Q&A – 12 February 2018

Whatsapping during flag hosting

I was attending a ceremony and when the national flag was being hosted and national anthem being played, I was on my smart phone whatsapping. A police officer came and told me that I had committed an offence that I could be arrested for? Is this true?
AL, Moshi

National anthem is one of the greatest symbols of our nation. It signifies our nation’s status that we are proud of. Singing the national anthem develops and enriches our patriotism. This is a reason why the national anthem is usually sung during special events such as national ceremonies amongst others. For these reasons, it would likely be deemed disrespectful for you to whatsapp when the national anthem was sung.

While there is no specific offence as regards to the national anthem, section 7 of the National Emblems Act, (Chapter of 10 of the Laws of Tanzania) makes it an offence for any person to do any act or uttering any word or publishing any writing with intent to insult or bring into contempt or ridicule the National Flag or Coat of Arms of the United Republic of Tanzania. This offence is punishable by a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding two years or both. In implementation of this law, section 14 of the Criminal Procedure Act permits a police officer, without having an arrest warrant, to arrest any person who does any act which is calculated to insult the national emblem or the national flag. Therefore to whatsapp when the flag was being hosted and national anthem being played is an arrestable offence.

Non appealable arbitration clause

I entered into an agreement with a company that inserted an arbitration clause which says that the award is final, binding and non-appealable. The arbitration was conducted in Kenya and it is quite apparent from reading the award that it is against public policy and in violation of the laws of Tanzania. The agreement required our company to perform the contract in Tanzania and we succumbed to the laws of Tanzania. How can the award be executed in Tanzania if it is in non-conformity with the laws here? My lawyer says that the non appealability of the award puts our company in a bad position. Please guide.
UE, Dar

Arbitration is meant to accelerate the ends of justice to be met. Generally awards cannot be challenged except for under the principles of natural justice and where the arbitrator(s) have misconducted themselves. Awards also cannot be executed if they are against public policy and are in contravention with the laws of the land in which they are being executed.

With the above in mind, since you claim that the award is against public policy and in contravention of the laws in Tanzania, the award can be set aside. This is also provided for under the Arbitration Act of Tanzania where section 16 explicitly states that where an arbitrator or umpire has misconducted himself or an arbitration or award has been improperly procured, the Court may set aside the award.

Section 30 of the Arbitration Act further states as follows: Conditions for enforcement of foreign awards (1) In order that a foreign award may be enforceable under this Part, it must– (a) have been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed; (b) have been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties; (c) have been made in conformity with the law governing the arbitration procedure;(d) have become final in the country in which it was made; and (e) have been in respect of a matter which may lawfully be referred to arbitration under the law of Tanzania, and its enforcement must not be contrary to the public policy or the law of Tanzania. (2) Subject to the provisions of this subsection, a foreign award shall not be enforceable under this Part if the court is satisfied that– (a) the award has been annulled in the country in which it was made; or (b) the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case or was under some legal incapacity and was not properly represented; or (c) the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration: Provided that if the award does not deal with all the questions referred the court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the court may think fit. (3) If a party seeking to resist the enforcement of a foreign award proves that there is any ground other than the non-existence of the conditions specified in paragraphs (a), (b) and (c) of subsection (1) of this section, or the existence of the conditions specified in paragraphs (b) and (c) of subsection (2) of this section entitling him to contest the validity of the award the court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal.

We must point out that you have not stated in your question what you might have done wrong for the matter to be referred to arbitration. Before you overconfidently embark on our opinion, you should get your lawyer to guide you further.