Q&A – 13 April 2015

Government gazette delayed

We have been affected by a subsidiary legislation that came into force but the government gazette was never released on time. Can such a legislation have retrospective force when it is clear that the gazette was released late but had an older date. Is this not unfair?
TP, Dar

A common complaint amongst lawyers in Tanzania is that the government gazette is not published on time, and when published is not released on time. Getting a copy of the gazette when published is also another challenge which we hope will be looked into by the Attorney General’s chambers and government printer.

It seems that the subsidiary legislation that you are talking about was purportedly published in the government gazette in a certain month, but the gazette did not come out until a few months later.
Section 37 of the Interpretation of Laws Act states that (1) Where a written law confers power to make subsidiary legislation, all subsidiary legislation made under that power shall, unless the contrary intention appears– (a) be published in the Gazette; (b) subject to subsection (2) and to section 39, come into operation on the day of publication, or where another day is specified or provided for in the subsidiary legislation, on that day. (2) Subsidiary legislation shall not be expressed to come into operation on a day before the day of publication in any case where, if the subsidiary legislation so came into operation– (a) the rights of a person (other than the Government or an institution of the Government) existing immediately before the day of publication would be affected in a manner prejudicial to that person; or (b) liabilities would be imposed on any person (other than the Government or an institution of the Government) in respect of anything done or omitted to be done before the day of publication, and if any provision is made in contravention of this subsection, that provision shall be void. (3) A power to fix a day on which subsidiary legislation shall come into operation does not include power to fix different days for different provisions of that legislation unless express provision is made in that behalf.

Our understanding of publication as cited above is when the gazette is released. Hence if the gazette is released late, notwithstanding that the gazette reads a prior month, it is likely that the gazette was published when it was released. You can take this up with the Attorney General’s chambers for more clarification but we do see that if our interpretation is incorrect, backdating will become the order of the day. Ideally the government should be published timely and at the time it states on the gazette itself.

Rights when under arrest

I was arrested after a friend of mine was involved in a fight at a nightclub. When under arrest the officer refused me to make contact with anyone. Is this legal?
GT, Moshi

The Criminal Procedure Act is clear and states that where a person is under restraint, a police officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless–
(a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him,or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally– (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (ii) that, subject to this Act, he may communicate with a lawyer, relative or friend.

However the Criminal Procedure Act also states under section 54 that
(1) Subject to subsection (2), a police officer shall, upon request by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a lawyer, a relative or friend of his choice. (2) A police officer may refuse under subsection (1) for the provision of facilities for communicating with a person being a relative or friend of a person under restraint, if the police officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing– the escape of an accomplice of the person under restraint; or the loss, destruction or fabrication of evidence relating to the offence.

You can see that you have a right to call a friend or your lawyer unless the police reasonably believe that by you making that call, it will result in another suspect escaping or evidence being destroyed or fabricated. We’re not sure if that is the case in your matter but if it wasn’t so, then the police were in contravention of the Criminal Procedure Act.

Police causing traffic jams

Are police officers allowed to overrule traffic lights? I believe they are causing traffic jams in Dar.
ED, Dar

This is what was said a few years ago and the police decided to allow the traffic lights to work on their own and the city came to a standstill! This might have changed but you might want to be careful with what you said.

The Police Force Ordinance has given powers to police officers to regulate and control traffic along the public roads, streets and thorough fares. They can direct all or any particular kind of traffic when it is deemed to be in public interest to do so, and also to keep order and prevent obstruction on public roads, streets and thorough fares. They are hence within powers to do what they are doing in Dar.