Q&A – 1 May 2017

Marriage discrimination against women

Under our constitution women are guaranteed same rights as men. I am told traditionally our men can marry more than one woman. Under our constitution would that imply that a woman can also marry more than one man? I want to attempt this and need your guidance.
UU, Dar

Polyandry is a form of polygamy, where a woman takes two or more husbands at the same time. Under our Law of Marriage Act, the kinds of marriages that are recognised are: (a) those that are monogamous or are intended to be monogamous; and (b) those that are polygamous or are potentially polygamous. (2) A marriage contracted in Tanzania whether contracted before or after the commencement of this Act, shall– (a) if contracted in Islamic form or according to rites recognised by customary law in Tanzania, be presumed, unless the contrary is proved, to be polygamous or potentially polygamous; and (b) in any other case, be presumed to be monogamous, unless the contrary is proved.

Whilst the constitution does provide for equality, the Law of Marriage Act does not provide for a woman having more than one husband. The only way to challenge the Law of Marriage Act is to challenge it under the constitution. So far no one has challenged this and hence the current position of the law is that polyandry is illegal and not recognised under our laws.

Polyandry is practiced in other regions and was traditionally practiced among Tibetans in Nepal, parts of China and part of northern India, in which two or more brothers are married to the same wife, with the wife having equal “sexual access” to them.

According to online sources Polyandry is believed to limit human population growth and enhance child survival. It is a rare form of marriage that exists not only among peasant families but also among the elite families. For example, polyandry in the Himalayan mountains is related to the scarcity of land. The marriage of all brothers in a family to the same wife allows family land to remain intact and undivided. If every brother married separately and had children, family land would be split into unsustainable small plots.

Dinner receipts disallowed by TRA

I have been taking my clients out for dinner as is customary in my trade and all such input VAT has been denied by the TRA. Is this not unfair?
YI, Dar

The VAT Act states that a taxable person shall not be allowed an input tax credit for an acquisition of goods, services, or immovable property, to the extent that it is used to provide entertainment, unless the person’s economic activity involves providing entertainment in the ordinary course of the person’s economic activity.

Unfortunately you have not told us what your economic activity involves for us to give you more insight. We recommend your tax consultant address this but warn you that TRA, like tax authorities in other parts of the world, is very strict in what input they will allow for entertainment expenses.

Statute on preventive law

Are there any statutes in Tanzania on preventive law? It would make lawyers poorer but the society emotionally and financially better off.
GV, Dodoma

Unless you mean statutes on alternate dispute resolution, which provisions there are under our procedural laws, we are not sure what you mean by statutes on preventive law.

Preventive law is comprised of legal and practical principles for anticipating and avoiding legal problems. The goal of preventive law is to provide for the “legal health” of individuals and business entities. The concept is a familiar one in the context of medicine. There is now a clear recognition that the most successful medical treatment is prevention. While the same concept applies to the state of a person’s or business’ legal well-being, the recognition of preventive law as the most desirable model for delivering legal services is of more recent origin.

Preventive law, in its broadest sense, seeks to encourage new methods and concepts for how legal services can be delivered in the future to avoid conflict and disputes. While the emphasis in preventive law is to manage facts and events in such a manner as to avoid unwanted legal consequences, it has a natural connection with concepts of alternative dispute resolution.

Clearly some legal services today include strong elements of “prevention”. Planning for real estate transactions, tax and estate planning, and various legal services provided to corporate clients are examples of preventive law practice. Yet the broader purpose of preventive law goes much further and includes the entire “legal health” of individuals and business entities. Preventive law techniques for individuals include such services as the individual “legal checkup”. In a book “Medical Risk Management”, the authors describe the relationship between preventive medicine and preventive law stating the following: “Using the analogy with preventive medicine, preventive law is the legal specialty of preventing the disease of litigation. Litigation is a serious disease that leaves its victims financially and emotionally weakened and, in some cases, may lead to their economic demise.

It is a contagious disease characterized by a latent state with intermittent crises (individual suits). Symptomatic treatment of the crisis phase may lead to a remission, but the disease usually recurs in a more serious form.”

Sentencing after change of law

What would happen if at the time of the offence the sentence for a certain criminal offence was lesser than it is now? In short the law has recently changed in a certain offence making it more serious and a longer sentence for me based on the amendment?
YU, Dar

The Interpretation of Laws Act states that where an act constitutes an offence, and the penalty for such offence is amended between the time of the commission of such offence and the conviction therefor, the offender shall, unless the contrary intention appears, be liable to the penalty prescribed at the time of the commission of such offence.

Hence you would be sentenced based on what the law stated as the sentence at the time the offence was committed.

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