Q&A – 21 September 2020

Jurisdiction of ward tribunals for offence of smoking bhang

My neighbour is charged before a Ward Tribunal with an offence of smoking bhang. I am curious to know which law gives such Ward Tribunals power to try the offence of smoking bhang. Secondly, what are the rules of evidence and procedures that govern criminal trials in these tribunals in addition to the sentencing powers and sentencing orders.
YT, Dar

Smoking bhang is a criminal offence under section 18(a) of the Drug Control and Enforcement Act, 2015. This offence attracts a penalty of a fine not less than TZS 1M or a prison term of 3 years or both. Part II of the Schedule to the Ward Tribunals Act [Cap. 206 R.E 2002] gives such tribunals power to try the offence of smoking bhang. Generally, the sentencing power of the Ward Tribunals under the Ward Tribunals Act for the offence of smoking bhang is limited to a fine not exceeding TZS 2000 or prison term not exceeding 12 months. However, since the law creating the offence imposes a minimum penalty of TZS 1M, the Ward Tribunal convicting the accused of smoking bhang must impose such minimum statutory penalty. In case of defaults to pay the fine, the Ward Tribunal shall impose on the accused a prison term not exceeding 12 months.

For prison sentence passed by a Ward Tribunal to have legal force, it must be endorsed by a Primary Court magistrate for area in which the Ward Tribunal that convicted the accused is established. The Primary Court magistrate has power to endorse the sentence passed by a Ward Tribunal or set it aside for want of jurisdiction or any other reason.

Ward Tribunals regulate their own procedures. They are not bound by the rules of evidence and procedure applicable to the ordinary Courts of law. However, they are required to observe all the rules of natural justice such as giving both parties the right to be heard, the right to produce exhibits, the right to call witnesses and cross examine the opponent’s witnesses. It is interesting to note that lawyers or prosecutors are not allowed in the Ward Tribunal. If the accused is under 18 he can appear with his parent, guardian, relative or friend for the purpose of assisting her/him in examination of witnesses, cross examination or submission.

Criminal proceedings in the Ward Tribunal can be initiated by an individual who witnessed the crime, the village chairman, village executive officer, a ward executive officer or a ten-cell leader by making a complaint to the secretary to the tribunal. The secretary may draft the charges and summon the accused or order her/his arrest and read charges.

Effect of voluntary mediation and arbitration clause in employment contract

We are a manufacturing company based in Moshi. In 2017 we employed an expatriate in one of our departments and in his contract of employment we inserted a clause that in case of any dispute, the aggrieved party should give one month’s notice of dispute for the parties to try to resolve the dispute amicably. But in case the amicable settlement of disputes fails each party shall appoint an arbitrator and the two arbitrators shall be appoint an umpire to arbitrate the dispute. We would like to get your opinion if this dispute settlement clause bars the expatriate from going to the Commission for Mediation and Arbitration (CMA). In case the employee rushes to CMA what can we do?
MF, Moshi

The establishment of the permanent CMA does not bar the parities from taking their employment disputes to an ad hoc mediation or arbitration if there is a clause in the employment contract allowing such course to be taken. An ad hoc mediation and arbitration clause in the employment contract ousts jurisdiction of the CMA to entertain a labour dispute. Ian case the employee disrespects the ad hoc mediation and arbitration clause in the employment contract and proceeds to institute her/his complaint to the CMA, the employer may object that course immediately the dispute is called before the mediator that the CMA lacks jurisdiction to entertain the dispute.

Determination of disputes between public servants and employers

I was a public servant in one of the Ministries and was terminated for what my employer termed gross negligence. I am being told that public servants are not allowed to refer their disputes to CMA or labour Courts. What options do I have?
FL, Tabora

In 2016, the Parliament through Act No.16 of 2016 amended the Public Service Act by introducing section 32A which requires public servants to exhaust the administrative remedies provided under the Public Service Act before resorting to CMA or Labour Courts. This amendment does not bar public servants from going to CMA or Labour Courts. It only requires you to exhaust the remedies available under the Public Service Act before resorting to the CMA or Labour Courts.

Hence the public servant has to first appeal to the Public Service Commission against the decision of her/his employer and from there she/he can appeal to the President. After exhausting all those remedies you can invoke the procedure under the Employment and Labour Relations Act and go to the CMA.