Q&A – 26 March 2018
English laws, Swahili person
I am reading law at a local university and find it quite intriguing that more than 50% of Tanzanians cannot read or speak English yet almost all the laws are drafted in English. One is supposed to understand the law to be able to comply with it, but the question that requires an answer is how do you expect a local person to comply? Do you have any research on this? I believe some parliamentarians also don’t fully understand the complexly drafted laws that they pass, and they raise their hands because everyone does so.
TY, Mwanza
This is a very good question that does not have a straight forward answer. You have raised a very valid point and we believe there was a drive to have the laws translated or drafted in Kiswahili but we have hardly seen any movement on that front. The law being drafted in English in a country where most citizens do not speak or write English is indeed something that is very concerning. Your question is pertinent- how can a normal citizen comply with the law. We don’t have an answer but can only tell you what the law strictly states.
Ignorantia juris non excusat or ignorantia legis neminem excusat, Latin for ‘ignorance of the law excuses not’ and ‘ignorance of law excuses no one respectively’ is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content. European-law countries with a tradition of Roman law also use an expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful). Both these principles are firmly couched in our laws, meaning that you cannot state that you did not know the law in your defence.
The rationale of the doctrine is that if ignorance were an excuse, a person charged with criminal offences or a subject of a civil lawsuit would merely claim that one was unaware of the law in question to avoid liability, even if that person really does know what the law in question is. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation, this is the price paid to ensure that willful blindness cannot become the basis of a defence. Therefore it is now a well settled principle that persons engaged in any undertakings outside what is common for a normal person, will make themselves aware of the laws necessary to engage in that undertaking. If they do not, they cannot complain if they incur liability.
Will states not to get married
My father does not want me to get married and has stated in the Will to that effect. He is deceased and I am worried that someone might object to me getting married. I do not want my getting married to affect him in the heavens above.
KE, Moshi
No one can successfully object like this. Getting married is a universal right and neither a Will nor any other document can stop you from proceeding with marriage. It does not matter what your father wants when it comes to such personal rights- the final decision is yours. Under the law you can hence proceed as you deem fit. Your lawyers can guide you further.
On whether or not it will affect him up there, we are not qualified to respond to this.
Confused between shareholders and directors
I am a director in a company but not a shareholder. However the decisions I take in the quarterly board meeting feel like I’m the owner. I am also unable to understand what my role is if I am not a shareholder. Is there no law that a director must be a shareholder? Please guide.
EM, Dar
We have answered this question before but will do so again as it arises repeatedly. As a director you do not own the company- you are merely part of the governance structure of the company to whom the management reports. You are neither a manager of the company nor a shareholder, rather the structure in between. Hence you attend Board meetings not shareholders meetings.
The board directors like yourselves are appointed by the shareholders and represent the interests of the shareholders in board meetings. As a director, unless there are special provisions, you are generally not entitled to dividends or any other shareholder benefits although you might be getting allowances to be a director. It is crucial that as a director you understand what your role is, and are able to demarcate between your role and the role of your management and shareholders. As a director you do not run the company but appoint management to take charge of operations. Hence a director cannot directly get involved in operational matters pertaining to a company.
One thing that you must insist the company to provide is a director’s liability insurance so that you are covered in case of a decision by directors that cause losses or other damages to anyone. For example many of our laws provide that directors can be charged in Court for the actions or inactions of the Company. In such a circumstance your legal fees, deposit for bail and the like must be covered by insurance, otherwise a director may not be able to satisfy bail conditions and end up going to remand prison. A number of times directors are unaware of the serious responsibilities that come with the role of a director. Hence insist on proper insurance for your role as a director. Our experience in Tanzania is that most companies and directors do not have, or have not heard of director’s liability insurance.
Generally, unless your company constitution provides otherwise, there is no law that specifies that a director must be a shareholder. Just because you are taking such large decisions doesn’t mean that you should automatically become a shareholder. Your lawyers can guide you further.