Q&A – 3 August 2020

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Terminating an employee charged in Court

A Human Resource Manager of our Company was arrested by the Prevention and Combating of Corruption Bureau (PCCB) and charged in Court with the offence of corrupt transaction in employment. It is alleged that he asked for a bribe from one of the applicants for a security guard’s position in order to assist him to get employment in our Company. Can we proceed to take disciplinary action against this HR Manager for contravening our Company anti-corruption policy before the conclusion of his criminal trial?
TH, Dar

Section 37(5) of the Employment and Labour Relations Act, 2004 bars employers from terminating or dismissing or imposing any penalty on the employee for a misconduct which constitutes both a disciplinary offence and a criminal offence if the employee has been charged in Court and his case is pending a criminal trial. The employer has to wait until such criminal trial is concluded and if there is an appeal, wait until the appeal is also disposed of.

What your company as the employer can do before the conclusion of the criminal trial, is to interdict the employee until the criminal case is concluded and if there is an appeal, the appeal is also concluded. The employee will not be paid his salary during the interdiction period because he is not working. In case he is convicted and his appeal is dismissed, the Company may proceed to terminate him for the offence of corruption without necessarily conducting a disciplinary hearing because he has been heard by the Court and found guilty. But in case he is acquitted the Company may still proceed to conduct a disciplinary inquiry because the standard of proof in criminal trials is higher than the standard required in a disciplinary hearing.

Rectification of error in law

If there is an error in the law, or ambiguity in the law, does the Attorney General have the power to make changes to cure this?
PL, Dar

Section 26(3) of the Interpretation of Laws Act states that where there is any clerical or printing error in any Bill or Act published in the Gazette, the Chief Parliamentary Draftsman or any member of the Attorney-General’s Chambers authorised in writing in that behalf by the Chief Parliamentary Draftsman, may, by order published in the Gazette, give directions as to the rectification of such error and every such direction shall be read as one with the Bill or Act to which it relates and such Bill or Act shall, with effect from the date of its first publication, take effect as so rectified.

This power is only limited to any clerical or printing error. If there is ambiguity in the law, the AG has no authority to cure this and the ambiguity must be resolved by the legislature or by Courts.

Prohibited relationships in marriage

Are there any prohibited relationships in our Law of Marriage Act? What does it state? What can such persons do?
TJ, Moshi

Section 14 of the Law of Marriage Act has listed the prohibited relationships as follows (1) No person shall marry his or her grandparent, parent, child or grandchild, sister or brother, great-aunt or great-uncle, aunt or uncle, niece or nephew, as the case may be. (2) No person shall marry the grandparent or parent, child or grandchild of his or her spouse or former spouse. (3) No person shall marry the former spouse of his or her grandparent or parent, child or grandchild. (4) No person shall marry a person whom he or she has adopted or by whom he or she was adopted. (5) For the purposes of this section, relationship of the half blood shall be as much an impediment as relationship of the full blood and it shall be immaterial whether a person was born legitimate or illegitimate. (6) For the purposes of this section grandparent, grandchild, greatchild, great- uncle and great-aunt include, as the case may be, grandparent, grandchild great-uncle and great-aunt of any degree whatsoever. (7) Persons who are, by this section, forbidden to marry shall be said to be within the prohibited relationships.

Such persons can obviously marry but outside such prohibited relationships. Any marriage within the above prohibited categories is void meaning that it is assumed such a marriage never came into force.

Lying under oath

What are the consequences of lying under oath. I am involved in a case and the applicant has lied to such an extent that will lead to obstruction of justice. If it is proven that he has lied under oath, can he be imprisoned as is the case in other jurisdictions?
PF, Moshi

Section 102 of the Penal Code, which is our key criminal statute addresses this and states that (1) Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed “perjury”. It is immaterial whether the testimony is given on oath or otherwise. The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used. It is immaterial whether the false testimony is given orally or in writing. It is immaterial whether the Court or tribunal is properly constituted, or is held in the proper place, or not if it actually acts a Court or tribunal in the proceeding in which the testimony is given. It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceedings or not. (2) Any person who aids, abets, counsels, procures, or suborns another person to commit perjury is guilty of the misdemeanour termed “subornation of perjury.”

You can see from the above that lying under oath is called perjury and is an imprisonable offence under our laws.