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 13th 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.
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:
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.
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: -
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).
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: -
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.
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: -
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: -
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 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:-
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.
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.
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:
The procedure for applying for citizenship through naturalisation are as follows: -
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 26th, 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: -
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 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.
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.
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.
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.
Background of the Case.
The Case was between Tito Magoti (as the “Petitioner”) and the Attorney General (as the “Respondent”), whereby an application was filed through a petition to the High Court of Tanzania, Main Registry, in Dar es Salaam (the “High Court”). The Petitioner filed the application in his capacity as a citizen of the United Republic of Tanzania challenging the legality of the impugned provisions of the Act, namely, sections 8(1), (2) and (3), 11(1), 14(5), 19, 20, 22(3), 23(3)(c), (d) and (e), 25(2)(e) and (f), 26, 30, 33(2) and 34, while the Respondent was involved as the advocate of the Government in accordance with Article 59 of the Constitution of the United Republic of Tanzania (as amended) (the “Constitution”). The validity of the petition was challenged by the Respondent because the Petitioner was not directly affected by the impugned provisions. However, that preliminary matter was dismissed by the High Court based on ground that every citizen has the right to protect the Constitution and all other laws as provided for in Article 26(2).
The Petitioner claimed that the impugned provisions violate Article 12(1) and (2), 13(1), (2) and (6)(a), 16(1), 21(2) and 29(1) of the Constitution. Generally, the Petitioner’s claims were centered on the premise that the structure and wording of the impugned provisions violated basic rights of individuals.
The High Court deliberated the arguments from both parties and concluded that all the provisions of the Act are constitutional save for section 22(3) which reads as follows: “A data controller shall not collect personal data by unlawful means” and section 23(3)(c) and (e) which state that “A data controller is not obliged to comply with subsection (1) (which states that “Subject to subsection (3), a data controller shall collect personal data directly from the data subject concerned.”) where- (a) the personal data is publicly available; (b) the data subject concerned authorizes the collection of the personal data from a third party; (c) compliance is not reasonably practicable in the circumstances of the particular case; (d) non-compliance is necessary for compliance with other written laws; or (e) compliance would prejudice the lawful purpose of the collection.”
The High Court declared that section 23(3) to be unconstitutional on the grounds that it lacks clarity thus being wide and vague. The High Court explained that the provision ought to have been defined simply because it creates an offence, hence requiring further clarification. The lack of clarity in respect of this provision makes it difficult for the law to guide the behaviours of individuals.
Additionally, the High Court also declared section 23(3)(c) and (e) of the Act to be unconstitutional. The decision was derived from the basis of the provisions being vague, ambiguous and unclear leading to legal uncertainty. The High Court further explained that, section 23(3)(c) of the Act does not disclose the circumstance where compliance is not necessary, hence leaving it to speculation. The High Court further held that section 23(3)(e) of the Act lacked examples of situations in which a data controller adhering to the legislation would undermine the legitimate goal of the data collection. Thus, making it also unclear and open to speculations and abuse. Conclusively, the impugned sections are required to be amended with a view of providing certainty as to what acts or omission shall be regarded as unlawful.
The High Court ordered the Respondent to make the necessary amendments to the above-mentioned provisions. The High Court further stated that the provisions will be struck out from the Act if the Respondent fails to amend the unconstitutional provisions within a year from the date of the judgement.
On the other part, the Judgment did not elaborate if the impugned sections are to be inoperable until they are amended or otherwise. In addition, there is no clear history of the Parliament of Tanzania making amendments to provisions in legislation that the High Court has declared unconstitutional. However, in most instances, cases that center on provisions of Acts of Parliament which have been declared unconstitutional, the decision of the High Court prevails.
However, when the decision of the High Court is challenged in the Court of Appeal of Tanzania and the impugned provision are found to be constitutional, then the decision of the Court of Appeal of Tanzania will prevail instead of the decision made by the High Court.
Imogen E. Homanga – 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.
The Personal Data Protection Act Number 11 of 2022 (the "Act") was enacted on November 1, 2022. It is to be read in conjunction with the Personal Data Protection (Collection and Processing of Personal Data) Regulations, issued under Government Notice 449C of 2023 (the "Regulations"), which came into effect on July 4, 2023. This legislation applies to both Tanzania Mainland as well as Tanzania Zanzibar. Furthermore, these legislation provide guidelines on how data should be transferred outside Tanzania as follows: -
Transfer of personal data is not specifically defined in the legislation however, a simple definition can be taken from Article 44 of the European Union General Data Protection Regulation (GDPR) which defines personal data transfer as an intentional sending of personal data to another party or making the data accessible by it, where neither sender nor recipient is the data subject.
The transfer of personal data outside Tanzania is permitted solely by the Personal Data Protection Commission (the “Commission”) which allows personal data transfer outside Tanzania and issues the necessary permit for such transfers.
Generally, the transfer of personal data to other countries is prohibited according to section 31 (1) of the Act, however, this is permissible by the consent of the Commission pursuant to section 31(2) of the Act, provided that, among other things, the recipient country has adequate legal framework for personal data protection.
Procedures For Data Transfer Outside Tanzania
Regulation 20 (1) – (7) of the Regulations provides for the procedure in respect of personal data transfer from Tanzania. The procedure set out is as follows: (a) A data controller or processor must apply for a permit using Form Number 7 of the Regulations, (b) Applications for permit to transfer personal data shall include details such as particulars of the applicant and recipient, data subject, type of data, purpose of transfer, security measures, consent of data subjects, and other required information, (c) Applicants must show that the recipient country has ratified an international data protection agreement, there is an agreement between Tanzania and the recipient country about personal data protection and a contractual agreement between a requester in Tanzania and recipient abroad, (d) the Commission reviews applications within 14 days and if rejected, a written notice with reasons will be provided. Upon approval the Commission will issue the permit for data transfer outside Tanzania using Form Number 8.
Conditions for the Permit. Regulation 22 of the Regulations mandates that permits issued by the Commission require personal data to be transferred only to authorized recipients, used solely for its intended purpose, not accessible to others without the Commission’s approval, and processed in compliance with Tanzanian laws.
Non-compliance and penalties. Section 60 of the Act imposes penalties for unauthorized handling or disclosure of personal data: as Individuals disclosing personal data may face a fine up to TZS 20,000,000 or ten years in prison and corporations can be fined between TZS 1,000,000 and TZS 5,000,000,000 for unauthorized disclosure of personal data.
Conclusion. In summary, Tanzania’s legal regime for protecting personal data applies to all data subjects, however, it is still at its infancy stage. The passing of the Act is a positive and progressive step towards personal data protection for data subjects. However, it appears that most businesses and/or organisations are not aware of whether they fall within the definitions of data collectors and/or data processors, and what implications that this may have on their business.
PREPARED BY:
EVELYN MFUNGAHEMA
LEGAL INTERN
NOTE; This is not a legal opinion, and the content hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.
A Summary Procedure Suit is a fast-tracked civil proceeding whereby the Plaintiff desires to proceed in Court on causes of action emanating from bills of exchange (including cheques) or promissory notes, recovery of income tax, mortgages (whether legal or equitable), suits by the Tanzania Electric Supply Company Limited for the recovery of meter rents, chargers for the supply of electricity, recovery of rent (interest), recovery of possession of immovable property and recovery of possession of any immovable property from a lessee under financial lease agreement whereby a lessee has no right of ownership over the property leased to him/her.
Institution of Summary Suits.
Summary Procedure Suits are primarily governed by Order XXXV of the Civil Procedure Code, Chapter 33, Revised Edition, 2019 of the laws of the United Republic of Tanzania. Suits under this order are usually instituted by presenting a Plaint in the usual form but endorsed “Order XXXV: Summary Procedure” and the summons shall specifically inform the Defendant that unless he obtains leave from the Court to defend the Suit, a decision may be given against him.
In order to defend the Summary Suit, the Defendant is under the obligation to apply for leave of the Court so as to Defend it, meaning that the Defendant has to file an Application supported by an Affidavit detailing the reasons for him/her to be granted leave to file a Written Statement of Defence in respect of the Summary Suit. Further, the Application filed in Court can be challenged by the Plaintiff and it may or may not be granted depending on what is presented before the Court determining that matter. However, in default of his/her obtaining such leave or of his appearance in pursuance thereof, the allegations in the Plaint shall be deemed to be admitted as per Order XXXV Rule 2(2) of the Civil Procedure Code.
The Defendant has to show merits on leave to appear and defend.
The Court may upon Application by the Defendant, grant leave to defend the suit by taking into consideration what has been sworn in the Affidavit, which should disclose:-
Leave to defend may be given unconditionally or subject to such terms as payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
Summary Suit for Possession against trespassers.
Where in a Summary Suit for possession against trespassers, if at all the Plaintiff does not know the name of a person in occupation and/or trespassing, the suit shall be brought against “persons unknown” in addition to any recognized Defendants. In this suit, the known Defendant shall be served with the Plaint and supporting Affidavit within two (2) to five (5) days before the Hearing date. Whereby in all other possessions suits the Hearing date shall not be less than twenty-one (21) days from the date of issuance of the Plaint.
Suits for possession of Mortgage.
In Summary Suits for possession of Mortgage, the Plaint shall also set out the state of the Mortgage account by including the amount advanced, any periodic repayment and any payment of interest required to be made. Further, the Plaint shall state the rate of interest payable at the commencement of the Mortgage, immediately before any arrears accrued and interest at the commencement of the proceedings in Court.
If the Summary Suit is brought because of failure to pay the periodic payments thus the Plaint shall disclose the dates when the arrears arose, all amounts due, the dates and the amounts of all payments made and a running total arrears. Further it shall disclose any payments required as per the terms of the mortgage such as:-
Summary Suits for possession of land consisting of a dwelling house.
This is a Summary Suit where a mortgagee seeks possession of land which consists of or includes a dwelling house. In this suit the Plaintiff shall send a notice to the property addressed to the occupiers within fourteen (14) days before Hearing date, the notice shall state the possession suit for the property has been initiated and shall display the name and address of the Plaintiff, the Defendant and give details of the place and time of the Hearing.
The overall objective of Summary Suits was illustrated in a landmark Case in respect of Summary Suits between CRDB Bank Limited versus John Kagimbo Lwambagaza (2002) Tanzania Law Report, whereas Honourable Kimaro, J held that “The purpose of Summary Suits is to enable a Plaintiff to obtain Judgment expeditiously where the Defendant has in effect no substantial defence to the suit and prevent the Defendant from employing delaying tactics and, in the process, postpone the day of reckoning. I am of the settled view that Order XXXV is self-contained, in so far as it relates to suits stipulated there under.”
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 ISDA (International Swaps and Derivatives Association, Inc.) Cross-Border Risk Management Swaps and Derivatives refers to the standards and methods developed by ISDA to address the risks associated with cross-border swaps and derivatives transactions. This framework aims to ensure compliance with diverse national regulations, decrease legal uncertainty, and increase market stability in the global derivatives business.
Tanzania's swaps and derivatives market is booming, despite the lack of clear legislation governing these hedging instruments. However, on February 10, 2015, the Bank of Tanzania issued a circular imposing restrictions on transactions involving swaps and derivatives denominated in Tanzanian shillings. According to this circular, swaps and forwards involving the Tanzanian shillings can only be conducted by licensed banks and financial institutions, provided there is evidence of an underlying economic activity. Additionally, licensed banks and financial institutions are prohibited from entering into swaps with non-residents for periods shorter than three months and with residents for periods shorter than seven days.
In terms of cross-border hedging swaps and derivatives under ISDA, which are widely utilised around the world, contract parties are normally free to engage in these transactions and choose English law as the governing law. Courts in Tanzania will honour this choice, provided it adheres to the mandatory requirements of the laws of Tanzania, such as those outlined in the circular. Thus, while parties to an ISDA Master Agreement can generally choose their own legal structure, they must nonetheless adhere to the precise regulatory obligations outlined in the laws of Tanzania.
An important aspect of cross-border hedging transactions is managing the insolvency risk of a Tanzanian party (e.g., a borrower) and the resulting impact on the hedging arrangement. Key considerations include the validity and enforceability of close-out netting and set-off provisions. The Companies (Insolvency) Rules, 2004 (the Rules) recognise the concept of close-out netting and set-off provisions. However, these mutual credits, debits, or other mutual dealings do not include any debts incurred when the creditor was aware that a creditors' meeting was summoned, or a winding-up petition was pending. The Rules also prioritise claims, giving secured creditors precedence over unsecured creditors. In practice, when a debtor/borrower becomes insolvent, the specific terms of the ISDA Master Agreement, the priority of creditor claims, and the regulatory framework will dictate the treatment of the hedging arrangement.
Given the increasing use of cross-border hedging instruments under the ISDA framework, it is crucial for Tanzania to develop a comprehensive legal framework to regulate these transactions, beyond the existing limited directives. This would ensure greater clarity and stability in the market, providing better protection for all parties involved in such financial arrangements.
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.
