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CONSTITUTION MAKING PROCESS-TANZANIA CASE STUDY
BRIEF HISTORY
The Constitution
of the United Republic of Tanzania was enacted by the Constituent Assembly (CA)
April 25, 1977 and promulgated April 26, 1977. Up until the Constitutional
Review Process started, the current constitution of 1977 had been subjected to
14 amendments. The last amendment to the 1977 Constitution was in 2005.
For over 35 years,
the 1977 Constitution has enabled and guided the United Republic of Tanzania to
make considerable milestones and successes politically, economically and
socially. It is for a fact that the progress made politically, economically and
socially in the country and abroad triggered demands for changing the
constitution. The citizens including politicians, activists, development and
social partners, academicians, farmers and workers saw the need for changing
the constitution. While some had suggested minimal amendments to certain areas
in the constitution others saw the 1977 constitution as outdated and a new
constitution should be written.
Despite several
efforts made by the government of Tanzania to amend the constitution so that it
effectively respond to societal concerns and issues, as time went, citizens
continued to demand for a new constitution. Some of the issues raised by the
people that needed immediate attention was such as the establishment of an
Independent Electoral Commission, The structure of the union that responds to
present and future needs and realities, the existence of independent candidate,
to control and monitor excessive election campaign financing and most of all
people wanted the 1977 constitution scrapped since it had too many patches and
a new one to be drafted. The people also wanted to have specific and
substantive provisions to spell out accountability principles for our leaders
and civil servants and to provide constitutionally a procedure of getting
public leaders. Moreover the people saw the 1977 constitution being lenient to
single party and hence failing to support efficiently the multi-party system of
democracy.
THE
PROCESS
Tanzania embarked
on a Constitutional Review Process in 2011 after the announcement by His
Excellency Dr. Prof. Jakaya Kikwete President of the United Republic of
Tanzania during his end of the year 2010 public address. This historic
announcement was followed by a parliamentary process to enact a regulatory
framework, the Constitutional Review Act of 2011 to provide guidance in the
process that will lead Tanzanians getting their new Constitution. The CRA 2011
underwent several amendments that were meant to improve it and to broaden
participation of key stakeholders and citizens as highlighted bellow;-
Amendments made to the Constitution Review Act, Chapter
83
Constitutional Review
Act, Chapter 83 was amended three times since it was enacted and passed by the
Parliament of the United Republic of Tanzania. The following are the amendments
made to:
First Amendment
The first revision
took place in the early stages of implementation of the Constitutional Review
Act. These amendments were submitted and approved by the Parliament on 10
February, 2012. At its Eighth meeting the Parliament staged the following
amendments:
(a) The President
of the United Republic and President of Zanzibar to consult and agree on all
the fundamental matters about the Constitutional Review process;
(b) Having the
same number of members of the Commission from two sides of the Union;
(c) The
appointment of the Chairman, Vice Chairman, Secretary and Deputy Secretary to
consider the two sides of the Union; and
(d) Constituent
Assembly to have representatives from both sides of the Union, voting in the
Constituent Assembly to be two thirds for each side of the Union and a
referendum vote to approve the Constitution of the United Republic to be
determined by more than 50 percent on
each side of the Union.
The Second Amendment
At the session of
the National Assembly in September, 2013 amendments made concerned the
provisions of the composition of the Constituent Assembly, the order of
operations in the Constituent Assembly and dissolution of the Constitutional Review
Commission.
Third Amendment
Third Amendment of
the Constitution Amendment Act took place on the 13th meeting of the Parliament
of the United Republic of Tanzania in November, 2013. The amendments concerned
the increase in the number of members from specific categories in the composition
of the Constituent Assembly from 166 to 201, the removal of texts which
referendum issues and issues of voting in the Constituent Assembly.
CONSTITUTIONAL REVIEW STAGES
The CRA CAP 83 in
section 9, 18 and 25 provides the first to the third stage of the review
process. The CRA CAP 83, 2013 version has removed sections pertaining to the
fourth stage and those sections have been transferred to the Referendum Act of
2014.
Stage I:
Collecting citizens views and opinion for the New Constitution
Section 9 of the
CRA CAP 83 states that “(1) The functions of the Commission shall be to: (a)
co-ordinate and collect public opinions; (b) examine and analyse the
consistency and compatibility of the constitutional provisions in relation to
the sovereignty of the people, political systems, democracy, rule of law and
good governance; (c) make recommendations on each term of reference; and (d)
prepare and submit a report.
(2) In the
implementation of the provisions of subsection (1), the Commission shall adhere
to national values and ethos and shall, in that respect safeguard and promote
the following matters: (a) the existence of the United Republic; (b) the
existence of the Executive, Legislature and the Judiciary; (c) the republican
nature of governance; (d) the existence of Revolutionary Government of
Zanzibar; (e) national unity, cohesion and peace; (f) periodic democratic
elections based on universal suffrage; (g) the promotion and protection of
human rights; (h) human dignity, equality before the law and due process of
law; and (i) existence of a secular nature of the United Republic that does not
inclined to any religion and that respect freedom of worship...”
This section gave
the Tanzanian citizens a lifetime opportunity that has never been granted
before, to give freely their opinions on what kind of constitution they would
like to have. In the beginning people thought that there were “sacred” matters
that people were restricted from giving their opinion on, such matters included
the existence of the United Republic, structure of the union and so forth.
The truth remained
that the CRA CAP 83 gave the people the freedom to air out their view with no
restrictions, this is manifested by section 9(3) that clearly stated that “For
the purpose of subsection (2), and for any other matter of national importance,
the Commission shall afford the people an opportunity to freely express their
opinions with a view to further enrich those matters.”
Stage one saw over
a million Tanzanians attending the public meetings organized by the
Constitutional Review Commission (CRC). The CRC went across Tanzania in every
district and respective municipal, council, township and ward-level authorities.
Out of a million Tanzanians that attended, over 350,000 of them had the
opportunity of presenting their opinions before the CRC. This number has never
been reached in terms of public consultation by any other engagement related to
constitution making history in Tanzania.
The exercise was
very simple and clear, citizens were asked to put forward their views and
opinions on what should constitute the New Constitution, emphasis was made that
upon giving the views and opinion, supporting reasons was paramount. Those
citizens who were able to give constitutional proposals did so, those who
couldn’t comprehend constitutional provisions spoke of challenges they were
facing in their localities. CRC Commissioners who hosted these public meetings
facilitated the citizens who couldn’t pin point challenges and put forward provisions
to share with the CRC their dreams depicting the kind of Tanzania they would
wish to live in, the kind of village they would wish to live, be part of, feel
safe, feel happy and that guaranteed their present needs without compromising
their future needs.
Stage one also
gave political parties, civil society organizations including religious
institutions the opportunity to submit their views on the new constitution, an
enormous number of submissions was received, analyzed and formed part of the
constitutional proposals put forward in the First Draft of the New
Constitution.
The outcomes of
Stage I was the a report of public opinions on the New Constitution explaining Constitutional
issues proposed, history and practice in Tanzania, experience from other parts
of the world and reasons supporting each issue in question. It was this report
that made it possible for the CRC to come up with the First Draft of the New
Constitution. The CRC also made a separate report that looked at Policy,
Regulatory and Administrative proposals that citizens were aggrieved with and
the intention of the CRC was to inform the government to start responding to
the matters while the review process was progressing.
Stage II: Citizens
Constitutional Forums
This stage is provided
for by section 18 of the CRA CAP 83 that stated the following; - (1) there
shall be fora for constitutional review.
(2) The fora for
constitutional review shall provide public opinions on the Draft Constitution
through meetings organized by the Commission.
(3) The fora for
constitutional review shall be formed on ad hoc basis by the Commission based
on geographical diversity of the United Republic and shall involve and bring
together representatives of various groups of people within the communities.
(4) The fora referred
to in subsection (1) and in other provisions of this Act shall exclusively be
for the citizens of Tanzania.
(5) For the
purpose of this section, before the Commission completes making the report, it
shall publish the Draft Constitution in the Gazette, and other local
newspapers in order to afford opportunity to the public to further enrich the
provisions of the Draft Constitution through discussions in the fora for
constitution review.
(6) For the
purpose of this section, the Commission may allow organizations, associations
or groups of persons to convene meetings in order to afford opportunity to its
members to air their views on the Draft Constitution and forward such views to
the Commission.
The CRC and
according to section 18(3) did form a total number of 177 Constitutional Forums
plus 2 separate forums for people with disability one in Tanzania Mainland and
one in Zanzibar. The constitutional forums organized by CRC brought together
over 18,000 people from all villages in rural areas and streets in urban areas
in Tanzania Mainland and Zanzibar.
Members of the
Constitutional forums organized and coordinated by the CRC were elected at
village (rural) and street (urban) levels. The election was organized in such a
manner that the people could elect a young person, a woman, an elder person and
any other person (could be a person with disability).
Section 18(6) of
the CRA CAP 83 provided the establishment of independent forums that were
organized by institutions and organizations across the United Republic of
Tanzania. According to reports submitted to CRC, institutions and organizations
had a reach of over 6 million people whom they gathered views and opinions to
improve the First Draft of the New Constitution.
The outcomes of
Stage II were the Report of citizen’s views and opinions from the CRC and
independently organized forums to improve the First Draft of the New
Constitution. Another outcome of this stage was the Second Draft of the New
Constitution.
Stage III: The
Constituent Assembly (CA)
Section 25 of the
CRA CAP 83 states that “(1) The Constituent Assembly shall have and exercise
powers to make provisions for the New Constitution of the United Republic of
Tanzania and to make consequential and transitional provisions to the enactment
of such Constitution and to make such other provisions as the Constituent
Assembly may find necessary. (2) The powers of the Constituent Assembly to make
provisions for the proposed Constitution shall be exercised by a Draft
Constitution tabled by the Chairman of the Commission and passed by the
Constituent Assembly”.
This section gave
the Constituent Assembly two major tasks, one, to make provisions for the New Constitution of the United Republic of
Tanzania and two, to make consequential and transitional provisions to the
enactment of such Constitution. Whenever a Constitution is written those are
normally the usual roles.
In the
Constitutional Review process this section has also been one of the areas of
contention, there are those who believe that the CA’s role was to improve the Second
Draft without compromising or changing its principles, and considering the
nature of the process and the fact that the CA was equally one of people’s
institutions involved. There are those who believe that the CA had unlimited
powers and not bound by the Second Draft, contenders of this belief
particularly used the last sentence of section 25(1) to justify that the CA
indeed had the powers of “…making such other provisions as the Constituent
Assembly may find necessary”. By using this sentence, changing principles of
the Second Draft and bringing in new issues irrespective of people’s views and
opinions collected by the CRC was justified.
The truth remains
that, constitutions and all other statutes are written by using principles. Statutory
construction is a learnt skill that is guided by principles, similarly the CRA
CAP 83 was written not in vacuum of principles. Section 25 of the CRA CAP 83
was also a product of principled construction. The CRA CAP 83 was never constructed
in the jungle. After two years of experiential learning I have come to know
that section 25 was constructed using “canon of statutory construction and
interpretation, the ejusdem generis principle[1]”. In other words it is
very wrong to use the text “to make such other provisions as the Constituent
Assembly may find necessary” to mean a green light to changing principles of
the Draft Constitution. The powers inscribed in the text “to make such other
provisions as the Constituent Assembly may find necessary” are only limited to
the preceding sentence, which is “to make consequential and transitional
provisions to the enactment of such Constitution” and definitely not the very
first sentence that talks about “…to make provisions for the New Constitution
of the United Republic of Tanzania”.
The CA got it all
wrong, but that’s history now, what transpired in the CA was a manifestation of
going into the CA with a divided understanding, coupled by strict part
positions with no consensus built or compromises reached.
Composition of the CA
Section 22 of the CRA
CAP 83 explains the three types of membership to the Constituent Assembly as
being (i) all members of the National Assembly of the United Republic; (ii) all
members of the House of Representatives of Zanzibar; and (iii) two hundred and
one members appointed by the President in agreement with the President of
Zanzibar.
The process of getting
the 201 members started with the Government Notice No. 443 of December 13, 2014
that invited the citizens through their different groups and organizations as
identified by section 22(1)(c) of the CRA CAP 83 to submit to the President
proposed names for CA membership consideration. The President of the Republic
and in consultation with the President of Zanzibar appointed the 201 CA
members. The appointment of the 201 members was welcomed by mixed reactions to
some it was a stride ahead because it was then known who and who will
constitute the CA that will make the provisions for the New Constitution. For
some it was a stride backward as it looked as if the majority of the CA members
were party cadres to the ruling party, this worried people somehow considering
then the mounting difference and positions especially on the contentious issues
and that eventually the CA will be polarized.
Business in the Constituent Assembly
Here I will put my
opinion straight away, that the conduct of the CA and particularly the CA
leadership deliberately ignored all calls for consensus building. The CA
started divided and no effort was made to bridge the division, it seemed from
early days of the CA that majority of the members in the CA were never
independent and carried with them unquestionable party positions.
As the CA session
progressed, it was quite evident that polarization was anticipated, the
practice of “tyranny of the majority[2]” in almost all discussions
in the CA made the CA deliberations quite subjective. It reached a time in the
CA session, members could use such abusive language that was meant to demean
ones dignity, that fueled racism and inappropriate ways of addressing one
another in the CA, yet the CA leadership allowed all that to continue.
The pick of the CA
was the discussion on how voting will be conducted, and that for the first time
people outside the CA failed to understand the rationale for strict positions
from the majority members (mainly from ruling party- CCM) who wanted open
ballot against secret ballot and the minority members (mainly from the major
opposition parties and some of the 201 members) who wanted secret ballot
against open ballot. The now two major camps in the CA, one led by the ruling
party (CCM) and labeled themselves as “Tanzania Kwanza” meaning putting
national interest first. The opposing camp was led by major opposition parties
namely Chadema, CUF and NCCR-Mageuzi who labeled themselves as “UKAWA” an
acronym of “Umoja wa Katiba ya Wananchi” meaning a coalition advocating for a
people centred constitution.
One thing I
remember for sure was some meetings I held with Members of Parliament from the
ruling party way before the CA who were in support of the Second Draft who made
me aware of the unknown, they then said “if the CA decisions will be based on a
secret ballot the Warioba Draft will be supported with the majority but not
otherwise”.
It was very clear
and anticipated that the very clear polarized CA with subjective discussions
and serious lacking leadership would soon collapse, and that is exactly what
happened. After failing to bridge the gap between the two camps, failing to
build consensus, failing to reach compromises and failing to provide leadership
in the CA, finally Mid-April over 200 UKAWA members boycotted the CA.
Immediately after UKAWA walked out of the House, it was expected the Vice Chair
to call for an emergency consensus meeting to resolve the matter but contrary
to that assumption she asked the CA secretaries to crosscheck if the quorum was
complete, and the session continued. This could tell you that the political
will to produce a constitution based on consensus building at the level of CA
leadership was highly questionable.
Despite all the CA
odds including very questionable voting procedure to pass provisions, the CA
leadership continued all the way until they produced the Proposed Constitution
having in the house members from the ruling party (CCM) and some members of
201.
The outcomes of
Stage III were the Proposed Constitution.
Stage IV:
Referendum and the process leading to the Referendum Vote
Stage IV is guided
by the Referendum Act of 2014; in this area I would explain processes,
initiatives to broker consensus, their outcomes and how it shapes the
referendum vote.
So far we have
witnessed several initiatives to broker consensus, the Registrar of Political
Parties started and his efforts stalled. Then it was the religious leaders,
these ones were kindly asked to “stay out” until when matters were out of hand
then they would be asked to intervene.
The last
initiative was the Tanzania Centre for Democracy engagement with the President,
here some strides were made and an agreement was reached. Some of the land mark
agreement was (a) that no more time shall be allotted to CA despite their plea
to the government after October 4, 2014, (b) that the referendum vote to be
conducted after the 2015 general election; this was due to the fact that time
was becoming a challenge, (c) that the general election will be conducted using
the 1977 Constitution, which will have to undergo “minimum amendments” to
include the following elements (i) Contesting the Presidential results in court
(ii) 50 percent plus qualification for Presidential results (iii) Establishing
Independent Electoral Commission, and (iv) the introduction of independent
candidates. The TCD engagement with President were sealed and read out by TCD
Chair Hon. John Cheyo.
To the surprise of
many these milestone have been dishonored ceremoniously. What it means is, we
are going to the Referendum vote with the current highly disputed (especially
by opposition parties) National Electoral Commission (NEC), we are going to the
referendum vote while the NEC had already warned that they will be able to
complete the voter’s register improvement by May 2015, yet the Referendum date
has already been set on April 30, 2015.
Considering the
diminishing time, unless we postpone the general election 2015, we won’t be
able fulfill any proposals put forward by the President and TCD together.
Section 35 of the
Referendum Act explains about the validation of the Proposed Constitution and
the outcomes of the Stage IV.
If the Proposed
Constitution gets a YES vote at the referendum by over 50% of all votes cast in
Tanganyika and Zanzibar then we shall have our new Constitution. If the
Proposed Constitution gets a NO vote at the referendum by over 50% of all votes
cast in Tanganyika and Zanzibar then several things shall take place (i)
another date for repeating the referendum shall be set within 60 days (ii) more
sensitization shall conducted on the referendum and (iii) where circumstances
all give the president enough time to reconvene the Constituent Assembly to
consider people’s views and opinions. If we get another NO vote in the second
round of the referendum then the 1977 Constitution shall remain in force.
BRIEF
ANALYSIS BETWEEN THE SECOND DRAFT AND THE PROPOSED CONSTITUTION: LOOKING AT KEY
AND CONTENTIOUS ISSUES
The Proposed Constitution has serious
limitations and has trashed critical views and opinions as set forth by the
citizens themselves as follows: -
1. Powers of President
Citizens suggested considerable powers of the
President in particular powers to appoint officers could be reduced by establishing
constitutional bodies to advise the President before he makes the appointments.
People suggested that key Presidential appointments should be endorsed by the
parliament. The proposed constitution has deleted these proposals and has
reinstated President Powers as per 1977 Constitution. This is a setback to
exercising Sovereignty of people
2. Separation of Powers
Citizens suggested greater autonomy for
Parliament and more power to the Parliament to advise and hold the government
accountable. This proposal goes in parallel with separating government and
Parliament, which is not the case now. Warioba draft gave the parliament more
oversight authority over the government and it stated where a poorly developed budget
or a bad bill of the government is brought to the house and rejected for
improvement grounds on several occasions, the President would not be able to
dissolve Parliament. The people aired their views that the Ministers should not
be appointed from and among members of parliament. They suggested strongly that
Members of Parliament had one exclusive role to represent the people and not
otherwise and wanted the President to be free to appoint people (ministers) whom
can best assist the President to discharge government roles in a professional
manner.
3. Right to Recall MPs
Warioba draft gave voters the powers to recall
their MPs with a vote of no confidence in them at any time (Recall Powers) if
they go against the interests of the citizens in the constituency concerned.
People wondered if MPship is indeed a surety, how can’t it be possible to immediately remove a non
performing MP and be bound to wait until five years.
4. Reliable sources of Revenue
The existence of sources of the union
government revenue is paramount and after having reduced union matters from 22
to 7, this recommendation was echoed even by government institutions that gave
opinions to the first draft. Warioba went ahead to suggest only excise duty
should be a union tax and proposed new sources of income for the union that
were sufficient and reliable to run the Union Government with its Union
Matters. The proposed Constitution has reinstated the same sources of revenue
as per 1977 Constitution. In so doing we have returned to the main challenge facing
the union that has never been resolved since 1984. If you take three taxes,
customs duty, excise duty and income tax from Zanzibar that is suicidal to
Zanzibar economy and will serious affect its capacity to run its non union
matters mainly those related to social and economic development, this equally
applies to Tanganyika.
5. Union Structure
For years we have not been able to answer
the riddle of what kind of the union structure our Republic has. This has
remained a paradox to many who engage in this discussion, including Mw. J.K
Nyerere. Warioba draft set forth and the first time that our union structure bears
a Sovereign Federal Republic with three jurisdictions and each having an
executive, legislature and judiciary. The Proposed Constitution has maintained
the 1977 Constitution controversial structure.
6. Reducing the size of government
Citizens expressed distaste with the size of
government which amounts to extensive use of taxpayers' money. They suggested transformative
restructuring and establishing a stable, efficient and small union government.
Warioba draft stated number of ministers not exceeding 15; the Proposed
Constitution says ministers should not exceed 40, this Proposed Constitution
proposal is impossible since the structure of the union entails a union
government that handles also non union matters of Tanganyika, this would need a
much bigger cabinet and contrary to people’s views.
7. Intergovernmental Relations and
Coordination
Warioba draft focused on ensuring good
relations, communication and coordination of all three governments under the
authority and leadership of the Federal Government through the Intergovernmental
Relations and Coordination Commission. Constituent Assembly failed to
understand the logic of this proposal and the Proposed Constitution has completely
derailed from Warioba proposal of the "Commission Intergovernmental
Relations and Coordination" to the "Affairs of the Union Coordination
Commission". Affairs of the Union are exclusive jurisdiction of the Union
Government and not otherwise.
8. Reducing the size of Parliament
Citizens spoke also of the size of the
Parliament of the United Republic and the costs associated with it, and echoed the
need for small and efficient parliament. Warioba said the number of MPs should not
exceed 75, Constituent Assembly through the Proposed Constitution have proposed
the Union Parliament should not have more than 390 MPs.
9. Term Limit for members of parliament
People were talking about parliamentary
positions dominated by certain people for years and recommended there should be
a term limit to bring about broad representation and participation. Warioba
draft set forth term limit to the Union Parliament to maximum 3 terms of 5
years each and amounting to 15 years in total. The Constituent Assembly and the
Proposed Constitution have trashed this proposal and removed term limit, now
you can be MP for life if elected.
10. National Core Values, a basis for a
national value system
People suggested the existence of national
values (core values) in the Constitution; these values should include dignity,
patriotism, integrity, unity, transparency, accountability and national
language. According to Warioba Draft Tanzanian citizens were obliged to respect
these values. The Proposed Constitution has removed this National core values.
11. Integrity and Code of Ethics for Leaders
Citizens spoke seriously of morality decay
to public servants, and called on matters of integrity and code of ethics for
public servants to be enshrined in the constitution so that they (citizens) can
use the same to make leaders accountable. The Proposed Constitution proposes
that integrity and code of ethics for leaders such as separating business
undertakings and political office in order to avoid a conflict of interest to
be deleted in the Constitution and be limited to the Act of parliament.
12. Entrenched Provision
Warioba Draft imposed restrictions to the
Parliament to not change some of the specific provisions of the Constitution (Article
119) unless it has been approved by the people themselves via a referendum. Such
provisions include, Directive Principles of State Policy, Bill of Rights, and
unfortunately the CRC forgot to put a Chapter 3 on Integrity and Ethics. The
Proposed Constitution has managed to delete all other specific provisions
except the structure of the union and existence of the United Republic. This is
a serious setback to accountability and sovereignty of the people.
CONCLUSION
The Constitutional Review process was a
blessing to our country, considering over 50 years of Nation Building finally
an opportunity came to transform our structures and systems to make them
stronger than before and structure them in the manner that will see our land counting
another 50, 100 years before a new overhaul, this time around having people of
our land at the centre of the transformation.
The Constitutional Review Process has
enlightened many of us, many of our people; we have become aware of our country
and our respective civic life. We have uncovered the truth that it is only
Tanzanians themselves first shall effect changes that will eventually unleash
milk and honey to this generation and generations to come. It takes courage, it
takes hope, it takes determination, it takes boldness, and it takes self denial
to be part of change makers, change makers who are effecting changes that will
be in the best interest or our people today and in the future.
We can still improve the Proposed
Constitution, and for sure there is no shame if the Proposed Constitution gets
a NO vote, for it will be a lesson learnt that when the people decide nobody
will be against them. It can happen during this referendum vote and if it won’t
this is a fire that has been started, and it will forever burn until justice
for and to our people has been restored. Be blessed and pass on this message of
hope for our land.
This Article was written for Civic Education
Teacher’s Association (CETA) Publication, Civics and General Studies, Volume
12, November 2014.
[1]
This doctrine is useful when a statute has explicitly set forth a series of
terms to which the statute applies, and you are trying to determine whether the
statute also applies to other people, things or situations not explicitly
mentioned in the statute. According to this doctrine of statutory construction
“general words [that] follow specific words in a [statute] are construed to
embrace only objects similar in nature to those objects enumerate by the
preceding specific words.” (Georgetown University Law Centre 2006)
AN OVERVIEW FOR LABOUR LAW IN TANZANIA
What
were the problems in the law leading to the enactment of the
“Employment and Labour Relations Act” (ELRA) of Tanzania 2004? Are there
still deficiencies in the law as it stands now? How does this enactment
compare with a similar enactment in any Eastern or Southern African
country?
What are the sources of law generally and specifically in business and company law in Tanzania. What is the role of customary, Muslim, Indian, other Foreign and Local Laws?
Outline
(1) Problems in the previous labour law regime.
(2) Deficiencies in the current labour law regime.
(3) Similarities between Tanzania, and Kenyan labour law regimes.
Projected answers
PROBLEMS IN THE PREVIOUS LABOUR REGIME
(a) Allowed summary dismissal- S. 42 of the Employment Act.
(b)
Jurisdiction to determine legal matters were vested in quasi-judicial
bodies like labour officer/commissioner, minister for labour affairs,
and the industrial court. (Refer, the Industrial Court Act). Also, S.28
(4) of the Industrial Court, made the award (decisions) of the
Industrial court final and conclusive i.e not appealable or reviewable
in the courts of law. Unlike the current regime where further
determination of labour suits from quasi-judicial bodies goes to the
High court (Labour Division) deals with labour matters.
(c)
The Acts were silent as to the issues such as Picketing during strike,
use of the replacement labour in lawful strike or lockout by employer,
locking the employer in the premises. [The ELRA, 2004 in S.76 (3)
prohibit the aforesaid conduct during lawful strike or lockout].
DEFICIENCIES IN THE CURRENT LABOUR REGIME (i.e (ELRA, 2004)
(i) The new law provides no grounds for employees to embark on a conflict of rights.
(ii)
Gives workers the right to strike on disputes of interests on the one
hand, and indirectly denies it on the other. For example, Section 75 of
the Act gives employees the right to strike but the right should be in
line with limitations stated thereto. This is due to the facts that,
Workers strike for a variety of reasons, but the mostly for economic
reasons such as poor remuneration, poor working tools, an unfavourable
working environment, lack of motivation and dissatisfaction. Section 80
stipulates that before engaging in a strike, workers should ensure that
the dispute is of interest and that the dispute has gone through
mediation and remains unresolved after mediation. The law also calls for
a trade union to approve the strike through a ballot conducted under
union constitutions. The prevailing legal discrepancy is costly to the
employees especially when engaging in disputes, because failure to meet
the conditions necessary to the strike might be taken to mean violation
of laws, therefore civil or criminal proceeding might be taken against
them. Generally, the ELRA allows the right to strike on the one hand,
and indirectly takes away the right by imposing strict conditions, which
workers must follow before they strike.
(iii)
The Act does not define a contract of service and a contract for
service. [The Labour Institutions Act, 2004 under Section 61 provide for
a presumptions as to who may be deemed as an employee].
(iv) The ELRA is silent as to what happens to the employees' rights where the employer is insolvent.
SIMILARITIES BETWEEN TANZANIA, AND KENYAN LABOUR LAW REGIMES
Similarities
(a)
Both prohibit against child labour, forced labour, discrimination in
employment, and sexual harassments. [Refer, ELRA (TZ) SS. 5-8, while in
the Employment Act 2007, SS. 4-6 and, 52-65].
(b) Both regime bars summary dismissal, and unfair termination [ELRA, 35-41, while Kenya (Employment Act) SS. 35, 44 and 45].
(c)
Both provide for the basic statutory rights and duties in employment,
such as minimum conditions of employment, hours of work, annual leave,
maternity leave, sick leave, housing, water, food, medical attention,
remuneration and etc. [ELRA, SS. 19-34, while Kenyan E.A, SS. 16-34].
(d)
Kenyan E.A impliedly in SS. 11-14 allows Collective
bargaining/agreement through trade unions, likewise the ELRA in SS.
66-74.
Differences
(1) The ELRA provide expressly the right to strike and lockout unlike the Kenyan E.A.
(2)
In Kenya, the E.A under SS. 71, 87(1)(2) confers to the legal officer
and the industrial Court to determine complaints unlike the TZ's ELRA.
(3)
In Kenyan, EA under S. 87, dispute settlement procedure is that the
aggrieved party may complain to the labour officer or seek adjudication
in the industrial court. While in TZ, under SS. 86-95 of the ELRA, the
dispute resolution methods are conciliation, mediation, arbitration, and
adjudication in the labour court.
(4)
The ELRA is silent as to what happens where the employer is insolvent,
while the Kenyan, EA under 66-73 provide for the same.
...........................................................................................
What are the sources of law generally and specifically in business and company law in Tanzania. What is the role of customary, Muslim, Indian, other Foreign and Local Laws?
Outline
(i) Sources of law generally.
(ii) Sources of law specifically in Business and Company law in Tanzania.
(iii) The role of customary, Muslim, Indian & other foreign & local laws.
Projected answers
SOURCES OF LAW GENERALLY IN TANZANIA
(a) The constitution
(b) Principle legislation (statutes)
(c) Judicial decisions (case laws)
(d) International conventions (treaties), jus cogens
(e) Bi-lateral and Regional Agreements
(d) Customary laws, e.g. Trade usages (merchant rules), tribal and clan rules (customs)
(f) Religious Laws, e.g. Islamic, Canon and etc
(g) by-laws (subsidiary legislations), and etc.
Note
The
JALA (Judicature and Application of Laws Act) CHAP. 358 (RE: 2002)
generally provides for laws that applies in Tanzania. For example S.
2(3) of JALA allows courts to apply; written laws that are in force in
Tanzania, Common laws, doctrines of equity, and Statutes of general
application. Further, S. 9 allows certain Acts made by the Parliament UK
to apply in Tanzania as enumerated in the 1st Schedule to JALA. The Act
also under S. 11 guarantees the application of customary law. Finally,
the Act in S. 14 provides for applied Indians Acts, more specifically in
the 2nd Schedule to JALA. On the other hand, the Tanzania Constitution
impliedly under Article 63(3)(e) allows ratified and domesticated
international treaties by The Union Parliament to apply in Tanzania.
Refer also: the Magistrates' Courts Act, No.12 of 1984, [RE: 2002]
SOURCES OF LAW SPECIFICALLY IN BUSINESS AND COMPANY LAW IN TANZANIA
(i) The Law of Contract Act, CHAP. 345 (RE: 2002)
(ii) The Company Act, of 2002
(iii) Agreements or contracts between the parties concerned
(iv) Customary Laws
(v) The Constitution of United Republic of Tanzania, of 1977
(vi) The Fair Competition Act, CHAP. 285 (RE: 2002)
(vii) The Sales of Goods Act, CHAP. 214 (RE: 2002)
(viii) Financial Institutions Act,
(ix) Insurance Act,
(x) The Income Tax Act, of 2004, and etc.
THE ROLE OF CUSTOMARY, MUSLIM (ISLAMIC), INDIAN, OTHER FOREIGN AND LOCAL LAWS
(a) To govern personal matters by using personal laws of the people, e.g. customary law, and Islamic laws.
(b)
Foreign laws are specifically used in case where there is a lacuna
(gap) in our laws, or just to elucidate some point especially where such
foreign law is in parimateria (similar) to/with ours.
Tuesday, 2 May 2017
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