Q&A – 24 December 2012

Public Private Partnership Act

I have been hearing about the Public Private Partnership Act and that the private companies shall be charging money to citizens for using some public structures like roads. How can the government be selling our own roads? Kindly explain if I have got it wrong.
KY, Singida

Public Private Partnership Act (“the Act”) will help the government and the private sector to work together for the benefit of the whole community. The Government of Tanzania intends to do a lot of things to develop the country i.e. build subways, hospitals, roads, universities etc. However, it is not a secret that the Government does not have enough money to implement such vast projects fast enough.

The Act aims to involve the private sector and companies which have financial ability to build such structures and enable the companies to recover their costs and profit for a limited period of time and eventually the structures would become the property of the Government. Yes, it may involve charging persons small amounts of money for the use of the structures for a limited period of time however it is for the development of the country. Such Act is present in many other countries where the private sector has taken lead role in such infrastructure projects.

Hence you have it wrong- the Government is not selling the country but working towards further and faster development.

Ignorance of the Law

Is Ignorance of the law a proper defence in a criminal case? If not, what are the other available defences that I may use?
LA, Mwanza

You have not told us what you are charged with but it is a general principle of law that ignorance of the law is not a defence unless the knowledge of the law is expressly declared to be an element of the offence. There are other defences which a person may use when charged with a criminal offence which are: bona fide claim of right, mistake of fact, insanity, intoxication, immature age, compulsion, defence of person or property, compulsion by husband, necessity etc.

These defences require extensive explanation and some lead to total acquittal and others may simply reduce the sentence or may cause sympathy of the Court. Had you told us what you are charged with, we would have been able to advice you on which defence you should opt for. Kindly consult your attorney for further guidance.

Coming into force an Act

When does an Act come into force? I find it very hard to understand when an act is in force and when it isn’t. What about regulations under an Act? What if the regulations bring in new provisions not in the Act?
TU, Dar

The Interpretation of Laws Act has specified when an Act would come into force. In section 14 it states that every Act shall come into operation on the date of its publication in the Gazette or, if it is provided either in that Act or in any other written law, that it shall come into operation on some other date, on that date.

This Act further says where any written law, or portion of a written law, comes into operation on a particular day, it shall come into operation at the beginning of that day.

Where a date appearing on a copy of an Act printed, or purporting to be printed, by the Government Printer, purports to be the date on which the President assented to such Act or to a portion of it, that date as so appearing shall be evidence that such date was the date on which the President so assented, and shall be judicially noticed accordingly.

Hence to understand when an Act comes into force you would need to read the Act itself and see if there is any other date that is mentioned therein, otherwise it is the date of its publication in the Government gazette.

As for the regulations, the Interpretation of Laws Act clearly states that subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency.

Further where any subsidiary legislation purports to be made in exercise of a particular power or powers, it shall be deemed also to be made in exercise of all powers under which it may be made. It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed.

This Act also states that where a written law confers a power to make subsidiary legislation, it shall be deemed also to include a power exercisable in the like manner and subject to the like conditions (if any) to amend or repeal any such subsidiary legislation; and if the person on whom such power is conferred has been replaced wholly or in part by another person, the power conferred by this subsection upon the original person may be exercised by the replacing person concerning all matters or things within his jurisdiction as if he were the original person. And where a written law confers power on a person to make subsidiary legislation for any general purpose and also for any special purposes incidental thereto, the enumeration of the special purposes shall not derogate from the generality of the powers conferred with reference to the general purpose.

Fake malaria drug

My 2 year old child was diagnosed with malaria and was given drugs manufactured by a local manufacturer. The drugs proved ineffective which led to further complications that I had to get treated outside the country. Luckily my child survived. Can I sue the manufacturer?
EH Dar

You can definitely sue the manufacturer. The most critical element of your suit is to prove what you have alleged above. You should also consider reporting this to the Tanzania Food and Drug Authority (“TFDA”) who can take action in parallel. Your Attorney can guide you further.