Q&A – 1 February 2021

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Sexual bribe an economic offence

Is it true that a demand for a sexual favour in return for employment or services is a crime in Tanzania? Please explain.
KG, Dar

Demanding or imposing a sexual favour to someone as condition for him or her to get employment, promotion, right, privilege or any preferential treatment is a corruption offence under section 25 of the Prevention and Combating of Corruption Act [Cap.329 R.E 2019].

Moreover, in 2016, the Parliament through Act No. 3 of 2016 amended the Economic and Organised Crime Control Act [Cap. 200] by adding to its First Schedule corruption offences which now includes a sexual bribe. Being an economic offence, sexual bribe now attracts a minimum penalty of 20 years imprisonment.

Calculation of notice pay

Our company wants to terminate an employee for poor work performance. The employment contract provides for one month’s notice but the collective bargaining agreement provides four months’ notice. How do I calculate the employee’s notice pay?
UF, Morogoro

Since the collective bargaining agreement provides longer period of notice than the statutory 28 days’ notice, the employee’s notice pay should be based on the notice period provided under the collective bargaining agreement which is four months as the law provides just the minimum employment standards. The employee and the employer are allowed to agree on better standards than the standards provided under the law. Such better employment standards can be provided through an employment contract or a collective bargaining agreement. However, the longer period of notice agreed by the parties in a contract or the collective bargaining agreement should be equal for both the employee and the employer. If an employee is required to give a 4 months’ notice of termination, the employer is also required to give a 4 months’ notice of termination.

Where the employment contract provides longer period of notice than the law, it is the contract that prevails over the law. But if there is a collective bargaining agreement providing a longer period of notice than the law and the contract, it is the collective bargaining agreement that will supersede the law and the contract.

Based on the above, the notice period in your case will be 4 months.

Regulation of herbal medicine

I want to do business of selling traditional medicines. Am I required to register my products before starting the business? With what authority am I required to register the products? Some are telling me it is the Tanzania Medicines and Medical Devices Authority (TMDA) while others tell me it is the Traditional and Alternative Health Practice Council. Please guide me.
PP, Mwanza

Traditional and Alternative Health Practice Council (Council) established under section 4(1) of the Traditional and Alternative Health Practice Act, 2002 does not register or regulate the quality and safety of traditional medicines. According to section 6(1) of the Act, the Council only monitors, regulates, promotes and supports development of traditional medicines in Tanzania. The Council also supervises and controls the professional conducts of the traditional and alternative health practitioners in Tanzania.

As per section 5(1) of the Tanzania Medicines and Medical Devices Act [Cap. 219] as amended by Act No. 8 of 2019, the TMDA is vested with power to control the quality and safety of herbal drugs. Section 3 of the Act defines herbal drug as any labelled preparation in pharmaceutical dosage form that contains as active ingredients or more substances of natural origin that are derived from plant. The Act further defines label as any kind of tag, brand, mark, pictorial other descriptive matter, written, printed, stenciled, marked, embossed or impressed or attached to a container of any drug. Container in relation to drug is defined in the Act as a bottle, jar, packet, sachet or other receptacle in which the drug is contained.

Therefore the TMDA regulates only labelled herbal drugs and not every traditional/herbal medicine/drug. Non-labelled traditional medicines are not regulated by either the TMDA or Traditional and Alternative Health Practice Council. Whereas the Council regulates the professional conduct of the traditional medicine’s practitioners, the TMDA regulates the quality and safety of the labelled herbal drugs.

If you want to do business of selling labelled herbal medicines, as an individual herbal medicines seller you have to be registered with the Council as a traditional heath practitioner. However, the products you want to sell and the premises in which you want to store them should be registered with the TMDA. The TMDA will regulate not only the quality and safety of the labelled herbal products you want to sale but also your way of labelling, identification, marking, selling and distribution of the products. If the traditional medicines you want to sell are not labelled, you will need to register yourself with the Council and register the business with BRELA and TRA to make your business lawful.

Please note that selling herbal drugs without a licence issued by TMDA is an offence which attracts a fine up to TZS 5M or imprisonment for up to 3 years.

Storing herbal drugs meant for sell or supply to the public in unregistered premises is also an offence. This offence was specified under paragraph 29 of the First Schedule to the Economic and Organised Crime Act as an economic offence attracting a minimum sentence of 20 years imprisonment.