Legal Digest – 30 November 2016

EAC six sign Paris Agreement

The six East African Community (EAC) member states Kenya, Uganda, Tanzania, Rwanda, Burundi and South Sudan have signed the Paris Agreement and they are all at different stages of ratification processes.

The Climate Change Adaptation Specialist at East African Community Secretariat, said that the EAC member states were now reviewing climate change policy documents.

The EAC Secretariat has developed a road map to implement key resolution of the Paris Agreement. This road map has several elements that include; how to approach the Nationally Determined Contributions (NDCs) implementation; translation of the Paris Agreement into concrete steps for the Partner States; and how to take the work forward. The implementation of the road map would involve several interventions, including, among others, identification of the resolutions of the Paris Agreement, which are more relevant to the EAC Partner States.

The road map will assist policy makers in Partner States dealing with climate change in internalising the Paris Agreement to come up with country specific implementation framework. It also entails identification of common actions across NDCs and develops NDCs Implementation Plans; review of the EAC’s existing Regional Climate Change Policy (2011), Climate Change Strategy (2011/12-2015/16) and Climate Change Master Plan (2013-2033) to mainstream the Paris Agreement.

Polythene Bags Face Total Ban With New Bill

The bill to control polythene materials within East African Community (EAC) member states – Tanzania, Kenya, Uganda, Rwanda and Burundi – which was floated during the East African Legislative Assembly (EALA) sessions of Arusha last August, resumed again.

After the recent sessions in Zanzibar, the Arusha-based EALA moved its sitting to Nairobi, Kenya, , for the third Meeting of the Fifth Session of the Third Assembly which started on November 21 and continues to first week December.

The other key Bill, in addition to the EAC Polythene Materials Control Bill, 2016 is the EAC Gender Equality and Development Bill, 2016 which makes provision for gender equality, protection and development in the Community.

The Treaty for the Establishment of the EAC in Article 121 recognises the significant contribution that women make towards progress of socioeconomic transformation and sustainable growth and the importance of full participation of women and men in the economic and social development of the Partner States.

The EAC Polythene Materials Control Bill, 2016 moved by Hon. Patricia Hajabakiga, aims at providing a legal framework for the preservation of a clean and healthy environment through the prohibition of manufacturing, sale, importation and use of polythene materials. The Bill was re-introduced during the Sitting held in August 2016 in Arusha, Tanzania.

Historic signing in Zanzibar

In November, Zanzibar President Ali Mohamed Shein signed into law, the Oil and Gas Development/Management Bill, an important step that will empower the semi-autonomous part of the United Republic of Tanzania to manage its own natural resources.

The signing of the bill into law brings an end months of anxiety, with the people, legislators and lawyers embroiled in heated arguments on the legal powers Dr Shein had to sign the new law that Members of the House enacted.

The law provides for regulation of (upstream) oil and gas activities, establishment of the Zanzibar Petroleum (upstream) regulatory authority and establishment of the Zanzibar Petroleum development corporation.

Also in attendance were Zanzibar Attorney General, Mr Said Hassan Said, ministers and journalists who heard Dr Shein say that he has not broken any law or constitution by signing the documents.

“We were advised well by our legal advisors and the both the attorney general before writing the law and here today I sign it in the open. Some people are just looking for fame by issuing misleading statements,” Dr Shein said, adding that people will have to wait before they benefit fruits of the new law.

EACJ expects more cases

The East African Court of Justice (EACJ) expects more cases on trade aspects now that its jurisdiction has been extended to cover trade and investments issues.

“We hope there will be an increase in the cases concerning trade aspects as the Common Market protocol is in its implementation progress,” said Registrar of the regional Court Yufnalis Okubo.

The Court is yet to start handling cases on human rights violations and crimes against humanity despite repeated pressure to the East African Community (EAC) Heads of State for it to be given such powers.

Briefing reporters on EACJ activities for this year, Mr Okubo said they also expect cases to be filed by aggrieved parties on disputes or matters associated with the East African Monetary Union. This year, the Court has received 28 cases, making a total of the suits, which it has handled since its establishment in 2001, to 51.

And in order to speed up hearing of the cases, EACJ has introduced case management and recording system which will enable the litigants to file their cases electronically from whichever location to avoid the costs of travelling to and from Arusha as well as time-saving.

“In addition, the Court has developed law reports, which have greatly contributed to capacity building of Judges and staff of the Court,” Mr Okubo said, emphasising that the major role of the judicial organ was to ensure the adherence to law in the interpretation and application of and compliance of the EAC Treaty.

On human rights cases, he said the EAC Heads of State have concurred that for the time being, such cases arising in the region should be taken to the African Court on Human and People’s Rights (AfCHPR), a judicial organ of the African Union (AU) based in Arusha.

The Registrar added that due to the low awareness of the Court within the region, EACJ has now taken an active role in judicial activities and programmes in the EAC partner states and these include training of judicial officers in the national judiciaries to familiarize with the procedures of the regional Court.

Public Notice: A Call for Stakeholders’ Views on Tariff Review Application from TANESCO for the Year 2017

Tanzanians may soon be required to dig deeper into their pockets in financing their energy bills as Tanzania Electric Supply Company (Tanesco) seeks to increase power tariffs by 18.19 per cent.

In view of the tariff increase proposal, the Energy and Water Utilities Regulatory Authority (EWURA) is expected to continue holding a public inquiry meeting to seek views of the public on the application. So far there has been great resistance to the proposal.

A statement, issued by Ewura in Dar es Salaam noted that the tariff review application is made pursuant to Tanesco Tariff Adjustment Order 2016 that came into effect on April 1, this year that required the utility firm to resubmit its application for the year 2017.
“On October 4, this year, Ewura received a Tariff Review Application from the utility firm,” read the statement.

Following the application, pursuant to section 19(2)(b) of the Ewura Act, Cap (414), the regulator will meet with different stakeholders including the Government Consultative Council (GCC), Consumer Consultative Council (CCC) and the public to discuss and decide on the reasonableness of the tariff application.

11 legal aid centres to be established in Tanga

Eleven District Paralegal Aid Centres will be established in all local authorities in Tanga Region under a new four-year project aiming at improving legal services in the region.

The new project, known as ‘Promotion of Quality Paralegal Services Among Community Members in Tanga,” is being implemented by a Korogwe-based non-governmental organisation in collaboration with Tanga Elderly Women Resources Center (TEWOREC).

The scheme, which will be implemented between this year and 2020, was launched by the Korogwe District Commissioner, Mr Robert Gabriel.

NGO calls on government to enforce forestry law

Tanzania Association Foresters (TAF) has asked the government to strengthen rules and regulations on the management and utilization of forestry resources.

Speaking to reporters last month, TAF chairman Reuben Mwanakimbullah urged the government to enforce the Forestry Act. He said the move would reduce the destruction of natural resources and ensure their sustainability.

Prof Mwamakimbullah said forests have been destroyed by, among others, pastoralists, farmers and charcoal makers. The expert said invading forest reserves would make the ecosystem uncertain for future generations.

“President John Magufuli has been pushing for effective enforcement of the Forestry Act. We urge him to continue doing so” he said.
Guidelines on forest reserves will be released by the Ministry of Natural Resources and Tourism. The government has already informed a task-force, which involves six ministries to crack down on forest reserve trespassers.

New land Valuation Act to be enforced

The Valuation and Valuers Registrations Act, 2016 is expected to enter into force from next month after the President approves it.
The law has been reducing land and property compensation conflicts among communities. A statement from the Ministry of Lands, housing and Human Settlements Development said the law would be soon gazetted after being approved by the Head of State.

The acting head of the valuation unit, Ms Evelyne Mugasha, said there had been serious problems with a compensation processes, especially for people, whose land was taken by government institutions or investors.

She said the new law would establish a mechanism to ensure that after evaluation, residents would be compensated in six months. She said the evaluation would be null and avoid after two years.
“Some people have been waiting for compensation for over five years. This is against the regulations and has been a source of conflicts in many areas”, she said.

While the Ministry was waiting for the new law, last year they introduced the valuation document that insisted that a valuer would start the estimation only after institution or investors confirmed to have allocated funds to compensate claimants.

Media faces challenges as Bill passed

The National Assembly passed the Media Services Bill 2016 after making 32 changes including introducing five new sections. President Magufuli also signed this into law immediately upon receiving it.

All the amendments made were as proposed by the government, and all attempts by the Opposition to change some of the sections were thrashed by majority CCM lawmakers.

The key amendments which were unsuccessfully pushed by the Opposition were, first the definition of the word ‘media’, where according to the Bill is “the industry trade, or business of collecting, processing and dissemination of content through radio, television or newspapers, and includes online platforms.” Kigoma Urban legislator Zitto Kabwe (ACT-Wazalendo) proposed it changed so as in the end to read “including its online platforms” to specifically mean the online platforms of newspapers, radio and television.

“If we are to leave it the way it appears in the Bill it will mean all online platforms including blogs and social media sites will be regulated by this Bill, which is unacceptable. I know the minister has been insisting that this Bill is not going to go for social media platforms, but its current state suggests otherwise,” he said.

His argument was countered and overpowered by among others, the Information, Culture, Arts and Sports minister Nape Nnauye and Attorney General George Masaju who insisted that the Bill was not going to crack down on social media and that the definition was legally correct.

Another amendment pushed by the Opposition was in Section 6(1) (2) which stipulates that conditions for ownership of media houses shall be as prescribed in the regulations. Ukonga legislator Mwita Waitara (Chadema) wanted the clause deleted or the conditions to be stipulated in the Bill.

Backing Waitara, Mr Kabwe said that, “There are already talks of what is intended here. I don’t think there’s any harm in putting the regulations in the Bill, so we can all go through them here and ensure each and everything is technically okay. If we are to leave it to the minister to dictate the regulations then we will not be doing justice to the matter.”

Debating the section, Ubungo legislator Saed Kubenea (Chadema) said that the section was specifically penned to attack one media house that is currently 100 per cent owned by foreigners.
Defending the section, Mr Nnauye said that the section is not intended to hurt anyone, “the good thing here is, the regulations will be tabled here in Parliament for endorsement and if there is anything then it will be raised. Again if any party will feel aggrieved by it they can go to court and lodge their complaints.”

The last major attempt from the Opposition came from Mr Waitara on Section 7(1) (b) (iv) which states that one of the obligations of private media shall be, “to broadcast or publish news or issues of national importance as the Government may direct.”

Mr Waitara, wanted the words “…as the Government may direct” omitted, since it will be used by the government as a lee way to command what private media houses should publish or not in issues of national importance. Again the proposal was turned down by the majority vote form CCM camp.

Law on microfinance awaited

Microfinance stakeholders are now waiting for the government to prepare a law that will regulate the subsector after the cabinet was reported to have recently approved the Microfinance Policy. It was expected that Tanzania could have its microfinance law in 2015 but that could not happen.

After a study which highlighted legal and regulatory constraints faced by the microfinance industry, the Tanzania Association of Microfinance Institutions (Tamfi), a national network for microfinance institutions and service providers in an inclusive way gave proposals, which were presented to the government.

All ears are now on 2017 to hear when the bill will be submitted for parliamentary processes and enact it to regulate the microfinance. The deputy Permanent Secretary in Ministry of Finance and Planning Ms Amina Hamis was quoted at a recent East Africa microfinance summit in the city as saying that the government will submit the Microfinance Bill to the National Assembly soon. She also said the cabinet had approved the National Microfinance Policy recently.
“We think 2017 should not go without the Microfinance Act which will regulate the financial subsector,” says Ms Winnie Terry, executive secretary of the Tanzania Association of Microfinance Institutions (Tamfi).

Tamfi has been advocating for the regulatory framework to make the sector grow and even protect the consumers in some isolated cases of irresponsible microfinance practices that harm financial consumers.

The microfinance policy and act are both expected to speed up formalization and development of the microfinance subsector and put Tanzania in the same page with other EAC partner states.
Microfinance institutions remain principally the main providers of financial services to the rural economy and a cross section of the urban society and a proper regulatory regime is necessary for the industry to grow to the next level.

Microfinance Institutions are registered or licensed through the NGOs Act (2002), Companies Act (2002), Banking and Financial Institutions Act (2006), Cooperatives Act (2003), Cooperative Act (Zanzibar) (1986) or Registration, Insolvency and Trusteeship Agency.

But stakeholders say some of these registrations do not address issues regarding ownership, governance and management capacities, unhealthy competition, access to funds and accountability simply because they lack the appropriate regulatory oversight machinery that can enforce compliance.