Q&A – 19 August 2019
Dead body donation
I do not wish to be buried when I die and want to donate my eyes and other organs to those in need. I also want my body to be used for medical or other research. Can I provide for this in my Will and can any of my family members challenge this? Can a religious service still be held for me?
EO, Dar
A Will is the legal declaration of a man’s intention, which he wishes to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death. Section 2 of the Probate and Administration of Estates Act, defines a will to mean a legal declaration of the intentions of a testator with respect to his property, which he desires to be carried into effect after his death.
A person making a Will is not restricted to indicate whatever he or she wishes to be done when he passes away unless it is contrary to the laws. Since there is no law in Tanzania which bars people from donating their organs and bodies for medical research, and since this is not against public policy, you are allowed to do so.
In response to whether or not your family can challenge your Will, whilst challenging a Will is not easy, it leads to delays in the granting of probates. If such a challenge is launched than you may not be able to donate any of your organs as we believe the organs must be donated within a few hours of ones death for them to be effectively used. Thus, taking the conservative side, we recommend that you inform your loved ones at the outset of your intentions and perhaps even have them sign on a piece of paper consenting to this and confirming that they will not challenge your wish. We believe a funeral service for you can still be held, although there will be no body to bury.
We recommend you check this with your religious leader to confirm. Donor donations are really helpful for persons in need and whilst conducting our research we came across the following myths which we share with you: (a) Qs: I’m too old to be a donor, you wouldn’t want my organs! Answer: you are never to old and infact most organ donors are older people. (b) Qs: I’ve got long term health problems, so there’s no way I can donate. Answer: having a medical condition does not necessarily prevent a person becoming an organ or tissue donor. (c) Qs: They won’t want my organs!
Doctors won’t do enough to save me if I they know I am a donor. They’ll be more interested in taking my organs to save someone else. Answer: there is no connection between the doctor who is saving your life and the one who will do the transplant. (d) Qs: It’s against my religion to be a donor. Answer: most major religions of the world do not object to organ donation. (e) I don’t need to tell my family that I want to be a donor because I have it written in my will. Answer: by the time your Will is opened you will already be buried hence recommended to inform your family prior.
Crime when drunk
I have recently moved to Tanzania and want to know to what extent is intoxication a defence in Tanzanian laws? Is this taken up as seriously as in the Western world?
EF, Mtwara
Intoxication is usually no defence in criminal law unless the intoxication is not self-induced, or the person intoxicated was insane at the time of committing such an offence. Section 14 of the Penal Code specifically deals with this.
We must point out that under our laws, Intoxication is taken up seriously, although the implementation of such provision is weaker than in the western hemisphere.
Overtime pay in banking
I was a branch manager with a bank in Tanzania. Recently I was fired and wish to make a claim for all the many hours I spent working beyond official hours. Do I have a valid claim?
OH, Dar
The Employment and Labour Relations Act generally states that an employer shall not require or permit an employee to work more than 12 hours in any day and that the maximum number of ordinary days or hours that an employee may be permitted or required to work are (a) six days in any week; (b) 45 hours in any week; and (c) nine hours in any day.
However the same Act further goes and disapplies the above provisions to employees who manage other employees on behalf of the employer and who report directly to a senior management employee.
Hence in your case, it is unlikely that the overtime is claimable- your lawyers can guide you further.
Forfeiture of corruption proceeds
Is there a law in Tanzania whereby corruption proceeds can be forfeited by the PCCB? What is the procedure?
TU, Dar
The answer to your question is yes. The Prevention and Combatting of Corruption Act provides in section 40 (1) that the Bureau may, in collaboration with the office of the Director of Public Prosecutions recover proceeds of corruption through confiscation to the Government. (2) Where a person is convicted of an offence of corruption under this Act, the Director of Public Prosecutions may, apply to the convicting Court or to any other appropriate Court not later than six months after conviction of the person for forfeiture order against any property that was obtained through corruption. (3) For the purpose of this part, “proceeds of corruption” means any property that is derived or obtained by a person from the commission of corruption offences.
It must be noted that the forfeiture is not automatic and must be sanctioned by the Court. This Act further states that should a forfeiture order be made, all such property shall vest in the United Republic.