Legal Digest – December 2015

Court of Appeal nullify proceedings

Justices Mbarouk Mbarouk, Sauda Mjasiri and Batuel Mmilla recently quashed a conviction and sentence after they held that the prosecution failed to give reasonable information as to the nature of the offence charged against the appellant as required under section 132 of the Criminal Procedure Act.

Section 132 provides that “every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

“It is now settled that a person accused of an offence must know the nature of the charge facing him as per a principle of a fair trial. The prosecution and the trial court are duty bound in making sure that the charge against the appellant is correct before the commencement of the hearing,” the Justices said.

Particulars of the offence, on one hand, showed that there has been robbery of hand bag, mobile phone and vouchers from one person and on the other hand, the same particulars showed a robbery of a bicycle belonging to another person.

“In essence, as the stolen properties belong to two different persons, the charge sheet ought to have contained two distinct counts. To put them together renders the charge sheet duplex which is a serious irregularity as it has violated the requirement of section 132 of the CPA,” the Justices added.

The quashing of the sentence brings to light some serious quality control and prosecution skills issues that the Director of Public Prosecution offices is faced with.

Tanzania suspended from EITI

The Board of the Extractive Industries Transparency Initiative (EITI) has suspended Tanzania for failing to publish its EITI report for 2012/2013 in time. If the outstanding EITI report is not published by 30 December 2015, the suspension will remain in force until the EITI Board is satisfied that Tanzania has complied with the reporting requirement. Tanzania is the 3rd African country to be suspended from the voluntary standard in the past 3 years.
A total of 49 countries are currently implementing EITI.

Science Act in the offing

The Government is drafting a Science Bill which will outline and boost development of science in Tanzania. The proposed bill will be soon forwarded to Parliament for debate and adoption before being endorsed by President John Magufuli to become the Science Act. If endorsed by MP’s, the new law will empower the Commission for Science and Technology (Costech) to supervise clearly the development of science and technology.

TRA upbeat on 12.3trn revenue target

The Tanzania Revenue Authority (TRA) has expressed hope that it will collect over TZS 12.3trn in taxes in the 2015/2016 financial year. On average, TRA has been collecting slightly over 844.6bn/- per month with the highest collections of over 1.06trn/- in September, this year.

TRA spokesperson said in Dar es Salaam that the revenue body had already collected almost 3.78trn/- which is 97.6 per cent of the target for the first quarter of this fiscal year. The amount is slightly over 25 per cent of the 2015/16 revenue target.

“Now it’s zero tolerance against tax evaders, there is a lot of political will in President Magufuli’s position on revenue collection,” TRA said while warning tax evaders.

“Let the public help us by demanding receipts whenever you buy a product or pay for a service, and if you encounter TRA corrupt officials or any other government agency, film them and put it online,” TRA stated.

Tea researcher pleads to drop taxes on irrigation equipment

Tea Research Institute of Tanzania (TRIT) has requested the government to abolish or reduce taxes charged on irrigation equipment so as to enable farmers to afford buy drip irrigation technology.

According to TRIT, if the government reduces or abolishes all taxes charged on irrigation technology equipment, farmers from all tea growing districts will adopt modern technology which will assist to boost tea production. The tea industry plays a crucial role in developing growth-drip irrigation technology which enables farmers to escape the effects of climate change and poor rainfall.

The TRIT was established in 1996 as an autonomous organization representing the government of Tanzania and the Tea industry.

Treasury Registrar warns Investors

The Treasury Registrar issued a notice to all purchasers of privatized industries and farms who have defaulted under their respective sale agreements, to provide an implementation report, before the Treasury Registrar decides to take action, which shall include repossession of the industries.

The office of the Treasury Registrar is currently reviewing all sale agreements entered during the privatization under PSRC and CHC. During the initial review exorbitant breach of the terms of the sale agreement were found, including the industries still remained closed, sale of equipment without new equipment being replaced, non compliance with the investment plans as submitted during initial bidding, non payment of purchase price and change of use of the indistries without approval.

The Treasury Registrar has given all such companies 30 days to submit their implementation report, of which the deadline expires mid December.

In the wake of the strictness by the present government, to ensure plans are implemented as per the agreements, it is likely that a number of industries will be repossessed.

Development Partners concerned with Cyber Crimes Act

Apart from the Civil Society Organisations, development partners have also expressed concern at the recently enacted Cyber Crimes Act. Speaking to a local newspaper, heads of mission and key development partners have expressed their dismay over what they perceive as an improper enforcement of the Cyber Crimes Act, 2015. They have indicated that there is a violation of fundamental freedom in the enforcement of the law.

There were concerns regarding the recent arrests made of staffs working for the Legal and Human Rights Centre (LHRC) and confiscation of key technical outfits, reportedly motivated by section 16 of the Cybercrimes Act.
Section 16 of the Cyber Crimes Act, which is the most controversial section of the law states the following:

16– Any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defame, threaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

Legal practitioners are challenging the above section in that it violates Article 18 of the Constitution/ Article 18 states that every person – (a) has a freedom of opinion and expression of his ideas; (b) has out right to seek, receive and, or disseminate information regardless of national boundaries; (c) has the freedom to communicate and a freedom with protection from interference from his communication; (d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society.

Around the World

Vietnam law to allow sex change on legal documents
Lawmakers in Vietnam voted on Tuesday to pass a law granting transgender people the right to change their gender on legal documents. The new law was approved by 282 of 366 law makers after the National Assembly’s Standing Committee submitted a report on a wide range of legal issues faced by transgender people in the country. Many believe this may be a first step in allowing sex reassignment surgery in the country. Supporters have reportedly gathered in large numbers in Hanoi, the nation’s capital, with more gatherings planned for Tuesday night. The law will go into effect in early 2017.

Russia court bans Church of Scientology
A Russian Court on Monday banned the Moscow branch of the Church of Scientology. The court banned the church stating that it does not comply with federal laws on freedom of religion because ‘Scientology’ is a US trademark. This is the latest in a series of battles between the Russian government and US-based organizations. The church plans to appeal the decision to Russia’s Supreme court. The European Court of Human rights (ECHR) has ruled  in favor of the church on several occasions, stating the Russia’s refusal to recognize the church as a religion violated its rights.

Kenya president: corruption threatens national security
Kenyan President Uhuru Kenyatta said Monday declared that corruption is a “standing threat to our national security”. Kenyatta’s comments come amid criticism that he has lost the fight against corruption. Noting that “the bribe accepted by an official can lead to successful terrorist attacks that kill Kenyans,” Kenyatta said that the fight against corruption must be met with a “multifaceted” approach. He encouraged different groups to collaborate so that those who have been responsible for corruption are held accountable.
Kenya has been the site of several deadly terrorist attacks in recent months. In April Garissa University was attacked by al-Shabaab militants. Many Kenyans have reportedly lost faithin their government’s ability to protect them from terrorist attacks by al-Shabab, as it is estimated that approximately 300 individuals have died due to terrorist attacks in the nation since 2011.

UK couple challenge same-sex marriage ban in Northern Ireland
A same-sex couple in Northern Ireland is challenging the same-sex marriage ban, arguing that reducing their marriage to a civil partnership is unlawful discrimination. Gay marriage has been legal in the rest of the UK since 2013, but not in Northern Ireland. The couple, who filed the suit anonymously, married in London in 2014. A lawyer for the couple said the status devalues the marriage and has made the couple feel embarrassed and alienated. Amnesty International advocacy website] welcomed the challenge, saying the law is absurd because the couple’s marriage is legally recognized in other areas of the UK, but is invalidated the moment they land in their native Northern Ireland.

Lawyers risk being struck off over social media, warns US judge
Lawyers need to be careful about clients who try to destroy evidence in the form of social media postings, according to Magistrate Judge Kristen Mix.
Speaking at Georgetown Law’s 12th Annual Advanced eDiscovery Institute conference, the judge said that judicial understanding of Facebook and other social media is not as thorough as it would be if they were users of these sites.

Evidence destruction
But she warned that case law is developing quickly. Items posted on sites such as Facebook are often subject to discovery, she said. She added: ‘You only have one law license, and you can lose it over this stuff.’ She explicitly warned lawyers about the dangers of allowing clients to destroy such evidence.