Q&A – 28 May 2018
Unfair justice in Court
If there is a law that is openly biased, unfair and wrong, can the Courts not interpret it so that it is not applied in a particular case? How can the Courts support such a law when they are meant to be fountains of justice?
The Courts are empowered with dispensing justice but within the ambit of the law. The Courts do not write the law; it is the parliament which does that. Courts are duty bound to interpret the law the way it is drafted. One of the gravest mistakes people make is equating law with concepts of justice and fairness. In fact, the following phrase is engraved above the entrance of the United States Supreme Court building ‘Equal Justice Under Law.’ It is important to note that it does not only say ‘Equal Justice’ because that is limited to the context of the ‘Law.’ In other words, a Court’s role is to resolve cases and controversies in accordance with the law, and to interpret the law, if necessary.
If you think there is a law that is biased, unfair and wrong, you can either lobby to get it changed by parliament or apply in Court for the law to be declared unconstitutional.
Food poisoning from leading restaurant
There is a restaurant in Dar that is notorious for serving food that leads to food poisoning. How can I take it to task?
You can report this to the Tanzania Food and Drugs Authority who can take legal action against the restaurant owner. If it is intentional than it may as well be a criminal offence, that can lead to imprisonment, a fine or both.
Additionally, section 46 of the TFDA Act makes it mandatory for a medical practitioner to report such food poisoning. Section 46 states: (I) Where a medical practitioner or any other person becomes aware, or suspects, that a patient under his care is suffering from food poisoning, he shall, without delay, send to the Medical Officer of Health of the area in which the patient ordinarily resides, a report stating – (a) the name, age and sex of the patient, and the address of residence of the patient (b) particulars of the food poisoning from which the patient is, or is suspected to be suffering. (2) Upon receipt of the report, the medical officer of health shall immediately take all necessary measures to investigate and prevent or put to a stop occurrences of food poisoning within the area under his jurisdiction and report such actions and measures to the Authority in a prescribed manner.
We have realized that many medical practitioners are unaware of the statutory requirement to report such food poisoning which, in itself, is an offence.
Threatened with economic sabotage
I am a supplier of some key drugs and machines to some government hospitals and for the past one year have not been paid. The amount that is owed to me is now running in the millions of dollars and I am getting empty promises. I gave the relevant authority an ultimatum only to be asked to go see some senior person who first told me that I would be paid, and after I responded that I do not believe this and that I would cut supplies and sue, he threatened me that if I did so, I would be charged under the Economic and Organised Crime Control Act. In short he said that under the laws of Tanzania, particularly this act, since these products are vital for hospitals I have no choice but to continue supplying. I was also told that this offence is not bailable? What do I do?
This is the first time we are hearing of such an approach to a contractual obligation to pay. If what the official was telling you is true, then any supplier of vital equipment for the economy, be it power, water, security can never sue and can never demand. Nobody would then be willing to supply to the Government and it would defy basic principles of contract law.
To answer your question, assuming of course you have given the right facts, there is nothing that stops you from cutting supplies, demanding payment, suing and/or proceeding as per the contract of supply. Economic sabotage is defined in the act and includes acts done or committed without lawful excuses and for a purpose prejudicial to the economic safety or interests of Tanzania or is likely to damage, hinder or interfere with a necessary service or its operation.
From the above definition, you cannot be successfully charged under this act as you are lawfully demanding your money under a contract you entered into to supply. If you were unlawfully doing so and for a purpose prejudicial to the economic safety or interests of Tanzania, then this act can apply. As for bail, please be advised that this is a bailable offence. However bail shall not be granted in any of the following circumstances:(a)it appears to it that the accused person has previously been sentenced to imprisonment for a term exceeding three years; (b) it appears to it that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded; (c)the accused person is charged with an economic offence alleged to have been committed while he was released on bail by a court of law; (d) it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety; (e) the offence for which the person is charged involves property whose value exceeds ten million shillings, unless that person pays cash deposit equivalent to half the value of the property, and the rest is secured by execution of a bond; (f)if he is charged with an offence under the Dangerous Drugs Act.