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ANARITA KARIMI NJERU vs THE REPUBLIC

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ANARITA KARIMI NJERU vs THE REPUBLIC (NO.1)
HIGH COURT AT NAIROBI (TREVELYAN AND HANCOX JJ)
MISCELLANEOUS CRIMINAL APPLICATION NO. 4 OF 1979
JANUARY 16, 29, 1979


Constitutional interpretation – Duty of court to gather the spirit of the Constitution from the language of the Constitution.
Constitutional law – A person may only use the constitution for redress where no other action is available to him.
  The applicant was tried before the resident Magistrate, Meru, upon two charges of stealing Shs.46,574 and Shs.9,936/= by a person employed in the public service.
 She alleged that she was refused an adjournment to enable her call her witness of whom she had notified the court.  She however did not thereupon ask for a reference to the High Court as to whether or not such denial was constitutional but instead allowed the trial to go on and to be completed.  It was upon conviction and sentence that she drew a petition of appeal, seeking court’s declaration that the provisions of S.77 of the Constitution of Kenya were contravened during her trial and an order that her trial be nullified or otherwise disposed of under those provisions of the Constitution.  Counsel for the respondent submitted that the application was incompetent in that it was too late for the appellant now to seek redress because she could and should have done so whilst on trial in the subordinate court and that having appealed or sought to appeal to this court against her conviction and sentence should not be allowed to come here again for what is in effect the same purpose.


  Held:         1. The only complaint that can lie of an alleged refusal to afford the defence “reasonable” facilities   under S.77 (2) (e) of the Constitution of Kenya is only in regard to that witness who has been notified         to court by the party wishing to call him.
              2. Where a person is seeking redress from the High Court on a matter involving a reference to the constitution it is important (if only to ensure that justice is done to his case) that should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.
 3. An argument founded on what is claimed to be the spirit of the Constitution is always attractive for   it has a powerful appeal to sentiment and emotion but a court of law has to gather the spirit of the      Constitution from the language of the Constitution.  What one may believe to be the spirit of the constitution cannot prevail of the language of the constitution does not support that view.
              4. In a document enshrining the rights and freedoms of the individual, is it not fit to limit to a single  moment that time when redress must and can only be sought for the contravention of such rights.
               5.  The cardinal rule for the construction of Acts of Parliament is that they should be construed  according to the intention expressed in the Acts themselves. The Tribunal that has to construe an    Act of a legislature, or indeed any other document has to determine the intention as expressed by the words used.  And in order to understand these words, it is natural to enquire what is the subject   – matter with respect to which they are used and the object in view.
                6.  It is clear that a person may utilise S.84 (1) of the Constitution to enable him secure redress if no   other action has ever been available to him but if such other action has been so availed, he cannot invoke the section.  The applicant cannot therefore now be heard on this application if the steps she  has taken amount to such other action.
                 7. High Court has jurisdiction to entertain proceedings for prerogative writs on the criminal or civil   side of its jurisdiction according to the nature of the proceedings.

                   Application dismissed:
                   Counsel:
                   G.K Mwirichia for the applicant
                    E.K Muttu Senior State Counsel for the Republic
                     Legislation considered:
                    1.  The Constitution of Kenya SS. 70 – 84
                    Cases cited:
                    1. East African Community vs The Republic (1970) E.A. 457, E.A.C.A.
                     2. Gokpa (Dixon) vs Inspector – General of Police (1961) 1 AII NLR 423
                     3.  Keshava Menon vs State of Bomby (1951) SCR 228
                     4. Re Keshaval Punja Parbat Shah (1955)22 EACA 381
                      5. Muyimbwa vs Uganda (1969) E.A 433
                     6.Okunda vs The Republic (1970) EA 453
                     7. The Republic vs EL Mann (1969) E.A 357
 


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ANGAHA & ORS vs REGISTRAR OF TRADE UNIONS

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ANGAHA & ORS vs REGISTRAR OF TRADE UNIONS
HIGH COURT OF KENYA AT NAIROBI (MULI, J.) CIVIL APPEAL 71 OF 1972 MARCH 30 AND APRIL 14 1973


The appellants sought to register themselves as a trade union under the name and style of the Kenya Institutional Worker’s Union (hereafter referred to as the proposed trade union), pursuant to the Trade Union Act, Cap. 233.  The Registrar refused to register them basing his decision on the objections raised by three existing trade unions that other trade unions already registered were sufficiently representative of a substantial proportion of the interests in respect of which the appellants sought registration.  The appellants thus filed this appeal that:

(i)  The Registrar erred in failing to consider sufficiently at all the entire evidence that was available.

(ii)  The Registrar erred in failing to inform the appellants of objections that were advanced against the registration of the appellant’s proposed trade union before he made his said Order.

(iii)  The Registrar erred in failing to consider that the membership of the proposed trade union would comprise of employees whose interests cannot be catered for by any other trade union.


       Held:

   1. An appeal to the High Court for registration of a trade union is incompetent under the rules if the Registration has not yet made a final decision refusing to register the proposed trade union.

  2. While the Registrar has discretion to refuse registration of any trade union if he is satisfied that any of the nine requirements of S.16 of the Act are not satisfied or complied with, it is nevertheless mandatory that in the event of his refusal under paragraph (d) sub-section (1) thereof , he must notify any registered trade unions concerned and he must invite them to submit any objections they may wish to make against the registration sought.

  3. The trade union Act expressly provides special procedures and duties the Registrar must follow upon refusal   to register a Trade.  Apart from these, there are no further implied duties he has to follow.  

  4. Under the Trade Union Act, the onus to satisfy the Registrar that the proposed Trade Union satisfied the  requirements of S.16 of the Act lay on the appellant.

  5. The application of principles of natural justice depends on the nature of inquiry and each case must be considered on the circumstances of that particular case.

  6. The Constitution protects the freedom to belong to a Trade Union.

  7. The Trade Union Act is not inconsistent with the Constitution in as far as it forbids the registration of a Trade Union on the ground that other registered Trade Unions are sufficiently representative of the whole or substantial  proportion of the interests in respect of which registration of a Trade Union is sought.  The right to be registered  as a Trade Union is a contingent right acquired upon fulfillment of the requirements of the provisions of the Trade Union Act.

  8. The Registrar is charged with the duty to satisfy himself that the policy laid down under the Constitution and safeguarded by the provisions under the Trade Union Act is not infringed.  In the instant case, he had ample evidence that the interests of the proposed Trade Union were sufficiently represented or a substantial proportion thereof were represented by the other registered Trade Union.  Therefore, his refusal to register the proposed Trade Union was not to divest itself of a vested right and therefore he had no duty to call upon them to show cause why the proposed Trade Union should not be refused registration.  



    Counsel:
    S.M. Kivuitu for the appellants
    G.F Harwood (Senior State Counsel) and E.O.O’
   Kibasu (State Counsel ) for the respondent.


     REFERENCES 
     Legislation considered:

    1. The Constitution of Kenya, S.80
    2.The Trade Unions Act, (Cap. 233) S.S 16 (17, 20 A,


    Cases cited:

   1.Cooper vs Wandsworth Board of Works (1863), 143 E.R. 414
   2.Ridge vs Baldwin, (1964) A.C 40
   3.Breen vs Amalgamated Engineering Union (1971) 2QB 175


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ATHANASIUS K LULE v HON EMMANUEL PINTO

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ATHANASIUS K LULE v HON EMMANUEL PINTO
CONSTITUTIONAL COURT CONSTITUTIONAL PETITION NO. 5 OF 1997
(CORAM: MANYINDO, D.C.J., KATO, J.A., BERKO, J.A.,
ENGWAU, J.A., KIREJU, J.A.)
JANUARY 27, 1998



The petitioner brought a petition under Article 80 of the Constitution of the Republic of Uganda,1995, that the respondent was not academically qualified to be nominated and elected as a member of Parliament and was therefore, sitting in Parliament illegally.  Counsel for the respondent raised four preliminary objections: that Article 80(1)(c) of the Constitution, under which the petition was brought, neither created jurisdiction for, nor gave any litigant a right of access to the Constitutional Court on matters concerning elections of members of Parliament; that the petition was time barred as it was filed on April 11, 1997, instead of either thirty days after nominations in May 1996, or declaration of the results of the elections in June 1996; that court had no jurisdiction to entertain the petition and is therefore, not competent to make the declaration prayed for in the petition and; that the petitioner had no locus standi to bring the petition.


Held: (i) a constitutional petition can only be brought by reference sue motu by a trial court on an application of the party to the proceedings before the trial court under Rule 2 of the Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions, 1996 and clause 5 of Article 137 of the Constitution or, under the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions, 1996 where an aggrieved person has a direct right of access;


             (ii) rules of procedure are handmaids to justice and, accordingly, they should be applied with due regard to the circumstances of each case.  A litigant who wishes to rely on Article 126(2)(e) of the Constitution must satisfy the court that in the circumstances of the particular case before the court it is not desirable to pay undue regard to a relevant technicality;
 (iii)     election petitions should be filed within thirty days after the declaration of the result of the election according to Rule 5(1) of the Parliamentary Elections (Election Petitions) Rules;


  (iv)     a person aggrieved due to irregularities in the electoral process can either submit a written complaint to the Interim Electoral Commission of the Parliamentary elections for investigation and determination or petition the High Court under Article 86 of the Constitution. There is a right of appeal from the Commission’s decision to the High Court and likewise from the High Court to the Court of Appeal under Article 86(2) of the Constitution, whose decision is final under Article 96(3) of the Constitution. Court being a creature of statute whose jurisdiction is given by law, court can only hear the petition and grant the declaration prayed for in this case;


  (v)      for a person to present an election petition, he should either be a candidate who lost an election or a registered voter in the constituency concerned supported by the signatures of not less than five hundred voters registered in the constituency.  
  Preliminary objections upheld.  Petition struck out.
 
 REFERENCES 
  Cases referred to:
Kasirye Byaruhanga & Co Advocates v Uganda Development Bank, Civil Application No 2 of 1997 (SC) (unreported)
Utex Industries Ltd v Attorney General, Civil Application No 52 of 1995 (SC) (unreported)
 
 
Legislation referred to:
Constitution of the Republic of Uganda, 1995, Articles 80, 86(2), 126(2)(e), 137(5)
Judicature Statute, (No 13 of 1996)
Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions, (Legal Notice No 3 of 1996), rule 2
Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure), Rules, 1992, Directions, (Legal Notice No 4 of 1996), section 1
Parliamentary Elections (Election Petitions) Rules, 1996, rule 5(1)
Parliamentary Elections (Interim Provisions) Statute, (Statute 4 of 1996), section 15(1), 15(2), 15(3), 90(2), 96(3)

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Osborne v Queen & Ors, (1991) DLR 321

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ATTORNEY GENERAL v SALVATORI ABUKI
SUPREME COURT CONSTITUTIONAL APPEAL NO. 1 OF 1998
 (CORAM: WAMBUZI, C.J., ODER, TSEKOOKO, KAROKORA, MULENGA
KANYEIHAMBA, MUKASA – KIKONYOGO, J.J.S.C.)
MAY 25, 1999



The respondents were charged and convicted with practising witchcraft under the Witchcraft Act.  The first respondent was convicted on his own plea of guilty and sentenced to twenty-two months imprisonment and banished from home for ten years after serving the sentence of imprisonment.  They petitioned and were granted declaration that the sections interpreting witchcraft, sections 2 and 3 of the Witchcraft Act, were void for being vague and ambiguous and did not meet the requirements of Article 28(12) of the Constitution; the exclusion order was unconstitutional because it threatened the petitioners life by depriving him of the means of subsistence and deprived him of access to his property, and was therefore, inhuman as it was a threat to life and contravened Articles 22 and 44(a) of the Constitution.  By depriving the petitioner of access to his property, the exclusion order contravened Articles 26 of the Constitution as well and; the petitioner was entitled to immediate release from custody.  On appeal, it was contended by the appellant that the court erred in law in holding that section 3 of the Witchcraft Act does not define the offence of witchcraft and therefore, contravenes Articles 28(12) of the Constitution and, court erred in holding that a banishment order or exclusion order under the Witchcraft Act is unconstitutional and amounted to a threat to livelihood, which is a threat to life contrary to Article 22 of the Constitution.

Held: (i) every criminal offence must be defined by law, in accordance with Article 28(12) of the Constitution, with the exception of contempt of court.  However, not every word should be defined, nor need the offence be defined in the section, which creates the offence.  There is no offence known as witchcraft, but offences in relation to witchcraft, which is defined under section 2 of the Witchcraft Act by exclusion.  Witchcraft is spirit worship or the manufacture, supply or sale of native medicines, which is not bona fide and, is a supernatural means.  Sections 2, 3 and 6 of the Witchcraft Act give a fair idea of what witchcraft is and sufficient notice of the prohibited conduct.  The offences in section 3 of the Witchcraft Act are clear and unambiguous.  What is required is to expound the words used.  If the meaning is not plain, then court is under a duty to construe the words to give effect to the objects of the legislature and to do justice to the parties.  The offences in relation to witchcraft are sufficiently defined and satisfy the provisions of Article 28(12) of the Constitution;
         (ii) an exclusion order under section 7 of the Witchcraft Act prohibits for such period as may be stated therein, the person in respect of whom it is made, from entering and remaining in a specified area including and surrounding the place in which the offence was committed. This does not, however, mean that the person is prohibited from entering or remaining in his or her home or land.  In this case, court could only make a finding that section 7 of the Witchcraft Act is void to the extent that it authorises the making of an exclusion order excluding a person from his or her home, which would be a violation of a fundamental right of the petitioner;

(iii) in the event of a conflict or inconsistency between the Constitution and other laws, the impugned law is not to be declared void merely because one aspect of its application offends a provision of the Constitution, otherwise the words shall be void to the extent of the inconsistency are meaningless.  This is in conformity with Article 273(1) of the Constitution which provides that the operation of the existing law after the coming into force of the Constitution shall not be affected by the coming into force of the Constitution, but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution.  In this case, section 7 of the Witchcraft Act would be null and void in so far as it empowers the imposition of a torturous, cruel, inhuman or degrading treatment or punishment contrary to Article 24 of the Constitution.  That modification would be necessary to enable other exclusion orders which do not offend the Constitution to be made to carry out the legitimate objects of Parliament to remove people who practice witchcraft from the areas were they practice witchcraft, presumably for their own protection and that of their victims.  However, in the present case, the effect of the exclusion order on the petition was to deprive him of shelter, means of earning a living on his land and he had to look for alternate shelter and means of earning a livelihood.  He could succeed in these endeavours or may be he would fail.  An exclusion order under section 7 of the Witchcraft Act is cruel, inhuman and degrading treatment or punishment and accordingly, is in contravention of Articles 24 and 44(a) of the Constitution;

(iv)     compulsory deprivation of property under Article 26(2) of the Constitution means total or complete deprivation.


Appeal allowed.  Declarations set aside and petition dismissed.  Each party bears its own costs here and in the court below.
 
 
Cases referred to:
Canadian Pacific Ltd v R   (1996), 2 LRC 78
Catholic Mission for Justice and Peace in Zimbabwe v Attorney General Ors (1993), 2 LRC 279
Eriya Galikuwa v Rex (1951), 18 EACA 175
Grace Stuart Ibingira & Ors v Uganda, [1966] EA 306
Katikiro of Buganda v Attorney General of Uganda, [1959] EA 382
Manitoba Fisheries Ltd v R (1979), 1 SCR 101
MC Gowan v Mary Land, 366 US 420 – 6 LED 394 (1961)
Mombe Provincial Government, 1985 LRC 642
Osborne v Queen & Ors, (1991) DLR 321
R v Kimutai Arap Mursoi, (1939), 6 EACA 117
R v Kiwanuka Wa Mumbi & Ors, 14 KLR 137
Tallis & Ors v Bombay Municipal Corporation & Ors (1987), LRC (Const) 351
The Queen v Big M Drug Mart Ltd (1996), LRC (Const) 332
The Queen v Peters (1886), 16 QBD 636


Legislation referred to:
Canadian Charter of Rights & Freedoms, sections 1, 2
Constitution of Uganda, 1962, sections 1, 19(1), 28
Constitution of the Republic of Uganda, 1995, Articles 2, 6, 21, 22, 23, 24, 26, 28(1), 28(12), 29(1)(b), 29(1)(c), 29(2), 44, 273(1)
Public Service Employment Act RSC 1985, section 33 (Canada)
Witchcraft Act, (Chapter 108), sections 2, 3, 5(1), 6, 7
Counsel for the appellant: Mr. Cheborion.
Counsel for the respondent: Mr. Emoru.

External link
https://www.globalhealthrights.org/africa/salvatori-abuki-and-richard-abuga-v-attorney-general/
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AL HAJJI NASSER N SEBAGGALA v THE ATTORNEY GENERAL & ORS

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CONSTITUTIONAL COURT CONSTITUTIONAL PETITION NO. 1 OF 1999
(CORAM: MANYINDO, D.C.J., MPAGI – BAHIGEINE, J.A.,
BERKO, J.A., ENGWAU, J.A., KITUMBA, J.A.)
JUNE 15, 1999


On April 19, 1998, the petitioner was elected Mayor of Kampala City under the Local Government Act for a period of four years.  On February 24, 1999, he was sentenced to fifteen month’s imprisonment by the United States of America District Court of Massachusetts, and filed a notice of appeal to the United States Court of Appeal.  The first respondent declared the mayoral seat of Kampala vacant and that electoral proceedings should commence to fill the vacancy.  The clerk to the third respondent notified the second respondent that the vacancy for the post of Mayor of Kampala occurred on February 24, 1999, the day the petitioner was sentenced to fifteen months’ imprisonment.  The second respondent issued a press release informing the general public of the communication from the third respondent that the mayoral seat of Kampala District had been declared vacant and therefore, in accordance with sections 102 and 172 of the Local Government Act, the second respondent was making preparations for filling the said vacancy.  The second respondent by a press release published the programme for the bye-election and, according to the said programme polling day was due on June 20, 1999.The petitioner then filed a petition against the respondents under Articles 50 and 137 of the Constitution and under the provisions of the Modification to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996 that the acts of declaration of vacancy of the mayoral seat were invalid and contrary to the Constitution and that the petitioner could not be removed from office through the process adopted and carried out by the respondents, and is therefore, entitled to continue to be and still is the Mayor of Kampala and Chairperson of Kampala District, and sought an injunction restraining the second respondent from conducting any by-election for Chairperson or Mayor of Kampala District until after the seat lawfully became vacant or any other relief the court would deem appropriate under the circumstances, with costs of the petition. At the commencement of the hearing, counsel for the first and second respondent raised five preliminary points of objection to the petition.  That court lacked jurisdiction to entertain the petition as the petition sought the interpretation of the Local Government Act rather than the Constitution and that since there was no averment in the petition that the provisions of the Local Government Act referred to were inconsistent with the Constitution, court lacked jurisdiction in the matter; the petition did not disclose a cause of action against the first and second respondent as the first respondent had given advisory, rather than directory instructions and the second respondent was merely carrying out its statutory duties under the electoral law and Local Government Act; the petition was time-barred since it was filed more than thirty days from the dates of the two letters of the Solicitor General and Permanent Secretary constituting the acts complained of; that the petitioner was not justified in coming to the court as he could have had recourse to other courts for other remedies enforceable by those courts under Article 50 of the Constitution and; that one of the two affidavits in support of the petition did not disclose the source of information.  Counsel for the third respondent associated himself with the submissions of counsel for the first and second respondents.


Held: (i)  provisions of a Constitution cannot be diluted by incorporation into an Act of Parliament and neither can a court lose jurisdiction merely because the Local Government Act has incorporated certain Articles of the Constitution;
            (ii) a cause of action means every fact, which if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgement of the court.  It must include some act done by the defendant and, it is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.  It does not comprise evidence necessary to prove the facts but every fact necessary for the plaintiff to prove to enable him to obtain decree and, everything that if not proved would give the defendant a right to an immediate judgement must be part of the cause of action.  It has no relation to the defence, which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff.  The cause of action must be antecedent to the institution of the suit;
 (iii)   where a period of limitation is imposed, it begins to run from the date on which the cause of action accrues. A petition must be lodged within thirty days after the date of the breach of the Constitution complained of in the petition in accordance with rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996.  A constitutional petition is incompetent if it is brought out of time unless the time has been extended in accordance with Order 7, rule 6 of the Civil Procedure Rules.  Where a plaint, as the petition in this case, does not plead disability as an exemption from limitations as required by Order 7, rule 6 of the Civil Procedure Rules, such failure is fatal to the claim outside limitation and must be rejected according to Order 7, rule 11 of the Civil Procedure Rules as barred by law.
             Petition dismissed with costs


Cases referred to:
Dr. James Rwanyarare & Anor v Attorney General, Constitutional Court Constitution Petition No 11 of 1997
Eridad Otabong v Attorney General, Civil Appeal No 6 of 1990(SC); (1990), ULSLR 150
Major General David Tinyefunza v Attorney General, Constitutional Appeal No 1 of 1997 (SC) (unreported)
 
Legislation referred to:
Civil Procedure Rules, (SI 65-3), Order 7, rules 6 and 11
Constitution of the Republic of Uganda, 1995, Articles 2, 50, 60, 61, 80, 83, 126, 137, 183, 186(6), 257
Electoral Commission Act, (Act 3 of 1997), section 15(1)
Government Proceedings Act, (Chapter 69)
Local Government Act, (Act 3 of 1997), sections 102, 172, 173
Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, (Legal Notice No 4 of 1996), rule 4(1)  
Counsel for the petitioner: Mr. Lule.
Counsel for the first and second respondents: D. Byamugisha and C. Barishaki (State Attorneys).
Counsel for the third respondent: S. Jehoash.

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CO-OPERATIVE VALUES AND PRINCIPLES

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Co-operatives are voluntary and autonomous organizations owned and controlled by the member who join their efforts together to accomplish the shared socio-economic goals. Co-operatives ruled and controlled by its values and principles differently from other non co-operative organizations.

Co-operative values
Cooperatives are based on the values of self-help, self-responsibility, democracy, equality, equityand solidarity.
 In the tradition of their founders, cooperative members believe in the ethical values of honesty, openness, social responsibility and caring for others.



Cooperative Principles

The cooperative principles are guidelines by which cooperatives put their values into practice.

1. Voluntary and Open Membership
Cooperatives are voluntary organizations which members are voluntary joining together, open to all persons in the society able to use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination.

2. Democratic Member Control
Cooperatives are democratic organizations owned and controlled by their members, who actively participate in making decisions and setting their policies. The people both men and women who elected to serve as representatives are accountable to the membership. Co-operative members have equal chance to vote in a democratic manner (one member, one vote)

3. Member Economic Participation
In co-operatives, members contribute equitably to, and democratically control, the capital of their cooperative. At least part of that capital is usually the common property of the cooperative. Members usually receive limited compensation, if any, on capital subscribed as a condition of membership. Members allocate surpluses for any or all of the following purposes: developing their cooperative, possibly by setting up reserves, part of which at least would be indivisible; benefiting members in proportion to their transactions with the cooperative; and supporting other activities approved by the membership.


 4. Autonomy and Independence
Cooperatives are autonomous, self-help organizations controlled by their members. If they enter into agreements with other organizations, such as governments, or raise capital from external sources (external financial sources), they do so on terms that ensure democratic control by their members and maintain their cooperative autonomy without any form of external intervention and control.

5. Education, Training, and Information
Cooperatives provide education and training for their members, elected representatives, managers, and employees so they can contribute effectively to the development of their co-operative society. They inform the general public - particularly young people and opinion leaders - about the nature and benefits of co-operation. In such a way that, the members will work hard more effectively and efficiently toward the attainment of their predetermined goals.

6. Cooperation among Cooperatives
Cooperatives serve their members most effectively and strengthen the cooperative movement by working together through local, national, regional and international structures.

7. Concern for Community
Cooperatives work for the sustainable development of their communities through policies approved by their members.






CREDITS
Johnston Birchall (1997), International Co-operative Movement

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The rights of an employee in a contract of employment

company law , contract

Employment and Labor Relation Act no 6 of 2004 this is an Act of Tanzania Government established in 2004 and signed by the third President of Tanzania Dr Benjamini W Mkapa. The Employment and Labor Relation Act was established purposely to deal with labor matters across the country. The Employment and Labor Relation Act no 6 of 2004 deals with Labor codes, general labor and employment acts, freedom of association, collective bargaining and industrial relations. This Act, dealing with all labor issues relating to it.

Contract of employment Is a kind of contract used in labor law to attribute rights and responsibilities between parties to bargain. This means the contract is between an employee and an employer. This is an agreement between an employer and employee relationship.
The contract of an employment starts as soon as an offer of employment is accepted. The contract of employment is an essential part in the issue of employment since it is a one which regulates the terms and conditions of employment between the employer and employee.

Tanzania labor Laws requires the workers should be given written employment contracts at the start of employment except those who work less than 6 days in mouth for an employer. The contract of employment should show the actual time to which the employment will end
An employee is an individual who works part or full time under a contract of an employment whether oral, or written. This is a person who agreed to be employed to work for some forms of remuneration or payment under the contract of employment. The payment under the contract of employment includes salaries, wages, commission and piece rates. An employee should an individual person who agree who agree voluntarily to enter into a contract.

According to the Employment and Labor Relation Act, no 6 of 2004 of Tanzania, the following are the rights of an employee entitled  in a contract of employment.
Employment rights to freedom of association, this right enable employees to form and join to any trade union. The purpose of this trade union is to regulate the relationship between the employees and their associations to which the employees belongs. For examples of trade unions are like Tanzania Teachers Union (TTU), Tanzania Social Workers Association (TSWA) and Tanzania Women Lawyers Association (TWLA). This right allows employee to participate in lawful activities of the trade unions. An employer is not allowed to interfere in trade unions affairs. Any person who contravenes these rights he or she commits offence. This is according to Employment and Labor Relation Act no 6 of 2004 section 9(1) to (6)

Protection against unfair termination/dismissal: unfair dismissal/termination is an act of ordering or allowing an employee to leave his/her job unfairly, according to S 37 (2) of Employment and Labor Relations act no 6, 2004 that unfair dismissal is one that the reason for termination is not valid, the reason is not fair in relations to employee’s conduct, capacity, compatibility or in relations to operational requirements of the employer and if the employment was terminated without following fair procedures. Therefore according to S 37 of Employment and Labor Relations act no 6,2004 an employee is entitled to be terminated fairy by an employer to prove that the reason for termination is valid, the reason is fair also should ensure that the fair procedures are followed when terminate an employee.

The right to be treated equally without any discrimination:the employer has to provide equality in work place’s opportunities without any kind of discrimination to an employee on the ground of color, nationality, race, age, sex, marital status, disability and HIV/Aids. This can be done by formulating organization’s policies, specific systems, plans and procedures so as to promote equality and destroy any kind of discrimination in work place. Therefore according to S 7 (1)-(4) of employment and Labor Relations act no 6 of 2004 an employee is entitled to be treated equally by an employer with assistance of Labor Commissioner.

Right concern hours of work: this is period of time or duration in which an employee is eligible to perform different functions and activities at the workplace, if employee works beyond the hours provided by the laws it considered as the overtime in which employee shall be compensated for the time exceeded. The standard hours of work for employees are 8 hours a day. In a contract of employment an employee has the right to know the time period or duration of time that he or she will be able to work at the work-place; this will enhance an employee to be aware with the time that will be exceeded by the employer.
According to the Employment and Labor Relation Act, 2004 section 19(1) it identified that an employer shall not require or permit or require employee to work more than 12 hours in any day.
Section 19(2) of the same Act, states the minimum number of ordinary days or hours that an employee may be permitted or require to work are;-

·        Six days in any week, a full week has seven days in total, so according to the laws an employee required to work only in six days per week Monday to Friday inclusive.

·         45 hours in any week, employee shall work no more than average of 45 hours in any week. It may appear an employer can ask an employee to work more than average hours of work, in such case a written consent is required from the employee concerned. 

·         Nine hours in any day, employee shall no work beyond the identified time within a day; if he or she does work beyond the time the compensation to cover the time exceeded will be calculated.

Right to be given or granted a leave;leave simply means the period of time that is given to an employee to be away of his or her primary job while employer shall maintain the status of employee in which an employee will be resumed to the work at the same terms and conditions of the contract of employment once the leave is over. A leave is generally requested by an employee to cover unusual circumstances occurring in the employee’s life.
According to the Employment and Labor Relation Act, 2004 section 29(1) it stipulate that an employee with less than six months in service shall not entitled to paid leave.
The following are the type of leave in which an employee is entitled under the Employment and Labor Relation Act, 2004.

   Annual Leave,this is a paid period of time in which employee is off work, during the annual leave time employee shall receive full pay. According to the ERL Act of 2004 section 31(1) it states that an employer shall grant an employee at least 28 consecutive days, and such leave shall be inclusive of any public holiday that may fall within the period of leave
  Sick Leave,this is the leave of absence granted to employee because of illness. Employee request sick leave in order to get the time to recover to his or her normal health. According to the ERL Act of 2004 section 32, it stipulate that an employee shall entitled to sick leave for at least 126 days in any leave cycle, the first 63 days shall be paid full wages and second 63 days shall be paid half wages. In order a sick leave to be granted an employee shall provide medical certificate issued by medical practitioner.
  
 Maternity Leave,this is the leave of absence from work granted to a mother before and after the birth of the child or children. According to the ERL Act of 2004 section 33, it state that an employee shall give notice to the employer of her intention to take maternity leave at least 3 month before the expected date of child birth. Employer may grant the leave from four weeks before the expected date of child birth. An employee shall granted at least 84 days paid maternity leave or 100 days paid maternity leave if employee give birth to more than one child at the same time.

 Paternity Leave, this is the leave of absence from work granted to a father after or shortly before the birth of his child. According to the ERL Act of 2004 section 34 it provides for paid paternity leave of at least 3 days (in leave cycle of 12 months) if this leave is taken within the 7 days of the birth of a child. The employer may require reasonable proof of birth of child prior to paying for paternity leave.


Rights of remuneration payment; means the total value of all payment, in money or in kind, made or owing to an employee arising from the employment of that employee.An employer shall pay to an employee any monetary remuneration to which the employee is entitled to the following; (a) During the working hours at the place of work on the agreed pay day,(b) In cash, unless employee agrees otherwise , in which case the payment shall be made either by, cheque payable to the employee or direct deposit into an account designated by the employee in writing this proved into the Employment and Labor Relation Act No. 6 of 2004 Section 27(1).
     According to the Employment and Labor Relation Act No. 6 of 2004 section 26(1)(2)(3), it determine the applicable hourly, daily, weekly, and monthly rate pay. The hourly, daily, weekly, and monthly shall be determined accordance with the table provided for in the first schedule.

    Leave paymentAn employee with less than six months service and who has worked more than once in year for the same employer, shall be entitled to paid leave under the provisions of this part if the total period worked for that employer exceeds six month in that year. The payment may occur in day it include rest period and leave cycle that involves, annual leave a period of 12 month, and in respect of all other forms of leave conferred a period of 36 month consecutive. N employer shall grant an employee at least 28 consecutive days  in respect of each leave cycle an must be inclusive of an public holiday that may fall within the period of leave. According to the Employment and Labor Relation Act No 6 of 2004 Section 30, 31.

The right to strike, according to Act no. 2004 section 75(a) talks about every employee has tile right to strike in respect of a dispute of interest and every employer has the right to lockout in respect of a dispute of interest.
 Also section 7 of the National Labor Relation Act states in part,employee shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aids or protection. Strikes are included among the concerted activities protected for employees by this section.




  REFERENCES;
Employment and Labor Relation Act no 6, 2004
Adam Smith. 2012; Contract of Employment; Rights and Responsibilities of the Contract.2nd Edition.New York Publishers.

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