Q&A – 7 September 2015
Building structure near shore
What is the minimum distance from the shore that one can start building a concrete structure? I see some hotels and houses which have started building right on the shore and disallowing anyone from passing the beach infront of them. Is this legal?
Amongst other legislation, the Environmental Management Act states that no human activities of a permanent nature or which may, by their nature, likely to compromise or adversely affect conservation and, or the protection of ocean or natural take shorelines, river bank, water dam or reservoir, shall be conducted within sixty metres.
This is the sixty metre rule and any permanent structure built within 60 days would have been built illegally.
You can report this to the National Environmental Management Council and your local city council for action.
Further, the beach is public property and no one can be stopped from passing the beach.
Penal statute refers to males only
One of our criminal statutes refers to an accused person as “he”. It goes on and on about the crime committed by “he”. Does that mean that that particular offence cannot be committed by a female? This is quite strange.
Whilst it is true that some laws have been drafted with only “he” being mentioned, the Interpretation of Laws Act comes to the rescue of this discrimination against males by stating that in any written law–
(a) words importing the masculine gender include the feminine; (b) words importing the feminine gender include the masculine; (c) words in the singular number include the plural and words in the plural number include the singular.
By virtue of the above, the criminal law also covers women.
Employer prohibits going home for lunch
I work in a company where we
have get a one hour lunch break every day. At times lunch is served in the office. Recently the HR manager has distributed a circular that prohibits employees from going home for lunch. Is this legal?
The Employment and Labour Relations Act provides for a one hour lunch break and does not state where the employee should take her/his lunch.
We think the circular issued has no legal basis unless there are other convincing reasons you have not disclosed.
So long as an employee does not exceed the time for lunch, that is one hour, we feel the employee is at liberty to choose where to go for lunch.
If you are taking more than an hour for lunch, then the employer has all the right to such a refusal. You may raise this with your trade union and/or management for their consideration.
Controlling Controller and Auditor General
From whom does the Controller and Auditor General (C&G) take orders? I ask this because to whomever he reports, the C&G will not be able to audit that person and we will get biased reports from him. What are the checks and balances in place so that the C&G can perform his job?
The Constitution provides that the Controller and Auditor-General (C&G) shall not be obliged to comply with the order or direction of any other person or Government Department. However this does not stop a Court from exercising jurisdiction to enquire into whether the Controller and Auditor-General has discharged his functions in accordance with the provisions of the Constitution or not.
Infact on a yearly basis the C&G must submit a report to the President which is then submitted to the National Assembly by the President.
The Constitution provides that if the report is not submitted to the National Assembly by the President, the C&G can directly submit the report to the Speaker of the National Assembly for the report to be tabled.
Questions during hearing at TRAB
As an auditor I appeared for the first time at the Tax Revenue Appeals Board (TRAB) and was quite shocked that I was being asked questions by the Chairperson and Members during hearing. There were adhoc questions being fired some of which I could not answer. In the end, the TRAB allowed both TRA and us to try resolve this matter amicably out of Court. Is this appropriate?
You must remember that this is a tax dispute and the TRAB is not bound by rules of civil procedures.
Proceedings at the TRAB are inquisitorial in nature.
The TRAB rules provide that the Chairman and members of the Board shall be entitled at any stage of hearing to ask such questions as they consider relevant to the matter involved.
The rules also specifically provide that in hearing the appeal, the Board may determine the matter through mediation, conciliation or arbitration, but the rules of procedure under the Civil Procedure Code and the Arbitration Act with regard to the conduct of mediation and arbitration shall not apply in relation to the proceedings under the Rules.
In order to determined tax disputes expeditiously, the rules further state that
(1) In any proceeding before the Board, the procedure of the Board shall, subject to the Act and these Rules be within the discretion of the Board
(2) Proceeding before a Board shall be conducted with as little formality and technical as possible, and the Board shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
(3) Where the Act and these Rules are silent in relation to any practice or procedure, the proceedings of the Board shall be conducted in accordance with such rules of practice and procedures as the Board may specify.
Therefore the Board is entitled to ask you questions and has powers to order that the matter be resolved out of Court, failure of which you can go back to the Board.