Q&A – 18 January 2016

Taxes discriminatory against constitution

I am a law student and after reading the constitution I find that our tax laws are discriminating against our people by having higher tax rates for come classes of people and lower rates for others. Does our constitution not guarantee against discrimination?
FG, Moshi

This is a very interesting question you have raised. Article 13 of our Constitution states in line with what you have stated that (1) All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law. (2) No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect. (3) The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law.(4) No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.

The constitution further goes to define discriminate which means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word “discrimination” shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities in the society.

Although what we will now say is debatable, we believe that progressive taxation where the rich are taxed a higher rate than those who are poorer does not fall under the definition of discrimination as enshrined in the constitution. Since you are a law student, we recommend you do more research on this as well. You will note that most advanced economies have highly progressive taxation rates even though they have similar provisions of anti-discrimination in their constitutions.

Court of appeal language

Why is the language of the Court of Appeal English when most Tanzanians cannot speak a word of English?
TR, Dar

Rule 5 of the Court of Appeal rules states that the language of the Court shall be either English or Kiswahili, as the Chief Justice may direct or as the case may be the Presiding Justice may direct, but the judgment, order or decision of the Court shall be in English.

Therefore you can speak in Kiswahili at the Court of Appeal but the judgement or ruling of the Court will be in English as most of our laws are in English.

Criminal actions for IP violation

We are graphics designers and want to know how the Cyber Crimes Act 2015 affects us when we are designing logos for companies? Can we be imprisoned?
YU, Dar

The Cyber Crimes Act gives the owner of IP rights, such as a trademark, a lot of protection. Section 24 states that (1) A person shall not use a computer system with intent to violate intellectual property rights protected under any written law.

(2) A person who contravenes subsection (1) commits an offence and in case the infringement is on- (a) non-commercial basis, is liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or both; or (b) commercial basis, is liable to a fine of not less than twenty million shillings or to imprisonment for a term of not less than five years or to both, in addition, be liable to pay compensation to the victim of the crime as the court may deem just.

Taking the above into account, you must be careful when you copy or violate other company’s logos to create new ones. You could end up being fined or imprisoned or both.

Tender disqualified

We are similar to a fortune 500 company and bid for a tender in Tanzania. Our quote was the lowest and our product is the best without say. We were however disqualified because our guarantee document had apparently not been rubber (ink) stamped by our foreign bank. We have checked with our foreign bank and they do not stamp such documents as this is a standard format they have. This stamping is also not explicit in the tender document as it is something that is done here. The procuring entity could have checked with the banker to make sure it is genuine before disqualifying us. The company that won the tender quoted 30% higher and has no capacity to deliver. What should we do?
UI, Dar

We are not sure what stage the entity is at with the award process but there is a no nonsense body called the Public Procurement Appeals Authority that you can appeal to. This body is known to have annulled a lot of tenders and takes its role very seriously. Unfortunately we are unsure how fatal this stamping is, but from the face of it, we are in agreement with you that if the procuring entity was unsure about the guarantee’s genuineness, they could have contacted the bank.
The Public Procurement Act states in section 47 that procuring entities shall, in the execution of their duties, strive to achieve the highest standards of equity, taking into account:

(a) equality of opportunity to all tenderers; (b) fairness of treatment to all parties; and (c) the need to obtain the best value for money in terms of price, quality and delivery having regard to set specifications and criteria.

In line with the above, and depending what stage the procurement is at, you can appeal the decision. The appeal must be lodged within 14 days of the decision.