Q&A – 15 October 2018

Appearance at Court of Appeal

Can any advocate in Tanzania appear at the Court of Appeal? Can my attorney from the UK appear in the Court of Appeal? What if I want to defend my appeal myself?
GY, Dar

Rule 33(3) of the Tanzania Court of Appeal Rules states that no advocate shall have the right of audience in the Court unless he has practiced for a period of not less than five years in the High Court and Courts subordinate thereto: Provided that an advocate who has not practiced for five years in the High Court and Courts subordinate may apply for a waiver in a particular matter in writing to the Chief Justice or Presiding Justice, as the case may be, and shall be made within a period of not less than seven days to the date of hearing of the particular matter, showing good grounds for seeking the waiver.

The Court of Appeal is the apex Court in the country and requires that those advocates who appear before it have a minimum standing of atleast five years. This is a formality that other countries also have; infact some countries require an experience of upto ten years.

The Court of Appeal rules do also allow advocates from other countries to appear before it subject to a licence from the Chief Justice. This particular rule states that any other person entitled to appear as counsel or advocate before any Court of unlimited jurisdiction in any country in the Commonwealth shall, if licensed in that behalf by the Chief Justice and subject to payment of the prescribed fee, have the right of audience before the Court in respect of any one appeal or application, including any cross-appeal heard with it, or any two or more appeals or applications consolidated for hearing.

If you wish to defend yourself, you can do so but make sure you familiarize yourself with the rules and law.

Powers of RCs, DCs

Can a Regional Commissioner or Regional Commissioner just walk into my property, demand to see whatever she/he wants, and then start irrationally ordering police, who seem to be now under the control of RCs/ DCs and not the IGP, to arrest managers, directors and employees? What are the powers of DCs/RCs in Tanzania and have these powers been in existence since. This kind of aggression is very new and not friendly towards investors.
PL, Arusha

According to the Regional Administration Act Cap 97, Regional and District Commissioners are the principal representatives of the government within their area and as such, all the executive functions of Government are exercised by or through them. They are responsible for maintaining law and order, overseeing the implementation of government policies and assisting local government authorities in the region/district to undertake and discharge their responsibilities.

Section 14(2) (b) of this Act further empowers District Commissioners by way of assisting local government authorities to make sure that all persons and authorities are complying with appropriate government decisions, guidelines and regulations.

Apart from the above, the commissioners have also been conferred with powers to order a police officer to arrest and detain any individual in custody without a charge for a period of up to 48 hours if it is deemed that the individual is likely to disturb the public tranquility. These powers are enshrined in section 7 and 15 of the Act.

Although the commissioners have the above-mentioned powers, the law is silent on whether a DC or RC can just walk into any property and demand to see whatever he wants. However, rules of justice and practice require that whenever privacy has to be interfered with, a reasonable notice must be given in advance and such entrance is to be done within reasonable time. There are circumstances where this might not be possible but the RC and/or DC cannot take over the role of the police who still need to do their jobs.

On top of that, the commissioners are prohibited to abuse the authority of their office through the powers that have been vested on them. Section 96 of the Penal Code makes it an offence to exercise the power in abuse of authority, which is where you might be coming from. The commissioners do not have unlimited powers, as you might be made to believe, and must act within the boundaries of the law.

Finally, the police do not report to the commissioners. The police have their own reporting lines.

Using company sim card

I work for a mobile operator. Can the operator’s management force me to use this mobile operator’s sim card only?
UP, Dar

Since you have not disclosed under what circumstance you are being forced to use the sim card, then our response will be basing on some assumptions.

To begin with, if the terms and conditions of your work agreement makes it mandatory for you to use the operator’s sim card during work hours and for the purpose of your office obligations, then we find it to be reasonable and not in conflict with our laws. We have reached that conclusion under the assumption that the requirement to use the employer’s sim card emanates from the employment policy which was communicated to you which you accepted at the time of signing the employment contract. We also assume that the requirement to use the sim card is uniformly imposed upon all employees indiscriminately.

If the management is forcing you to use their sim card regardless of whether you are at work or not then that will amount to breach of privacy and interference with personal freedom contrary to Articles 15 and 16 of the Constitution of United Republic of Tanzania. Article 16(1) provides that every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life and respect and protection of his residence and private communications.

It is our view that the requirement to use employer’s sim card only should be limited to during work hours. Restrictions beyond working hours appear to be contrary to the principles and laws relating to individual liberty and freedom as indicated above.