the Bill to amend the Act is prepared and tabled in Parliament.

The procurement law was enacted with a view of putting in place a harmonised legal and institutional regime for administration and management of public procurement; instead the Act has been blamed by many for giving room for corruption and wasteful expenditure of public monies.

Employment law revisit on foreigners crucial, underlines ATE chief

The Association of Tanzania Employers (ATE) wants the law on employment of non-citizens to be reviewed as it is a burning issue which employers would love to see amended.

“The law is at the risk of being labeled anti-foreign and stand to scare potential investors away; Employers would love to see more relaxed Labour, and Migration laws on foreigners working in the country,” stated Dr Aggrey Mlimuka, the Executive Director of ATE.

Dr Mlimuka was speaking during the one-day workshop that brought together all employers in the Northern Zone Regions of Arusha, Manyara and Kilimanjaro, where it was agreed that, lack of qualified Tanzanian workers in specialized and non-specialized fields still called for inclusion of foreign workers in the country labour force and these should be handled with care lest they chose to steer clear from the country.

“At the end of the day it must not matter where the expatriate is coming from as the issue at hand is a committed workforce in general that contributes towards the development of the nation as Tanzanians tackle its education system and balances the supply and demands of the labour market in line with employers’ specific driven expectations,” he said.

The Association recently held a meeting with the Ministry responsible for Labour and Immigration and after discussion, it was decided that Business Visa be issued to all foreigners coming to Tanzania not directly employed in Tanzania, Consultants, Meetings, Conferences, Workshops and anything of the like.

Small-scale businesses’ plea over law

It has been discussed time and again and now, Vibindo Society — a trade association that brings together small-scale traders’ groups across that country — wants President John Magufuli to intervene in their long-time grievance.

The group wants President Magufuli’s administration to shelve the Business Activities Registration Act, 2007 (BARA Act) and instead use the Business Names Act CAP 213 amended in 2012, as an alternative legislation.

The request has come following expert analysis of the two legal pieces in which it was revealed that the latter would facilitate among other things, easy formalisation of small-scale businesses while allowing them to grow. The BARA Act was enacted in 2007 with an intention of establishing a one-stop system for registering businesses by consolidating all existing registries under an integrated system. This was a deliberate move to reduce cost of setting up a business as well as cut on administrative and regulatory constraints to enter and operate a business in Tanzania.

However, since its enactment and later endorsement by former President Jakaya Kikwete, it has not been able to operate as it was intended due to among other things, opposition by stakeholders who wanted it to be amended.

DPPs powers unconstitutional

The High Court has reduced one of the powers of the Director of Public Prosecutions (DPP) conferred upon him after declaring unconstitutional the provision of law he had been relying on to deny bail to accused persons in criminal proceedings.

A panel comprising Principal Judge Shaban Lila and Judges SekietiKihiyo and Dr John Ruhangisa announced recently that section 148(4) of the Criminal Procedure Act (CPA), Cap 20, is unconstitutional for violating Article 13(6)(a) of the Constitution of the United Republic of Tanzania.

The DPP had been relying on the CPA provision to file a certificate to object bail to accused person facing certain criminal charges, if he is satisfied that the “safety or interests of the public will be at stake.”

The move had attracted numerous complaints, accusing the DPP of abusing such powers. Section 148 (4) reads, “Notwithstanding anything in this section contained, no police officer or court shall, after a person is arrested and while he is awaiting trial or appeal, admit that person to bail if the Director of Public Prosecutions, certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced; “..a certificate issued by the Director of Public Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge of a police station and shall remain in effect until the proceedings concerned are concluded or the Director of Public Prosecutions withdraws it.”

In their timely ruling, the judges allowed the constitutional petition filed by a city resident, Mr Jeremia Mtobesya, and declared the provision of section 148(4) of CPA unconstitutional for offending the provisions of Article 13(6)(a) of the Constitution of United Republic of Tanzania. The DPP has appealed this decision to the Court of Appeal.