Legal Digest – March 2016
LRCT submits proposal to amend procurement laws
The Law Reform Commission of Tanzania (LRCT) has submitted a report to the government on how best the Public Procurement Act can be amended.
In mid-December last year, LRCT initiated the review by calling for recommendations, suggestions and opinions from the general public. The move came three weeks after President John Magufuli hinted in Parliament that the law would be amended to curb embezzlement of public funds.
The LRCT listed five thematic areas on which recommendations about the act would be focused: market fundamentals and dynamics of law, procurement process and procedural and institutional requirements, value for money, conflict of laws, and human factors (unethical conduct, personal interest and corrupt practices.)
The commission have been analysing the recommendations and will present them to the Cabinet for approval before the Bill to amend the Act is prepared and tabled in Parliament.
The procurement law was enacted with a view of putting in place a harmonised legal and institutional regime for administration and management of public procurement; instead the Act has been blamed by many for giving room for corruption and wasteful expenditure of public monies.
Employment law revisit on foreigners crucial, underlines ATE chief
The Association of Tanzania Employers (ATE) wants the law on employment of non-citizens to be reviewed as it is a burning issue which employers would love to see amended.
“The law is at the risk of being labeled anti-foreign and stand to scare potential investors away; Employers would love to see more relaxed Labour, and Migration laws on foreigners working in the country,” stated Dr Aggrey Mlimuka, the Executive Director of ATE.
Dr Mlimuka was speaking during the one-day workshop that brought together all employers in the Northern Zone Regions of Arusha, Manyara and Kilimanjaro, where it was agreed that, lack of qualified Tanzanian workers in specialized and non-specialized fields still called for inclusion of foreign workers in the country labour force and these should be handled with care lest they chose to steer clear from the country.
“At the end of the day it must not matter where the expatriate is coming from as the issue at hand is a committed workforce in general that contributes towards the development of the nation as Tanzanians tackle its education system and balances the supply and demands of the labour market in line with employers’ specific driven expectations,” he said.
The Association recently held a meeting with the Ministry responsible for Labour and Immigration and after discussion, it was decided that Business Visa be issued to all foreigners coming to Tanzania not directly employed in Tanzania, Consultants, Meetings, Conferences, Workshops and anything of the like.
Small-scale businesses’ plea over law
It has been discussed time and again and now, Vibindo Society — a trade association that brings together small-scale traders’ groups across that country — wants President John Magufuli to intervene in their long-time grievance.
The group wants President Magufuli’s administration to shelve the Business Activities Registration Act, 2007 (BARA Act) and instead use the Business Names Act CAP 213 amended in 2012, as an alternative legislation.
The request has come following expert analysis of the two legal pieces in which it was revealed that the latter would facilitate among other things, easy formalisation of small-scale businesses while allowing them to grow. The BARA Act was enacted in 2007 with an intention of establishing a one-stop system for registering businesses by consolidating all existing registries under an integrated system. This was a deliberate move to reduce cost of setting up a business as well as cut on administrative and regulatory constraints to enter and operate a business in Tanzania.
However, since its enactment and later endorsement by former President Jakaya Kikwete, it has not been able to operate as it was intended due to among other things, opposition by stakeholders who wanted it to be amended.
DPPs powers unconstitutional
The High Court has reduced one of the powers of the Director of Public Prosecutions (DPP) conferred upon him after declaring unconstitutional the provision of law he had been relying on to deny bail to accused persons in criminal proceedings.
A panel comprising Principal Judge Shaban Lila and Judges SekietiKihiyo and Dr John Ruhangisa announced recently that section 148(4) of the Criminal Procedure Act (CPA), Cap 20, is unconstitutional for violating Article 13(6)(a) of the Constitution of the United Republic of Tanzania.
The DPP had been relying on the CPA provision to file a certificate to object bail to accused person facing certain criminal charges, if he is satisfied that the “safety or interests of the public will be at stake.”
The move had attracted numerous complaints, accusing the DPP of abusing such powers. Section 148 (4) reads, “Notwithstanding anything in this section contained, no police officer or court shall, after a person is arrested and while he is awaiting trial or appeal, admit that person to bail if the Director of Public Prosecutions, certifies in writing that it is likely that the safety or interests of the Republic would thereby be prejudiced; “..a certificate issued by the Director of Public Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge of a police station and shall remain in effect until the proceedings concerned are concluded or the Director of Public Prosecutions withdraws it.”
In their timely ruling, the judges allowed the constitutional petition filed by a city resident, Mr Jeremia Mtobesya, and declared the provision of section 148(4) of CPA unconstitutional for offending the provisions of Article 13(6)(a) of the Constitution of United Republic of Tanzania. The DPP has appealed this decision to the Court of Appeal.
Around the World
Next generation of legal talent wants to stay in Europe
A recent poll conducted by online industry publication Legal Cheek has found that Britain’s younger legal set are far more vehemently opposed to Britain’s prospective exit from the European Union than their more senior counterparts. Data collected from 1,000 lawyers and law students shows that overall only 24.78 per cent a pro-Brexit.
Apple asks Congress to create expert panel on privacy issues
Apple Inc. asked the US government to create a panel of experts to discuss issues of security versus privacy, stemming from the emergence of a legal conflict between law enforcement and the company. US Magistrate Sheri Pym of the US District Court for the Central District of California gave the order that would require Apple to create and give the FBI software to get past a so-called self-destruct feature that destroys phone data if an incorrect password is entered too many times. Apple opposed the order for personal privacy reasons as well as security in general.
Switzerland voters reject deportation referendum
The citizens of Switzerland rejected a proposed referendum that would require immediate, automatic deportation of any foreign national who was convicted of two crimes within a 10-year period. The vote was decided by a margin of 58.9 percent against and 41.1 percent in favor of the law. The proposed initiative was introduced by the right-wing Swiss People’s Party (SVP). The law would have instilled a strict two-violation policy encompassing violations for all offenses, including minor traffic violations.
India court rules women can serve as head of family
The High Court of Delhi ruled Monday that women may legally serve as the head of a family, a role traditionally held by the eldest man. In traditional Hindu culture the eldest man serves as the “Karta,” or manager of the family. Legally, the Karta is responsible for a family’s rituals, real property and assets. Thedecision came as a result of a lawsuit brought by woman whose family business was turned over to a younger male family member after her father and uncles died. In deciding the case, Justice Najmi Waziri found the Karta may be the eldest female in a family and determined the family business should be turned over to the eldest daughter.
BP supervisor found not guilty of clean water act violation
Robert Kaluza, a former rig supervisor for BP, was found not guilty in the US District Court for the Eastern District of Louisiana on Thursday of violating the Clean Water Act [materials] over the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. The disaster killed 11 people. Kaluza was initially charged with the pollution misdemeanor as well as involuntary manslaughter. The manslaughter charges were later dropped. Kaluza and another supervisor, Donald Vidrine, were accused of negligent conduct leading to the explosion of the Macondo well.