Q&A – 28 September 2020

Adult woman exploiting a child sexually

I have heard that there are adult women who induce or force boys under the age of 18 to have sexual intercourse with them. Doesn’t that act amount to an offence of rape?
PL, Arusha

In terms of section 130 of the Penal Code, rape is committed by a male person against a female person. Under our laws, a woman or a girl cannot rape a male person of any age. Where an adult female person engages in sexual intercourse with a male person who is under the age of 18 years, be it with or without consent of the minor boy, such adult female commits an offence termed grave sexual abuse contrary to section 138C(1)(d) of the Penal Code as amended by Act No.1 of 2020. Upon conviction the offender shall be liable to imprisonment for a term between 20 to 30 years. In addition to imprisonment, she shall also be ordered to pay compensation to the tune to be determined by the Court.

Procedure to institute suit against public corporations, agencies

I am a businessman. In my businesses I deal with public corporations, parastatal organisations, executive agencies and local government authorities. I am told the Parliament has recently changed the procedure for instituting suits by or against these Government legal entities and enforcement of decrees against them. Can you explain what is that change made by the recent law?
JF, Mbeya

You are correct. In February, 2020 the Parliament passed the Written Laws (Miscellaneous Amendments) Act, No.1 of 2020 to include all the suits by or against public corporations, parastatal organisations, executive agencies and local government authorities in the list of Government suits. Prior to the amendment, suits by or against public corporations and parastatal organisations like NHC, TANESCO, ATCL, TANAPA, amongst others were not treated like Government suit and such entities were not bound by the procedure under the Government Proceedings Act. The executive agencies or authorities like TAA, RITA, SUMATRA, EWURA had semi-autonomy to sue or being sued in their own without joining the Attorney General in disputes arising from contracts. Local government authorities were free to sue or being sued without joining the Attorney General. Now, after the amendment, any suit by or against such public legal entities are treated like Government suits and the procedure for institution of such proceedings must conform to the provisions of the Government Proceedings Act regardless of the nature of the claim.

Under the current procedure, before suing a public corporation, parastatal organisation, executive agency or local government authority, the claimant has to serve such public legal entity which is alleged to have committed the civil wrong with a 90 days’ notice of intention to sue. The notice should articulate the factual basis of the claim and the relief(s) sought. A copy of that notice must be served upon the Attorney General and the Solicitor General. Only upon expiration of the notice period, the claimant may institute a suit. Failure to make the Attorney General a co-defendant in a suit vitiates the proceedings. A copy of the plaint should be served on the defendants and the Solicitor General.

According to section 6(5) of the Government Proceedings Act as amended by Act No.1 of 2020, any Government suit should be instituted in the High Court as the Court of first instance irrespective of the nature of the suit or monetary value involved in the suit. Of course this amendment will increase unnecessary backlog of civil suits in the High Court. For example a simple tenancy dispute between NHC and a tenant that would have been instituted in the District Land and Housing Tribunal should now be instituted in the High Court irrespective of the value of rent or nature of tenancy dispute involved simply because NHC is a public corporation and a suit by or against it is now treated as a Government suit which should originate from the High Court.

Apart from the requirement to give 90 days’ notice and institute the suit in the High Court, the amendment has affected section 16 of the Government Proceedings Act by adding parastatals organisations, public corporations, local government authorities and executive agencies in the list of public entities whose properties or bank accounts cannot be attached to execute the decree against them.

Hence, a decree holder against such public legal entities can only execute a decree by presenting the decree to the Permanent Secretary Treasury (PST) who is then required to satisfy the decree. Hence recovery may not be easy either.

Severance pay to a retired servant

I am an expatriate working for one of the companies in Dar es Salaam. My two years contract is expiring in January, 2021. I would like to know how my severance pay shall be calculated.
OO, Dar

It is unfortunate that section 42(3)(c) of the Employment and Labour Relations Act [Cap.366 R.E 2019] expressly excludes the employees whose contract of service for specified period have expired or ended from eligibility to be paid severance allowance. So under the law you do not have the right to be paid severance allowance upon the expiration of your specified term contract of employment unless you derive that right from your employment contract if there is such a clause of severance pay upon expiration of the contract.