Contract of Service and Contract for Service in Tanzania

In any dispute either of interest, right, or tortuous (vicarious) liability it is important to define what a contract of service is, since it is from that relation where a person working for another qualify as employee as distinguished from an independent contractor; and his or her purported master as an employer thus creating a contract of service (employment) between the two, hence be able to enforce rights and obligation accruing under such relation.

 I accordingly agree and substantiate to the view that The

Emloyment and labour relation Act, 2004 (hereinafter referred to as ELRA) unlike its predecessor [i.e The Employment Act, Cap 336] does not elucidate what a contract of service is as opposed to the contract for service thus, render it cumbersome to draw a demarcation between the two ultimately creating a misnomer on how to proceed in determining the rights and duties of the parties thereto.

  Under The employment Act, Cap 336 the term contract of service is defined to mean interlia 'any contract whether in writing or oral, whether express or implied to employ or to service as an employee for any period of time or number of days to be worked, or to execute any task or piece of work or any journey….' . 

In essence, The employment Act does not help much in contemporary labour disputes since it is repealed, save for transitional disputes which rose before December, 2006.

  Some case laws and legal texts have strived to throw some light on the concept as exemplified by Keith Abbott, et al. who argues that it is a relation of employer and employee; the view which concur with those of the learned author Dr. Mtaki.

The focal issue for determination is how the employee in Tanzania will establish the contract of service, thus the discuss hereinafter dwells in extenso on the legal pigeon holes availed to the alleged employee to establish a contract of service as follows;

Critically speaking, the employee may establish the existence of a contract of service under the purview of section 61(1) of Labour Institution Act, 2004 [hereinafter referred to as LIA], which in essence codifies some of the common law tests of determining contract of service as follows;

 First, the control test; the alleged employee need to prove that the manner in which he or she performed his or her work and time was subject to the control and direction of the purported employer thus, he or she worked under a contract of service.

Second, the organization (integration) test; here the alleged employee must establish that the work he or she did was an integral part of the business of the purported employer. This test is vital where the employee's work is not subject to direct control of the employer, for instance professional employees like Doctors et cetera.

Third, the Multiple (economic reality) test; under this test a number of factors are taken into account such as payment of remuneration by way of wages or salary, prohibition on working for competitors, supply of uniform and equipments, lack of personal business risk on the part of the worker, work is done at the employer's, also it may be contended by the alleged employee that he or she is economically dependant on the purported employer.

Fourth, the mutuality of obligation test; the alleged employee should establish to the satisfaction of the court that there existed a legal obligation on both parties to provide work and to do work respectively. Furthermore, the worker may establish that he or she worked for the purported employer only.

Finally, the 280 days rule; under common law and the transitional employment law a worker once established that he or she had worked for a person for 280 days annually qualified as employee thus the contract of service exist between the two. In LIA the alleged employee is required to prove only that he or she worked for the presumed employer for 45 hours per month over the last 3 months thus at the expiration of the said time one may be deemed as an employee. 

Conclusively, though section 61 lays down a rebuttable presumption as to the existence of employer-employee relationship somehow it throws some light on how to proceed further thus, together with decided cases especially under common law which lay down various tests as afore examined make it desirable and attemptable for employee in Tanzania to establish the existence of a contract of service.

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Participation and Observation Research Methods

Observation and Participation are research methods used to gather (collect) data for certain purpose. The two methods have similarities and differences on which the discussion below dwells on in extenso as follows;

Starting with differences: Observation process is a systematic viewing of specific phenomenon in its proper setting for specific purpose of gathering data for a particular study, while , under Participation the researcher takes part physically in a research study especially by living with the subjects ( i.e sharing the same lifestyle with the inmates) and that the researcher makes him or herself a member of a group he or she is researching so that he or she can experience what the members of the group experience.

Moreover, under Participation the researcher may be required to get permission or use some maneuver to integrate with the subjects or seek employment in the research site, while, this is not the case with Observation process since the researcher can gather information by just seeing, hearing, and perceiving, thus no need of integrating with the group.

Furthermore, under Participation the researcher may seek clarity by inquiring indirectly without arousing any sense of suspicion from the inmate while, under Observation(especially disguised observation) where the observer is observing in a manner that his or her presence may be unknown to the people he or she is observing thus, hard to get explanation from the inhabitant.

Additionally, an Observation process is more suitable for studying subjects who are unable to articulate meaningfully; for example, studies of children, tribal, animals, birds, deaf and et cetera, while, Participation process becomes hard to apply in this scenario.

Finally; under Observation some inmates are rarely accessible thus difficult to obtain representative sample, while , under Participation such limitation are eliminated; however, under Participation the researcher may lose his or her objectivity by being moved emotionally, contrary to Observation process whereas the observer observes in a disinterested manner.

Coming to the similarities: 

Firstly; both are methods of collecting primary data whereas the researcher must be at the scene of the event either observing or participating in the activities or lifestyle of the sample group of his or her research study.

Secondly; in both process information (data) obtained are contemporaneous (current) and not second hand data thus, highly reliable.

Thirdly; under both method the issue of subjectivity biasness is eliminated since the researcher has the opportunity to substantiate different matter in actual setting.

Finally; the two method are expensive and consumes much time (slowness) sometime, may even risk the life of the researcher where the subject discovers the reality of his or her presence at the scene or subjects' area.

Generally speaking, Observation and Participation looks more similar than different that is why learned author such as Dr. krishnaswami, and C.R Kothari groups Participation method as part and parcel of Observation method, and they name it as "participant-observation" respectively. All in all, the two methods (process) have substantial differences as appraised above. 

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Natural Law (jurisprudence)

By Jaba Shadrack, UDSM - 2008

"The problem with employing natural law theories is that they can denounce legal heresies in the same way as medicine denounced medical heresies. This confirms the tendency towards being conservative or even reactionary. If we had adhered to the Greek concept of natural law we would probably still retain slaves. Moreover, most moral reform in law have stemmed from individuals acting against the contemporary societal mores" (Anonymous). Discuss this statement.

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Natural law, in jurisprudence and political philosophy is referred to as a system of rights or justice common to all human kind and derived from nature rather than that from the rules of society or positive law.

According to natural law proponents, evidently Cicero, a true law is a right reason in agreement with nature and of universal application, unchanging and everlasting. On the other hand, positivist jurists especially Hart contends that natural laws are mere rules of morality.

Generally speaking, legal theories works like a bicycle chain i.e they are inter dependant, the learned editor Dr. Doherty. M argues inter alia that natural law seeks to find coherent theory that will check upon an unjust legal system that lacks moral justification; the view that matches squarely with those of Sir Lauterpacht who asserts that it is in the light of natural law that positive law must be interpreted and, if need be, supplemented and corrected. Thus, it is in the light of aforesaid views of the two this essay will dwell in extenso by taking into consideration dynamism, conservatism and reactionary element of natural law theories in various historical eras.

I subscribe to the view that natural law theories in some way are both conservative, and reactionary. Finch, J.D, contends, mutatis mutandis, that it [natural law] can be employed as the vehicle of reform (or even of revolution) or of reaction; it can be used or abused, therefore, in the line of that view it is undisputable truth that natural law theories are dynamic (flexible) and have been employed by individuals from different historical epoch to address, justify or challenge the existing status quo, or societal mores.

Ancient Greek and Roman philosophers contends that natural laws are unchangeable (static) rules, this is contradicted by our understanding of evolution therefore, contemporary practice holds contrary views, and that natural laws must be accompanied with dynamism element as to the dictates of time and societal needs. This approach is justifiable by appraising the historical trends from Classical naturalists (ancient era) to Neo-Kantian naturalists in relation to other jurisprudential schools of thoughts especially, Legal positivism as follows.

In early ages, the conception of the laws of nature revolved around the existing social strata, this is exemplified by proportions of ancient Greek philosophers who centred their ideas to justify the mode of production that was prevailing in their societies (slavery and feudalism). For instance, Plato categorically divided his society into three classes namely as, men of gold (rulers), men of silver (soldiers), and bronze (producing classes). Again, Aristotle who came from the ruling class advocated much on the preservation of peace and the existing classes by observing laws. This conservatism tendency of natural law theories was also evident in Feudal English legal system whereas, the common law was too rigid (conservative) for example it did not recognise principles such as right to set-off, counter-claim, beneficial interest, and tort of negligence, to mention just a few. Moreover, women were discriminated and oppressed in all spheres of life by using natural law theories in justifying such social set up, besides at this historical epoch it was natural for a king (and queen) to be above the law.

However, these conservatism elements shown does not in themselves vitiate the essence of natural law theories, because even during the 18th century and afterwards where legal positivism was at its apex, the same social injustices were evident whereas holding of colonies were justified by positive laws as previously possession of slaves and serfs were justified by natural laws. Additionally, in medieval England, equity laws were administered according to the best conscience of the chancellors founded on the fundamental precepts of prevailing morality, also the common law courts convicted people on the ground that the moral feelings of the community had been outraged by such act.

In 15th to 16th centuries, the natural law theories shifted their attention from national law and promulgated the concept of international law, this is evident among the rationalist school of natural law pioneered by Hugo Grotius whose formulation of principles such as jus gentium, and pacta sunt servanda emerged at a time where intercourse between states through commerce (mercantilism) was emerging thus, his theories came to justify and regulate the social set up, therefore, the element of 'universality' under naturalist theories became self-evident as international law was emerging.

Around 17th and 18th centuries natural law was conceived as an instrument for prevention of autocracy and despotism, this is exemplified by constant political revolutions and nationalism in Europe and America, for example, in America, natural law theory was an important influence on the founders of American government, as evidenced by the principles of the U.S Declaration of Independence which refers briefly on laws of nature citing 'equality and other alienable rights as self-evident". John Locke and other scholars' philosophies of naturalism became a tool of the Glorious revolution, and lied down Bill of rights in England. Moreover, Montesquieu theories of social contract, liberty and separation of power fuelled much the French revolution, and afterward putting in place of The French Declaration of the rights of man and of the citizen, which asserts liberty, property, security, and resistance to oppressions as 'imprescriptible natural rights'.

Again, from the late 18th century natural law theory was a weapon in the battle over government powers to control and regulate economic affairs; defenders of Laissez-faire theory of capitalism some time invoked natural right theories.

In the second half of 18th to the late 19th century natural law theories declined dramatically, partly as a result of sceptical attacks by Geremy Bentham and later John Austin thus, legal positivism and utilitarianism became dominant legal philosophies of the time. However, towards the end of 19th century due to the rise of totalitarian regimes in Europe as Fascism and Nazism which culminated into World War II and led to high inequalities in societies, thus pure positivism failed to solve problems created by new social conditions therefore; this accelerated the revival of natural law theories (i.e. natural law with a variable content).

The revival of natural law thinking was evident in many international legal instruments, and in many countries legal frame work afterwards as follows;

The end of World War II, and the establishment of United Nations (organisation), principles of natural rights (law) were incorporated in the U.N's Charter in 1945 especially 'peace and dignity' on its preamble, also article 38 of the statute of international court of justice cite principles of general application as source of international law; besides, the Universal Declaration of Human Rights (UDHR), 1948 to a large extent incorporates inalienable natural rights.

On municipal level, especially in England and other Commonwealth countries, principles of natural law (justice), are in some instances invoked to test the legality of administrative acts [Anisminic V. Foreign compensation commission and another], decisions of courts of law, recognition of foreign judgements and custom. Other rules emanated from natural law ideas are such as the test of reasonableness, quasi-contracts, privacy against undue encroachment, unjust enrichment (Lord Manifield's formulation), and protection against nationalisation of properties; in the case of Oppenheimer V. Cattermole and cooper (inspector of taxes) Lord Cross held inter alia that " legislation which take away without compensation from a section of the citizen body singled out racial ground all their property.....a law of this sort constitutes so grave an infringement of human right that the court of this country ought to refuse to recognise it as law at all ", subsequently, Lord Morris in Wiseman and another V. Borneman and another, observed that ".....natural justice; it has been said is only 'fair play in action' nor do we wait for direction from the parliament ". In U.S.A, the Supreme Court in the case of Marbury V. Madison (1803) asserted its right to declare any law or action unconstitutional in the light of natural rights embodied in the constitution, this practice is still been followed in U.S courts consistently.

Around 1945-1960s the anti-colonial sentiments in the third world nations by chanting slogans like 'freedom and liberty', 'right to self-determination', 'equality and dignity', et cetera revolved around natural law theories propounded by rationalist scholars. Moreover, currently most of these countries have Bills of rights in their constitutions, essentially, enumerating natural inalienable rights.

Conclusively, it is obvious that most of moral reforms in law arise out of individuals struggling against the existing societal practices for example philosophers , either by the use of prevalent norms or theories or by employing new one, but, not in the way Ross's put it that "like harlot, natural law is at the disposal of every one..." , this is due to the fact that, the purpose of any theory of law is to act as a tool of the ruling class to undermine the ruled, and affirm or fight against any unfavourable practices; this is the case even in legal positivism. All in all, any legal theory is based on justice as perceived at the material time, and aims at the realisation of the common good, and it consists of mainly two components namely as natural and positive law theories. Both elements are indispensable for whereas natural law provides the foundation, positive law supplies the form of the law. Therefore, natural law constitutes the normative basis of positive law, as Doherty, M asserts that "natural law reminds us that law is a social endeavour rather than a static fact", thus in my submission, law and morality overlaps in certain occasions.

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