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AN OVERVIEW ON IMPORTANT FEAUTURES OF THE PROTOCOL ON INTELLECTUAL PROPERTY RIGHTS TO THE AGREEMENT ESTABLISHING THE AFRICAN CONTINENTAL FREE TRADE AREA (AfCFTA)

March 8, 2023/in Latest on 2023 /by amicidesign-veema

Establishment of the Protocol

The protection and enforcement of intellectual property rights (IPRs) is critical for achieving the objectives of the African Continental Free Trade Area (AfCFTA). Particularly the objectives regarding the sustainable and inclusive socio-economic development, structural transformation, industrial development competitiveness of economies with the continent and global market, through the protocol on Intellectual Property rights these objectives can be easily implemented.

The final draft of the protocol on Intellectual Property rights to the agreement establishing the African Continental Free Trade was adopted in Libreville, Gabon in October 2022.

The Protocol was adopted under the provision of Article 7(1) (a) of the Agreement Establishing the African Continental Free Trade Area, which requires State Parties to the Agreement Establishing the African Continental Free Trade Area to enter into negotiations on intellectual property rights.

The Protocol aims to establish harmonized rules and principles on intellectual property rights, to boost intra-African trade in line with the objectives of the Agreement Establishing the African Continental Free Trade Area and promoting economic growth and development within the African continent, to ensure that, measures to protect and enforce intellectual property rights do not constitute barriers to trade.

The Protocol seeks to ensure that, the implementation of multilateral and bilateral treaties relating to intellectual property rights, prioritise African interests and the protection of African innovations and creativity in Africa.

Objectives of the Protocol

Subject to Article 2 of the Protocol, the general objective is to support the realization of the objectives of the African Continental Free Trade Area (AfCFTA) by establishing harmonized rules and principles on the promotion, protection, cooperation, and enforcement of intellectual property rights.

The Protocol further provides for specific objectives subject to Article 2 (1) (a) (b) (c) (d) (e) (f) (g) (h) (i), which are:

To support intra-Africa trade;
To promote African innovation and creativity and deepen intellectual property culture in Africa;
To promote coherent intellectual property rights policy in Africa;
To contribute to the promotion of science, industrialisation, investment, digital trade, technology, and technology transfer, and regional value chains;
To promote and ensure a harmonized system of intellectual property protection throughout the continent;
To encourage African positions on intellectual property rights, support and promote creative and cultural industries by setting up a legal framework while securing and giving incentives that would help in their development; and
To contribute access to knowledge and supporting public health needs and priorities of State Parties.

Scope and Limitation of the Protocol

The Protocol applies to all categories of intellectual property rights which include plant variety protection, geographical indications, marks, patents, utility models, industrial designs, undisclosed information including trade secrets, layout designs (topographies) of integrated circuits, copyright and related rights, traditional knowledge, traditional cultural expressions, and genetic resources, and emerging technologies and other emerging issues on intellectual property rights, subject to Article 3 of the Protocol.

However, the rights conferred by intellectual property shall not extend to acts concerning a product covered by or incorporating intellectual property rights, that has been introduced on the AfCFTA market by the right holder or with the right holder’s consent, as provided under Article 7 (1) of the Protocol.

Cooperation on Intellectual Property Rights by the State Parties

Subject to Article 22 and 23 of the Protocol, State Parties shall cooperate in the field of intellectual property rights to support intra-African trade, regional value chain, industrialisation and economic growth.

Enforcement of Intellectual Property Rights

Subject to Article 25, all State Parties shall ensure that intellectual property rights holders have the legal mechanism to take the initiative in the enforcement of their intellectual property rights, the importance of procedures for enforcement of intellectual property rights in striking the balance between the interest of right holders and consumers, the procedures for enforcement of intellectual property rights take into account the administrative, technological and financial capacity.

It is important to note that, the protocol subject to Article 27, requires the State Parties to put in place laws allowing judicial authorities to grant injunctions on cases of disputes concerning the infringement of intellectual property rights including the conditions for the grant of injunctions.

Establishment of Committee on Intellectual Property Rights

Article 11 of the AfCFTA Agreement, empowers the council of Ministers to establish the Committee on Intellectual Property Rights. The Committee shall carry out such functions as may be assigned to it by the Council of Ministers to facilitate the implementation of the Protocol, as provided by Article 30 (1) of the Protocol.

The Committee may establish such subsidiary bodies as it considers appropriate for the effective discharge of its functions.

Establishment of the Afcfta Intellectual Property Office

The Protocol provides for establishment of AfCFTA Intellectual Property Office subject to the Provision of Article 31 (1) of the Protocol. The Intellectual Property Office shall be composed of the AfCFTA Secretariat, Africa Centre for Disease Control and Prevention (Africa CDC) and the African Medicinal Agency (AMA).

Subject to Article 31 (2) of the Protocol, the Council of Ministers shall recommend to the Assembly of Heads of State and Government of the African Union, the adoption of the appropriate governance and administrative structures, functions of the office, as well as, rules and procedures for the administration and operation of the office.

Entry Into Force and Application of the Protocol

It is worth to note that, the Protocol shall be open for signature and ratification by State Parties, in accordance with their respective constitutional procedures, and the Protocol shall enter into force in accordance with the provisions of Articles 23 (2) and 23 (4) of the AfCFTA Agreement, as provided under Article 35 of the Protocol.

Each State Party shall implement the provisions of this Protocol upon its entry into force. The Protocol shall be implemented by the State Party who is regarded as a least developed country within three years from its entry into force, as provided under Article 36 of the Protocol.

Dispute Settlement, Conflict, or Inconsistency with Other Agreements

The Protocol further provides for a solution in case there is any conflict and inconsistency between the provisions of the Protocol and a regional intellectual property agreement, shall be resolved in accordance with Article 19 of the AfCFTA Agreement, as provided by Article 37 of the Protocol.

Further, in case of any dispute arising from the enforcement of the Protocol, such dispute shall be settled in accordance with the AfCFTA Protocol on the Rules and Procedure on the Settlement of Disputes, as provided under Article 38 of the Protocol.

Conclusion

Since the Protocol aims at protection and enforcement of intellectual property rights (IPRs) in Africa, the best will depend on the negotiation, adoption and implementation of the IP Protocol, which can be achieved by domestication of the protocol, supported by strong political will of the member states, to ensure efficiency and smooth implementation. The best outcome is to have a Comprehensive Regional Regulatory Framework in respect to the Intellectual Property Rights (IPRs).

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APPLICABILITY OF DIVORCE MEDIATION IN TANZANIA

February 22, 2023/in Latest on 2023 /by amicidesign-veema

The Black’s Law Dictionary 10th Edition defines Divorce as the legal ending of a marriage that is, the dissolution of a marriage by a Court.

What Renders a Marriage Broken Down
For a marriage to be dissolved the Court must satisfy itself, with evidence that, the marriage has irreparably broken down. The Law of Marriage Act,1971 Under Section 107 Subsection 1 and 2(a-i) provides for the evidence to be furnished before the Court as proof that the marriage has broken down as follows:

Section 107 Subsection 1 and 2(a-i)

1. In deciding whether or not a marriage has broken down, the court shall have regard to all relevant evidence regarding the conduct and circumstances of the parties and, in particular
  - shall, unless the court for any special reason otherwise directs, refuse to grant a decree where a petition is founded exclusively on the petitioner’s own wrongdoing; and
  - shall have regard to the custom of the community to which the parties belong.
2. Without prejudice to the generality of subsection (1), the court may accept any one or more of the following matters as evidence that a marriage has broken down but proof of any such matter shall not entitle a party as of right to a decree
  - adultery committed by the respondent, particularly when more than one act of adultery has been committed or when adulterous association is continued despite protest;
  - sexual perversion on the part of the respondent;
  - cruelty, whether mental or physical, inflicted by the respondent on the petitioner or on the children, if any, of the marriage;
  - wilful neglect on the part of the respondent;
  - desertion of the petitioner by the respondent for at least three years, where the court is satisfied that it is wilful;
  - voluntary separation or separation by decree of the court, where it has continued for at least three years;
  - imprisonment of the respondent for life or for a term of not less than five years, regard being had both to the length of the sentence and to the nature of the offence for which it was imposed;
  - mental illness of the respondent, where at least two doctors, one of whom is qualified or experienced in psychiatry, have certified that they entertain no hope of cure or recovery; and
  - change of religion by the respondent, where both parties followed the same faith at the time of the marriage and where according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage.

A Marriage may meet the requirements for divorce, however there are other pertinent issues that may need to be determined by the Court . These issues include the following;

Child maintenance
Child custody
Property division
Spouse Maintenance

The above issues may be settled by the parties out of court through divorce mediation, before the spouse petition for separation or divorce is lodged or during the divorce proceedings, before the judgement is delivered by the Court. Once the spouses have settled the aforementioned issues through mediation the Court will be left to decide on the issue of divorce only.

Divorce Mediation
Divorce mediation involves the spouses where a third party (mediator) convenes a meeting to assist the parties work through a divorce settlement on pertinent issues. The mediator will gather information from both sides, analyze the information and help the parties reach a fair settlement. The mediation process may occur in one session or multiple sessions. The parties may have their lawyers during the mediation.

Divorce mediation is not specifically provided for under the Tanzania Law of Marriage Act,1971. However, the Law of Marriage Act, 1971 under Section 106 (1)(f, g) provides that:

a petition for a decree of separation or divorce to contain the terms of any agreement regarding maintenance or the division of any assets acquired through the joint efforts of the parties or, where no such agreement has been reached, the petitioner’s proposals; and
particulars of relief sought.

Furthermore, the Law of Contract Act, Cap 345 gives room for parties to enter into contract/agreement provided the contracts adhere to the requirements of the law. Therefore, when spouses reach a consensus in a divorce mediation, they enter into an agreement, provided that the agreement is in line with the provisions of the Law of Contract Act, Cap 345, the agreement will be valid and legitimate even though it is not specifically provided for under the Law of Marriage Act,1971.

Therefore, in Tanzania parties in a divorce proceeding may opt to settle the issues of child maintenance, child custody, property distribution and spouse maintenance, through mediation and thereafter attach the said agreement to the divorce petition while petitioning for divorce in Court. This will speed up the divorce proceedings since the parties will have settled the pertinent issues through mediation.

Who May Conduct Divorce Mediation

Mediators accredited under Regulation 5 of the Reconciliation, Negotiation, Mediation and Arbitration Practitioners Accreditation Regulations of 2021, can be involved in the divorce mediation process. Therefore, Parties intending to petition for divorce, may select a mediator accredited by the Accreditation panel from the register of accredited mediators.

Benefits of Divorce Mediation

Mediation allows parties to deliberate, agree and make decisions on pertinent issues including child maintenance and custody, spouse maintenance and division of assets on their own, instead of letting the court decide for them.
Divorce Mediation agreements are not binding unless the spouses agree to it. Where the Parties do not agree in divorce mediation, they can seek the Court’s determination of the issues in dispute through the divorce petition.
Parties may negotiate on selected issues for example, if they agree on child maintenance and custody and disagree on division of assets, the court will accept the mediated agreement in those areas and incorporate the terms of the agreement as agreed, and for the disagreed issues, the Court will have to decide on them.
Divorce mediation is flexible and confidential, unlike Court hearings, whereby proceedings are recorded, and the public may attend the divorce proceedings. Mediations are private and conducted behind closed doors; they are not recorded and involve the spouses, the mediator, and the spouses’ lawyers if the spouses wish to be represented. It is only the outcome of the Mediation (the Settlement/Divorce Agreement) that is documented/recorded.
Divorce mediation may take 4-10 sessions, unlike Court proceedings which might take years, especially when issues such as child maintenance and custody, spouse maintenance and distribution of properties need to be decided by the court. In divorce mediation spouses may not need their lawyers and even if they do, the process takes lesser time than the time consumed in Court, thus divorce mediation is less costly.
During Mediation, spouses learn how to communicate well amongst each other. It helps to restore good relations between spouses since they get an opportunity to calmly deliberate on important issues concerning their welfare and that of their offspring. The settlement will be the spouses’ product and hence, they will all be satisfied with the outcome laying ground for easier post-divorce relations.

However, it should be noted that, even though divorce mediation is advantageous to the spouses, it is not advisable for couples to go through the divorce mediation process, if one of them is violent or where the parties are not willing to take the mediation path. Furthermore, spouses should always seek legal advice from their divorce lawyers before making any legal decisions.

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REPEAL OF SECTION 238 (3) OF THE ZANZIBAR COMPANIES ACT NO. 15 OF 2013

February 1, 2023/in Latest on 2023 /by amicidesign-veema

On 22^nd December 2022, the President of Zanzibar assented to the Written Laws (Miscellaneous Amendments) Act, 2022 which amended various laws, including repeal of section 238 (3) of the Companies Act No. 15 of 2013. The repeal of section 238(3) dispensed the requirement for companies incorporated in Tanzania Mainland with a place of business in Zanzibar, to register a subsidiary company in Zanzibar.

The position of the law prior to the Written Laws (Miscellaneous Amendments) Act, 2022.

Prior to the 2022 and 2021 amendments, the provision of Section 238 of the Zanzibar Companies Act, 15 of 2013, provided that:

“all foreign companies, that is, companies incorporated outside Zanzibar which after the appointed day, establish a place of business in Zanzibar, and to companies incorporated outside Zanzibar, which have before appointed day, established a place of business within Zanzibar and continue to have an established place of business within Zanzibar on and after appointed day”.

Further, Section 238 of the Zanzibar Companies Act, 15 of 2013, was later amended by section 29 of the Finance (Public Revenue Management) Act 2021, by adding a new subsection three (3), which provided that:

“Notwithstanding the provisions of subsections (1) and (2) of this section, a company incorporated under the law applicable in Mainland Tanzania shall register a foreign subsidiary company under the law applicable in Zanzibar if it establishes a place of business in Zanzibar”.

The amendments made under section 238 (3), required companies incorporated in Tanzania mainland with a place of business or branch in Zanzibar, to register a foreign subsidiary company under the laws of Zanzibar. The 2021 amendments in effect thereof resulted into the need of companies registered in Tanzania Mainland with a branch or place of business in Zanzibar, to re-register Tanzania Mainland companies as foreign subsidiaries and obtain a certificate of incorporation under the laws applicable in Zanzibar.

Conclusion

Following the repeal of section 238 (3) of the Companies Act No, 15 of 2013, effected through the Written Laws (Miscellaneous Amendments) Act, 2022, the companies registered in Tanzania Mainland can now either operate as a branch or by incorporating a company in Zanzibar. In respect to the abovementioned regulatory changes, it is now firm that the position has been reinstated whereby companies incorporated in Tanzania Mainland are no longer required to register a subsidiary company upon establishing a place of business in Zanzibar.

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