Q&A – 27 April 2015

Protection to embassies

I intend to file a petition that the government of Tanzania is misusing its funds by providing police and military protection to foreign embassies in Tanzania. Before writing this question I visited 20 embassies to confirm that we have our security personal guarding these foreign state embassies. This amounts to billions of shillings per year and it is shameful that we agree to such funding. What are your thoughts? What other privileges do they enjoy?
VO, Dar

We do not agree with your thoughts at all. Tanzania is a signatory to the Vienna Convention and has a specific law, the Diplomatic and Consular Immunities Act whereby it is mandatory for us to provide security to diplomatic missions including residences of diplomats. In return we also receive this treatment when where we have our missions.

If you are so obsessed about government spending, there are many other areas that you can concentrate on and not on these embassies as it is mandatory for us to provide security there. There is nothing shameful about protecting embassies, a lot of whom are major supporters of the people of Tanzania.

The Vienna convention provides the following additional privileges to diplomatic missions: non arrest of personal, free communications between the mission and their home country, no seizure of diplomatic documents or communications and tax benefits.

Whilst you might have a right to challenge government spending, you will not succeed in your current mission.

TRA board directions not respected

There was a certain liability that TRA had assessed me with and I reported the anomaly to the TRA board which deliberated it and directed TRA to withdraw such assessments. Todate no one is paying attention to the directive by this supreme body. What should I do?
RK, Dar

We are not sure how the TRA board has become a supreme body. Infact TRA board has no power whatsoever to adjust or review or even decide assessments. If it did so in your case, the TRA board would be acting beyond its powers.

Under section 13 of the Tanzania Revenue Authority Act, the board In the discharge of its functions under the Act, may – (a) direct the Commissioner-General to furnish it with any information, reports or other documents which the Board considers necessary for the performance of its functions; (b) give lawful instructions and orders in a prescribed legal notice to the Commissioner-General in connection with the management, performance and operational policies of the operating departments; (c) except as is otherwise provided in this Act, the Board has no power to intervene in the determination of tax liabilities of particular taxpayers.

Once an assessment is raised, if aggrieved, the taxpayer must file objection proceedings before the Commissioner General paying a mandatory one third of the tax amount or the amount not in dispute whichever is greater. We are not aware of any procedure where one can go to the TRA board for its intervention.

You have used a wrong channel and we suggest that you consider rechanneling your issues to the Commissioner General under objection proceedings for determination.

Laws without regulations

There is a particular environmental law that has many regulations stipulated under it that would be made by the Minister, but todate there are no regulations. How can the act function without regulations? The act has been in existence for the past 10 years without regulations. This is pure lethargy by the ministry to enact regulations. What action can I take as I have a project stuck because there are no regulations?
HE, Dar

It is true that many acts give discretionary powers to various Ministers to make regulations yet such regulations are not forthcoming. Unfortunately budgetary and lack of technical resources, amongst lethargy, has slowed down the drafting of regulations but that should not stop business from proceeding.

You have the following options: (i) officially write to the Ministry about this anomaly and request intervention; (ii) if that does not work you can complain to higher authorities which includes the Prime Minister for intervention; and if that doesn’t work (iii) you can proceed to make an application in Court under the doctrine of prerogative writ (especially for an order of mandamus) whereby you would be praying to the Court to order the Minister to perform his or her duties which includes drafting and enabling the regulations.

Tax offence as an economic offence

If am charged in a domestic tax offence, does that amount to an offence under the Economic and Organised Crimes Act (Act)? How does one get charged under this Act?
BV, Dar

Generally a domestic tax offence would, in our opinion, not constitute an offence under the first schedule of the Act unless it is an offence under section 146 and 147 of the Customs (Management and Tariff) Act. Hence an offence under say the VAT Act, Income Tax Act or Stamp Duty Act would likely not qualify as an offence under the Act.

Furthermore, TRA would require special permission from the DPP to prosecute any such matter. Section 26 of the Act states that (1) Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions. (2) The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions.

You should refer to the first schedule of the Act for a list of all offences that are economic crimes.