FREE MOVEMENT OF WORKERS AND NON-DISCRIMINATION OF NON-NATIONALS: THE EAST AFRICAN COMMUNITY (EAC) AND TANZANIAN STANDPOINTS
FREE MOVEMENT OF WORKERS AND NON-DISCRIMINATION OF NON-NATIONALS: THE EAST AFRICAN COMMUNITY (EAC) AND TANZANIAN STANDPOINTS
NKUHI, Mathias Sylvester*
In 1999 the Globe witnessed the revival of the East African Community (hereinafter the EAC) as a regional economic integration.1 This revival came after about two decades of the demise of the former EAC. The same has been possible because of, inter-alia, the enjoyment in terms of the historical, commercial, industrial, cultural and many other ties between the Partner States.2.
The major objective of the EAC is to develop policies and programmes which are aimed at widening and deepening cooperation among the Partner States in Political, Economic, Social & Cultural fields, Research and Technology, Defence, Security, Legal and Judicial Affairs.3
To deepen and widen such cooperation, the EAC Partner States have undertaken to establish a Customs Union, Common Market, Common Currency and ultimately the Political Federation.4 The Customs Union and the Common Market have been established and are in the process of operationalisation.5
*LL.B (Mzumbe); LL.M (UDSM); PGD – LP (LST) Assistant Lecturer, Moshi Co-operative University [MoCU], Advocate of the High Court of Tanzania and courts subordinate thereto. e-mail: firstname.lastname@example.org / email@example.com 1 On November 30th, 1999 Heads of State for the Republics of Kenya, Uganda and the United Republic of Tanzania (hereinafter “the URT”) signed a Treaty to revive the integration. These founding members of the EAC were, later on, joined by the Republics of Burundi and Rwanda in 2007. 2 For further details See: the Preamble of the Treaty for the Establishment of the East African Community, 1999 (hereinafter to be referred to as the “EAC Treaty”). 3 See: The EAC Treaty, Article 5 (1). 4 Ibid, Article 5 (2). 5 The Customs Union has been established by virtue of the Protocol for the East African Community Customs Union, 2004 which became operational in 2005 and the Common Market has also been established by virtue of the Protocol for the East African Community Common Market, 2009 which became operational in 2010.
The Common Market in the EAC comes with four freedoms. The freedoms are on movement of labour, services, goods and capital. It is the freedom concerning movement of labour that is subject to analysis. The analysis is with reference to the right of equal treatment which carries, with it, the requirement of non-discrimination. Notably, the legal frameworks of the EAC and Tanzania are subject to the analysis. Preceding the analysis is a brief history of EAC, as a regional economic integration. Thereafter, the EAC Legal Framework on free movement of workers and nondiscrimination rule is analysed. The analysis goes further to the national laws of the Partner States, where the laws of Tanzania are analysed.6
2.0 The EAC Economic Integration: A Brief History EAC, as an economic integration, has a very long history.7 The economic ties between the EAC Partner States are said to have been there even before colonialism. However, the formal economic and social integration in the East African Region commenced with, among other things, the construction of the Kenya-Uganda Railway.8
Thereafter, there was established the Customs Collection Centre in 1900; the East African Currency Board 1905; the Postal Union 1905; the Court of Appeal for Eastern Africa 1909; the Customs Union 1919; the East African Governors Conference 1926; the East African Income Tax Board 1940 and the Joint Economic Council 1940.9
During this epoch, the East Africans were much connected with common services.10 The common services allowed workers from the then three Member States to freely move within the territories of each country. The services were provided and regulated by the
6 Mainly, the immigration and labour laws of the Tanzania are subject of the analysis. 7 See also: Mvungi EA, The Draft Treaty for the Establishment of the East African Community: Legal Analysis of the Draft Treaty for the Establishment of the East African Community, at page 66. The author accedes to the common ground that the East African cooperation is a century old theme. 8 See also: Kamanga, K., Some Constitutional Dimensions of East African Cooperation at page 5. http://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=11&Itemid=36 01/06/2012. 9 See: The Preamble to the EAC Treaty. 10 The Railway, Air Transport, Harbour, Telecommunications, Higher Education, Posts and several other activities
East African Common Services Organisation Agreements11 and the Treaty for East African Cooperation 1967. The two established, respectively, the East African Common Services Organisation and the EAC as successive joint organisation of the said countries.12
However, Treaty for East African Cooperation 1967 did not last long. Due to several factors13 the Treaty was officially dissolved in 1977. The dissolution came as a subsequent bar to the common services since the assets of the Community were divided between the countries. According to Kamanga, on the economic plane, the dissolution led to economic nationalism.14 In the words of the author, the decline created a havoc leading to a further decline in intra-East African trade and thus undermining the bedrock of the common market system.15
Nonetheless, the document dissolving the Community contained promising provisions for future co-operation among these States. The Republics of Uganda, Kenya and the URT agreed to explore and identify areas for future co-operation and to make arrangements for such co-operation.16
To serve that purpose, in 1992 the Permanent Tripartite Commission for co-operation between the said Republics and the United Republic was established.17 The Commission worked on behalf of the Republic of Uganda, the Republic of Kenya and the URT. It came with suggestions which moved these States to strengthen their economic, social, cultural, political, technological and other ties.18
11 (1961 – 1966). 12 Ibid. 13 Inter-alia, lack of strong political will; lack of strong participation of the private sector and civil society in the co-operation activities, the continued disproportionate sharing of benefits of the Community by Member States; and lack of adequate policies to address this situation. 14 See: Kamanga, K., Some Constitutional Dimensions of East African Cooperation, at page 11. 15 Ibid. 16 See: Article 14.02 of the Mediation Agreement 1984. 17 See: the Agreement for the Establishment of the Tripartite Commission for the EAC Cooperation, 1993. 18 See: the Preamble to the EAC Treaty.
For their fast balanced and sustainable development, the States determined to establish the EAC, with the Customs Union and a Common Market as transitional stages to, and integral parts thereof, subsequently a Monetary Union and ultimately a Political Federation.19 Thus, the EAC Treaty was signed in Arusha in 1999 for the realisation of these goals. The EAC Treaty provides for, among other things, the Common Market and the Free Movement of Workers within the EAC region.
3.0 The Concept of Non-Discrimination: An Overview Non-discrimination can be well understood through a study of its opposite. Nondiscrimination entails the absence of discrimination. The immediate question would be what discrimination is. Notably, there is no universally accepted definition of the term.
The Oxford Online Dictionary defines discrimination as the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.20 More importantly, it defines the term as treatment or consideration based on class or category rather than individual merit, partiality or prejudice.21
The Discrimination (Employment and Occupation) Convention, 195822 defines the term discrimination as including any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.23 However, according to the Convention, not every distinction amounts to discrimination. The distinction, exclusion or preference that is based on inherent requirements is not to be deemed as discrimination.24
19 Ibid. 20 See: http://oxforddictionaries.com/definition/discrimination (27/03/2012). 21 Ibid. 22 Officially named as C111, See: Article 1. 23 See: Article 1(a) of the Convention, the Convention further defines the terms employment and occupation to include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. 24 See: Article 1 (2) of the Convention.
The Migration for Employment Convention25 provides for the non-discrimination of immigrants.26 The Convention imposes an obligation on Member States to apply without discrimination in respect of nationality, race, religion or sex, to immigrants who are lawful within their territories, treatment no less favourable than that which is applied to their own nationals. The definitions are vital for the present discussion. In particular discussion discrimination is spotlighted on the ground of nationality in matters of employment and occupation.
4.0 EAC Legal Framework on Free Movement of Workers and Non-Discrimination The EAC is established by the EAC Treaty, 1999. According to the Treaty, the EAC is formed to bring the Partner States to a closer and wider cooperation.27 And to that end, the Partner States have agreed to form the Customs Union, the Common Market, the Monetary Union and ultimately a Political Federation.28 Yet, and as earlier noted, the Customs Union and the Common Market have been formed and are operational.
The Common Market of the EAC comes with the free movement of workers. The provisions regarding this freedom are as herein-under discussed;
4.1 Free Movement of Workers in the EAC The right to free movement of workers, in the EAC, is guaranteed by the Protocol for the Establishment of the East African Common Market and more specific on the Common Market for the East African Community (Free Movement of Workers) Regulation. Prior the conclusion of this Protocol, the aspect of free movement of workers was only contained in the EAC Treaty. The EAC Treaty provides, inter-alia, for the establishment of a Common Market for the Partner States.29 Within the Common
25 No. 94 of 1949. 26 See: Article 6. NB: The Convention only applies to lawful immigrants. 27 See: Article 5. 28 Ibid, Sub-Article (2). 29 See: Article 76
Market, the EAC Treaty provides for the free movement of labour, goods, services, capital and the right of establishment.30
The EAC Treaty vested the powers on the Partner States to conclude a Protocol on a Common Market.31 The EAC Treaty further defines the scope of co-operation.32 It provides for the Partner States agreement to adopt measures to achieve the free movement of persons, labour and services and to ensure the enjoyment of the right of establishment and residence of their citizens within the Community.33 For this purpose, according to the EAC Treaty, the Partner States agreed to conclude a Protocol on the Free Movement of Persons, Labour, Services and Right of Establishment and Residence at a time to be determined by the Council.34
The Protocol on the Free Movement of Persons, Labour, Services and Right of Establishment and Residence was indeed concluded by the Council on 2009.35 The Protocol provides for the establishment of the Common Market for the EAC.36
In accordance with the provisions of Articles 76 and 104 of the EAC Treaty, the Protocol provides for, inter-alia, the free movement of goods; the free movement of persons; the free movement of labour; the right of establishment; and the right of residence. 37
To achieve the free movements, the Partner States have agreed to take several measures. These include the elimination of tariff, non‐tariff and technical barriers to trade; harmonisation and mutually recognizance of the standards and implementation of a common trade policy for the EAC.38 The Partner States have, as well, agreed to ease
30 Ibid, under Sub-Article (2) it is provided that the establishment of the Common Market shall be progressive and in accordance with schedules approved by the Council. 31 Ibid, Sub-Article (4) 32 See: Article 104 33 Ibid 34 Ibid, Sub-Article (2) 35 The Protocol for the Establishment of the East African Common Market, 2009 36 See: Article 2 and Article 10 (1). 37 Ibid, Sub Article 4 (a, b, c, d & e). 38 Ibid, Sub-Article (2) (a).
cross‐border movement of persons and eventually adopt an integrated border management system.39
The measures agreed by the Partner States extends to the removal of the restrictions on movement of labour, harmonisation of the labour policies, programs, legislation, social services, providing for social security benefits and establishing of the common standards and measures for association of workers and employers.40 The other measure includes the establishment of employment promotion centres, adoption of a common employment policy and the removal of restrictions on the right of establishment and residence of nationals of other Partner States in their territory.41
The Protocol contains several annexes. Amongst them is the East African Community Common Market (Free Movement of Workers) Regulation.42 According to this Regulation, the purpose of its enactment is to implement the provisions of Article 10 of the Protocol and to ensure that there is uniformity among the Partner States in the implementation of the Article.43 The Regulation is analysed in the following part.
4.2 Legal Framework on Non-Discrimination and Equal Treatment in the EAC The EAC Treaty and the Protocol for the Establishment of the EAC Common Market, among other things, provides for the principles of non-discrimination and equal protection of migrant workers. The basis of the two principles is the Common Market.
As earlier stated, the Common Market for the EAC comes with, among other things, the free movement of persons, workers, goods and services, capital and the right of establishment.44 Thus, the principles of non-discrimination and equal treatment are set as conditions precedent towards the realization of the free movement of workers and their right of establishment. Non-discrimination principle forms part of the Protocol for
39 Ibid, Sub-Article (2) (b). 40 Ibid, Sub-Article (2) (c). 41 Ibid, Sub-Article 2(d). 42 Regulation 1. 43 Regulation 2. 44 See: Article 76 and Article 104 of the EAC Treaty.
the Establishment of the EAC Common Market. The Protocol provides for; inter alia, the Principles of the Common Market.45 According to it, the Common Market shall be guided by the fundamental and operational principles of the EAC as enshrined in Articles 6 and 7 of the EAC Treaty.46
On the other hand and without prejudice to these principles, the Partner States have undertaken, inter-alia, to observe the principle of non‐discrimination of nationals of other Partner States on grounds of nationality.47 This is in relation to employment, remuneration and other conditions of work and employment.48
Consequently, free movement of workers entitles a worker to apply for employment and accept offers of employment actually made; move freely within the territories of the Partner States for the purpose of employment; conclude contracts and take up employment in accordance with the contracts, national laws and administrative actions, without any discrimination.49
The worker is also entitled with the stay in the territory of a Partner State for purposes of employment in accordance with the national laws and administrative procedures governing the employment of workers of that Partner State.50
The entitlement extends to the workers enjoyment of the freedom of association and collective bargaining for better working conditions and the rights and benefits of social security as accorded to the workers of the host Partner State. 51 Non-discrimination
45 See: Article 3. 46 Ibid, the principles includes, among other things, good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. 47 Ibid, Sub-Article (2) (a&b). 48 See: Article 10 (2) of the Protocol, this is done as a guarantee of the free movement of workers. 49 Article 10 (3) (a, b, & c) 50 Ibid, (d) 51 Ibid (e&f), for the purposes of the implementation of subparagraph (f) of paragraph 3, the Council has been tasked to issue Directives and make Regulations on social security benefits. Yet, the Directives have not been issued nor have the Regulations been made.
Rule, under the Protocol, extends to the migrant workers’ spouses, children and dependants.52
The Protocol has also set a duty on the office responsible for employment in the Partner State. The office, by whatever designation, is required to facilitate a citizen of another Partner State, who seeks employment in the Territory of that Partner States, with the same assistance as would be accorded to its citizens.53
The Protocol sanctions the applicability of the national and administrative laws and procedures of a Partner State where the principal aim or effect is to deny citizens of other Partner States the employment that has been offered.54 As it appears, the provisions of the Protocol take precedence in the case of such laws and procedures.55
There are, however, limitations that are set by the Protocol on its applicability.56 The workers free movement does not apply to employment in Public Service save to situations where the national laws and regulations of a host Partner State so permit.57 Similarly, the free movement of workers is subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health.58
The Protocol contains a Regulation which specifically provides for Freedom of Movement of Workers.59 The Regulation also contains provisions for equal treatment of these workers. Under it, the Partner States have guaranteed to ensure non
52 See: Article 10 (5 & 6). The Protocol gives the right to the spouse and child to be employed as a worker or to engage in any economic activity as a self employed person in the territory of the Partner States. This is subject to age limits (for a child) under the national laws of the Partner States. 53 See: Article 10 (7). 54 See: Article 10 (9). 55 The Protocol, in this respect, is in pari material with the European Union Regulation 492/2011. The only difference is that under the EU Law, the scope is not limited to the employment that has been offered. It covers even the situations where a citizen of the EU initiates the seeking of the said employment. 56 See: Article 10 (10 & 11). 57 Ibid. 58 Ibid, however, the Protocol requires a Partner State imposing limitation under paragraph 11, to notify the other Partner States accordingly. 59 The East African Community Common Market (Free Movement of Workers) Regulation, Annex II to the Protocol, The Regulations applies to workers; spouses of workers; and children of workers who are citizens of the Partner States (see: Regulation 4).
discrimination of the workers of the other Partner States on basis of their nationalities and more specifically in relation to employment, remuneration and other conditions of work and employment.60 The worker is entitled to apply for employment and accept the offer thereof; move freely within the territories of Partner States for purposes of employment; conclude contracts without any discrimination; stay in the territory; enjoy the freedom of association and collective bargaining; and enjoying the rights and benefits of social security similarly to the workers of the host States.61
According to the Regulation, a citizen of a Partner State who seeks to enter or exit the territory of another Partner State as a worker, shall do so at entry or exit points designated in accordance with the national laws of the Partner State. He/she is required to comply with the established immigration procedures.62
Specifically, the Regulation requires the citizen to present to the immigration officer a valid common standard travel document or a national identity card where a Partner State has agreed to use a machine readable and electronic national identity card as a travel document.63 The worker is also required to declare all the information required for entry and exit; and present a contract of employment to the immigration officer. 64
Upon fulfillment of these requirements, shall be issued with a pass which shall entitle him to enter into the territory of the host Partner State and stay for a period of up to six months for purposes of completing the formalities for obtaining a work permit. 65 The spouse or child of the migrant worker shall be issued with a pass of a period not exceeding six months upon fulfillment of the requirements of paragraph 2 (a) and (b) of this Regulation pending completion of formalities to obtain a dependant pass. 66
60 See: Article 10 of Annex II to the Common Market Protocol. 61 Ibid. 62 See: Regulation 5 (1). 63 See: Regulation 5 (2). 64 Ibid, however, the provisions of this Regulation do not apply to the spouse and child of a worker. [See: Regulation 5(3)]. 65 Ibid, paragraph 4. 66 Ibid, paragraph (5).
It is the requirement of the Regulation that the pass issued under it shall be issued without a fee.67 Upon being issued a pass, a worker who has a contract of employment of a period of more than ninety days in the territory of another Partner State is required to apply68 for a work permit.69 In situation where the worker concludes a contract of employment while he is in the territory of the Partner State, he shall apply for the work permit within fifteen working days from the date of concluding the contract. 70
In case the worker is issued with the work permit, the duration of the work permit issued should not exceed the duration of the contract of employment or the duration of the validity of the common standard travel document presented.71 In situation of cessation or changing of the employment, in respect of which the work permit was issued, worker is required to inform the competent authority, apply for a pass or else leave the territory of the Partner State or seek for another permit.72 For all these situations, the notification and application is supposed to be done within fifteen days.73
The Regulation also addresses the access to employment opportunities by the citizens of the EAC Partner States.74 It requires the Partners States to endeavour to collect and disseminate information on job vacancies and put in place labour market information systems to facilitate access to employment opportunities by the citizens of the Community.75 To that end, Partner States are required to make sure that private agencies involved in the collection and dissemination of information on job vacancies
67 Ibid, paragraph (6). 68 To the competent authority. 69 See: Regulation 6. According to it, the application is supposed to be done within fifteen working days from the date of entry into the territory of the host Partner State. The application for a work permit is supposed to be supported with a valid common standard travel document or a national identity card, where that Partner State has agreed to use the national identity card as a travel document; the contract of employment and any other document the competent authority may require. 70 Ibid, paragraph (3). 71 Ibid, paragraph (8). 72 Ibid, paragraphs (11, 12 & 13). 73 Ibid, this is in case of change of employment. 74 See: Regulation 12. 75 Ibid, Sub-Regulation (1)
and facilitation of citizens’ access to employment opportunities, are registered with the competent authority. 76
5.0 Free Movement of Workers, Non-Discrimination and the Tanzania Labour and Immigration Laws The right of free movement of workers, as discussed above, encompasses within it the concept of non-discrimination. Consequently, the Partner States laws and administrative actions are not supposed to be discriminatory and restrictive. The labour and immigration laws of Tanzania are analysed focusing on the right to free movement of the workers and non-discrimination principles guaranteed at the EAC Level.
Aspects of labour and employment relations in the Tanzania are principally governed by National Employment Policy (NEP),77 the Employment and Labour Relations Act (ELRA),78 National Employment Promotion Services Act (NEPSA),79 the Labour Institutions Act (LIA),80 the Immigration Act81 and several other laws. Together, they constitute the Labour, Employment and Immigration laws. The Policy and the Laws addresses various aspects. Inter-alia, they address the access of employment in the Tanzania by non-citizens.
(a) The National Employment Policy, 2008 (NEP) The National Employment Policy (NEP), 2008 revises the National Employment Policy 1997.82 The Policy came into existence because of the employment challenges facing
76 Ibid, Sub-Regulation (2), there is also the requirement that The Secretariat (for the EAC) is required to collaborate with the competent authority of the Partner State to share and exchange information concerning job opportunities, employment statistics and other labour matters. [See: Sub-Regulation (3)]. 77 Of the year 2008. 78 Act No. 6 of 2004.[Cap 366 of the Laws of Tanzania] 79 Act No. 9 of 1999 [Cap 243 R.E. 2002]. 80 Act No. 7 of 2004. [Cap 300 of the Laws of Tanzania] 81 Act No. 7 of 1995 [Cap 54 RE 2002]. 82 The review was necessary to reflect the changes brought by the new Labour and Employment regime and also to allow the accommodation of the circumstances brought by the Global social and economic changes. See: Sylvester, M., Free Movement of Workers and the Right to Equal Treatment in the EAC Common Market (supra)
Tanzania.83 The challenges, according to the Policy, call for an urgent need to create productive employment through a multi-pronged employment generation strategy which emphasizes sustainable employment promotion as a national priority agenda.84
The Policy acknowledges that the current availability of Labour Market Information system (LMIs) is grossly inadequate in many areas and lacking in other areas.85 Therefore, the Policy objective is to have a robust LMIs, that adequately informs planning and decision making processes.86 The creating of the robust LMIs is for the purposes of, inter-alia, developing networks with other Regional and Global counterparts to enable free exchange of LMI and thereby facilitate the placement of Tanzanians in jobs across Africa and the return of expert in the Diaspora.87
The Policy and the Employment of Foreigners in Tanzania The Policy addresses the employment of foreigners in Tanzania.88 According to it, the government recognizes the role of foreign workers. However, this is only for the use of technology and skills that are not available locally, particularly those foreign workers who will facilitate the acquisition of the required skills by local personnel, through training for skills transfer in strategic areas.89
In its statement, the Policy strains that the employment of foreigners in Tanzania should be for the purposes of addressing scarce and critical skills gaps demanded by emerging investments.90 Therefore, the government, in collaboration with the private sector and other stakeholders has resorted to establishing mechanisms to provide employment permits only to foreigners with appropriate skills and technical expertise that is not readily available in Tanzania.91
83 The Rationale and Justification Statement 84 See: Paragraph 2.1 of the Policy. 85 See: Paragraph 3.3. 86 Ibid. 87 Ibid, Policy Statement 5. 88 See: Paragraph 3.13 on Rationalising the Employment of foreigners in Tanzania. 89 Ibid. 90 Ibid, Statement 1. 91 Ibid.
The Policy goes further requiring the employers to put in place and implement mechanisms for ensuring skills transfer from foreign workers to local workers.92 In doing so, these employers are required to limit the duration of stay of the foreign workers in the country.93 For the sake of regulating foreign employment in Tanzania, the Policy provides that the processing and issuance of work permits will be harmonized and streamlined and that LMI and services will be developed to supply information on available skills and the need for foreign skills in Tanzania.94
According to the Policy, the government should also safeguard the basic rights and interests of workers, with regard to International Labour Standards.95 These standards include the principle of non-discrimination and equality of treatment and opportunities.96
(b) The National Employment Promotion Services Act, 1999 (NEPSA) NEPSA97 defines a citizen as a citizen of the URT and a foreigner as any person who is not a citizen of the URT.98 Part VI of the Act provides for employment of foreigners.99 The Act establishes category of works which no employer is supposed to employ a foreigner.100 No employer is required to employ a foreigner in any employment or class of employment which the Minister may from time to time by notice in the Gazette declare to be employment or class of employment reserved for citizens only.101
92 Ibid, Statement 3. 93 Ibid. 94 Ibid, Statement 4. 95 Ibid, Policy Statement 2. 96 Ibid. 97 [Cap 243 RE 2002]. 98 See: Section 2. 99 See: Sections 24-27 however the law exempts the foreigners who are self-employed; employed by nonprofit making organisations of a religious or charitable nature; exempted from the application of the provisions of this Part by the Minister by order in writing. (Section 24). 100 See: Section 25. 101 Ibid, it should be noted that any employer who employs any foreigner in contravention of Sub-Section (1) commits an offence and is liable on conviction, to a fine not less than one million shillings or to imprisonment for a term not less than six months, or to both such fine and imprisonment.
In case of employment of a foreigner, the Act provides for the obtaining of a work permit as a condition precedent.102 Therefore, no person can employ any foreigner, and no foreigner can take up any employment with any employer, except under and in accordance with a work permit issued to such foreigner.103 Thus, an application has to be lodged to the Commissioner104 On receipt of the application, the Commissioner, before recommending the application to the Director of Immigration Services, is required to satisfy himself that all possible efforts have been explored to obtain a local expert but to no avail.105
In case a foreigner has obtained such a permit, the NEPSA further requires the employing organisation to establish effective training programmes to produce local expert. This is in order to undertake the duties of such foreign expert.106 Thus, under NEPSA, the workers from other EAC Partner States can only work in Tanzania on the basis of “a work to hand-over to the indigenous”.
(c) The Immigration Act, 1995 On the other hand and similar to the NEPSA, the Immigration Act,107 which applies both in Tanganyika and Zanzibar, defines an alien immigrant as any person who is not a citizen of Tanzania.108 It regards any other person, not a citizen of Tanzania, as an alien immigrant.109 The Act further prohibits the undertaking of certain activities without a permit.110
102 See: Section 26. 103 Ibid, it should be noted also, that, any person who contravenes the provisions of this section commits an offence and is liable on conviction, to a fine not less than one million shillings or to imprisonment for a term not less than six months or to both such fine and imprisonment. 104 Section 27 of the Act 105 See: Section 26 (2). It should also be noted that the Commissioner has powers to refuse the application. In such cases, he is required to write the reasons thereof. Any person aggrieved by the refusal can appeal to the Minister. 106 See: Section 26 (6). 107 [Cap 54 RE 2002]. 108 See: Section 3. 109 This definition applies mutatis mutandis to the citizens of the Republics of Kenya, Uganda, Rwanda and Burundi. 110 See: Section 16 titled: prohibition on employment, study, etc., without permit.
Consequently, no person is allowed to engage in paid employment under an employer resident in Tanzania except under a permit issued in accordance with the provisions of the Act.111 According to the Act, all foreign workers are required to obtain work-permit class B.112This, however, is subject to the condition that the employer shall give security for the permit before that person and his dependants, if any, enters Tanzania or before he is granted the permit.113 The permit may be attached with conditions114 including the area for residence, the kind of occupation or business and some other restrictions, prohibitions or limitations.115
The obtaining of a permit is also subject to the payment of fee. The work permit, if obtained, is valid only for two years and may be renewed only if no Tanzanian has yet been found to fill the vacancy. Where a permit holder fails or ceases to be engaged in the employment or is engaged in the employment other than that specified in the permit such permit will cease to be valid and consequently, the presence of that person in the Tanzania shall be unlawful.116
The Act has created certain offences for purposes of limiting labour immigration. It is an offence if a foreigner engages in any employment or occupation without a valid permit. And similarly, it is an offence if a person employs any person who he knows or has reasonable cause to believe is not in possession of a residence permit.117
(d) The Employment and Labour Relations Act, 2004 (ELRA) The ELRA118 provides for, inter-alia, the basic employment standards and the core labour rights. ELRA defines an ”employee” as including an applicant for
111 Ibid, Sub-Section (1). 112 See: Section 20. 113 Ibid. 114 Ibid, Sub-Section (2). 115 See: Section 19 (2). 116 Section 20(3), however, this is subject to some other provisions of the Act which gives a grace period for notifying and re-applying for the permit. 117 See: Section 31. 118 Act No. 6 of 2004.
employment.119 It applies to all employees including those in public service.120 However, the ELRA does not apply to certain category of workers.121 The ELRA sets a duty upon an employer to ensure that he promotes an equal opportunity in employment and strives to eliminate discrimination in any employment policy or practice.122
The grounds on which discrimination is forbidden are therefore stated out.123 The grounds cover the aspects of: colour; nationality; tribe or place of origin; race; national extraction; social origin; political opinion or religion; sex; gender; pregnancy; marital status or family responsibility; disability; HIV/Aids; Age; or station of life.
However, the ELRA circumvents the aspect of non-discrimination on grounds of nationality. It provides, inter-alia, that it is not discrimination to employ citizens in accordance with the NEPSA.124
6.0 Conclusions and ways forward From the analysis, it can be concluded that non-discrimination of non-nationals is a major prerequisite in the realisation of the right to free movement of workers in the EAC. Workers would be able to move freely within the territories of the Partner States only if the national laws and administrative actions are adjusted to suit the spirit of the EAC integration in this particular respect.
EAC Partner States have guaranteed to ensure non-discrimination of the workers of the other Partner States on basis of their nationalities and more specifically in relation to employment, remuneration and other conditions of work and employment. However,
119 See: Article 7(9). 120 See: Section 2 (1). 121 Ibid, Paragraphs (i, ii, iii & iv). The law exempts the members of the Tanzania Peoples Defence Force; Police Force; Prisons; and the National Security except in respect to discrimination, forced labour and child labour where it applies to the aforementioned categories( See section 2(3) of ELRA, 2004 122 See: Section 7. And, as a way of making this provision work, the employer is required to register, with the Labour Commissioner, a plan to promote equal opportunity and to eliminate discrimination in the work place. 123 Ibid, Sub-Section (4). 124 Ibid, Sub-Section (6) (c).
as it appears, Tanzanian laws and administrative actions restrict the free movement of workers on the basis of nationality. Whether the same is discrimination or not to nonnationals of other Partner States, it is an endless debate of which the author has no intention to host.
For the realisation of the free movement of workers in the EAC, the EAC has to take measures including the amending of the Protocol for the Common Market for the EAC, in particular, the East African Common Market (Free Movement of Workers) Regulations.125 The latter leaves the implementation process in accordance with the national laws.
Though the Regulation provides for the non-applicability of the national laws and administrative actions where they are restrictive and discriminatory, there is no mechanism set to make follow ups. The amendment has to cater for the establishment of the Institution which will act as a watchdog over this aspect. And finally, the amendment has to cater for Partner States liability in cases of non-compliance to the decisions of the aforementioned Institution.126
125 Annex II to the EAC Common Market Protocol. 126 In this case, reference should be made to the EU Commission. Similarly, the EAC Partner States may amend the EAC Treaty to cater for the Doctrine of direct effect; to provide for the EAC Citizenship and to integrate the migration system.
REFERENCES: Treaties and Statutes: The Discrimination (Employment and Occupation) Convention, 1958 The Migration for Employment Convention, 1949 The Treaty for the Establishment of the East African Community, 1999 The Protocol for the Establishment of the EAC Common Market, 2009 The East African Common Market (Free Movement of Workers) Regulation, 2009 Regulation (EU) No. 492/2011 on Freedom of Movement for Workers within the European Union The Employment and Labour Relations Act, No. 6 of 2004.[Cap 366 of the Laws of Tanzania] The National Employment Promotion Services Act, No. 9 of 1999 [Cap 243 R.E. 2002]. The Labour Institutions Act, No. 7 of 2004 [Cap 300 of the Laws of Tanzania] The Immigration Act, No. 7 of 1995 [Cap 54 RE 2002]
Policy: The National Employment Policy, 2008
Books: Broberg, M, & N.H. Christensen, Free Movement in the European Union: Cases, Commentaries and Questions, DJOF Publishing: Copenhagen, 2007. Campbell, D & J. Fisher, International Immigration and Nationality Law,(Vol. 3), Martinus Nijhoff; Dordrecht, 1994. Council of Europe, Handbook on the European Non-Discrimination Law, Imprimerie Centrale: Luxembourg, 2010. De Gutcheniere, P et al, (Eds), Migration and Human Rights: The United Nations Convention on Migrant Worker’s Rights, Cambridge University Press: Cambridge, 2009.
Journals: Cholewinski, R., The Human and Labour Rights of Migrants: Visions Equality, Georgetown Immigration Law Journal, Vol 22, No. 2, Washington, 2008.
Fuster, L.J., Council Regulation 1612/68: A Significant Step in Promoting the Right of Freedom of Movement within the EEC, Boston College International and Comparative Law Review (Vol. 11, ISSUE 1), Boston, 1988.
Kamanga, K., ‘Fast-Tracking’ East African Integration and Treaty Law: Pacta Sunt Servanda, Betrayed? Journal of the African and International Law, Vol. 3, Issue No. 3, 2010
Reports: ARRF, Progress, Prospects, and Challenges of the East African Community, A Study Report by Khoti Chilomba Kamanga, Woodynat Designers Limited: Nairobi, 2012.
ILO, Equality at work: Tackling the challenges Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, ILO: Geneva, 2007.
Dissertation and Thesis: Ezekiel, R.B., Compliance with ILO Conventions Concerning Social Security for Migrant Workers in Tanzania: A critique with emphasis on equality of treatment, LL.M Dissertation, University of Dar es salaam, 2009.
Paper: Kamanga, K., (2004), Some Constitutional Dimensions of East African Cooperation, Paper prepared for presentation to Kituo cha Katiba within the ‘State of Constitutional Development in East Africa’ project
Websites: Person, S., & H. Isakson., A Non-discriminatory Approach to Market Regulations in the EU,http://www.europesworld.org/NewEnglish/Home_old/CommunityPosts/tabid/ 809/PostID/2979/AnondiscriminatoryapproachtomarketregulationsintheEU.aspx retrieved on Monday, 6th July 2012.