Q&A – 26 October 2020
Sexual favour as economic offence
I recently read in social media that a lecturer at a public university was charged with an economic offence for demanding sexual favours from a student. How does a sexual favour affect the national economy to make an offence ‘economic’?
PF, Dar
Demanding or imposing sexual favour as a pre-condition for giving someone employment, promotion, right, privilege or preferential treatment is a corruption offence under section 25 of the Prevention and Combating of Corruption Act [Cap. 329 R.E 2019]. This offence was listed in paragraph 21 of the First Schedule to the Economic and Organised Crime Control Act [Cap. 200 R.E 2019] as one of the economic offences on 8 July, 2016 by Act No. 3 of 2016.
According to section 57(1) of the Economic and Organised Crime Control Act, it is the act of listing an offence in the First Schedule which makes it economic and not the impact of the offence in the national economy. Hence the corruption offence of demanding or imposing sexual favour(s) became economic because it is listed in paragraph 21 of the First Schedule to the Economic and Organised Crime Control Act since 8th July, 2016 and not because of the impact of that offence in the national economy.
You may note with interest that there are offences which have adverse impact(s) on the national economy such as tax evasion or stealing by public servant but such offences are not economic offences because they are not listed in the First Schedule to the Economic and Organised Crime Control Act.
Forfeiture of deceased persons property
We are foreign investors. Last year we discovered theft of over TZS 1 Billion from our Company’s bank account. Our preliminary investigation discovered that the offence was committed by our head in the finance department. We reported the incident to the Police for criminal investigation and the preliminary police financial investigation report shows that this individual was owning a house worth nearly TZS 800 Million and that he acquired that house around the same period when the money was stolen from the Company’s bank account. However, during the course of investigation he died. How can the company recover the stolen asset from the deceased estate? We are getting conflicting opinions from leading lawyers and seek your final opinion. Please guide.
FG, Kahama
Generally criminal asset recovery and forfeiture in Tanzania is conviction based. Conviction is a pre-condition for recovering and forfeiting ill-gotten assets from a criminal.
However, section 4(1)(c), 5(c)(i) and 12 of the Proceeds of Crimes Act [Cap. 256 R.E 2019] allows forfeiture of a stolen asset if the suspect dies in the course of investigation. However for the Prosecution to invoke the mentioned provisions, there are three pre-requisite conditions which must be met.
First, investigation must have mounted before the suspect died; not after the death. Secondly, there must be evidence showing the likelihood that had the deceased survived he would have been convicted of the offence for which he was investigated before his death. Thirdly, the evidence must prove a nexus between the allegedly ill-gotten asset and the crime for which he was being investigated to show that a forfeiture order would have been issued against the deceased if he was alive. The standard of proving these conditions is on the balance of probability.
Please note that the response here should not be taken as final and we recommend that your lawyer relooks at our response in addition to the other opinions you obtained. We do not have all the facts to be able to cement this response further.
Overtime allowance claim by manager
I worked for a bank for ten years as a head of department. Due to the nature of my work I was working for about twelve hours a day for six days a week. My contract expired last month but my employer has refused to renew my contract. Do I have the right to claim overtime allowance which I was not paid during my service?
FG, Dar
It seems like you have started thinking of overtime after expiry of your contract.
In any case, according to section 17(1) of the Employment and Labour Relations Act, managers or heads of department are not entitled to a claim for overtime allowance. The reason is that the law excludes managers from the limitations of working hours set by the law. The working hours limitations were meant to protect junior employees and not senior employees like yourself. Secondly, a complaint for overtime allowance should have been referred to the Commission for Mediation for Arbitration within sixty days from the date you were entitled to the allowance. Had you been entitled (you are not), you might still be time bared.
Compellability of a witness living abroad
We employed an expatriate whose contract expired and he went back to his home country. We have been asking him to come back to assist us give evidence in one of the cases against our company but he is refusing for no reason. What can we do to compel him to come give evidence on our behalf? He is our key witness and without him we shall lose the case.
TV, Dar
Unfortunately, a foreigner living abroad is a competent but not compellable witness. The Court cannot command a foreigner who is out of the territory to come give evidence. The power of the Court to compel a witness by summons to come testify is limited to the witnesses who are within the country. A Court summons in this case will not help. You may want to reengage with him and perhaps compensate him for his travel and time to convince him to appear.