The Journal of African Law and Contemporary Legal Issues

Implementation of the Global Compact on Refugees in Tanzania: A Synopsis

Leonard Chimanda, Ines Kajiru — Sat, 31 Dec 2022 00:00:00 +0000

On 10 December 2018, the United Nations adopted the Global Compact on Refugees (GCR), a soft law that draws its origin from the New York Declaration for Refugees and Migrants of 2016. The document inter alia is set to address the current and future global challenges facing refugee crisis worldwide. The present paper examines the tenability of this document in Tanzania. It explores the possibilities through which this compact can be implemented in the country. In so doing it explains the discourse of the compact as well as the intersection between the compact and the Comprehensive Refugee Response Framework (CRRF). While setting a situational background of protection of refugees in Tanzania, this paper finds out that, the implementation of the GCR in the country is faced by a number of challenges. These include the country’s withdrawal from the CRRF, the non-binding nature of the GCR, GCR’s incompatibility with Tanzania law, policy and practice, underfunding, GCR’s emphasis on data, limited operation of civil societies and the western nature of the compact. The paper further finds that, the new regime under H.E new President Samia Suluhu Hassan may be a prospect towards effective implementation of the GCR in Tanzania. The paper lastly, gives out recommendations geared towards the implementation of the Compact in the country.

Bail in Mainland Tanzania: An Overview of DPP’S Certificate on Denial of Bail

Baraka Mkami, Ines Kajiru — Sat, 31 Dec 2022 00:00:00 +0000

Bail is a universally recognized fundamental human right. The right requires a person not be forfeited his liberty except after he has been proven guilty, in accordance with the law. The law relating to bail occupies an important position in the administration of criminal justice. Unusually, the Criminal Procedure Act, National Security Act and the Economic and Organized Crime Control Act have placed the DPP with the power to certify in writing the denial of bail. The DPP’s power to certify in writing the denial of bail has a tremendous effect on the administration of criminal justice. This article analyses the DPP’s power to certify in writing the denial of bail and its legal implications in the criminal justice of Tanzania. This article establishes that DPP’s power to issue bail certificate is uncontrolled, thus power is prone to abuse. The article inter alia finds out that the DPP’s certificate violates principle of equality before the law and right of fair hearing, it ousts mandate of Courts to grant bail, it violates separation of power, it makes bailable and non bailable offences redundant, it makes DPP a custodian of public interest instead of the Court and it leads to prisons and remands congestion. It is recommended that there is a need to entrench limitations through legislative framework, including empowering the Court to set a time limit on the operation of the DPP’s certificate.

Analysis of Legislative Reforms in Consolidating Citizens’ Participation in the Mining Sector in Tanzania

Evaristo Longopa — Sat, 31 Dec 2022 00:00:00 +0000

This article analyses the participation of Tanzanians in the extractive sector since reforms were introduced to natural wealth and resources in general, specifically, mining operations in 2017. It expounds on the extent to which the right to participation of Tanzanians in resource governance is consolidated and reinforced.
This study observes that the current legislative framework on natural wealth and resources governance provides extensively on the participation of Tanzanians in the exploitation of mineral resources. These include a duty to respect and uphold constitutional protections by all investors, reserving Primary Mining and gemstones licences to Tanzanians, employment and training of nationals, observance of Local Content Plans, increased Corporate Social Responsibility accountability and effective participation of Local Government Authorities, and the need for mineral beneficiation in Tanzania. Indeed, there have been witnessed achievements in the mining sector, including the establishment of mineral markets and trading centres, promotion of small-scale miners, increased employment of Tanzanians and their participation in decision-making processes, procurement of goods and services available in Tanzania as well as increased accountability on Corporate Social Responsibility projects.
However, some challenges hinder the effective participation of Tanzanians in the mining sector. These include disparities in emoluments between Tanzanians and foreigners with similar qualifications, lack of clear understanding of the mandate of local government authorities and their limited participation in prioritization of CSR projects, lack of up to standards required of goods and services available and minimal implementation of local content plans by some mining entities. Thus, the study calls for the ameliorating of all these challenges to enhance Tanzanians' participation in the mining sector.

The State of the Law on Small Scale Mining in Tanzania: Challenges and Prospects from Colonial Period to Present

Elia Mwanga — Sat, 31 Dec 2022 00:00:00 +0000

Small-scale mining sub-sector employs thousands of local Tanzanians. However, the laws and government officials have neglected this sub-sector for a long period. Small scale mining has been associated with environmental pollution, smuggling of minerals and labour exploitation. Early mining legal reforms that took place in the 1990s resulted in small-scale miners being forcefully evicted to provide areas for large-scale mining. However, large-scale mining is yet to yield the expected benefits, despite being most favoured by the government of Tanzania for a long period. For this reason, Tanzania's mining laws have been experiencing reforms from time to time. The reforms in the mining legal regime do not only affect large-scale mining. Small scale mining also suffers the effects of the legal reforms that take place frequently. Therefore, this study examines the state of the law on small scale mining in Tanzania, tracing its history from colonial period to present. In doing so, this article also examines the legal challenges brought by mining legal regimes to small scale mining industry from time to time and related prospects. The article argues that despite several reforms in the Tanzania mining legal regime, small scale mining industry has continued to suffer various legal challenges. These challenges include lack of tenure security, uncontrolled discretionary powers given to the Minister responsible for minerals and lack of consultation of small-scale miners.

Legal Status of Stabilisation Clauses vis-à-vis Legislative Actions: The Implications in the Current and Future Investment in the Petroleum Industry in Tanzania

Barnabas Mwashambwa, Ryoba Marwa — Sat, 31 Dec 2022 00:00:00 +0000

Stabilisation clauses are one of the key protection tools for investors in the petroleum industry. The clauses protect investors from unilateral Government legislative action of changing the agreed terms of the agreement. The clauses are useful in attracting foreign capital investment as through the Government commitments, investors get confidence in their projects. The confidence extends to bankers. Most of Tanzania's Production Sharing Agreements (PSAs) contain stabilisation clauses.
The Natural Wealth and Resources Contract (Review and Re-negotiation of Unconscionable Terms) Act, 2017, declares unconscionable all existing PSAs with stabilisation clauses. Those provisions in the PSAs are in danger of being expunged in case investors are unwilling or re-negotiation fails with the Government. Expunging a term of the PSA amounts to a unilateral amendment of the agreement by the Government, which is contrary to its commitment guaranteed through stabilisation and renegotiation clauses that require mutual consent. This amounts to a fundamental breach of an agreement that entitles the innocent party (an investor) to damages since the breach of stabilisation clauses constitutes a violation of international law.
Stabilisation clauses are regarded as tools for attracting investment in the petroleum industry. By removing stabilisation clauses, the Government has opted to remove one of the key attractions to investments in the petroleum industry in Tanzania. Hence, the future investment in the petroleum Industry in Tanzania is shaken. Stabilisation clauses are key for the bankability of petroleum projects.

Transparency as a Tool in Realising Citizen Participation in the East African Community

Gotrib Mgaya — Sat, 31 Dec 2022 00:00:00 +0000

Transparency plays an important role in the realisation of a people-centred regional integration. In the East African Community (EAC) context, transparency is recognised as one of the operational principles ascribing the functioning of the organs of the Community. Despite being recognised under the East African Community Treaty, this principle is given little attention in the functioning of the organs and institutions of the Community. While the literature on EAC transparency focuses on how transparency enhances the insemination of information to the East Africans, this article investigates the extent to which EAC laws and policies related to transparency should promote the participation of East African people in the decision-making within the organs and institutions of the EAC. This article is based on a documentary review and information collected at the EAC headquarters and border posts of Kenya, Tanzania and Uganda through interviews. I claim that although there are legal and policy efforts made toward the principle of transparency in the EAC, the law is weak in realising transparency in the functioning of the organs and institutions of the EAC. It demonstrates that the EAC legal regime does not recognise access to information as a right of East Africans people. In the same vein, I further claim that communication policy, which ought to provide a framework through which transparency is made a reality, does not consider some national and local languages to be important tools for insemination of the EAC undertakings to the grassroots.

Assessing the Repression Of Constitutional Coups in Africa Through the Lens of the Malabo Protocol on International Crimes

Charles Ntamti — Sat, 31 Dec 2022 00:00:00 +0000

Since the turn of the 21st Century, we have been witnessing ‘constitutional coup’ in many African countries masterminded by leaders determined to cling on to power. The idea of manipulation in itself induces the harmful use of the constitutional norm. "Playing with the hands" on the social contract of a state, however, is a fairly common in all constitutional regimes. After all, it has never been claimed that a constitution should be immutable. Its adaptation is necessary for the evolution of the society it is supposed to govern. But the idea of manipulation underlies a biased use of the Constitution for the benefit of the interests of some. And when this habit, which tends to make constitutional manipulation normality in Africa and to transform the Constitution into a legal instrument of power, is undermined by popular and political insurrection, we witness gross human rights violations. While there have been great advances regarding the legal and institutional mechanisms of international criminal justice at a global level, this determination on the African continent appears as a setback for the established process, thus defeating the very purpose of the existing legislation. Even the Malabo Protocol endowing the expected African Court of Justice and Human Rights with criminal jurisdiction does not create room for investigation and prosecution of these “constitutional coups”. Indeed, neither the drafters of this Protocol nor those of such other instruments as the African Charter on Democracy, Elections and Governance were bothered by this constitutionalizing of malicious constitutional changes, thus giving the green light to maliciously intended leadership behaviours devoid of any criminal liability, as the leaders would remain in power for life. Using the example of constitutional manipulation in Rwanda and Uganda, this Article provides a critical study of the law and practice of the African Union to prove that and how the repression of unconstitutional change of government should extend to “constitutional coups” to have the whole system serve the purpose of international criminal justice and give it its full meaning on the African continent. A doctrinal research method was used where qualitative research approaches were employed to facilitate the study. The reason for adopting this method is that it improves a substantial part of the law by means of which it could achieve the broader goal of the study.

Examining the Implications of the East African Community Strategies on Irregular Migration Governance

Deogratias Gasto — Sat, 31 Dec 2022 00:00:00 +0000

In recent decades, governance of irregular migration has attracted the interests of many Regional Economic Communities (RECs). This is due to the impacts that irregular migration causes on individual states' social, economic and political sectors and beyond. While the East African Community (EAC) Treaty and the Protocol on Peace and Security list some mechanisms for governing irregular migration, some critical structural and policy reforms at both Community and Partner States level are necessary for implementing such strategies.
This paper examines the implications of the EAC strategies on the Community and Partner States on irregular migration governance as contained in the aforementioned legal instruments. This paper shows that the existing policies and structures at the Community and in the Partner States do not support the realization of the listed mechanisms, thus devoid of implementation.

Ominde Sweta Versus Robert Manyama, The High Court of Tanzania, Musoma District Registry, at Musoma, Land Appeal No. 120 of 2020 (Unreported)

Aron Kinunda — Sat, 31 Dec 2022 00:00:00 +0000

This case has attracted my attention to write a case review. In Tanzania, the law establishes separate machinery with exclusive jurisdiction to settle land cases. Ordinary courts, other than courts of record, other than courts of record, ordinary courts have no jurisdiction to entertain and determine land disputes.1 Bodies vested with powers to hear and determine land disputes are Village Land Council, Ward Tribunal, District Land and Housing Tribunal, High Court of Tanzania and Court of Appeal of Tanzania. In this judgment, the High Court of Tanzania at Musoma (Galeba J.) makes a pertinent decision as far as the powers of the Village Land Council in determination of land cases are concerned. The decision in this case has the implication of vesting Village Land Councils with powers and mandates to make decisions which can be challenged by way of appeal to the Ward Tribunals.