Q&A – 4 May 2015

Sexual needs of disabled

I studied all my life in Tanzania and only recently realized that a friend of mine who is disabled because of an accident is not able to get married. He is disabled but told me that is able to be sexually active. In Europe where I studied, the state provides such services for the disabled as it is a need for such people and it is important to have happy people. Are such services available in Tanzania? Can a Tanzanian man decide with which woman the man intends to have sexual relations? Is it not fair that such people be taken care of by the state?
WE, Dar

When we read your question for the first time, we were not aware that some European countries indeed provide allowances for such needs. For example, Amsterdam’s Red Light District, De Wallen, is well-known for quasi-legal prostitution and its traffic of international tourists. But there are some unexpected customers. We have learnt that in an effort to grant the physically disabled citizens the chance to experience sexual intimacy, the government of Holland has been known to provide them with a monthly stipend with which to visit prostitutes.

Our research reveals that the Netherlands is far from the only country that affords the handicapped subsidies for adult companionship. They are also available in Switzerland and Germany, among other places, and there are movements to legalize sexual surrogates in Australia and France. Whether this is right or wrong can be debated but it is indeed a very interesting concept.

To answer your question, such services are not available in Tanzania. Infact in Tanzania prostitution is illegal. There is no law in Tanzania that governs which Tanzanian man has what kind of relations with which kind of woman. There is no such protocol governed by the law.

Questioning when under arrest

Can a police officer start asking a suspect questions without following some procedures? In other countries, there is a strict protocol to follow including informing the suspect their rights before one can be questioned. I ask this because one of my colleagues was arrested and was aggressively questioned without being told his rights.
FR, Dar

Questioning in criminal law is governed by the Criminal Procedure Act which states the following clearly and unambiguously in section 53: Where a person is under restraint, a police officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless– (a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally– (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (ii) that, subject to this Act, he may communicate with a lawyer, relative or friend.

A critical right is access to a lawyer or friend as the law does not want suspects to make statements without presence of some support for the suspect, which is their right whether or not the suspect is guilty or not.

Section 54 further states that (1) Subject to subsection (2), a police officer shall, upon request by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a lawyer, a relative or friend of his choice. (2) A police officer may refuse under subsection (1) for the provision of facilities for communicating with a person being a relative or friend of a person under restraint, if the police officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing– the escape of an accomplice of the person under restraint; or the loss, destruction or fabrication of evidence relating to the offence.

You can see from the above that there are cases where the police officer may deny the suspect from making a call to a friend or relative.

PSAs always under threat

We are players in the oil and gas sector in Tanzania and always hear of threats being made against the international oil and gas companies in that their Production Sharing Agreements (“PSAs”) would be taken away or terminated and we should be removed from working in Tanzania because the PSAs are one sided. Is this the Government’s policy as most of us have not yet even started production? Can changes be done by the Government to the PSAs?
WE, Mtwara

You must realise that apart from these being binding agreements, PSAs have the force of law under the Petroleum (Exploration and Production) Act of 1980. It is trite law that agreements are there to be abided by. One cannot unilaterally change an agreement and any threats that you may be getting can be referred to arbitration.

Whether or not the PSA is good or bad, should the government decide to do anything unilaterally, it will give rise to a cause of action and you can sue for damages. Infact the damages would be severe and we believe it would send a wrong signal to investors. Our opinion is that this is not the position of the Government.

Furthermore the Tanzania Investment Act provides full protection against any kind of expropriation. Any attempts to change your PSA unilaterally will have serious repercussions on Tanzania as an investment destination.