Q&A – 9 November 2015

Contravention of our Constitution

A friend of mine told me that the Minister’s in President Kikwete’s government continue to be Minister’s in President Magufuli’s tenure as the former President did not dissolve his cabinet. Is that true and is this not against the constitution? Also, how does one get appointed as a Prime Minister and Minister?
MK, Dar

Your friend is misguided. The Minister’s in former President Kikwete’s government do not hold their posts after President Magufuli assumed office. We turn you to Article 57(2) of the constitution which states:

(2) The Office of a Minister or a Deputy Minister shall become vacant upon the occurrence of any of the following: (a) if the incumbent resigns or dies; (b) where the incumbent ceases to be a Member of Parliament for any reason not connected with the dissolution of Parliament; (c) where the President revokes the appointment thereby removing the incumbent from office; (d) where he is elected Speaker; (e) where the Prime Minister resigns or his office becomes vacant for any other reasons; (f) immediately before the President elect assumes office; (g) where the Ethics Tribunal makes a decision confirming that he has contravened the law concerning ethics of public leaders.

You can see from Article 57(2)(f) above that the Minister’s cease to be Minister’s immediately before the President elect assumes office, meaning that the previous government Minister’s are no longer Ministers.

It is now for President Magufuli to first appoint a Prime Minister, who is appointed under Article 51 of the Constitution. In particular article 51(2) states that as soon as possible, and in any case within fourteen days after assuming office, the President shall appoint a Member of Parliament elected from a constituency from a political party having a majority of members in the National Assembly or, if no political party has a majority, who appears to have the support of the majority of the Members of Parliament, to be Prime Minister of the United Republic, and he shall not assume office until his appointment is first confirmed by a resolution of the National Assembly supported by a majority vote of the Members.

Therefore, the current President has 14 days from 5 October 2015 within which to appoint a Prime Minister from the ruling party, and who must be then confirmed by parliament.

As for the appointment of Ministers, article 55(1) of our constitution states that every Minister will be appointed by the President after consultation with the Prime Minister. This means that the Prime Minister must be in place before Minister’s are appointed.

We decided to answer this question although it was only recently sent because the question is on current affairs, and to ensure that the public is not misguided.

Minimum marriage age for girls

Is it true that the minimum marriage age for girls in Tanzania is 15 years? Is this not ridiculous in today’s era?
EE, Dar

It is true that the minimum age for a girl to get married in Tanzania is 15 years. We fully agree with you that it is a shame but sadly all the Minister’s who have been in the Ministry responsible for Women issues have failed to change the law of marriage act even after promising that it was being reviewed.

It is very sad that everyone talks about changes to this law, which conflicts with the Law of Child Act, but yet no action has been taken for the last two decades One other even worse provision in the Act is one which allows a girl who is 14 years to get married if the Court is satisfied that there are special circumstances which make the proposed marriage desirable.

Therefore one can conclude that even a 14 year old girl can get married in Tanzania. It is to be seen if the soon to be appointed new Minister will manage to change this law. It will be the sign of some success as there has been a lot of criticism about the minimum age for marriage and other provisions of the law of marriage act in general.

Tapping of phones

I am a law student and am wondering if it is legal for security organs to trace and track phones and e mails of persons?
OI, Dar

Your question is way to open ended and does not have specific details to allow us to answer it in enough detail.

Notwithstanding that, we cite a law, the Prevention of Terrorism Act that allows the Minister under the Act to give orders to communication providers to do anything necessary, including taping and the like. The communication provider has no choice but to comply.

If the provider leaks the information to the party it is recording, its CEO and other managers and even directors can be criminally charged. Much as this would sound like a breach of privacy, this Act, you will appreciate, is enacted to curb such terrorism and associated activity in the country and beyond.

Defence of intoxication and insanity

In criminal law are these two defences of intoxication and insanity not unfair to the victim? How can one get drunk on his or her own accord and then claim that they did not know of having committed the offence? The same applies for insanity? Should the law not be changed?
ER, Mwanza

Our Penal Code clearly states that intoxication is not a defence to a criminal charge.

Our law reads just like the way you are thinking save that intoxication is a defence if at the time of the act or omission the accused did not know what he was doing and (1) the person was intoxicated by the negligent or malicious intent by someone else, or (2) if due to the intoxication the accused was temporarily or permanently insane.

There is, therefore, a narrow defence available to those who are intoxicated but this defence is limited as provided above.