Q&A – 8 September 2014
TRA powers to search and seize documents
TRA officials recently ambushed my office and took a lot of my documents. I am shocked at their behavior. Is this legal and how can I stop it?
PP, Dar
The answer to your question is simple. Yes it is legal and no you cannot stop this. The Income Tax Act provides for this in section 138 and state (1) For the purposes of administering this Act, the Commissioner and every officer who is authorised in writing by the Commissioner – (a) shall have – (i) at all times during the day between 9am and 6pm and without any prior notice; and (ii) at all other times as permitted by a search warrant granted by a district or resident magistrate’s court, full and free access to any premises, place, document or other asset; (b) may make an extract or copy, including an electronic copy, of any document to which access is obtained under paragraph (a); (c) may seize any document that, in the opinion of the Commissioner or authorised officer, affords evidence that may be material in determining the tax liability of any person under this Act; and (d) may, where a document is not available or a copy is not provided on request by a person having access to the document, seize an asset to which access is obtained under paragraph (a) that the Commissioner or authorised officer reasonably suspects contains or stores the document in any form.
People have started complaining about TRAs aggression in Tanzania without realizing that the tax laws here provide TRA with a lot of power. Other jurisdictions have similar provisions when it comes to administration of taxes.
As far as the tax officer’s behavior is concerned, you have not described how they behaved. However TRA has a service charter in place which each and every TRA official must adhere to. You may want to refer to that before you lodge any complaints.
Sending refugees back
Is there a law that protects refugees when they enter a country?
Can Tanzania afford accommodating refugees? Why can they not be sent back home? Is it legal for a refugee to enter Tanzania?
YU, Dar
There is a convention relating to the Status of Refugees. The Convention was approved at a special United Nations conference in 1951. It entered into force on 22 April 1954 and was initially limited to protecting European refugees from before 1 January 1951 (after World War II), though states could make a declaration that the provisions would apply to refugees from other places.
A 1967 Protocol removed the time limits and applied to refugees “without any geographic limitation”, but declarations previously made by parties to the Convention on geographic scope were “grandfathered” in. Tanzania has ratified this treaty and it has the force of law in Tanzania.
Article 1 of the Convention as amended by the 1967 Protocol provides the definition of a refugee and states a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the definition that a refugee is ay person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.
In the general principle of international law, treaties in force are binding upon the parties to it and must be performed in good faith. Countries like Tanzania that have ratified the Refugee Convention are obliged to protect refugees that are on their territory, in accordance with its terms.
There are a number of provisions that States who are parties of the Refugee Convention and 1967 Protocol must adhere to one of the most important being cooperation with the United Nations High Commissioner for Refugees (UNHCR) in the exercise of its functions and to help UNHCR supervise the implementation of the provisions in the Convention.
A refugee has the right to be free from penalties pertaining to the illegality of their entry to or presence within a country, if it can be shown that they acted in good faith- that is, if the refugee believes that there was ample cause for their illegal entry/presence, i.e. to escape threats upon their life or freedom, and if they swiftly declare their presence. This right is protected in Article 31 which states that the Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
A refugee’s right to be protected against forcible return, or refoulement, is set out in the 1951 Convention relating to the Status of Refugees which states that no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion. Hence refugees in Tanzania cannot be turned away. Tanzania also gets good technical and financial support from the UNHCR to assist such refugees.
Tanzania also has in place a national refugee policy which is line with the above. According to the UNHCR, from 1997 to 2002, Tanzania hosted the maximum number of refugees and gained international recognition for this.