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Legal Digest – 31 January 2017

Acting Chief Justice sworn in

The newly-appointed Acting Chief Justice of Tanzania, Professor Ibrahim Juma, was sworn-in by President John Magufuli this month, pledging to transform the judiciary towards timely dispensation of justice through the use of Information and Communication Technology (ICT). “The usage of ICT will enable courts to file cases electronically and eventually timely dispensation of justice and transparency,” Prof Juma explained.

Prof Juma took the oath before President Magufuli during a brief ceremony, which was attended by the Vice-President, Ms Samia Suluhu Hassan, retiring Chief Justice Mohamed Othman as well as High Court and Court of Appeal Judges and high ranking government officials. “I have been perusing the ICT Policy of this country and I know where we are (the country and judiciary) supposed to be in 20 years to come in usage of the technology,” Prof Juma remarked. Speaking after the ceremony, former Chief Justice Othman said the challenge facing his successor is to speed up transformation initiated by his predecessors in the Judiciary.

“The Five-Phase Government came into power when the Judiciary had already set the pace to ensure timely justice for all through the Five-Year Strategic Plan,” Justice Othman pointed out. He added; “My main challenge at the Judiciary was to motivate the staff to change and serve the people on time.” Through the plan, he explained, the Judiciary focused on checking back-log of cases at courts as well as improving of infrastructure at the facilities.

“The plan was also intended to improve our working relations with other institutions such as the office of the Director of Public Prosecutions (DPP), the Police Force and the Prisons Department,” he explained.

New law to protect schoolgirls

Schoolgirls, who are impregnated may finally be rescued from dropping out of school if a new law is passed by the East African Legislative Assembly (EALA). The EAC Sexual and Reproductive Health Bill, 2017, will be tabled before the House as a private motion Bill by an EALA member from Rwanda and former Minister of State for Social Affairs, Dr Odette Nyiramilimo.

The new law will have a provision, which prohibits the expulsion of pregnant students from school and other educational institutions. The legislation will also offer opportunities and facilities to schoolgirls, who are impregnated before completing their primary and secondary education to complete their studies.

School pregnancy is among the main challenges facing the education sector in the East African Region, leading to hundreds of schoolgirls dropping out of school. Already five Bills are lined up for tabling and these include at least two, which are related to girl education or girls’ welfare, the EAC Gender Equality and Development Bill, 2016 and the EAC Prohibition of Female Genital Mutilation, 2016.

Others are the EAC Retirement Benefits for Specified Heads of Organs Bill, 2016, the Administration of East African Court of Justice Bill, 2016 and the EAC Cross Border Trade in Services Bill, 2016.

According to the EALA, the EAC Gender Equality and Development Bill, 2016 makes the provision for gender equality, protection and development in the regional bloc, while the EAC Prohibition of Female Genital Mutilation Bill, 2016 is seen as critical in outlawing the cultural practice.

Tanzania Media Council Takes Government to EAC Court Over New Law

The Media Council of Tanzania (MCT) has lodged a case in the East African Court of Justice (EACJ), challenging the Media Services Act recently enacted by Parliament and signed into law by President John Magufuli. MCT, together with the Legal and Human Rights Centre (LHRC) and the Tanzania Human Rights Defenders Coalition (THRDC), filed their petition at the Arusha-based court this month saying the media law, that came into force in November, contravenes the East African Community (EAC) Treaty.

The petitioners want the court to repeal sections of the Media Services Act that they say deny Tanzanians the freedom of press and the freedom of expression, which are enshrined in the regional treaty.

High Court rules on Cyber Crime Act constitutionality

In a unanimous decision boldly authored by Madam Justice Koroso, J, with the bench comprising of Justice Prof. J.E. Ruhangisa and His Lordship L.J.S. Mwandambo, the High Court partly granted and partly denied the constitutional petition in favour of the Petitioner challenging the provisions of the Cybercrimes Act, No. 14 of 2015 for being unconstitutional.

Believing that the Cybercrimes Act contained provisions which infringed the right to communication generally and right to be heard, on 11 September 2015 the Petitioner filed the petition. The originating summons and the affidavit in support cite sections 4,5,6,7,8,9,10,11,14,19,21,22,31,32,33,34,35,37,38 and 50 of the Act to be unconstitutional in that they infringe upon the Petitioner’s right to seek, receive, and/or disseminate information guaranteed by articles 16, 17(1), 18, 21(1) and (2) of the United Republic of Tanzania Constitution. The Petitioner in the course of his submissions chose to abandon some of them.

By and large, the Petitioner’s submissions focus on the constitutionality of sections 38 and 50 of the Cybercrimes Act in the light of his complaints against the manner in which sections 4,5,6,9,10,11,14,19 and 21 have been drafted leaving room for subjective interpretation and arbitrary application of said sections by the law enforcement organs. On section 50(2)(b) of the Cybercrimes Act, the Judges held that it militates against the provisions of Article 13(6)(a) of the Constitution and it is therefore unconstitutional to the extent it restricts the right of hearing and that of appeal.

However the Justices ruled that Section 38 of the Cybercrimes Act, is not final rather limited to investigations. Under the circumstances, the Judges held that they were unable to see any merit in the Petitioner’s argument because they did not think that investigation is the final stage in determining the rights of the said individual or service provider where the said data is retrieved from.

The decision has been appealed to the Court of Appeal by the Petitioner.

Private real properties to be registered

The government is set to establish a special register for real properties in the country to facilitate collection of various fees and transfers of ownership. Lands, Housing and Human Settlement Development, Minister William Lukuvi, revealed this recently in Morogoro when opening a one-day workshop aimed at building capacity to journalists on reporting issues related to laws and regulations governing land administration in the country.

He said that upon enactment of the Real Estate Development Bill into law, real property owners would be obliged to register their houses and other buildings in the registry. “We want the law to have a section that would require all real property owners to register their assets in the special registry to facilitate payment of various fees and transfers,” he said. Minister Lukuvi said that the new system is expected to commence from 2017.

He assured that it will be effectively implemented since his ministry has advanced electronic systems to facilitate communication. He noted that the government has already drafted the bill on Real Estate Development noting that once enacted into law it will also safeguard the rights of landlords and tenants.

Mr Lukuvi, however, noted that the government is currently reviewing the National Land Policy 1995 and its first draft had already been debated by stakeholders in a public hearing held in Morogoro. He said the National Housing Policy is also undergoing review whose preparations were underway for Human Settlement Development Policy.

Land Rent Defaulters Face Public Exposure

The government  announced that it will reveal the names of all land rent defaulters, including government officials.

It also said that it will institute hefty fines to owners of undeveloped land for breaching ownership conditions. Opening a one-day workshop for journalists organised by the Land Tenure Support Programme, Lands, Housing and Human Settlements Development Minister, Mr William Lukuvi, said that other stern measures will be taken against the defaulters after the names are made public.

He said that the move is expected not only to increase land rent compliance and boost revenue collection, but also exposing the defaulters to the public especially those who own expensive structures but they don’t pay rent to the government.

Local construction sector transparency scrutinised

The government announced an institutional review of the structure of the Construction Sector Transparency Initiative (CoST) to give it mandate and legal authority to implement its activities efficiently.

CoST is a global multisector stakeholder initiative whose main objective is to promote data disclosure on infrastructure projects in order to increase transparency and accountability. Tanzania adopted the scheme since its inception in 2007. However, the initiative, under the National Construction Council (NCC) had been inactive due to lack of legal framework, according to the Permanent Secretary in the Ministry of Works, Communication and Transport, Eng Joseph Nyamhanga.

After institutional structure review, CoST will facilitate procuring entities to disclose information as required by legislation also using CoST developed disclosure standard (Infrastructure Data Standard -IDS).

This will help to curb shoddy works which have forced various authorities to incur losses of billions of shillings. The CoST will enable the authorities to publish disclosed information to the wider public for decision makers to be accountable.

Medical Bill lands with Bunge Committee

Finally, the government has presented the Medical, Dental and Allied Health Professionals Bill, 2016 to the Parliamentary Standing Committee on Community Services and Development, which seek to transform the medical council into an autonomous body.

The bill, which is to be debated by health stakeholders before members of the committee will – upon approval by the committee and later the Parliament, replace the previous Medical and Dental Act No. 152 of 1959. Detailing about the new law, Health, Community Development, Gender, Children and the Elderly Minister Ummy Mwalimu said it will set new guidelines at which the Medical Council of Tanganyika will operate.

“This includes the requirement that the council’s chairman will be nominated from members of the profession and not the Chief Medical Officer,” she said. “The current law is outdated. There are new challenges, which under the existing law cannot be addressed,” she said, highlighting such new developments as increasing the number of health institutions, increasing medical and dental graduates and framing new technologies for health service provisions.

When the National Assembly approved the 1959 law, Tanzania had only one health institution – Muhimbili – but 50 years now, there are eight institutions. Back in the 2000s, there were only 79 doctors. During the period under review, the country had only 300 dentists as opposed to the existing more than 5,000 today. “The health sector has been changing enormously.”

Sixth-session of the National Assembly kicks-off in Dodoma

The National Assembly started a session in Dodoma which will continue until 10 February 2017. One elected and four nominated MPs are scheduled to take oath of allegiance. They include newly- elected MP for Dimani Constituency in Zanzibar, Ali Juma Ali. Three MPs recently nominated by President John Magufuli are also expected to take the oath.

They are Prof Palamagamba Kabudi, Abdallah Bulembo and Anne Kilango Malecela. A statement issued by the Communications and Public Education Unit of the National Assembly said a total of 125 basic questions will be asked during the Question-and-Answer session. “In accordance to Standing Order 38(1) of the Parliament there will be 16 questions to the Prime Minister on Thursdays during this session,” reads part of the statement. In addition, cabinet ministers are also scheduled to present before the House statements on the food situation as well as the status of the national debt and the state of economy.

Three Bills which were tabled for first reading during the fifth-session in November last year and thereafter forwarded to respective parliamentary committees for deliberations will be presented for second reading for discussions and approval as per Standing Order 91.

Stakeholders Consultative Meeting

The consultative meeting on the new PROPOSED DRAFT CIVIL AVIATION (UNMANNED AIRCRAFT SYSTEMS) REGULATIONS 2017 took place on 24 January 2017.

The Authority committed to efficient and sustainable aviation systems development in partnership with its stakeholders.

Plans underway to introduce intellectual property skills

Plans are underway to introduce curriculums on Intellectual Property (IP) in higher learning institutions to develop awareness and professional skills of IP tools in Tanzania. The Director of Research and Consultant with the Kilimanjaro Christian Medical University College (KCMUCo), Professor Elton Kisanga, said that the study programs on IP are being set up by researchers and academicians in the country. Prof Kisanga made the revelation during a two-day regional seminar on the project for Developing Awareness and Professional Skills of IP tools in Tanzania.

The seminar aimed at capitalising on the current momentum, possible improvements and suggestions for moving forward. “The curriculum will provide help to teachers, students, researchers and other professionals as well as enhance knowledge of how various IP tools used in a hands-on approach can increase commercial exploitation of and emerging technologies in the country for the benefit of all the people,” he explained.

The introduction of IP study programmes in higher learning institutions also help provide products, processes and services between the various sectors nationally, regionally and internationally. Prof Kisanga said the study programmes to be developed and other products will also benefit East African countries, including higher learning institutions in Kenya.

An IP Expert Ms Judith Kadege said the project, initiated by ACP-and research institutes in Tanzania, will also set up policies and other guidelines towards the implementation of the IP in higher learning institutions.

The project is being implemented by KCMUCo and Tanzania Commission for Science and Technology (COSTECH), which is the key stakeholder, and the Tanzania Industrial Research and Development Organization (TIRDO), tasked with creating awareness of various IP tools.

Around the World

UN urges Trump not to reinstate torture policies
Nils Melzer, the UN Special Rapporteur on torture, urged US President Donald Trump not to reinstate torture policies. Melzer referenced the 2014 US Senate Intelligence Committee Report, which stated that the Central Intelligence Agency’s (CIA) use of “enhanced interrogation techniques was not an effective means of acquiring intelligence” and “rested on inaccurate claims of their effectiveness.” Melzer criticised Trump’s pledge to reinstate torture by claiming that “waterboarding” is a form of torture, that the use of torture is not legally or morally acceptable, and that the use of torture is prohibited by the Convention against Torture, the International Covenant on Civil and Political Rights and the Geneva Conventions.

Record number of data breaches in 2016
The number of data breaches and files stolen worldwide reached a record high in 2016, according to cyber security firm Risk Based Security. Inga Goddijn, Risk Based Security’s vice president, stated that “while the number of data breaches actually remained relatively flat from last year, the big story coming out of 2016 is obviously the massive increase in the number of records exposed.” The report by Risk Based Security revealed that breaches at FriendFinder Networks, Myspace and Yahoo accounted for more than 2.2 billion records compromised and that Yahoo alone reported 500,000 records breached in one incident and more than a billion in another.

France bans unlimited sugary drinks to combat obesity
France published a decree which, prohibits businesses from offering unlimited soft drinks. The decree, approved in 2015 by the French Parliament in an effort to reduce the nation’s obesity, bans the serving of unlimited beverages with added sugars or sweeteners for free or at a fixed price. While France already has a tax on soft drinks , the new law is expected to further reduce health risks among adults and youth by meeting the standards of the World Health Organization. Recent studies have revealed that about half of French adults are overweight and 15.3% of adults qualify as obese. While France’s obesity rate may be steadily rising, the nation still lies under the EU average obesity rate of 15.9%.

How Trump’s travel ban is affecting people around the world
Donald Trump’s executive order suspending entry to the US of nationals from seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), has disrupted the lives of hundreds of thousands of people, ripping families apart and leaving careers in limbo.

Only parliament can trigger Brexit. But can it then reverse the process?
The supreme court decision was predictable, but momentous nonetheless. Article 50 cannot be accessed other than by a statute passed by parliament, which repeals the 1972 European Communities Act. Parliament took us into Europe, and only parliament can take us out.

High heels dress code may breach health and safety law
Companies are not only breaching the Equality Act when they oblige female employees to wear high-heeled shoes at work. There is well-established evidence for the harm caused to women’s musculo-skeletal health by the protracted wearing of high heels and employers can reasonably be expected to be aware of this. It is a basic requirement of UK health and safety law that employers assess the risks to which their employees are exposed at work and take reasonable measures to control these risks. Knowingly obliging workers to wear clothing or footwear that is harmful to their health may be construed as an offence against this requirement.

Germany Volkswagen owners file suit for compensation
Lawyers representing a German owner of a diesel-powered Volkswagen (VW) vehicle equipped with a software that could cheat emissions tests filed the first lawsuit seeking compensation for damages. According to the Braunschweig district court, the German firm MyRight filed on behalf of only a single VW consumer effected by the scandal. Although VW has paid damages to 535,000 US-based consumers, they have refused to do so in European countries.

Swiss Muslim girls must attend mixed-sex swimming lessons
Switzerland has won a case at the European court of human rights over its insistence that Muslim parents send their children to mixed-sex school swimming lessons.
The Strasbourg-based court ruled that Swiss authorities had not violated the right to freedom of religion by insisting that two Muslim parents send their daughters to mixed-sex swimming lessons.

Is removing a condom without permission rape?
In a landmark ruling in Switzerland, a man has been found guilty of raping a woman after he removed a condom without permission during what had, up until that point, been consensual sex. There are no further details beyond the fact they met on Tinder. The Swiss Federal Supreme Court handed down a suspended 12-month sentence. The case is a Swiss first, but has no direct bearing on the rest of Europe; rape law differs wildly across the continent.

Rolls-Royce to pay £671M over bribery claims
Rolls-Royce, Britain’s leading multinational manufacturer, is to pay £671M in penalties after long-running investigations into claims it paid bribes to land export contracts.
The settlement means the engineering giant will avoid being prosecuted by anti-corruption investigators in the UK, US and Brazil, though individual executives may still be charged. It comes five years after investigators across three continents first began examining claims that the £13B multinational had paid bribes to secure contracts in countries around the world.

African leaders plan mass
withdrawal from international criminal court

African leaders have adopted a strategy calling for a collective withdrawal from the international criminal court. The non-binding decision came behind closed doors near the end of an African Union summit. It was the latest expression of impatience by African leaders with the court, which some say has focused too narrowly on Africa while pursuing cases of genocide, war crimes and crimes against humanity. Late last year, South Africa, Burundi and the Gambia all announced plans to leave the court, leading to concerns that other states would follow.

Syrian migrant launches Facebook ‘fake news’ legal fight
A Syrian migrant who posed for a selfie with Angela Merkel is suing Facebook after being falsely linked to terrorism in posts shared on the social media network.
The legal action comes as Facebook has been facing significant pressure to combat the proliferation of fake news reports on its platform.
In Germany, there have been numerous instances of false allegations on social media made against migrants and refugees.

China abandoning rule of law, human rights lawyers say
Top human rights lawyers say Xi Jinping’s China is moving farther and farther away from the rule of law amid new claims about torture of Chinese attorneys.
A group of leading lawyers and judges from the US, Europe and Australia expressed “grave concern” over the detention and treatment of legal professionals.
Former French justice minister Robert Badinter as well as British human rights lawyers Michael Mansfield QC and Clive Stafford Smith – called on China to release “the detained or arrested lawyers and others held with them”, describing their detention as “without legal basis”.