Q&A – 3 July 2023

Child born out of wedlock

I am married but had a child born out of wedlock with another woman. The child passed away and our head of HR refused a compassionate leave to attend the burial on the ground that the name of the deceased child does not appear in the list of my children I have so far declared to the employer. Secondly, the Head of HR argued that the company cannot grant a paid compassionate leave to attend a burial of a child born out of wedlock because doing so will amount to condoning or encouraging employees’ immoral behaviours. It is true that I did not declare the name of this child born out of wedlock to my employer because I wanted to keep this information confidential in order to protect my marriage. However, I feel that I had the moral obligation to attend the burial of my child. What does our law say about such a paid leave?
GR, Dodoma

An employee’s right to a paid compassionate leave is provided for under section 34 of the Employment and Labour Relations Act [Cap.336 R.E 2019] herein referred to as the Act. By virtue of that provision, an employee is entitled to 4 days’ paid leave for sickness or death of his child. The law does not discriminate against children born out of wedlock. A biological father has the right to a paid compassionate leave to attend a burial of his child even if the child is born out of wedlock. However, to avoid abuse of the right to a paid compassionate leave, subsection (2) of section 34 of the Act gives an employer power to demand proof of death and parentage of the child. Hence if you avoided the use of your name in the birth certificate of your child born out of wedlock then you might not be able to provide proof of parentage.

Moreover, the 4 days paid compassionate leave to which an employee is entitled is the total number of days in a span of 36 months from the last paid compassionate leave taken by the employee irrespective of how many deaths or sickness have occurred within the employee’s family. An employee may take a compassionate leave exceeding 4 days within a leave cycle of 36 months but such compassionate leave shall be unpaid unless the employer and a trade union have a collective bargaining agreement which grants a paid compassionate leave exceeding 4 days.

Growing bhang as fodder crop

I am told that local discovery shows goats like eating leaves of cannabis sativa and it gives them immunity against many diseases. I keep a big number of goats for business and I would like to know the process I can follow to be allowed to grow bhang as a fodder crop. Please note this is for my goats and not human consumption. My vision is to become the biggest goat herder on the continent. Please guide me.
SK, Arusha

We can guide you on the law but not on how effective bhang is in building immunity for your goats.

As a general rule cultivation or even allowing land to be used for cultivation of bhang (cannabis sativa) is an offence under section 11 of the Drug Control and Enforcement Act which attracts 30 years imprisonment. Section 12 of this Act gives the Drug Control and Enforcement Authority powers to make regulations which stipulate the procedure for getting a permit to grow cannabis sativa for a lawful activity on application by the Government, but so far, such regulations have not been made.

You should also note that section 12 gives the Drug Control and Enforcement Authority powers to make regulations that allow only the Government to apply for a permit to grow bhang for a lawful activity. Hence even if the regulations are made today, they cannot allow a private person to apply for a permit to grow bhang. The permit to grow bhang is confined to the Government alone because it is generally difficult to control a private farm.

Right to use well water

We have been fetching water from our neighbour’s well for more than thirty years. Unfortunately, the neighbour passed away a month ago. We are now in trouble as the older son of the deceased owner of the well has started to erect a fence around the well and doesn’t want us to draw water from there. He claims we are contaminating the well and wants to keep enough for his family only. Do we have a cause of action against this son?
YR, Tabora     

Indeed, you have a cause of action against that son of the deceased.

Section 31 of the Law of Limitation Act (the Act), states clearly that where any easement has been enjoyed peaceably and openly as of right, and without interruption, for 20 years, the right to such easement shall be absolute and indefeasible. The Act defines easement to include the access and use of light or air to and from any building enjoyed with the building as an easement; and any way or water course, or the use of any water, enjoyed as an easement.

Reading the explanation above, it is clear that the neighbors have been using the well of water, openly, peacefully and without interruption, for more than 20 years. Under the Act, such right of drawing water from that particular well has become absolute and indefeasible. It is too late for the son to stop you from drawing water from the well. You thus have a cause of action and may consider engaging a lawyer to guide you further. As always if this can be resolved amicably do so otherwise you may require Court intervention.