Q&A – 20 August 2012

The Attorney-Client Privilege

What is the Attorney Client privilege and does it apply in Tanzania. How do I ensure that I am protected when I speak to my attorney? Can I disclose all information to my attorney?
GH, Dar

The attorney-client privilege is one of the oldest privileges recognized in law. At its most basic, the privilege ensures that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered. Thus, the underlying principle of the privilege is to provide for sound legal advice and advocacy. With the security of the privilege, the client may speak frankly and openly to legal counsel, disclosing all relevant information to the attorney and creating a zone of privacy. In other words, shielded by the privilege, the client may be more willing to communicate to counsel things that might otherwise be suppressed. In theory, such candor and honesty will assist the attorney in providing more accurate, well-reasoned professional advice, and the client can be secure in the knowledge that his statements to his lawyer will not be taken as an adverse admission or used against his interest.

For its policy considerations and justifications, the attorney-client privilege has a very real practical consequence: the attorney may neither be compelled to nor may he or she voluntarily disclose matters conveyed in confidence to him or her by the client for the purpose of seeking legal counsel.

Although there is no single authority on the attorney-client privilege, it has been defined as follows: Where legal advice of any kind is sought from a professional legal adviser in his or her capacity as such, the communications relating to that purpose, made in confidence by the client, are at his (or her) instance permanently protected from disclosure by the client or by the legal adviser, except the protection be waived.”

Hence no matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a
communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.

It is also always recommended, that you do a conflict of interest check to ensure that your attorney does not represent the other party. The worst that can happen is that you and the other adversary party share the same attorney.

Just as in other common law jurisdictions, the Attorney Client privilege is applicable in Tanzania.

Red for blood, red for Simba

For many years our national flag contain colours of green yellow, black and blue with each colour having its own connotation. However, under our history there have been various wars including the Maji Maji rebellion where many of our forefathers died. Tanzania has also assisted many countries in their independence struggle and as such I believe that there should be a red colour for blood in the flag. Also most Tanzanians support Simba and hence red should be included. How do I go about recommending this?
BN, Morogoro

Your reasons for adding a colour as far as the wars and struggles are concerned are understandable. However the reason that most Tanzanians are Simba Sports Club followers is not a very strong ground for changing our national flag as there are also other clubs like Yanga who have different colour schemes.

Section 5 of the Emblems Act provides that the President may, by proclamation, modify the national flag or the Coat of Arms. It is worth noting here that despite that power by the President, the law is silent as to reasons for such modifications. It is for the President to decide whether your reasons are good or not and whether the flag should be changed or not.

Just so that you know, our flag has not been modified since 1964. For any changes you will have to forward your proposal to the President for consideration.

Removal of tissue from dead body

Two years ago, I lost my father in a hospital after he was involved in a car accident. While in hospital, the Medical Officer in charge requested my mother for her consent that he should remove some body parts and tissues for treatment of other persons. Is it legal to remove corpse’s tissue? Please guide.
PO, Dar

Our law allows the Medical Officer in charge of a hospital to remove or authorize the removal of any cadaveric tissue if he or she is satisfied that the tissue is required in the treatment of any other person. However, the medical officer shall be obliged to seek the consent of the spouse, parent or guardian of the deceased if they are readily available. It should be noted that the word “readily available” means available within such times as would enable the removal of the tissue to take place whilst it is still in condition to be utilized for the purpose for which is required. The basis for this law is clear in that deceased tissue can still be used to save other people’s life.

Hence a request made by the medical officer to your mother is legal.

Tanzanian laws refer to males only

I have been reading a number of Tanzanian laws which continuously refer to the male gender only. He shall do this, he shall not do that, he shall be liable to etc. Does that mean that the law does not apply to the weaker sex- the female?
ET, Dodoma

You are right that the law does refer to males but that does not exclude the females. The Interpretation of Laws Act which can generally be read into all Acts very clearly states in section 8 that in any written law– words importing the masculine gender include the feminine; words importing the feminine gender include the masculine; words in the singular number include the plural and words in the plural number include the singular.

Hence wherever it makes sence, the law applies equally to females as to males.