Q&A – 18 September 2017

Minister’s regulations unfair

Can a Minister who has been given powers under the main act make regulations that are impossible to implement and make it unworkable in Tanzania? How can the National Assembly give away so much of its powers to an individual? What can we do?
NB, Dar

We should start by saying that no one is above the law. The Government and its institutions or authorities are all guided and work under the laws of the country. The Government authorities are to exercise their duties within the powers provided to them under the mother law which is the Constitution and the other respective laws. In your case the said actions by the Minister can be reviewed by the Court through a process known as judicial review.

Our law provides for judicial review where a person alleges that any provision of the constitution or any law involving a basic right or duty has been, is being or is likely to be contravened in relation to him in any part of the United Republic, he may therefore without prejudice to any other action or remedy available to him in respect of the same matter, institute proceedings for relief. The application for judicial review can be made to the High Court for orders of mandamus, prohibition or certiorari.

Mandamus orders the said authority to perform or not to perform specific acts, such acts must conform to the statutory authorized provisions. Prohibition to prohibit the authority from exceeding its powers or acting contrary to the rule of natural justice and certiorari is for the Court to order for the documents and review the decision of the lower Court or other authority. Through Judicial review the Court have powers to invalidate the decision of a government authority for being unlawful.

Judicial review therefore ensures that the Government and its authorities by their actions do not dispose individuals of their rights for whatever reasons. Hence if the Minister’s regulations are beyond powers provided in the main Act, or if the regulations are imposing such an onerous conditions that it makes them impractical, they can be challenged.

There are a few examples of regulations in Tanzania that have been successfully challenged. Unfortunately you have not given us the name of the regulations and how you are affected to enable us guide you further.

Tanzania too lenient with foreign missions

We Tanzanians are having too much respect for these foreign embassies and High Commissions. They get tax exemptions, they use our VIP lounge, their bags are not searched at the airport, they cannot be charged and the list is endless. That is the reason we are not developing. How can this be stopped? If I am ever in charge, I will stop this the next day.
GR, Mtwara

Luckily you are not our President. And if you think like this, we hope you will not become our leader either. You are talking as if Tanzania is the only country in the world. You might want to look at the map and see that there over 190 countries most of which are signatories to an international treaty called the Vienna Convention on Diplomatic Relations that makes it mandatory for us to provide and protect certain privileges to these foreign missions.

The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity. Its articles are considered a cornerstone of modern international relations.

As of February 2017, it has been ratified by 191 states. We take you through some of the key provisions of this convention: Article 9: the host nation at any time and for any reason can declare a particular member of the diplomatic staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity. Article 22 states the premises of a diplomatic mission, such as an embassy, are inviolable and must not be entered by the host country except by permission of the head of the mission.

Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats. Further, article 24 establishes that the archives and documents of a diplomatic mission are inviolable.

The receiving country shall not seize or open such documents. Article 27 states that the host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on suspicion of abuse. A diplomatic courier must never be arrested or detained. Article 29 states that diplomats must not be liable to any form of arrest or detention.

They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32. Under Article 34, they are exempt from most taxes, and under Article 36 they are exempt from most customs duties. Article 34 speaks about tax exemption of diplomatic agents while Article 36 establishes that diplomatic agents are exempted from custom duties.

Lastly article 37 states that the family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves. We have ratified this treaty and hence bound by it. What benefits we offer to these foreign missions we also enjoy in their countries.

All in all, there is not much you can do about such benefits – it is provided for under our law. We hope the above will change your mode of thinking.