Q&A – 21 May 2018
Leakage of exam papers
I know of a number of teachers and examiners who leak form four papers to students so that they can excel in their exams. Who do exams fall under and how can such persons be punished? There are many public officials who have passed under such schemes and I wish to now expose them all.
PU, Musoma
Form four exams are administered by the National Examination Council of Tanzania (NECTA). This is not the first time we have heard of this. In fact, leaking exams is a very serious offence and is specifically covered under the National Security Act of Tanzania.
Section 5 of this Act states that any person who communicates any classified matter or causes the leakage of such classified matter to any person other than a person to whom he is authorised to communicate it or to whom it is in the interests of the United Republic his duty to communicate it commits an offence and shall be liable on conviction to imprisonment for a term not exceeding twenty years. In a prosecution for a contravention of this section it shall be no defence for the accused person to prove that when he communicated the matter he did not know and could not reasonably have known that it was classified matter.
The Act defines classified matter as any information or thing declared to be classified by an authorised officer, examination papers prepared and administered by the National Examination Council or other institution duly authorised to prepare, distribute and conduct examinations.
These teachers who are selling such papers risk imprisonment of upto twenty years. Should you know who they are, you can report them to NECTA, or the Police forces, or both.
BIT over Tanzanian tax laws
If a foreign state has a Bilateral Investment Treaty (BIT) with Tanzania, based on which a state party decided to invest in Tanzania, and there is a clash between what is stated in the BIT as opposed to our local taxation laws, what law will prevail? I see a number of BITs giving one sided protection to foreign entities.
GC, Dar
There is a debate going on in many countries on the advantages and disadvantages of signing BITs. Attracting large investment by large investors always requires protection by parties and one of the most common reasons for a BIT. Tanzania has a number of BITs with various countries.
However, having said that, the recently enacted Tax Administration Act gives the BIT superior status over our tax statutes. Hence any inconsistency would result in the provisions of the BIT prevailing. This is covered in section 7 of this Act that states that the provisions of an international agreement which the United Republic is a party shall, to the extent that the provisions of the agreement are inconsistent with the provisions of any tax law, prevail over the provisions of the tax laws.
International agreement in the Act is defined as a treaty or other agreement which the United Republic signed with a foreign government for the purpose of providing reciprocal assistance for the administration or enforcement of tax laws.
Depending on how they are drafted, we believe that BITs are covered by this definition although there is no local case law that we are aware of that has put this to test. You should accordingly move with caution.
Bail pending appeal
A cousin of mine was sentenced to imprisonment by the High Court. He has major health issues and we also believe there are serious errors in the judgment of the High Court. He has started serving his sentence but we wish to apply for bail pending appeal. Is this possible?
TA, Dar
There is a provision in the Appellate Jurisdiction Act that provides for bail pending appeal.
Section 10 of this Act states that the High Court or, where an appeal lies from a subordinate Court exercising extended powers, the subordinate Court concerned, may, if it thinks fit, pending the determination of an appeal from the High Court or the subordinate Court concerned to the Court of Appeal– (a) admit the appellant to bail in the same circumstances in which the court would have given bail under section 368 of the Criminal Procedure Act; (b) postpone the payment of a fine.
We must pre-warn you that we have seen bail before appeal being sparingly granted. Perhaps a major health issue could be a good ground. Your lawyers can guide you further.
Questioning when under arrest
Can a police officer start asking a suspect questions without following some procedures? In other countries, there is a strict protocol to allow the suspect make a phone call, and have his lawyer present. I ask this because one of my colleagues was arrested and was aggressively questioned without being allowed to make any phone calls.
FR, Dar
Questioning in criminal law is governed by the Criminal Procedure Act which states the following clearly and unambiguously in section 54: (1) subject to subsection (2), a police officer shall, upon request by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a lawyer, a relative or friend of his choice. (2) A police officer may refuse under subsection (1) for the provision of facilities for communicating with a person being a relative or friend of a person under restraint, if the police officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing– the escape of an accomplice of the person under restraint; or the loss, destruction or fabrication of evidence relating to the offence. You can see from the above that there are cases where the police officer may, on reasonable grounds, deny the suspect from making a call to a friend or relative.