Q&A – 18 November 2019
Directors liability in Tanzania
I have been approached to act as a director in a Tanzanian company and want to know what liability I might end up personally bearing and what I can do to limit such liability. Is there a document that I can access which has a summary of all offences that directors can be charged under?
YT, Dar
You have not told us what industry you intend to be a director in, as many industries have their own legal regime and statutes in Tanzania. We will thus answer the question generally.
The general approaches to corporate criminal liability are either based on the vicarious liability approach or the identification approach. The vicarious liability approach is where the master is held liable for the acts of the servant committed in the course of employment without proof of fault of the employer i.e. a corporation is held criminally responsible for the act of its employees irrespective of his rank. The directing mind is deemed to be the corporation and held responsible for the acts or omission of the employee without physically committing the offence.
In the Identification approach corporations are held liable only for the faults of the directing mind rather than for the faults of any employee. The directing minds are ones regarded as the corporation. All what needs to be proved is that the directing mind knew or assisted, encouraged or counseled another person to actually commit the offence or neglected to prevent the commission of the offence. In Tanzania both the vicarious liability and identification approach apply.
In Tanzania some statutes provide for a person who commits an offence whereas other statutes specifically mention body corporates as having committed an offence. For example the Penal Code, the Economic and Organised Crime Control Act, the Prevention and Combating of Corruption Act, the Wildlife Conservation Act 2009, the Drug Control and Enforcement Act, the Prevention of Terrorism Act, the Cybercrimes Act, the Anti-Money Laundering Act to mention a few all either refer mainly to a person who commits an offence, although there are a few references to body corporates. However under section 4 of the Interpretation of Laws Act a person is defined to include a public body, company or association or body of persons incorporated or unincorporated, meaning that a body corporate can be charged in almost all statutes in Tanzania. This makes the potential criminal liability exposure of a company in Tanzania very wide.
In contrast to the above the Petroleum Act, Mining Act and Tax Administration Act amongst others has a specific provision for offences that a body corporate can commit, some offences being those of strict liability. Reading these statutes, one will also realise that the burden of proof at times is on the accused and the standard of proof when the burden is on the accused is on a balance of probabilities and not beyond reasonable doubt.
Coming back to your question, as a director of a body corporate in Tanzania, any statute except for those creating the offences of treason, murder and rape, can be used to charge a body corporate and when a body corporate is charged a director, principal officer, manager et al can also be charged as the prosecutor deems fit. You cannot really use any documentation, including indemnities, to stop the long arms of the law to reach you. An indemnity might help you pay your legal costs and other costs but will not stop the prosecutor from going after you. Being a director in a Tanzanian entity has this serious downside considering how our laws have been drafted.
Finally, there is no document that lists all charges a director of a body corporate can face. You will have to go through all statutes provision by provision and read for yourself. Your lawyers can guide you further but remember that as a general rule, wherever a person appears in the statute, the director on behalf of the corporate body maybe charged.
Legal rights of an unborn child
I am a student aged 17 years and was born after the death of my father who died 7 months before I was born. We are a family of 3 children, 2 boys and 1 girl. My father died intestate and our mother is also dead, having died four years ago. Until she died no one had been appointed administrator of the estate of our deceased father. After the death of our mother, my older brothers have conspiratorially started to dispose of some of the properties belonging to the family and denying me my share alleging that I am not entitled to anything as I was born after the death of our father. Is this correct? I find it very agonizing and quite unfair since I was born and grew up with them and there is no point in time during our mother’s lifetime these allegations ever arose. Kindly advise on what I can do to have my entitlement?
ZV, Dodoma
Unfortunately, the facts you have given us do not enable us to know which religion your father professed during his life time nor do they tell us the community your family belonged to, to enable us advise on your entitlements according to customs applicable to your family. We thus refer to different scenarios below.
Our understanding of Islamic law is that a child in the womb of his mother at the time of his father’s death (Posthumous Child) is entitled to inherit from his father’s estate and his share has to be reserved for until the child is born for there is always a presumption that the child will be born alive, provided the child is born within six months after death of his supposed father. The same applies more or less under customary law but there is no time frame attached to the time of birth.
However, under Civil law, since at the time of death of your father you were an embryo, it is doubtful if you have any inheritable right to his estate. You might be a legitimate child but the fact that you were still an embryo at the time of death of your father, your rights to inherit from his estate remain to be an issue, since an embryo cannot own anything.
Having said the above, you need to contact legal practitioners to conduct more in-depth research as the law has not developed in this area. It is not unwise to consider applying for injunctive relief from our Courts who might be sympathetic to your plight.