Q&A – 29 February 2016
Enforcing marriage contract
My father and his friend agreed many years ago that when my father’s friends daughter and I grow up, we will get married. My father has already paid the cattle and other sums in advance. She is now asking for more time and I want to enforce the contract. Can you help? Also under Tanzanian law is marriage defined, and if so does it have a specific duration? I would like to have a ten year relationship first and see how it goes.
UR, Mwanza
You will not like the answers you are about to read.
Marriage is not like buying a mobile phone over the counter. It is a special bond that is created between a man and his wife. The two fathers could not have entered into a contract for the two of you as both of you did not consent. Section 16 of the Law of Marriage Act states that (1) No marriage shall be contracted except with the consent, freely and voluntarily given, by each of the parties thereto. Since there was no consent to get married, there is no agreement in place. And even if there was, the girl can still change her mind. You have no cause of action to force her to get married to you.
Also under section 9 of the Act, marriage is defined as (1) Marriage means the voluntary union of a man and a woman, intended to last for their joint lives. (2) A monogamous marriage is a union between one man and one woman to the exclusion of all others. (3) A polygamous marriage is a union in which the husband may, during the subsistence of the marriage, be married to or marry another woman or women.
The duration of marriage is also provided for as subsisting until terminated- (a) by the death of either party thereto; (b) by a decree declaring that the death of either party thereto is presumed; (c) by a decree of annulment; (d) by a decree of divorce; or (e) by an extra-judicial divorce outside Tanzania which is recognised in Tanzania.
Therefore, unlike other jurisdictions, our law has no provision for a short term marriage. You either get married with an intention of a life long relationship, or you don’t. There is nothing in between.
Lying in Court
A party to certain proceedings has totally lied in their affidavit that they filed in Court. It seems like sworn statements are not taken seriously here. What are the consequences of giving such false statements under oath? In other countries one would be sent to jail.
ES, Dar
The Penal Code has specific provisions for offences relating to the administration of justice.
Section 102 of the Code states that any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed “perjury”. It is immaterial whether the testimony is given on oath or otherwise. The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used.
Further it is immaterial whether the false testimony is given orally or in writing. It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place, or not if it actually acts a court or tribunal in the proceeding in which the testimony is given. It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceedings or not.
Moreover, any person who aids, abets, counsels, procures, or suborns another person to commit perjury is guilty of the misdemeanour termed “subornation of perjury”.
Any person who commits perjury or suborns perjury is liable to imprisonment for seven years.
We agree with you that affidavits in Tanzania, unlike other jurisdictions, are taken a little too lightly in that persons affirming or swearing the affidavits do not realise the strict provisions of the law. We have not come across any recent cases where a party to proceedings has been charged under the above provisions. The law is in place against lying in Court, or in affidavits, but it is not strictly being enforced.
Purchase of assets from Government
Our company is negotiating with a government entity in Tanzania for the purchase of assets owned by that entity. Does this require approval from your anti-trust authorities?
DE, Dar
Depending on what entity it is, it is likelier than not that approval for this transaction under the Fair Competition Act of Tanzania will be required notwithstanding that you are purchasing this from the government.
Section 6 of the Fair Competition Act states that (I) This Act shall apply to Mainland Tanzania, state bodies and local government bodies in so far as they engage in trade. (2) Notwithstanding the provisions of sub-sections (1), the State shall not be liable to any fine or penalty under this Act or be liable to be prosecuted for an offence against this Act. (3) For the purposes of this section, without affecting the meaning of ”trade ” in other respects – (a) the sale or acquisition of a business, part of a business or an asset of a business carried on by the State, a State body or a local government body constitutes engaging in trade; and (b) the following do not constitute engaging in trade: (i) the imposition or collection of taxes; (ii) the grant or revocation of licences, permits and authorities; (iii) the collection of fees for licences, permits and authorities; (iv) internal transactions within the Government, a State body or a local government body.