Q&A – 5 September 2022
Duty to keep child born out of wedlock
My wife cheated on me and had a child with another man. Am I bound to keep the child born out of wedlock during the subsistence of our marriage?
As a general presumption, a child born during the subsistence of marriage is taken to be a child of the husband who is lawfully married to the mother of the child and he is the one responsible to maintain the child born during the subsistence of the marriage. However, where there is evidence that the child was born out of wedlock, the biological father of the child is the one responsible to maintain the child. Section 6(2) and 7(1) of the Law of Child Act [Cap.13 R.E 2019] gives a child the right to know the biological father and being maintained by him.
For the biological father to assume the responsibility of maintaining the child born out of wedlock, there must be a Court order declaring the parentage unless the biological father admits that the child is his. Where a person is declared the biological father of the child, section 36(4) of the Law of Child Act provides that such biological father assumes the responsibility to maintain the child in the same manner as the child born in the wedlock and the refusal to keep the child born of out of wedlock constitutes an offence punishable by fine of not less than TZS 500,000 or imprisonment for a term of three months or to both fine and imprisonment. The parentage can be proved by DNA testing which is available in Tanzania.
Housemaid claims annual leave transport allowance
My housemaid is claiming annual leave, transport allowance for herself, husband and four children. She claims the amount which covers the travelling costs from the city where we live to her husband’s home village. But I recruited her just here in the city where she works for me and not from her husband’s home village. Is she entitled to the annual leave transport allowance as she claims? Am I obliged to pay the annual leave transport allowance covering herself, her husband and four children? Am I required to provide her with annual leave transport allowance every year? If she claims air travel allowance, is she entitled to it?
Order 5(2) of the Labour Institutions Wage Order, 2013 gives an employee the right to travel allowance once in every two years of continuous service with the same employer. If you have provided the employee with leave travel allowance during her annual leave for this year, then in her next year’s annual leave you will not be bound to give her leave travel allowance. She will bear her own annual leave travel costs next year. The law is silent on the second question you have raised; whether the housemaid is entitled to leave travel allowance for her spouse and four children. However, the best practice based on repatriation allowance paid to an employee when the contract is terminated, has always been to pay the leave travel allowance covering an employee, the employee’s spouse and up to four children or dependents. The leave travel allowance paid is equal to bus or train fare and not air fare but again the law does not expressly specify whether such leave allowance covers transport costs from place of work to the employee’s place of domicile, husband’s place of domicile or to the place of recruitment. The practice has been to pay the employee, the spouse and up to four dependents travel allowance from the place of work up to the employee’s home town or village.
Forged academic certificates transmitted electronically
We advertised an employment vacancy for the position of the head of operations and several expatriates applied for the position. They submitted their requisite academic certificates electronically to prove their qualifications. We then shortlisted and interviewed some expatriates via zoom and employed the one we found to be most qualified. Later on, and after he had reported, we came to learn that the expatriate we hired submitted forged documents. Where should we lodge our complaint? Can this expatriate be prosecuted here in Tanzania or can he only be prosecuted in the country he was in when he transmitted the forged documents electronically to Tanzania at the time of applying for the job?
Based on section 7 of the Penal Code [Cap.16 R.E 2019] and section 30(1) of the Cybercrime Act, 2015, Tanzanian Courts’ have jurisdiction to hear and decide crimes whose commission were committed electronically partly abroad and partly committed in Tanzania. So if the offender is in Tanzania the company can report the incident to any nearby police station in Iringa for investigation and to take legal action against the offender despite the fact the offence was partly committed abroad and partly committed in Tanzania.