Q&A – 15 January 2018

Food confiscated at airport

I arrived at the airport with 7 bags of crisps only for a certain inspector confiscating the items as they were not registered by the authorities. It is this kind of harassment that is making it very stressful to live here. Does the inspector have such powers?
YU, Dar

The Tanzania Food and Drugs Authority (TFDA) is established under the Tanzania Food, Drugs and Cosmetics Act and requires that every person shall manufacture, import, distribute, sell or expose for sale pre-packaged food unless that food or food product has been registered by the Authority. If the crisps were not registered in Tanzania, which seems to be likely the case, then the inspector had all the rights to confiscate them from you. This would be the case in any other jurisdiction and cannot amount to harassment. Further ignorance of law is generally not a good defence- the general presumption is that all citizens should be knowing the law.

Defective affidavit consequences in Court

We made an application at the High Court where the other party raised an objection on the affidavit we filed. It was a very minor omission in that the affidavit did not show the place and date at which it was sworn. Whilst the application did have merit, the Judge said there was no application before him and did not entertain the matter. What should we do? Is the Judge biased?
OI, Dar

You are undermining the role of an affidavit in pleadings. An affidavit is a declaration of facts that is made voluntarily by the declarant before an officer authorized to administer oaths. The affidavit must be confined to such statements as the declarant is able of his own knowledge to prove but may also contain statements of information and belief with grounds stated thereon.

Apart from the statement declaring the facts, an affidavit also must contain a verification clause, a jurat and signature of the declarant. Without these an affidavit is rendered incurably defective. In your case, the jurat was defective which is a certification that states when, where and before what authority the affidavit was made. Sadly the absence of the date and place at which the affidavit was sworn hence renders it incurably defective and usually entails in your application to be struck out.

Since there was no application before the Court because there of a defective affidavit, the Judge naturally cannot entertain you. On the facts we do not see how the Judge was biased; we suggest you refile the application in Court.

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 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.

Government gazette delayed

We have been affected by a subsidiary legislation that came into force but the government gazette was never released on time. Does this apply to us?
TR, 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. The Interpretation of Laws Act states that the law will come into operation on the day of publication or the day stated in the subsidiary legislation. You will need to check either of these dates to know when the law came into force.