Q&A – 18 March 2024

Repatriation of prostitute

I heard that a lady from a foreign country was repatriated back to her home country because she was indulging in prostitution in Tanzania. I would like to know if prostitution is a crime in Tanzania and if it was proper to repatriate the lady who entered legally in Tanzania simply because of prostitution.
LA, Arusha

Section 146 of the Penal Code [Cap.16 R.E 2019] does not as such prohibit prostitution. It only prohibits living wholly or partly on the earnings of prostitution. It is the living on the proceeds of prostitution which is an offence and not the act of prostitution itself. This needs further explanation as it is confusing!

If a woman gives sexual service for free, she is not guilty of an offence but if she imposes charges for the service and lives on the revenue she collects from people she serves, then she is committing an offence of living on the earnings of prostitution. In view of section 23(1)(e) of the Immigration Act [Cap.54 R.E 2016], a person is deemed to be a prohibited immigrant if at the time of entry or after entry into Tanzania he/she lives or receives the proceeds of prostitution. The Immigration has the authority to expel from Tanzania a woman or man who lives on the proceeds of prostitution.

Code of ethics for data protection

I am an administrative officer for a private hospital based in Dar es Salaam. Our hospital has codes of ethics for employees which amongst others prohibit abuse of patient personal data. However, recently there have been regulatory developments concerning protection of personal data in Tanzania. I believe these changes may necessitate the need to review our internal policies and codes of ethics. Are there any legal considerations we need to take into account in our review?
FC, Dar es Salaam

It is good that as an administrative officer you want to ensure your company is compliant with the law. According to section 65 of the Personal Data Protection Act No. 11 of 2022, every data controller shall draw and put in place a code of ethics or policy for personal data protection which shall prescribe for ethics and conduct to be complied with during collection or processing of personal data. In addition, such codes or policies shall be submitted to the Commission for consideration and approval.  In considering the codes of ethics or policies, the Commission shall ascertain, among other things, whether the drafts submitted to it have complied with the provisions of the Personal Data Protection Act and the relevant sector and where it considers necessary, seek the views of data subjects or their representatives and consult with the data controller concerned for the purposes of undertaking necessary amendments prior to the approval. Your lawyer can guide you further on this.

Interest in joint occupied land

I recently attended a seminar on estate planning and wills which inspired me to get my affairs in order and write a will so that in case of my demise my family is not inconvenienced. However, there is a slight dilemma. I have a piece of land located in Dodoma which is jointly owned by me and my brother as our names appear in the certificate of right of occupancy we obtained from the Ministry of Lands. The certificate clearly indicates we are joint occupiers of this land. Do I include this piece of land in my will as one of my properties?
CF, Dodoma

A will ensures that your properties are divided among your heirs according to your wishes. It is good that you have considered writing a will. While you have freedom to divide your property as you wish, there are some restrictions which result from the operation of the law. This jointly occupied land is one of the cases where the law takes precedence over personal wishes. Section 159 of the Land Act [Cap. 113 R.E 2019] provides that where land is occupied jointly under a right of occupancy or lease, no occupier is entitled to any separate share in the land and, consequently on the death of a joint occupier, her/his interest shall vest in the surviving occupier or occupiers jointly; however a joint occupier may transfer his interest inter vivos (while alive) to the other occupier(s) but to no other person, any attempt to so transfer her/his interest to any other person shall be void.

The law is drafted this way because for joint occupation, the joint occupiers’ interest cannot be divided. For that reason, upon the demise of one of the occupiers/owners, the interest over a jointly occupied land automatically passes to the surviving occupier/owners. Your lawyer can guide you further on this.

Action against employee facing criminal charges

We are a manufacturing company based in Ruvuma. It has come to our knowledge that one of our employees is facing criminal charges after he was found in possession of a government trophy. Our Company does not want to be associated with such a person because we want to safeguard our reputation. Is it lawful to terminate this employee?
NM, Ruvuma

The Employment and Labour Relations Act [Cap. 366 R.E 2019] restricts disciplinary action against employees facing criminal charges. Section 37(5) of the Act provides that no disciplinary action in form of penalty, termination or dismissal shall lie upon an employee who has been charged with a criminal offence which is substantially the same until final determination by the Court and any appeal thereto. This protection in the labour law is premised on the presumption of innocence provided in the Constitution of the United Republic of Tanzania, 1977. Article 13(6)(b) of the Constitution specifically states that no person charged with a criminal offence shall be treated as guilty of the offence until proven guilty of that offence.  You are therefore advised to consider other means of disciplinary action, if any, against the employee according to your company policies and guidelines.