Q&A – 17 November 2014
Different type of waste
I have moved to Tanzania and find it hard to believe that you still do not have policies to ensure that households mandatorily separate waste and dump them into garbage trucks according to the type of waste. Collecting all kinds of waste as general waste is very harmful to the environment as the recycling is inexistent. How can this be fixed?
HY, Dar
The Environmental Management Act of 2004 has a specific provision that deals with this. Section 114(1) states that for the purposes of ensuring minimization of the solid waste in their respective areas of jurisdiction, local government authorities shall prescribe: (a) for different types or kinds of waste or refuse or garbage to be separated at the source; (b) for standards to guide the type, size, shape, colour and other specifications for refuse containers used; and (c) for mechanisms to be put in place to involve the private sector and Non-Governmental organisations on planning, raising awareness among producers, vendors, transporters, manufacturers and others on the need to have appropriate containers and enhance separation of waste at source.
Unfortunately to the best of our research the local authorities in Dar es Salaam have not prescribed on how the waste is to be separated at source. The Act provides for the local authorities to mandatorily provide for this but to the best of our knowledge they have not done so.
You can directly right to your local authority and inquire. If they fail to respond, or respond in the negative, you can file the matter in Court for the Court to direct the local authority to act in compliance with the law.
Dispute with adjacent oil block owner
We are in the exploration of deep sea blocks and might have a boundary dispute with the adjacent owner. Is there a formal mechanism I can follow to sort this?
TO, Dar
You are governed under the Petroleum (Exploration and Production) Act of 1980 which provides under section 76(1) that the Commissioner may inquire into and decide all disputes between persons engaged in exploration or development operations, either among themselves or in relation to themselves and third parties (other than the Government) not so engaged, in connection with– 76.1.a the boundaries of any exploration area or development area; 76.1.b any act committed or omitted, or alleged to have been committed or omitted, in the course of, or ancillary to, exploration or development operations; 76.1.c the assessment and payment of compensation pursuant to this Act; or 76.1.d any other matter which may be prescribed. 76.2
The Commissioner may, in his discretion, refuse to decide any dispute referred to him under this Part and, if he does so, he shall notify the parties to the dispute in writing accordingly. 76.3
The Commissioner may make any decree or order which may be necessary for the purpose of giving effect to his decision in proceedings pursuant to this Part, and may order the payment, by any part to a dispute, of such compensation as may be reasonable, to any other party to the dispute.
Furthermore section 78.1 states that any person aggrieved by a decision, decree or order of the Commissioner made or given pursuant to this Part may appeal to the High Court within the period of sixty days after the decision, decree, or order is given or made.
Surprisingly section 78.2 states that no appeal lies to a court against a decision of the Commissioner under section 76 (2).
Hence for your boundary dispute you can refer this to the Commissioner of Energy who can inquire and who has the powers to make decisions, which are however appealable to the High Court. Alternatively, you can go directly to the High Court or other Courts with jurisdiction and have this matter resolved.
Magistrate unaware of change in law
The magistrate before whom we appeared was not aware of a change in law provision under the CPA. Is this something that should be argued about when it is clear a provision on inapplicability of bail has been repealed?
GJ, Singida
You are right. All magistrates and judges should take judicial notice of the law and changes thereof. Section 22 of the Interpretation of Laws Act states that every Act shall be deemed to be a public Act unless the contrary is expressly provided in the Act and shall be judicially noticed as such.
However it is not unwise to alert the magistrate about the change of law with a copy of how the amendment was effected. Your lawyer has a duty to also guide the Court. We don’t see why you should resist to do that. We don’t see how it will entail into any arguments.
TRA claim they don’t administer the PEPA Act
We have a dispute with TRA on an exemption under our Production Sharing Agreement (“PSA”) and TRA say that it is not one of the acts they administer and hence cannot grant the exemption. What should we do?
GU, Dar
It is true that the Petroleum (Exploration and Production) Act (“PEPA”) is not one of the acts that is administered by TRA. In any case TRA doesn’t grant exemptions it is very likely the Ministry of Finance.
Furthermore the PEPA is a binding agreement that the government has entered into and binds the government, whether TRA recognize it or not. We advise you consult the Ministry of Energy and Minerals through TPDC and if the matter is not resolved, invoke either the arbitration clause under the PSA or proceed to file an application in local Courts, depending on the drafting of the PSA dispute resolution clause. This is a recurring problem and one of the oil and gas companies needs to bring it to closure as it bring uncertainty.