1.0 Legal Unit
Is one of the units established in TANROADS Organizational structure under the Executive Agencies (The Tanzania National Roads Agency) (Establishment) Order 2000, GN.293 of 2000, ,which came into effect on 25th August 2000,as amended by the Executive Agency(The Tanzania National Roads Agency)(Establishment) Amendment Order 2009, GN.350 of 2009all made under section 3(1) of the Executive Agency Act Cap.245.
The Unit is headed by the Principal Legal Counsel who reports directly to the Chief Executive. The Unit has currently a workforce of eight registered Legal Counsel.
The principal duties of the Unit include, inter alia, the following:-
1. Provide legal advice and assistance to TANROADS on legal matters
2. Provide technical support in preparation of proposed Bills.
3. Participate in various negotiations and meeting which call for legal expertise
4. Translate laws within TANROADS
5. Liase with the Office of the Attorney General Chamber on non-contractual matters in which the Agency is involved.
6. Prepare and review various legal instruments such agreements, insurance policies etc
7. Witnessing of signing of Contracts
8. Vetting/ ratification of contracts
9. To represent the Agency in court of law on all contractual matters
3.0 Legal Personality
According to section 3(6) (a), (b) and (c) of the Executive Agencies Act N0.30 of 1999 Cap 245 of the Revised Edition 2002 as amended by the Finance Act N0.18 of 2002 and further translated unto Order 2(a) and (b) of the Executive Agencies ( The Tanzania National Roads Agency)(Establishment) Order 2000, GN.293 of 2000, as amended by the Executive Agency ( The Tanzania National Roads Agency) (Establishment) Amendment Order 2009, GN.350 of 2009, TANROADS as an Executive Agency under the Ministry of Works, Transport and communication is, notwithstanding any other law, capable of entering into contracts in its own name. It is also capable of suing and being sued in its own name only in contract.
The above legal personality of TANROADS has been commonly referred to as semiautonomous.
The first landmark case which interpreted the above provisions of the law was AL-Hushmoom Transport Co Limited Vs Tanzania National Roads Agency, Miscellaneous Civil Cause N0.81 of 2002 , High Court of Tanzania , DSM Main Registry [unreported] in which the court held that an Executive Agency can sue and be sued in its own name only in matters related to contracts. In other matters not related to contracts it is the Government is supposed to be sued through the Attorney General.
Some of the decided cases expounding the above position of law include the following:-
1. Total Tanzania Limited Vs Tanzania National Roads Agency, Land Case N0.31 of 2006 ,High Court of Tanzania, Land Division, DSM, [unreported]
2. Judge(Rtd) Dan Mapigano & 19 others vs Tanzania National Roads Agency, Land Case N0.27 of 2006, High Court of Tanzania, Land Division, DSM[unreported]
3. Adam Namulya and 48 others Vs Regional Manager, TANROADS, Miscellaneous Application N0. 9 of 2012, Lindi, High Court of Tanzania. Land Division,Mtwara [unreported]
4. Sebastian Abdallah Msola Vs Njombe Regional Manager, TANROADS, Civil Case N0.2 of 2014, High Court of Tanzania, Iringa [unreported]
5. Regional Manager (TANROADS) Manyara Vs Gurbax Singh Sandhu, Civil Appeal N0.18 of 2012, High Court of Tanzania, Arusha [unreported]
6. Omari Punja vs Tanzania National Roads Agency, Land Case N0.31B of 2012, High Court of Tanzania, Bukoba[unreported]
7. African Banking Corporation Tanzania Limited vs Tanzania National Roads Agency, Miscellaneous Commercial Application N0.171 of 2014(originating from Commercial Case N0. 84 of 2014, High Court of Tanzania, Commercial Division, DSM[unreported]
4.0 Main Source of Law of the Executive Agencies
The principal pieces of legislations which affect TANROADS in executingits duties and responsibilities for which it was established include, among others, the following:-
1. Executive Agencies Act (Cap 245) as amended from time to time
2. The Roads Act N0. 13 of 2007
3. The Government Proceedings Act (Cap 5)
4. Tax Administration Act N0.10 of 2015
5. The Value Added Tax Act N0.10 of 2014
6. The Public Finance Act N0.6 of 2001
7. The Public Private Partnership Act N0.18 of 2010
8. The Public Procurement Act N0. 7 of 2011
9. The Public Service Act N0.2003 as amended from time to time
10. The Employment and Labour Relations Act N0. 6 of 2004
11. The Mining Act N0.4 of 2010
12. The Land Act Cap 113 R.E 2002
13. The Land Acquisition Act N0.47of 1967
14. The Valuation and Values Registration Act, 2016
5.1 Conflict of Labour Laws
Prior to 2015, the High Court of Tanzania Labour Court at Dar es Salaam in case of Attorney General Vs Maria Mselemu, Revision N0.270 of 2008 consolidated with Attorney Vs Allan Mulla in Revision No.271 [unreported] in speaking on different dispute resolution machinery provided for under the Employment and Labour Relations Act N0.6 of 2004 and the Public Service Act N0.8 of 2002, had this to say:-
"if the intention of Parliament to except Government employee from coverage under the labour laws ,it would have specifically stated so under the said laws."
The court went further to observe that:
"...the CMA has jurisdiction in labour disputes in respect of all employees even where the government is the employer, the issue whether there exists a different statutory mandated machinery for dispute settlement; or an agreement between the parties for a private settlement machinery in a particular dispute, and where they exist, whether the same have been exhausted by the party making the referral would have to be resolved as a preliminary issue."
The above position appeared to offend the general principle embodied in Generalia Specialibus non Derogant, which states that general law should yield to specific law.
It was common knowledge that section 30 of the Public Service Act N0.8 of 2002 provided that servants in the Executive Agencies and government institutions shall be governed by the provisions of the laws establishing the respective agency or institution.
The above section 30 was, by the Public Service Act N0. 18 of 2007, designated as section 30(1), and section 30(2) was added to the said section which made it clear that servants in the executive agencies and government institutions should also be governed by the Public Service Act N0.8 of 2002.
It was also common knowledge that the Employment and Labour Relations Act N0.6 of 2004 provided for under section 2(1) that this Act shall apply to all employees including those in the public service of the Government of Tanzania in Mainland Tanzania.
The Public Service Act 2002, being a specific law ought to have prevailed over the Employment and Labour Relations, 2004 which is general law.
The enactment of the Employment and Labour Laws (Miscellaneous Amendment) Act N0.24 of 2015 has amended section 34 of the Public Service Act 2002 by adding section 34A, and has also amended the Employment and Labour Relations Act 2004 by adding section 102A.
In essence, two principles related to conflict of labour laws have been introduced by these amendments.
The first principle under 34A of the Public Service Act 2002 is that where there is an inconsistency between the provisions of this Act and any other laws governing Executive Agencies, public institutions or such other public service offices, the provision of this Act shall prevail.
The second principle under section 102A of the Employment and Labour Relations Act 2004 is that in case of conflict between this Act and any written law relating to employment standards, the standards stipulated under this Act shall prevail.
This year, 2016, another principle has been introduced by the Written Laws (Miscellaneous Amendments)(N0.3) Act 2016 which has amendedsection 32 of the Public Service Act 2002 by adding section 32Awhich provides for a requirement that a public servant shall, prior to seeking remedies provided for in labour laws, exhaust all remedies provided under the Public Service Act 2002.
This amendment has put to an end the legal wrangle embodied in the cases decided by the High Court of Tanzania, Labour Division, Dar es Salaam in Revision Nos 270 and 271 of 2008.