Q&A – 25 April 2022

Involuntary HIV test

I am charged with rape and my trial is about to start. After my arrest I was detained at a police station for two days. While at the police station, police took me to a health centre where my blood sample was drawn but I was not told for what purpose it was taken. Later, I was charged with rape and last week my case was called for preliminary hearing. When the prosecutor was reading out the facts he informed the Court that the prosecution will prove among other things that during investigation my blood sample was taken, tested and I was found to be HIV positive. He said that the prosecution will produce a medical report to prove my HIV status. I would like to know if the law allows Police to take a suspect’s blood sample for HIV testing without the suspect’s consent and produce the report during trial in Court. Does this act not amount to interfering with personal liberty and privacy? Will such a medical report be admissible in Court?
RT, Iringa

As a general rule, section 15(3) of the HIV and AIDS (Prevention and Control) Act, 2008 bars forced or involuntary HIV testing. However, subsection (4) of the Act gives exceptions to the general rule that allows involuntary or forced HIV test where a person being compelled to take the HIV test is charged with a sexual offence or there is a Court order subjecting the suspect to a HIV test. Where the offence charged is not a sexual offence and Police intend to take blood sample from the suspect for a HIV test, it is mandatory that they should seek and obtain the Court’s order under section 37 of the Police and Auxiliary Services Act [Cap.322 R.E 2002] before allowing a medical officer to take blood sample from the suspect. Since you are charged with a sexual offence, Police were not obliged to obtain Court’s order in order to take your blood sample for HIV test, hence the HIV medical report they intend to produce is admissible in law because the taking of the sample and its analysis was in line with the law. The right to liberty and privacy is lifted by the law for the sake of curbing crimes.

Bus stop for call of nature

During Easter vacation I travelled to my home village by bus. In the course of our journey, the driver stopped the bus near a bush to allow passengers to attend a short call of nature. Is this common behaviour not regulated by the law? 
GK, Dar

It is contrary to regulation 10(2)(f) of the Land Transport Regulatory Authority (Certification of Commercial Vehicle Drivers and Registration of Crew) Regulations, 2020 as amended by Government Notice No.81 of 2021 for public passengers vehicle driver to stop at the bush where there are no toilets or other social amenities for the purpose of allowing passengers to attend a short call of nature. A driver who commits such an offence is liable to pay a fine of TZS 50,000 prescribed under the Fifth Schedule to the Regulations.

Qualification for paid maternity leave

I have been working for a company for four months and am pregnant and about to deliver in four weeks to come. I have applied for maternity leave but the HR Manager is telling me that the leave will be unpaid because I don’t qualify for a paid maternity leave. Is this HR’s position legally correct? Does the law deny the employees with a short period of service the right to a paid maternity leave?
MS, Mwanza

Section 29(1) of the Employment and Labour Relations Act disentitles an employee with less than 6 months of service to the employer from getting paid maternity leave. If you have worked for the employer for less than 6 months, you are entitled to a maternity leave but the leave shall be unpaid. However, this condition that an employee with less than 6 months period of service is not entitled to a paid maternity leave does not apply to an employee with a renewed contract. If the employee has worked for the same employer before on an expired contract and the contract has been renewed, the six months’ threshold for paid maternity leave shall not apply. Secondly, if the employment is seasonal, in the sense that the employee is only serving for a certain period in a year, then such an employee is entitled to a maternity leave regardless of the fact that she has served the employer for a period less than six months.

Bar manager charged for drunkenness of customer

My bar manager was arrested and charged with an offence of permitting drunkenness at the bar, which is how all bars make money everywhere in the world. On Easter Sunday, one of the customers who came became too drunk and started conducting himself disorderly. My manager phoned the police to go to the bar and remove the drunken person. Police responded but surprisingly, instead of arresting the drunkard they arrested my manager for what they called permitting drunkenness in the bar. I don’t understand this offence at all. Bar is a place where people go for drinking (including many of your readers), so how can a bar manager be blamed for a customer’s excessive drinking?
RD, Singida

Section 74 of the Intoxicating Liquors Act [Cap.77 R.E 2002] imposes an obligation on the in-charge or operator of the bar to disallow customers from getting too drunk in the bar. A bar operator or manager has the power, under section 75 of the Act, to remove, refuse to serve or admit a drunken person to a bar. It is an offence for the drunken person to disobey the order of the bar manager or bar operator. Serving a drunken person with alcohol or inciting or encouraging him to drink is an offence. However, a bar operator or manager who is charged with allowing drunkenness in the bar can plead a defence that he took all reasonable steps to prevent the drunkenness in the bar but he failed or that the customer went to the bar drunk and he was not supplied with any alcohol at the bar. Your manager can raise the defence showing that he is not the one to blame for the drunkenness.

On our readers getting drunk, we are sure many go to the bar but cannot comment on them getting drunk! In any case the law doesn’t change for anyone.