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Tanzania: Parliament Passes Non-Citizens Employment Act

(Apr. 28, 2015) Tanzania’s 357-member unicameral Parliament recently passed the Non-Citizens (Employment Regulation) Act, which, as its name indicates, is aimed at regulating the employment of non-citizens in the country. (Foreign Workers Face Tougher Times in Dar, TRADE MARK (Mar. 23, 2015).) According to Gaudentia M. Kabaka, the Minister of Labour and Employment and the legislation’s sponsor, the objectives include streamlining the process for application and issuance of work permits and putting in place a “good base” for implementing regional labor agreements. (The Non-Citizens (Employment Regulation) Act, 2014, 95:44 BILL SUPPLEMENT TO THE GAZETTE OF THE UNITED REPUBLIC OF TANZANIA, No. 2 (Oct. 31, 2014), PARLIAMENT OF TANZANIA.) According to the country’s Constitution, the legislation must be signed by the President before it can take effect. (The Constitution of the United Republic of Tanzania (Apr. 26, 1977), § 97, THE JUDICIARY OF TANZANIA.)

Application

If enacted into law, the legislation’s application will be limited to mainland Tanzania. (Non-Citizen (Employment Regulation) Act § 2.) The Republic of Tanzania includes two territories, mainland Tanzania and Zanzibar, tied by an arrangement akin to a federation. (The Constitution of the United Republic of Tanzania, § 4.) The Government of the United Republic of Tanzania and the Government of Zanzibar share legislative jurisdiction on various matters, which they divide into Union matters and non-Union matters. (Id.) The mainland Tanzania government is authorized to exercise legislative jurisdiction over all Union matters and all non-Union matters that concern the mainland. (Id. §§ 34 & 64.) The Government of Zanzibar is authorized to legislate on non-Union matters affecting Zanzibar. (Id. § 64.) Labor-related issues are considered to be non-Union matters. (Id. § 4.)

Provisions on the Relevant Authorities

The new legislation assigns various government institutions different tasks to regulate the employment of foreigners in Tanzania. It makes the Minister of Labour and Employment “the authority in all matters relating to the employment and engagement of non-citizens” and accords that person various powers, including the authority to exempt anyone from having to meet the requirements stipulated under its provisions and the authority to publish in the Government Gazette information identifying areas of employment/occupation in which non-citizens may participate. (Non-Citizens (Employment Regulation) Act, § 4.)

The legislation makes the task of implementing its provisions the responsibility of the Commissioner of Labour, whose functions include advising the Minister on a broad range of issues related to the employment of non-citizens in Tanzania, receiving and processing of applications for work permits, and keeping and maintaining a register of records of its activities. (Id. § 5.) As the authority charged with the implementation of the legislation, the Commissioner is accorded a number of powers, including the power to “issue, vary, renew or cancel any work permit.” (Id.) The legislation designates what it calls “authorized officers” to enforce its provisions. (Id. § 6.) These include labor officers, immigration officers, police officers, and anyone designated as an authorized officer by the Minister. (Id. §§ 3 & 6.)

Under current law, while the process for issuing work permits appears to be shared by the Ministry of Labour and Employment and the Immigration Services Department, the latter agency appears to have the final say. All applications for a work permit must be made to the Commissioner of Labour, who makes a recommendation for the issuance of a permit to the Director of Immigration Services Department. (National Employment Promotion Service Act, 1999 (June 2, 1999), § 27, PARLIAMENT OF TANZANIA.) However, before making such a recommendation, the Commissioner must “satisfy himself that all possible efforts have been explored to obtain a local expert … .” (Id.) The Director will issue to a non-citizen who has secured a “specified employment in Tanzania” a Class B residence permit if the Director is satisfied that the non-citizen “possesses the qualifications or skills necessary for that employment and that his employment will be of benefit to Tanzania.” (Immigration Act No. 7 of 1995 (June. 13, 1995), § 20, Tanzania Immigration Service Department website.)

Other Key Provisions

WORK PERMIT CATEGORIES: The new legislation establishes two categories of work permits for non-citizens. These are Class A permits, to be issued to investors and self-employed non-citizens, and Class B permits, to be issued to those non-citizens not eligible for a Class A permit. (Non-Citizens (Employment Regulation) Act § 13.)

PROTECTION OF LOCAL TALENT: A key provision in the legislation restricts the hiring of non-citizens to jobs for which local talent is unavailable. It specifically states, “[t]he Labour Commissioner shall, before approving an application for a work permit [for a non-citizen], satisfy himself that all possible efforts have been explored to obtain a local expert.” (Id. § 11.) As was noted above, the applicable current law imposes the same requirement. (National Employment Promotion Service Act, § 27; see also Application for First Grant/Renewal of Residence Permit Class A/B/C (The Immigration Act, 1995), TIF 1, Tanzania Immigration Service Department website (last visited Apr. 24, 2015).)

SUCCESSION PLAN: Another key provision in the legislation requires any employer who hires or engages a non-citizen to make plans for a Tanzanian worker to eventually take over the position. It requires employers to prepare what it calls a “succession plan,” including “a well-articulated plan for succession of the non-citizen’s knowledge or expertise to the citizens during his tenure of employment.” (Non-Citizens (Employment Regulation) Act, § 7.) It provides that employers “shall be required to establish [an] effective training programme to produce local employees to undertake [the] duties of the non-citizen expert.” (Id.) This provision, too, is not much of a departure from current law. However, current law provides that the employer must provide a succession plan during the application process of hiring a foreign worker, and must include in that plan the length of time it would take to train a local worker and the necessary steps to achieve this goal. (National Employment Promotion Service Act, § 27.)

CRIMINAL PENALTIES: The legislation criminalizes the hiring of non-citizens who do not possess a valid work permit or a certificate of exemption. (Non-Citizens (Employment Regulation) Act, § 9.) It also bans non-citizens who do not have work permits or exemption certificates from “engaging in any occupation for reward, profit or non-profit.” (Id.) Violation of these bans is an offense punishable on conviction by a fine of at least TZS10 million (about US$5,136), at least two years in prison, or both. (Id.)

Under current law, it is an offense for an employer to hire a non-citizen who does not have a work permit or a non-citizen with a permit if the work for which he is hired is specifically reserved for citizens. (National Employment Promotion Service Act, §§ 25 & 26.) In addition, a non-citizen who does not possess a work permit is barred from taking up employment. (Id. § 26.) However, this does not apply to self-employed non-citizens, those employed by non-profit organizations, or those exempted by the Minister from having to obtain a work permit. (Id. § 24.) Violation of these requirements is an offense punishable on conviction by a fine of at least TZS1 million (about US$513), at least six months in prison, or both. (Id. §§ 25 & 26.)