GURU - KG&P

Brief Overview.

Financial technology (hereinafter referred to as “FinTech”) is any application, software or technology that allows individuals or businesses to digitally access and make financial transactions, usually through an online platform. FinTech companies offer digital solutions that rely heavily on technology. By doing so, they allows individuals and companies to enhance their access to financial products, lower fees, and provide faster, more personalised service.

A FinTech is basically launched by a FinTech company or an individual (depending on the legal framework of a particular jurisdiction) with the aim of facilitating the provision of financial solutions through technological innovations. There are several examples of Fintech companies operating in Tanzania such as Nala and Tala.

The Fintech industry in Tanzania operates within a payments market worth about United States Dollars 200 Billion[1] which is approximately Tanzanian Shillings 510 Billion (1 USD = TZS 2550 as of 13^th August, 2025), of which a sizable amount is made up of mobile money transactions. The industry has witnessed a boom in mobile financial services, such as insurance, microloans, savings accounts, and mobile payments. The introduction of digital financial services in Tanzania has transformed the financial landscape, particularly in rural areas where access to traditional banking was previously limited.

The Legal Framework in Tanzania.

FinTech, as defined under Regulation 3 of the Bank of Tanzania (Fintech Regulatory Sandbox) Regulations issued under Government Notice Number 540 of 2024 (the “FinTech Regulations”), means technological innovation to be utilised in the provision of financial solutions in a area in which it is deployed for use. The FinTech Regulations also define FinTech companies as entities incorporated in the United Republic of Tanzania for the delivery of innovative financial solutions to the market.

The FinTech Regulations introduced by the Bank of Tanzania (hereinafter referred to as “the BOT”) provide a structured, controlled “test-and-learn” environment that allows both Fintech companies and licensed financial institutions to pilot innovative financial products or services prior to full-scale market deployment. The sandbox framework enables innovation within a regulated setting, ensuring an appropriate balance between flexibility for experimentation and safeguards for consumer protection and financial system integrity. Participants must comply with defined requirements relating to testing parameters, data privacy, reporting obligations and regulatory compliance. Successful participation may pave the way for eventual commercial rollout, subject to BOT’s approval.

According to the FinTech Regulations, eligible participants include, financial service providers already licensed by the BOT, FinTech companies intending to offer solutions related to financial services regulated by the BOT and FinTech companies working in collaboration with a licensed financial service provider.

FinTech companies in Tanzania are generally not subject to direct licensing requirements under the financial services legal framework unless they undertake regulated activities such as issuing electronic money, which requires an electronic money issuance licence under the National Payment Systems Act, Chapter 437, Revised Edition of 2023, providing loans to the public, which may necessitate a banking or financial institution or microfinance licence or operating a payment system, which requires a “payment system licence” under the same legislation.

Furthermore, while FinTech companies generally operate outside of the direct licensing purview of the BOT and often fall under what is referred to as "functional regulation", particularly where they engage in activities that intersect with the operations of regulated financial institutions. In such cases, the BOT expects the licensed partner institution, whether a bank, financial institution, or electronic money issuer, to conduct thorough due diligence before engaging any Fintech company, especially where core functions are outsourced, seek regulatory approval for material outsourcing arrangements, in accordance with the BOT’s outsourcing guidelines and risk management standards and ensure that the engaged Fintech company complies with equivalent standards of risk management, cybersecurity and compliance.

FinTech companies engaged in such partnerships are therefore required to implement appropriate internal controls, data protection protocols, transaction monitoring systems and ensure that their staff and systems meet the compliance expectations of the regulated financial partner.

Imogen Homanga – Legal Officer Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

[1] Tanzania the $200 Billion Fintech Market - Fintech News Africa

Brief Overview

A Credit Reference Bureau (hereinafter referred to as a “CRB”) is defined under the Bank of Tanzania (Credit Reference Bureau) Regulations, issued under Government Notice Number 416 of 2012 (hereinafter referred to as “the Bureaux Regulations”) as an entity specialised in the collection and sale of credit performance information for individuals and companies. The main purpose of a CRB is to collect information from various banks, financial institutions and non-financial entities and provide comprehensive consumer credit information (hereinafter referred to as a “Credit Report”) to public and private lenders. A Credit Report issued by a CRB is sold to interested lenders to help them make informed lending decisions.

Registration of a CRB in Tanzania.

In Tanzania, any incorporated limited liability company can register itself with the Bank of Tanzania (hereinafter referred to as “the BOT”) as a CRB as provided under Regulation 6 and 7 of the Bureaux Regulations. The application must be accompanied by the necessary documentation including, but not limited to, a copy of the certificate of incorporation, a document that supports the value of the applicant’s capital base and source of funds, feasibility study and business plan, declaration from the shareholders and directors as well as an overview of operations to be taken by the entity. The BOT has discretionary powers on whether it approves or rejects the application.

Upon approval by the BOT, a CRB shall receive a licence that remains valid unless revoked. The licence, once granted, is not transferable. In the event of termination of the business or the licence being revoked, a CRB shall be required to surrender its licence to the BOT. Moreover, any change in the shareholding structure of a CRB requires prior approval from the BOT.

Legal Framework of CRBs in Tanzania.

CRBs shall collect and store credit information in their respective databases and the BOT shall determine what information can be shared when requested by a customer. The credit information can be collected from borrowers, data providers such as individuals and government agencies and any other entities.

Authorised users (vetted by CRBs after nomination) are the only individuals or entities that are allowed to access the credit information in CRBs’ respective databases. Authorised users must execute an agreement with a CRB for access and usage of credit information. The access to the database shall be granted by way of user codes and passwords that are changed on a regular basis by the CRB.

Furthermore, authorised users shall be allowed to access the credit information from the database only for permissible purposes (Regulation 3 of the Bureaux Regulations) and shall not be allowed to sell, transfer or use the credit information for purposes other than those allowed under the Bureaux Regulations. It is important to note that, an authorised user is not allowed to access credit information of an individual or entity without their prior written consent. If it is realized that the access was sought without a written consent, the authorised user shall be suspended from accessing the database and may be restricted from accessing the database in the future. This is also in line with the provisions of the Personal Data Protection Act, Chapter 395B, Act Number 11 of 2022.

Data providers such as banks, financial institutions and non-banking entities are required, under Regulation 25 of the Bureaux Regulations, to enter into agreement with a CRB that will stipulate the conditions for supplying, obtaining and using credit information. The data provider shall have the obligation of providing complete, accurate and timely proprietary credit information that accurately identifies the data subject. The data provider shall be liable for any error or inaccuracies in the credit information submitted to a CRB.

The BOT shall provide every CRB with access to its Credit Reference Databank (computerized mechanism created to receive and supply credit information institutions authorized by the BOT regarding credit transaction of customers, including off balance sheet operations). The access granted shall authorize any CRB to obtain a copy of the credit information as received from data providers. No other users are permitted to access it.

The Bureaux Regulations also provide for the rights of data subjects, powers of the BOT over CRBs and penalties for a CRB that contravenes any provision of the Bureaux Regulations.

Imogen Homanga – Legal Officer

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

The civil aviation sector is among the most regulated in Tanzania due to the safety and security concerns linked to it. In Tanzania, this sector is regulated by the Tanzania Civil Aviation Authority (hereinafter referred to as the “TCAA”), a government authority charged with, among other things, the responsibility of licensing and overseeing all airline services in Tanzania, including Zanzibar. The TCCA operates under the Civil Aviation Act, Chapter 80, Revised Edition of 2020 of the laws of Tanzania (hereinafter referred to as the “Aviation Act”) and the Civil Aviation (Licensing of Air Services) Regulations, of 2006 of the laws of Tanzania issued under Government Notice Number 81 of 2006 (hereinafter referred to as the “Licensing Regulations”), among other legislations.

Once a civil aviation company is duly incorporated under the Companies Act, Chapter 212, Revised Edition 2002 of the Laws of Tanzania (hereinafter referred to as the “Companies Act”), it must obtain sectoral licence from the TCAA before commencing business. The TCAA issues various licenses and certificates, including an Air Service Licence and an Air Operator Certificate.

In summary, this article outlines the requirements and procedures for a civil aviation company incorporated in Tanzania to obtain the necessary sectoral licenses and approvals from the TCAA before commencing operations.

Air Service Licence (hereinafter referred to as “ASL”). A civil aviation company incorporated in Tanzania must obtain an Air Service Licence before operating air transport services for passengers, mail, or cargo for remuneration or hire within Tanzania.

Procedures and requirements for issuing the ASL.

To apply for an ASL, a civil aviation company must submit a written application to the Director General of the TCAA using the prescribed form. The company must meet the following minimum requirements:

the civil aviation company must be registered in Tanzania;
should have a business plan;
show proof of payment of the application fee;
Memorandum and Articles of Association; and
proof of financial capability to undertake the project (civil aviation business).

An application for ASL will require a minimum of 60 days to be processed. The TCAA will only initiate the evaluation process of an application upon receipt of a complete submission of the application together with the prescribed fees. Once an application is accepted, it undergoes processing, which shall include publication in Tanzanian circulated newspapers and a public hearing in accordance with the Aviation Act and its Regulations. At the conclusion of the evaluation of the application, a civil aviation company will be advised of the outcome in writing.

Air Operator Certificate (hereinafter referred to as “AOC”). The TCAA issues an AOC to confirm that the civil aviation company complies with international civil aviation regulations and recommended practices. A civil aviation company must submit its application for the AOC at least 90 days before the intended start date of operations. The AOC is valid for one year and must be renewed by the TCAA. The AOC is issued in accordance with the Civil Aviation (Air Operator Certification and Administration) Regulations of 2017 issued under Government Notice Number 69, of the laws of Tanzania (referred to as the "Air Operator Regulations") as amended by Civil Aviation (Air Operator Certification and Administration) (Amendment) Regulations of 2023 issued under Government Notice Number 366 of the laws of Tanzania (hereinafter referred to as “Air Operator Amendment Regulations”).

Procedures and requirements for issuing of AOC.

The application procedure begins with a formal application and takes different phases.

Phase one: - pre-application phase where, a civil aviation company meets the TCAA and submits the prescribed form and the required documents for evaluation. A civil aviation company has to submit the following manuals and documents: -

maintenance control manual;
security manual;
operations manual;
emergency response plan manual;
details of the type and number of registration of aircraft a civil aviation company intend to deploy;
details of the nature of operations; and
description of the arrangement for crew and ground personnel training and qualifications.

Phase two: - document evaluation phase where, the TCAA will evaluate the documents submitted by a civil aviation company determining its eligibility and whether it is properly qualified and adequately staffed and equipped to conduct safe operations in commercial air transport and maintenance of the aircraft.

Phase three: - demonstration and inspection phase, a civil aviation company makes available the aircraft for inspection which is the examination of an aircraft or aircraft component to establish conformity with a standard approved by the TCAA, again demonstration flights are conducted for each aircraft.

Phase four: - Upon the formal award of the AOC, the TCAA issues the AOC along with its operational specifications, which outline the terms and conditions for the civil aviation company that has met the required standards. The current initial fee for the AOC is United States Dollars (US $2,400.00) for large aircrafts (over 5,700 kg) and United States Dollars (US $1,200.00) for small aircrafts (under 5,700 kg).

Certificate of Airworthiness (hereinafter referred to as “COA”). For any aircraft to be operated in Tanzania, it is required to have a certificate of airworthiness issued by the TCAA or an accepted certificate of airworthiness issued by the contracting state to Chicago Convention on International Civil Aviation 1944 (hereinafter referred to as the “Chicago Convention”). The COA is issued to a civil aviation company after the aircraft has been inspected in accordance with performance rules for inspections and found to be airworthy.

Procedures and requirements for issuing the COA.

The application for COA is through a prescribed form and a civil aviation company has to provide the following descriptions: -

name, nationality and address of the owner of aircraft;
name and address of the operator;
year of manufacture and name of manufacturer and state of design and registration marks; and
maximum take-off mass of aircraft; and engine type and number of engines fitted.

The COA will cost a civil aviation company about United States Dollars (US $120.00) to United States Dollars (US $1,000.00) depending on the weight of the aircraft and it is valid for a period of twelve (12) months, renewable.

Airworthiness Type Acceptance Certificate (hereinafter referred to as “ATAC”). The ATAC is issued by the TCAA to recognize the Type Certificate issued by the state whose airworthiness code is acknowledged, as specified in the Civil Aviation (Airworthiness) Regulations of 2017 issued under Government Notice Number 57 of the laws of Tanzania (referred to as the "Airworthiness Regulations") as amended by Cicil Aviation (Airworthiness) (Amendments) Regulations of 2023 issued under Government Notice Number 368 of the laws of Tanzania (hereinafter referred to as “Airworthiness Amendment Regulations”).

Procedures and requirements for issuing ATAC.

Application for ATAC has to be through a prescribed form submitted to the TCAA. A civil aviation company has to follow these procedures: -

write a letter to Director-General for application of ATAC;
fill and submit the prescribed form and submit it to the Director-General;
submit proof of compliance to state of design certification standard;
submit proof of compliance to the Civil Aviation (Instrument and Equipment) Regulations, 2017 of the Laws of Tanzania (hereinafter referred to as the “Instrument and equipment Regulations”); and
pay the application fee.
Aircraft Registration. A civil aviation company cannot operate any aircraft, within or fly over Tanzania unless the aircraft eligible for registration has been registered by its owner in accordance with the law and the TCAA has issued a certificate of registration for that aircraft, or the aircraft is registered in a Contracting State to the Chicago Convention.

Procedures and requirement for issuing Aircraft Registration.

A civil aviation company is required to register all aircrafts intended to be used in conducting its business. The procedure for application of aircraft registration are as follows: -

write a letter to Director-General for acceptance to import the aircraft for registration and operation in Tanzania;
fill and submit a prescribed form to the Director-General; and
pay the application fee.

A civil aviation company will have to pay a minimum of United States Dollars (US $300.00) and a maximum of United States Dollars (US $800.00) for registration of an aircraft depending on its total weight.

No civil aviation company incorporated in Tanzania is allowed to begin its operations without prior authorization from the TCAA. These procedures ensure that companies comply with essential safety, security, and regulatory standards before they are permitted to operate within Tanzania's aviation industry.

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

Fredy Richard

Legal Intern.

Matters related to Citizenship in the United Republic of Tanzania (“Tanzania”) are governed by several laws, namely:

The Constitution of the United Republic of Tanzania, Chapter 2, Revised Edition 2005.
The Tanzania Citizenship Act, Chapter 357, Revised Edition 2002 (the “Citizenship Act”).
The Tanzania Citizenship Regulations, 1997 (the “Regulations”).

The Citizenship Act lays out the procedure of acquiring Tanzanian citizenship, that applies to both Tanzania Mainland and Tanzania Zanzibar. There are three (3) categories for acquiring citizenship, that is:-

Citizenship by Descent

Through descent, a person born outside of Tanzania to Tanzanian parents can become a citizen of Tanzania. Children whose parents are Tanzanian citizens, whether by birth or through naturalisation in accordance with Section 6 of the Citizenship Act are subject to this procedure. This provision guarantees Tanzanian citizenship to those of Tanzanian descent, irrespective of their place of birth.

Citizenship by Birth

This is conferred upon a child born in Tanzania provided that at least one of the parents holds a Tanzanian citizenship. Citizenship by birth adheres to the jus sanguinis principle which affords nationality according to the nationality of the parents as opposed to the place of birth alone. Hence, a child born within the territories of Tanzania with at least one Tanzanian parent automatically becomes a citizen of the nation at birth. Section 5 of the Citizenship Act clearly stipulates the above.

Citizenship by Naturalisation

A foreign national can obtain citizenship in Tanzania through the process of naturalisation provided that they fulfill the residency and legal conditions. To qualify, applicants must:

reside in Tanzania for twelve months prior to the application date.
during the ten years prior the specified twelve-month period, he/she must have lived in Tanzania for a total of at least seven years.
have adequate knowledge of Swahili or English Language.
be of good character, and if granted naturalisation, he plans to stay in Tanzania permanently.

The procedure for applying for citizenship through naturalisation are as follows: -

an applicant fills in the prescribed forms and submits the application to the Ward Executive Secretary or the Sheha (for the case of Zanzibar) who then submits the application to the District Immigration Office and the Applicant pays a prescribed fee.
the applicant then publishes in two consecutive issues of the daily newspapers registered in the country a notice of intention to apply for naturalisation which is followed by an interview with the District Defense and Security Committee.
the application is then forwarded by the District Immigration Officer to the Regional Immigration Officer who then forwards it to the Regional Defense and Security Committee for further scrutiny.
the application is then forwarded to the Commissioner General of Immigration Services for his recommendation to the Minister who then gives the final decision.
for the case of Zanzibar, before the application is sent to the Commissioner General of Immigration, the Commissioner of Immigration Zanzibar forwards the application to the office of the Second Vice President for recommendation, and it is later submitted to the Commissioner General of Immigration for his recommendation to the Minister.

Dual Citizenship: Dual citizenship is currently not recognised by Tanzanian law. This implies that those who obtain Tanzanian citizenship by registration or naturalisation are required to give up their previous citizenship. Citizens of Tanzania who acquire citizenship in another nation automatically forfeit their Tanzanian citizenship until they renounce the citizenship of the other nation as stated under Section 7 of the Citizenship Act. There are, however, some exceptions: a Tanzanian child born abroad who was born with the citizenship of the other nation may retain his dual citizenship until the age of eighteen and at that point, he must renounce the other nation’s citizenship, swear allegiance, and register the declaration stating this intention.

Current Debates: Critics contend that allowing dual nationality will enable Tanzanians in the diaspora to contribute more successfully to their country’s development. Tanzania published a Written Law (Miscellaneous Amendments) (No.2) Bill on June 26^th, 2024, which seeks to amend eight laws, including the Immigration Act, Chapter 54, Revised Edition 2002 (the "Immigration Act") and the Land Act, Chapter 113, Revised Edition 2018 (the "Land Act"). The changes that are being suggested will grant Tanzanian non-citizens special immigration status and enable them to participate in a range of social and economic activities. For instance, the proposed Immigration Act amendment will grant the Diaspora Special Status to Tanzanian non-citizens, allowing them to enter, stay, or leave the country for any legally permitted activities. Furthermore, the Land Act amendment will grant holders of special status who have been awarded Diaspora Tanzanite Cards under the Immigration Act special derivative rights hence enabling a diaspora with special status to possess or dispose of land that has been acquired through various means, such as inheritance or sale.

Bablo Ali Lubnan – Legal Intern.

Note: This is not a legal opinion, and the contents thereof are not meant to be relied upon by a recipient unless our consent is sought and explicitly obtained in writing.

Artificial Intelligence (hereinafter referred to as “AI”) can be loosely referred to as the technology that makes it possible for computers and/or machines to imitate and/advance human intelligence as well as their problem-solving skills. AI is a growing concept worldwide and it has revolutionized various sectors globally, including the legal sector. This article will explore both the positive and negative impacts of AI’s integration into Tanzania’s legal system.

Positive impacts of AI in Tanzania’s legal system.

AI offers a range of benefits that has the potential to significantly improve Tanzania’s legal system.

The introduction of AI in the Judiciary could assist in achieving its overall objective of access to justice for all, in a timely manner. For instance, as of February 2024, certain courts in Tanzania have incorporated AI in their court transcriptions and translations system. It is expected that, this technology will be able to record as well as translate the recording in either Kiswahili or English reducing the time spent by judicial officers to transcribe Court proceedings.

AI also boosts the efficiency of various parts of the legal system by assisting with tasks such as: document review as well as case management. This technology allows legal practitioners to focus on other pressing matters such as research and review which can lead to both faster case resolution and reduction of costs.

Another positive impact is that AI has made the whole concept of legal research easier. Before the advent of AI in the legal system, locating case laws (precedents) and legislation involved a laborious process of going through multiple printed physical documents, which in many instances are not arranged in a particular order in terms of subject matter, level at which a particular decision was made and/or when a particular case been referenced, but with AI, this process can be done in a significantly shorter period of time.

AI provides innovative tools that can be used by both law students and legal practitioners in the learning and training process. These tools include personalized learning platforms that enhance the learning experience and prepare individuals for the complexities of modern legal practices.

Negative impacts of AI in Tanzania’s legal system.

Despite its benefits, the integration of AI into Tanzania’s legal system comes with notable challenges.

Since AI systems operate based on data fed into it, it can lead to it being unreliable when giving out legal advice or assistance. This may result in lack of accountability, for instance, if one is to seek a legal opinion through an AI platform, then that particular legal opinion cannot be attributed to a particular legal practitioner who is accountable for what is opined upon.

Absence of accountability is also another negative impact of AI. Legal opinions rely on legal practitioners’ experience and understanding of case specificity which AI cannot replicate. Furthermore, in matters such as mediation, negotiation, litigation and building rapport with other Counsel are developed through practice, experience and not automation. This absence of accountability could lower the quality of legal outcomes.

There is also a risk of plagiarism as AI may intentionally or unintentionally copy existing content without proper acknowledgement hence undermining credibility. This can cause damage to the legal system and harm the reputation of the legal sector in general.

Another negative impact of AI is that it could lead to job displacement. Due to the fact that AI can perform the tasks more effectively and in a shorter period as compared to a legal practitioner, this would make an employer invest into that platform because it is effective, quick and also cost friendly which would result in many legal practitioners being out of jobs.

The Regulatory Landscape.

As of the date of this article, Tanzania does not have specific legislation that regulates the use or misuse of AI. However, several existing laws and regulatory bodies impact the development and use of AI technologies, such as: -

The Personal Data Protection Act, Chapter 44, Revised Edition of 2022: this law governs how personal data should be collected, processed, stored and transferred hence impacting AI systems that handle personal information.
The Cybercrimes Act, 2015 (Act Number 14 of 2015): this act addresses cybercrimes and provides a framework for dealing with issues that are related to unauthorized access and data breaches.
Tanzania Commission for Science and Technology: this commission is responsible for monitoring and coordinating all activities relating to scientific research, technology development and innovation and with AI being in that category the commission is responsible for it and it has managed to do so through the National Science and Technology Policy for Tanzania that provides for the institutional/legal framework.
The Personal Data Protection Commission: this commission was established in May 2023 following the enactment of the Personal Data Protection Act, Chapter 44, Revised Edition of 2022. The commission is responsible for overseeing matters related to personal data, including its use in AI. AI systems that handle personal data are subject to the commission’s authority. However, the regulations that specifically address AI matters are still being developed as Tanzania advances its framework for AI governance.

In conclusion, the emergence of AI into Tanzania’s legal system promises great achievements however, there are still challenges that must be addressed. Even though the current laws and regulatory bodies provide an existing foundation, the enacting of specific laws and regulations governing AI could help mitigate the risks that come with its implementation while ensuring that its benefits are fully realized in a fair and effective way.

Bablo Ali Lubnan – Legal Intern.

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our consent is sought and explicitly obtained in writing.

INTRODUCTION

In Tanzania, labour related legislation is designed to protect both employers and employees, to varying degrees. These laws cover a range of areas, including the rights, duties and procedures for resolving disputes among employees and employers as well as providing redress for both parties. However, probationary employees are treated slightly different from employees who have their employment status confirmed by their respective employers. This article aims to provide insights into the governance and termination procedures applicable to probationary employees.

PROBATIONARY EMPLOYEES

Probationary employees are individuals who, through a mutual agreement with the employer, work under the supervision of the employer on a trial basis for a specified period. During this time, they must meet the specified standards set by the employer within the defined period in order to achieve permanent employment. Rule 10 (4) of the Employment and Labor Relations (Code of Good Practice) Rules, issued under Government Notice Number 42 of 2007 (hereinafter referred to as the “Code of Good Practice”)provides thatthe probation period should be reasonable and not exceed twelve (12) months. Typically, probation lasts between three (3) to six (6) months, with possible extension of time in case the employers require more time to assess the competency of the employee but not exceeding 12 months.

Furthermore, Employment and Labour Relation Act, Chapter 366, Revised Edition of 2019 of the laws of the United Republic of Tanzania (herein referred to as the “Employment and Labour Relation Act”), provide redress for unfair termination for the employees who work for more than six months after being employed and not under probationary period.

This means that probationary employees, who often have not yet reached the six-months of service, cannot claim for unfair termination since the provision under the Employment and Labor Relation Act specify "employees" rather than "probationary employees," and explicitly excludes those with less than six months of service from seeking remedies for unfair termination, although they may seek redress for unfair labour practice.

HOW PROBATIONARY EMPLOYEE CAN BE PROTECTED FROM UNFAIR TERMINATION.

Since the Employment and Labour Relation Act does not provide room for probationary employees to sue for unfair termination, then, affected individuals can instead pursue their rights by filing a claim for unfair labour practice claiming for reinstatement or compensation for unfair labour practice. The High Court of Tanzania, in alignment with the Code of Good Practice has provided redress for unfair labour practice in the case of Agness B Ruhere vs. UTT Microfinance Plc Revision Number 459 of 2015, High Court Labor Division, Dar es Salaam Registry (herein referred to as “the Case”). The court outlined the procedures for the termination of probationary employees as detailed below.

PROCEDURE FOR FAIR TERMINATION AND AVOIDANCE OF UNFAIR LABOUR PRACTICE TO PROBATIONARY EMPLOYEES

Since the employer cannot be held accountable for unfair termination of probationary employees, it does not suffice to say, this employee has no right to sue for unfair labour practices. In the Case, the complainant successfully sued for unfair labour practice and was awarded compensation. The Court, in deciding the Case, relied upon Rule 10(8) of the Code of Good Practice to emphasis certain procedures for the fair termination of probationary employees, as follows: -

The employer needs to inform the probationary employee about his/her concern on the performance.

The law mandates that an employer must clearly communicate any concerns about an employee’s performance or areas where improvement is needed, allowing the employee to address or respond to the employers concerns. It is important for the employer to provide evaluations, instructions, training guidelines, or counseling to support the employee in making necessary corrections.

Probationary employee be afforded time to act on the employer(s) concerns.

The employee should be given time to address the weaknesses identified by the employer. If, after this period, the performance still fails to meet the agreed standards, the employer may issue a notice of termination to the employee.

Probationary employee should be given an opportunity to responds, either himself or by trade union.

The employee should be given the opportunity to address and respond to the concerns or doubts raised by the employer regarding the required performance, or a claim raised by the employers about the performance.

Employer to issue Notice of Termination

The notice of termination shall be the last resort after the employers satisfy himself that the performance of the probationary employees even after instructions and provision of the grace period for him/her to reform does work out. At that point, the employer may issue a notice of termination. In the Case, the court emphasized the necessity for the probationary employee to be informed about their right to refer the matter to the Commission for Mediation and Arbitration (CMA) for further resolution in case of any grievance.

CONCLUSION

The Employment and Labour Relations Act, particularly in cases of unfair termination outline some redress a person can take for reliefs but subject to the one criterion of being an employee over six months. It is our views upon an inquiry that most probationary employees do not meet the six months criteria hence remain unprotected for unfair termination through the Employment and Labour Relation Act, therefore become vulnerable to unfair termination without consideration of their rights. To address this gap, the law, along with relevant case law, provide a conducive way for probationary employees who are not classified as employees under the Employment and Labour Relation Act, to safeguard their rights by claiming for unfair labour practice. This serves as a reminder to all employers to adhere to proper procedures to avoid allegations of unfair labour practices.

By Eliya Pius – Legal intern.

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

What is Organ donation and Organ Transplantation?

Organ donation is the process where a person legally authorizes one or more of their organs to be removed and transplanted to another person, either by consent while the donor is alive, through a legal authorization for deceased donation which was made prior to the donor’s death, or through a deceased donation through the authorization made by the donor’s legal next of kin.

On the other hand, organ transplantation refers to the surgical removal of an organ or other bodily tissue that has irreversibly failed to properly function in the body of the host and replacing it with a healthy organ or body tissue that functions properly. Living organ donation permits individuals to donate specific organs and tissue during their lifetime, though most organs and tissues utilized for transplantation donations across the globe, are made by a recently deceased donor.

What organs can be donated and transplanted?

There are different organs that are considered viable for donating and transplanting from one individual to another and these include, but are not limited to; the heart, lungs, liver and kidneys. But being a viable organ alone is not enough and therefore prior to any transplantation, medical experts thoroughly evaluate each organ to gauge its suitability for transplantation. For instance, if an individual dies from a heart attack, their heart becomes unsuitable for transplantation. However, it should be noted that if an organ is considered ineligible for transplantation, it can be donated for medical research.

Legal framework in Tanzania

Tanzania has not enacted any specific legislation dedicated solely to organ donation and transplantation. Nonetheless, in recent years, various officials from the government of the United Republic of Tanzania have acknowledged the significance of organ donation and transplantation in the country and the need to establish a legal framework facilitating such donations and transplantation. During an interview on the 24^th of November, 2017 with the Citizen and Guardian Newspapers, the Minister for Health (hereinafter referred to as “the Minister”) underscored the pressing need for such a legislation. The Minister stressed on the escalating prevalence of non-communicable diseases (NCDs) such as diabetes, heart diseases and cancer, all the while pointing out the absence of legal provisions permitting organ donation in Tanzania.

Despite the absence of formal regulations in Tanzania, individuals still continue to donate organs. Whereas donors sign medical consent forms authorizing qualified medical practitioners of a particular medical institute to remove an organ and donate it to another person for transplanting. In most cases, the organs which are donated are those the donor can survive without, such as kidneys. The medical consent form mainly protects the medical practitioners (and the institutions where the procedure is taking place) in the event the process of organ removal and transplantation has fatal consequences to the person donating and receiving such an organ. Essentially, this is a contractual arrangement between the donor, the donee and the medical health institute carrying out or supervising the removal and transplantation of such organ. In this regard, there being no clear legislation in Tanzania regulating organ donation and transplantation many individuals are unaware of what the process entails and do not understand the importance of being registered as an organ donor in saving lives of patients who are in need of life saving treatment through organ donation and consequent transplantation.

A report from the secretariat of the World Health Organization Regional Committee for Africa dated 25^th August 2022, concluded that many African countries lacked legislation specifically addressing organ donation and transplantation. However, it is worth noting that in East Africa, Uganda is the most recent nation to enact specific legislation regulating organ donation, preservation and transplantation under the Uganda Human Organ Donation and Transplantation Act of 2023 (hereinafter referred to as “the Act”), which was enacted to establish the Uganda Organ Donation and Transplantation Council, a body corporate which oversees and regulates organ-cell and tissue donation and transplantation in Uganda (hereinafter referred to as “the Council”). The Council consists of nine technical members with high moral character and integrity to be appointed by the Minister for Health in Uganda. The Act also establishes standards for the storage of harvested organs, tissue, and cells and also to create a database of information on donors and recipients to be retained by transplant centers and hospitals. For that reason, Tanzania ought to borrow a leaf from its neighbor and set out a clear legislative path for organ donation, preservation and transplantation.

To summarize, while organ donation and transplantation play critical roles in improving global healthcare outcomes, mainland Tanzania confronts obstacles in developing a comprehensive legal framework to manage these operations. Despite a lack of formal legislation, Tanzania recognizes the necessity of organ donation and transplantation, and attempts are underway to develop rules to enable such procedures as emphasized by the Minister. In line with the initiative of the sixth phase Government to improve health care in Tanzania, by increasing funding into this sector, building new health care facilities and improving on existing ones, increasing the number of specialized medical practitioners, we are of the view that creating a legal framework for organ donation and transplantation in Tanzania would be a significant step by the Government towards achieving its goal of health care improvement.

Meriosgita G. Paulin- Legal Intern

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

According to Article 24 of the Constitution of the United Republic of Tanzania, 1977, as amended over time, every individual is entitled to property ownership and has the right to protect their property within the boundaries of the law. Under this legal framework, a patent is a type of legal protection that grants the owner exclusive rights to make, use, and promote an invention for a specific period. The Patents (Registration) Act No. 1 of 1987, Cap. 217, Revised Edition 2002 and the Patents Regulations, Government Notice Number 190 of 1994 (both as amended over time), establish the legal framework for patent legislation in Tanzania. These statutes outline the procedures for Patents registration and protection.

To secure a patent, the owner/applicant must demonstrate that the application encompasses a unique and non-obvious invention with tangible applications. Patents can be protected through various institutional avenues, including, the African Intellectual Property Organization, the African Regional Intellectual Property Organization, and the Patent Cooperation Treaty, of which Tanzania is a party. Registration of patents in these institutions hold validity in Tanzania, akin to patents granted under domestic legislation.

Patent Registration

Registration is required for patent protection, and an application thereof, can be made through a qualified agent or a law firm, which will help formalize legal ownership of the invention. Following approval by the Tanzania Patent Office at the Business Registration and Licensing Agency (BRELA), the applicant receives exclusive rights to use and license the invention. The registration process consists, among others, of examination of the application to confirm that it complies with the requirements of the law, a novelty search, publication, grant of a patent and opposition.

Patent Cancellation

Patent owners may voluntarily surrender their patents to the Registrar of Patents at BRELA, resulting in their removal from the register and subsequent cancellation, which may include cancelation also of any incidental claims.

Another form of cancellation is through invalidation. Parties with legal grounds, such as infringement, non-patentability, or noncompliance, can file a case with the High Court of Tanzania. Once an invalidation order is issued, the patent or relevant claims are deemed null and void from the date of grant, with the Court's decision being final and non-appealable. The Registrar of Patents is promptly informed of the Court's judgment, leading to removal from the patent register and publication of the cancellation.

Legal Consequences of Patent Infringements

Patent infringement arises when a patented invention is utilized, produced, or distributed without proper authorization. The repercussions of patent infringement may be in the following forms, among others:

Initially, patent holders possess the right to commence legal proceedings against infringers, alleging the violation of their patent rights, and seek appropriate damages as compensation.

Furthermore, patent holders may pursue injunctive orders through the courts, aiming to cease infringing activities and prevent any further unauthorized use, production, or distribution of the patented invention.

These legal measures collectively serve to protect the rights of patent holders, deter unauthorized use of patented technologies, and maintain the integrity of the patent regulatory system.

By Kenneth Muro - Legal Intern

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

Custody of a child entails having the right and the obligation to make decisions about a child’s upbringing, such as, the child’s schooling, religious upbringing, medical care, and other factors which conform to the best interest of the child. In Tanzania, it is not common for a court to award joint custody. Instead, the norm is to issue separate orders, indicating that decision-making responsibilities are shared by both parents.

On the other hand, access to a child is a legal term for the right of a child and a parent to spend time together. This includes a parent having a role in decision-making, receiving information about the child’s education, health, and overall well-being. Access does not exclude other family members such as grandparents, and other relatives who can also have the right to access. In most cases, a parent who does not have custody of a child usually ends up having access thereof.

Who may apply for Custody of a child?

According to Section 37 (1) of the Law of the Child Act, Chapter 13, Revised Edition, 2019 (the “Act”) a parent, guardian, or a relative may apply to a Court for custody of a child.

What are the factors to be considered by the Court in granting Custody or Access Orders?

The deciding factor in an application for Custody and Access rights to a child is solely based on the principle of the best interest of the child as provided under section 37 (4) of the Act. The Court may also take into account other factors including: -

the age and sex of a child;
the views of the child if the views have been independently given;
that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents;
that it is desirable to keep family members together;
disturbing the life of the child by changes of custody; and
any other factor that the Court may consider relevant.

The Procedures in filing Applications for Custody and Access to a child.

The Applicant (Parent, guarding or relative) who is caring for a child is required to make a formal application by filing JCR Form Number 8 as set out in the 3^rd schedule of the Law of Child (Juvenile Rules) 2016 (the “Rules”), signed by himself. The Application should be filed in the Juvenile Court in the District where both the Applicant and the Respondent reside.

Summons shall be issued by the Court and the same shall be served upon the Respondent within 14 days from the date of filing of the Application. Summons shall be attached with the application for custody and access, and it shall have a date of the 1^st hearing, details of the mediation services available with details on how services can be provided, and it shall be served upon the Department of the social welfare.

After being served with the Application, the Respondent is obliged to file a Reply to the Application within 14 days from the date of service. In this Reply the Respondent may file a Cross Application for custody order as well.

The Court shall order for the social inquiry report to be carried out by the Social Welfare Officer upon the Applicant and the Respondent, the social welfare officer may inquire to consult the child separately and if necessary to consult the child’s relatives. The Social Welfare Officer will present the report to the Court, whereas the said report shall be crucial in assisting the Court in determining and granting custody and access orders.

Lastly, the Magistrate shall announce a Ruling whereby orders in respect of custody and access shall be granted or denied in accordance with the evidence presented in Court and the best interest of the child.

The Child’s rights where parents separate.

Subject to the provisions of the Law of Marriage Act, Chapter 45, Revised Edition, 2019 of the laws of the United Republic of Tanzania, in cases where the parents of a child are separated or divorced, the child is entitled to maintenance and education of the same quality as enjoyed immediately before the parent's separation or divorce. The child has the right to reside with the parent whom the Court deems capable of providing the best upbringing and support in the child's best interest. Section 26 (2) of the Act establishes a rebuttable presumption that, for children below the age of seven years, it is in their best interest to be with their mother. However, the court, in determining the applicability of this presumption to specific cases, must consider the undesirability of disrupting the child's life through changes in custody.

Duty upon a Custodial Parent to maintain a child.

According to Section 41 of the Act, a parent in respect of whom an order of parentage has been made shall have a duty to contribute towards the welfare and maintenance of the child to supply the necessities for the survival and development of the child. This does not release the non-custodial parent of his/her duties to contribute to the child’s welfare in general.

Overall, applications for custody and access rights orders are made available not only to assist parents in resolving uncertainty with respect to their child’s custody and access, but they are key and crucial to maintaining and proving the best interest of the child in general.

By Said Nassor- Advocate

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

The nature of a Mortgagee’s power of sale.

The power of sale for a mortgagee/lender is triggered when a borrower/mortgagor defaults, and the statutory sixty days' default notice expires from the date of its receipt. This grants the mortgagee/lender the authority to execute the power of sale for any registered mortgage. Importantly, the utilization of this power by the mortgagee does not constitute a disposition or transfer that necessitates approval from the Commissioner of Lands. This is due to the fact that, the power of sale is inherent in Section 132 of the Land Act, Chapter 113, Revised Edition of 2019 of the laws of the United Republic of Tanzania, allowing the mortgagee to exercise it in the event of a default. A bona fide purchaser who acquires a mortgaged property from a mortgagee/lender purportedly exercising their power of sale is not obligated, and neither is the Registrar of Title (the "Registrar") upon the presentation of a transfer for registration, to investigate whether a default has taken place or if any notice has been appropriately served. Moreover, there is no obligation to scrutinize the propriety or regularity of such a sale [1]

Procedural steps to observe, among others.

Notice by the Registrar.

Upon receipt of transfer documentation, the Registrar shall serve notice of such transfer on the mortgagor/borrower and shall suspend the registration of such transfer for one month (30 days) from the date of such notice, and at the expiration of such period the Registrar shall register the transfer as at the date of presentation.

The Mortgagee’s 10 days’ Notice.

Where a sale of a mortgaged property is made by means other than public auction, the mortgagee/lender shall be required to give notice of sale of not less than ten (10) days to the mortgagor/borrower and to any third party holding a registered interest in the mortgaged property.

Remedy against the Power of Sale.

During the thirty (30) days’ notice issued by the Registrar, a mortgagor/borrower or any other interested party in the mortgaged property may lodge an Application at the High Court of Tanzania, seeking among others, orders of injunction towards the sale.

Powers Incidental to the Power of Sale.

Where a sale is to proceed by public auction, it shall be the duty of the mortgagee/lender to ensure that, the sale is publicly advertised in such a manner and form as to bring it to the attention of persons likely to be interested in bidding for the mortgaged land. The mortgagee/lender shall issue a 14 days public notice to the principal town or district in which the land is situated and at the place of the intended sale before conducting the public auction[2].

A sale of the mortgaged land by a mortgagee/lender in exercise of the power of sale shall be made in the prescribed form and the Registrar shall accept it as sufficient evidence that the power has been duly exercised.

Application of the Proceeds from the sale of the Mortgaged Land.

In practice, the sale proceeds received by the mortgagee/lender who has exercised his power of sale are applied in the following order of priority: -

first, in payment of any rates, rents, taxes, charges or other sums owing and required to be paid on the mortgaged land;
second, in discharge of any prior mortgage or other encumbrance subject to which the sale was made;
third, in payment of all costs and reasonable expenses properly incurred and incidental to the sale or any attempted sale;
fourth, in the discharge of the sum advanced under the mortgage or so much of it as remains outstanding, interest, costs, and all other moneys due under the mortgage, including any moneys advanced to a receiver in respect of the mortgaged land; and
fifth, in payment of any subsequent mortgages in order of their priority, and the residue, if any, of the money so received shall be paid to the person who, immediately before the sale, was entitled to discharge the mortgage.

The Mortgagee may sell to himself.

A mortgagee/lender exercising the power of sale may sell to himself, other than in the circumstances provided by the law, and only if a Court gives him leave to do so. A Court shall not grant leave unless the lender/mortgagee satisfies such Court that a sale of the mortgaged land to himself is the most advantageous way of selling the land to comply with the duty imposed on the mortgagee/lender.

The outcome of a Sale under Power of Sale.

Every such transfer, when registered shall vest the mortgaged property in the purchaser free from all liability on account of such mortgage or of any other incumbrance registered or entered subsequent thereto, except a lease to which the mortgagee/lender has consented in writing, or to which the consent of the mortgagee/lender is not required.

By Said Nassor- Advocate

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.

[1] Ref.Section 51 of the Land Registration Act, Chapter 334, Revised Edition of 2019 of the Laws of Tanzania

[2] Ref. Section 12(2) of the Auctioneers Act, Chapter 227 of the Laws of Tanzania