The Legality of Taxing ‘Part-Time’ Employees in Kenya at a Flat Rate of 30%

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

The Legality of Taxing ‘Part-Time’ Employees in Kenya at a Flat Rate of 30%

Authors Wilfred N Konosi, Fred M Ratemo, Fred O Nyagaka

ISSN: 2521-2613
Affiliations: Kisii University, Kenya; None; None
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 58 – 83

Abstract

Taxes are an important aspect of the national economy and a vital source of public finance. The Kenyan Government has, through legislation, imposed various taxes and levies on its citizens and residents, including income tax, value-added tax, customs duty and excise duty. The Kenya Revenue Authority administers the various tax laws in Kenya and collects taxes on behalf of the national government. Regarding the taxation of employment income, Kenya’s Income Tax Act, Chapter 470 of the Laws of Kenya, does not distinguish between employees who work full-time and those who work part-time. In most cases employers categorise employees as being part-time for their own convenience. This categorisation has tax implications for the affected employees. The tax implication, as a result of the differentiation between full-time and part-time employees, is that part-time employees pay more tax on their earnings when compared to their full-time counterparts. The usual practice for the assessment and collection of income tax in Kenya is that employers withhold income tax on the earnings of part-time employees at a flat rate of 30% and remit the same to the Kenya Revenue Authority. This mode of taxation is based on a directive by the Kenya Revenue Authority which has no constitutional or statutory basis. This is not only illegal, but also discriminatory as it denies part-time employees the right to equal remuneration for equal work. This practice is in conflict with the constitutional prescription that Kenya’s public finance system shall promote an equitable society where the burdens of taxation are distributed fairly and the costs and benefits of the utilisation of resources and public borrowing are shared equitably between present and future generations.

Legal Protection of the Environment from Negative Impacts of Extractive Operations in Tanzania

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Legal Protection of the Environment from Negative Impacts of Extractive Operations in Tanzania

Authors Elifuraha Laltaika

ISSN: 2521-2613
Affiliations: Law Lecturer and Director of Research and Publications at Tumaini University Makumira (Arusha, Tanzania)
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 38 – 57

Abstract

This article provides analysis of the extent to which the legal, policy and institutional framework of Tanzania protects the environment against the negative impacts of extractive operations financed by foreign direct investment. Environmental impact assessment, policy coherence, institutional co-ordination, enforcement of decisions, access to information, recourse mechanism and stakeholder representation are used as guiding tools for analysis, where applicable or appropriate. Extractive operations cannot be conducted without causing some degree of environmental destruction. This article promotes the view that policy and legislative measures cannot be sole antidotes for the environmental and social challenges being faced in the extractive sector. Robust legal and policy frameworks, combined with good governance adherence, including human rights observance, can be catalytic in attaining sustainable economic growth.

Political Economy of Exploitation of Mineral Resources in Post-Colonial Tanzania Mainland (1961-2009): Pertinent Lessons

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Political Economy of Exploitation of Mineral Resources in Post-Colonial Tanzania Mainland (1961-2009): Pertinent Lessons

Authors Adelardus Kilangi

ISSN: 2521-2613
Affiliations: Director for the Centre for Mineral and Petroleum Law of St Augustine University of Tanzania
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 1 – 37

Abstract

This paper addresses the challenges that the mining sector in Tanzania Mainland has faced in the post-colonial period. Generally, the sector has been confronted by dissatisfaction and unhappiness amongst the people of Tanzania regarding the way in which the country’s mineral resources have been and continue to be exploited. The primary contention is that benefits from the mining sector are not visible and that the sector appears to be more beneficial for foreign investors than for local ones. Bearing this in mind and using a political economy approach, this article raises important questions regarding where the management of the mineral sector went wrong in the post-colonial period, ascertaining pertinent lessons that Tanzania has learnt. The findings and conclusion of this article assert that the country erred when it abandoned certain fundamental principles of state policy which govern the exploitation of natural resources. This indicates that in the post-colonial period, Tanzania lacked a clear vision regarding its mineral resources. The country also embraced incorrect insights regarding investment decisions which affected the nature and availability of capital for exploitation of mineral resources.

Rethinking marriage and its privileges

by | Sep 26, 2019 | ACTA, ACTA 2013

Rethinking marriage and its privileges

Authors Denise Meyerson

ISSN: 1996-2088
Affiliations: Professor of Law, Macquarie Law School, Macquarie University
Source: Acta Juridica, 2013, p. 385 – 408

Abstract

The law has traditionally privileged civil marriage over functionally indistinguishable informal unions. I argue in this article that the traditional approach is incompatible with the liberal ideal of state neutrality. I also explain why some possible solutions to this problem are not satisfactory. The problem is not cured by ensuring that the rules governing access to marriage are not discriminatory or by recognising forms of marriage other than civil marriage, such as religious marriage and customary marriage. Nor is it a solution to retain the official institution of marriage while extending its financial and legal benefits to the unmarried, since this leaves the symbolic superiority of marriage intact. Finally, it is not satisfactory to leave family life to private ordering because while this would satisfy the demands of state neutrality by treating all domestic relationships equally, it would fail to recognise that principles of justice apply within domestic relationships. I conclude that there is only one way to overcome the defects of the traditional approach which is consistent with both state neutrality and the recognition that the vulnerable members of families are owed protection as a matter of justice. This is to abolish marriage as an official institution while extending the benefits and protection traditionally reserved for marriage to all comparable caregiving domestic relationships.

Reflections on the recognition of African customary marriages in South Africa: seeking insights for the recognition of Muslim marriages

by | Sep 26, 2019 | ACTA, ACTA 2013

Reflections on the recognition of African customary marriages in South Africa: seeking insights for the recognition of Muslim marriages

Authors Waheeda Amien

ISSN: 1996-2088
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 357 – 384

Abstract

In 1998, South Africa enacted the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which for the first time in the history of the country afforded legal recognition to African customary marriages. The enactment of this legislation was effected in accordance with section 15(3)(a) of the Constitution of South Africa 1996. Through the same constitutional provision, the South African government proposes to enact legislation to afford legal recognition to Muslim marriages. The draft legislation recommending the recognition and regulation of Muslim marriages is known as the Muslim Marriages Bill (MMB). The MMB has generated a fair amount of controversy within the South African Muslim community and broader civil society. In this paper, I undertake a comparative analysis of the RCMA and MMB with the specific aim of deriving lessons from the recognition of African customary marriages for the recognition of Muslim marriages. A reflection on the manner in which African customary marriages have been recognised and regulated reveals that the approach considered for the recognition and regulation of Muslim marriages must be impact-focused and context-driven. In particular, to advance constitutional rights and norms, I show that attention must be paid to the position of marginalised and vulnerable groups within the Muslim community, including women and children. At the same time, I demonstrate that in drafting legislation to recognise Muslim marriages, many competing interests are at play. As such, it may be necessary to entertain reasonable compromises to ensure that the legislation is enacted and that it contains the potential to safeguard the rights of the more marginalised members of the Muslim community.

‘Today it would be called rape’: a historical and contextual examination of forced marriage and violence in the Eastern Cape

by | Sep 26, 2019 | ACTA, ACTA 2013

‘Today it would be called rape’: a historical and contextual examination of forced marriage and violence in the Eastern Cape

Authors Nyasha Karimakwenda

ISSN: 1996-2088
Affiliations: None
Source: Acta Juridica, 2013, p. 339 – 356

Abstract

The practice of ukuthwala has received considerable attention from the media, government, and civil society over the past few years. Reports assert that there has been a marked resurgence in the practice, in a distorted and destructive form, where older men target and violate vulnerable young girls, forcing them into marriage. Many of the coercive aspects of ukuthwala have been denounced as newly deviant and antithetical to the way marriage traditions were practiced in the past. This paper argues that these depictions of ukuthwala and traditional marriage are inaccurate. An examination of historical sources concerning Xhosa-speaking peoples in the Eastern Cape reveals the deeply rooted and longstanding linkages between marriage and violence. Although varying in prevalence over time, violence has been sanctioned by local understandings of consent and interpersonal relationships. The specific concepts that permit violence against girls and women have not only existed in conjunction with marriage, but also operate in various forms of abuse against females, such as group rape and child sexual abuse. Understanding the different manifestations of local conceptions of violence assists in explaining the embeddedness of gender-based violence today, as well as the immense challenges in eradicating it.

Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications

by | Sep 26, 2019 | ACTA, ACTA 2013

Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications

Authors Chuma Himonga, Anne Pope

ISSN: 1996-2088
Affiliations: Professor of Law in the Department of Private Law, University of Cape Town. She holds the South African National Research Foundation Chair in Customary Law; Associate Professor in the Department of Private Law, University of Cape Town
Source: Acta Juridica, 2013, p. 318 – 338

Abstract

The recent Constitutional Court decision in Mayelane v Ngwenyama and Minister for Home Affairs raises several interesting issues concerning customary marriage and related aspects. In particular, the commentary reflects on the scope and effect of the decision, methods of ascertainment of customary law and the measures needed to balance and protect the competing rights of a first wife and subsequent polygynous wives in a customary marriage. Further issues include consideration of use of the mero motu powers of the Court and of the realities of the implementation of judicial decisions and other efforts directed at legal change. The authors conclude that the decision makes a valuable contribution to this line of jurisprudence insofar as ascertainment of living customary law is concerned but also that it misses important opportunities to clarify and guide issues relating to women who marry under customary law.

Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2088
Affiliations: Senior Lecturer, University of the Western Cape; Research Associate, Community Law Centre, University of the Western Cape
Source: Acta Juridica, 2013, p. 292 – 317

Abstract

We must begin to think of family policy in terms of the functions we want the family to perform and to leave behind our obsession with form’ (Martha Fineman ‘Masking dependency: the political role of family rhetoric'(1995) 81 Virginia Law Review 2181 at 2203).

Twelve years later: how the Recognition of Customary Marriages Act of 1998 is failing women in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

Twelve years later: how the Recognition of Customary Marriages Act of 1998 is failing women in South Africa

Authors Roxanne Juliane Kovacs, Sibongile Ndashe, Jennifer Williams

ISSN: 1996-2088
Affiliations: Reading Philosophy, Politics and Economics at the University of York. She worked as an intern at the Women’s Legal Centre in 2012; Attorney at the International Centre for the Protection of Human Rights (INTERIGHTS). She was an attorney at the Women’s Legal Centre from 2002 until 2007; Director of the Women’s Legal Centre in Cape Town. She is an admitted attorney and conveyancer
Source: Acta Juridica, 2013, p. 273 – 291

Abstract

In this contribution we discuss how the Recognition of Customary Marriages Act (RCMA) is failing women. We start by discussing the importance of the recognition of customary marriages and the problems associated with their recognition. We then investigate the challenges presented by s 4 of the RCMA, which stipulates that all customary marriages must be registered within a certain time period. We also examine the role of lobolo and the requirements for entering a customary marriage, which are unclear under the RCMA. Finally, we show that the legislation does not adequately provide for women in polygynous marriages. This contribution is a determined call to amend the RCMA and to re-open the debate on how best to regulate customary marriages.

When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa

Authors Monica de Souza

ISSN: 1996-2088
Affiliations: Researcher at the Centre for Law and Society, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 239 – 272

Abstract

The Recognition of Customary Marriages Act 120 of 1998 provides legal recognition to traditional African marriages and sets up a process whereby these marriages are formally registered with the Department of Home Affairs. With reference to testimonies from Msinga, a rural district of KwaZulu-Natal, this article examines how the current registration process is out of touch with reality and difficult to comply with, especially in respect of polygamous marriages. Customary marriages therefore often remain unregistered. While customary marriages are legally valid despite not being registered, in practice registration has become the threshold for recognising the existence of these marriages when marital status is in question. As a result, non-registration is effectively non-recognition and deprives women and children of the significant benefits and protections associated with marriage. More broadly, the article will argue that the registration process actually undermines several of the Act’s objectives — leaving women living in rural, customary law contexts in a vulnerable position.