Legal Digest – January 2016

New law to oversee property deals

In an effort to curb massive tax evasion in property transfer, where different departments work in an uncoordinated fashion, the Government intends to establish an oversight body. If passed by parliament, the bill titled “The Estate Agency Act” will establish the Estate Agency Board.

This board will have powers to register and regulate the activities and conduct of estate agents and land brokers including taking legal action against unregistered estate agents and land brokers. The board will scale the fees for estate agents and will be able to monitor land prices in different areas that will assist Tanzania Revenue Authority in closely monitoring land transactions for tax purposes.

The Ministry of Lands states that one of the other reasons for moving the Bill is to formalize land transactions and tackle the rise of serious land conflicts.

TPDC issues public notice on LNG site

The Tanzania Petroleum and Development Corporation (TPDC) issued a notice in newspapers that it had acquired the title deed for the Liquidified Natural Gas (LNG) project in Lindi region. In its statement, TPDC stated that the acquisition follows a Government Notice on revocation of a land, given by the Commissioner for Lands on 30 October 2015 and published in the Daily News on 17 November 2015.

TPDC states that the LNG plant land is located at Plot No 1, Block A, Likong’o Lindi Municipal and the implementation of this project will stimulate production of natural gas for local demand and exportation. The project is expected to cover 2,071,705 hectares of the land owned by TPDC and apart from the LNG project, there will be additional land of about 17,000 hectares that will be used for construction of heavy industries for manufacturing petrochemical products by using natural gas as feedstock and source of energy.

TPDC warned the public to avoid purchasing any portions of the above land as it is exclusively earmarked for the LNG project and is under the ownership of TPDC.

Further calls for review of Marriage Act

After all stakeholders having failed to convince and move previous Government’s to amend the Law of Marriage Act, the Canadian High Commissioner Alexandre Leveque also appealed to the Government to look into changing this outdated law.

The High Commissioner appealed to the Government to address discrepancies in the Marriage Act so that it defined who a child is and protects children’s rights in line with the Law of Child Act 2009.

“Tanzania will eradicate early and forced child marriages if it ensures that there is no contradiction in the provisions that define and protect the rights of children,” he said. The Law of Marriage Act in Tanzania allows a girl as young as 15 to get married.

The High Commissioner stated this when briefing reporters on what transpired during a recent African Girl’s summit in Lusaka on ending child marriage in Africa. Canada, being in the frontline in the fight against the problem, also took part in the meeting which, among other things, resolved that all African Union member states should adopt and enforce the the legislation that set the minimum age of marriage at 18.

It is to be seen if President Magufuli’s government, especially it’s newly appointed Minister for Women affairs will be able to quickly bring a bill to parliament to amend the Marriage Act. Over the last twenty years, previous Minister’s have all promised a review but have failed to move towards amending the law.

Government invites public opinion on procurement law

To curb embezzlement of public funds, the Government through the Law Reform Commission of Tanzania (LRCT) has issued an advert calling for public opinion on how best the law can be improved.

“The Government and its institutions experienced difficulties that have become an obstacle in toward smooth implementation of the law, both in terms of costs, value for money and management of timeliness,” reads the advert in part. This is in line with President Magufuli’s concerns raised about the same law.

The current Procurement Act is also bureaucratic and sometimes delays implementation of important assignments.

Treasury Registrar issues final ultimatum

After having reviewed various sale agreements of privatized entities, the office of the Treasury Registrar issued a stern final 7 day warning to new owners of all industries and Government assets that were privatized and whose owners have not developed them in accordance with the various agreements to submit an implementation plan failure of which the Government intends to proceed with repossessing the industries and assets.

The Treasury Registrar states that a large number of such industries have not been developed fully, or at all, with others having changed their use without permission from the Government. This is a welcome move as the Government continues to work towards building strong industries in Tanzania to reduce dependence on imported products.

TRA’s reliance on taxes from importation is over 35% of its total collections clearly showing how the whole country is dependent on foreign goods,that create jobs for the foreign companies at the expense of Tanzanians. However many industrialists also blame the Government for failing to create a conducive environment for industrial development especially the supply of power which is a key component to industrialization.

Inmates protest delay in case hearing

Six inmates refused to move to protest against delays in hearing of their cases. The protesters included those who were against what they described as ‘fabricated murder cases’. A similar incident happened about a year ago when nine inmates stripped off in front of the District Court protesting against delays in hearing of their cases.

The inmates’ refusal to move forced Resident Magistrate Safina Semfukwe to go to the scene and listen to their demands. The inmates were complaining about the failure by the prosecution to complete investigations and wondered why it was taking so long for their trial to begin.

The delays in trials of criminal cases are mainly due to the prosecution not completing its investigation leading to delayed dispensation of justice which is a cause of concern across the country.

Carry on Temporary Assignment (CTA) to be replaced by Work Permits

On 14 December 2015, the Minister of Labour issued a Public Notice, requiring all non-citizens that are on Carry on Temporary Assignment (CTA) status to convert their CTA into work permits. For those non-citizens who are coming to Tanzania for a short term assignment, the alternative to CTA would be a Short Term Permit (STP), issued by the Ministry of Labour and Employment. The fee charged is USD 500 and the STP is valid for six months with the holders being allowed to leave and enter Tanzania over that period.

In addition to STP, all non-residents applying for new permits are required to apply for a residence permit at the Ministry of Home Affairs (Immigration). Till date there is no change in the immigration process and fees at the Ministry of Home Affairs (Immigration). The fee that will apply for the STP residence permit is USD 2,050 which is the same as the fee for Class B work permit.

African Court on Human Rights rules in Alex Thomas vs. United Republic of Tanzania

On 20 November 2015, the African Court on Human and Peoples’ Rights (AfCHPR) delivered Judgment in Application No 15 of 2013: Alex Thomas v The United Republic of Tanzania. The Applicant, Mr. Alex Thomas, a citizen of Tanzania, was convicted for his alleged participation in an armed robbery that took place along the Tanzania- Kenyan border in December 1996. He was subsequently convicted in absentia on 3 June 1998 by the District Court of Rombo and sentenced to serve a 30-year sentence, which he is currently serving at Karanga Central Prison in Moshi, Kilimanjaro, Tanzania. The Applicant, who has already served 20 years of the sentence, was represented by the Pan African Lawyers Union (PALU), on a pro bono basis.
The Court held that:
On the Respondent’s Preliminary Objection on Jurisdiction

• Unanimously, that the Respondent’s preliminary objection on the lack of jurisdiction ratione materiae of the Court as required by Article 3(1) of the Protocol is dismissed and declares that the Court has jurisdiction.

On the Respondent’s Preliminary Objections on Admissibility

• Unanimously, that the Respondent’s preliminary objection on the admissibility of the Application for incompatibility with the African Charter and the Constitutive Act of the African Union as required by Article 6(2) of the Protocol read together with Article 56(2) of the Charter and Rule 40(2) of the Rules is dismissed;
• Unanimously, that the Respondent’s preliminary objection on the admissibility of the Application for non-exhaustion of local remedies as required by Article 6(2) of the Protocol read together with Article 56(5) of the Charter and Rule 40(5) of the Rules is dismissed. The Court finds that the Applicant exhausted local remedies;
• Unanimously, that the Respondent’s preliminary objection on the admissibility of the Application for not being filed within a reasonable time after exhaustion of local remedies as required by Article 6(2) of the Protocol read together with Article 56(6) of the Charter and Rule 40(6) of the Rules is dismissed;
• Unanimously, that the Application is admissible.

On the Merits

• Unanimously, that there has been no violation of Articles 3, 5, 6, 7(1)(b) and 9(1) of the Charter;
• Unanimously, that there has been a violation of Articles 1 and 7(1)(a), (c) and (d) of the Charter and Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR);
• By a vote of six (6) to two (2), Judge Elsie N. THOMPSON, Vice – President and Judge Rafâa BEN ACHOUR dissenting, that the Applicant’s prayer for release from prison is denied;
• Unanimously, that the Respondent is directed to take all necessary measures within a reasonable time to remedy the violations found, specifically precluding the reopening of the defence case and the retrial of the Applicant, and to inform the Court, within six (6) months, from the date of this judgment of the measures taken;
• Unanimously, that in accordance with Rule 63 of the Rules of the Court, the Court directs the Applicant to file submissions on the request for reparations within thirty (30) days hereof and the Respondent to reply thereto within thirty (30) days of the receipt of the Applicant’s submissions.