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CONSUMER PROTECTION MODEL AND THE TANZANIA LEGAL COMPLIANCE FRAMEWORK – With

Some Reference to the Communications Sector.

- By Dr. Ringo W. Tenga (Chairman, National Consumer Advocacy Council - NCAC, June, 2009)1

I. Background to Consumer Protection in Tanzania

A. The Conceptual Snapshot

1. Consumer protection is a phenomenon that is associated with the growth of markets as the medium for economic growth. Economic theory posits markets as the forum where sellers meet buyers, or rather, where suppliers generally meet consumers of goods and services. While the suppliers of goods and services vie for the attention of buyers a competitive scenario is generated and left to their own devices suppliers employ every trick possible, positive and negative, to win the buyers' attention.

2. In a perfect market, the theory goes, sellers are engaged in a positive kind of 'beauty contest' and struggle to improve the quality of what they offer under most affordable prices as they naturally undercut each other. Out of the lot buyers get the best deal and generally this promotes consumer welfare and positive economic development, progress in the sciences, and efficient allocation of resources.

3. But the reality is almost the opposite, markets are highly imperfect in terms of information given to players in the market and misrepresentations abound whereby 'beauty contests' are largely negative and often won by fraudsters. Even where information as to quality and cost of goods and services is available to all players sellers often employ other tactics to keep prices high such as conspiracy amongst all sellers of a given product to maintain a given price (known as ‘cartels’), or elimination of other competitors to maintain monopolistic market power and practically hold buyers at ransom. Adam Smith , the father of modern economics,

1 Abridged version of Consumer Protection Paper presented by the author at the FCC’s CC Induction Workshop in Morogoro, April 2008

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had it that this drive for conspiracy is almost a natural motive amongst suppliers. " People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices." - Adam Smith, Wealth of Nations (1776 "

The self-serving profit motive is in most cases the force behind this disruptive behavior by sellers. Instead of being a rational and efficient engine for economic growth supplier-driven markets, left to the own, are imperfect and chaotic, affecting product quality by offering shoddy goods and services; undermining consumer welfare and economic growth. The suppliers of services in the communications sector are no exception and complaints abound with regard to various ‘clever’ methods used to enhance a suppliers’ market power.

4. Given these market imperfections, or rather what is termed as 'market failure', authoritative intervention is required to provide the necessary oversight, or superintendence, that would keep markets as far as possible within the confines of 'fair' competition. Most market economies have in place some kind institutional setup to oversee competition.

"There is no reason to assume that this is true only of large, developed economies. Price-fixing between competitors will always be attractive to firms that wish to maximize their own profits at the expense of their customers, and there is little reason to assume that they will voluntarily refrain from doing so, unless they are constrained by competition law. Similarly, local monopolies will have no incentive to improve their performance and will have every incentive to deter the entry of new rivals into the market. Competition law may be able to expose such monopolies to competitive forces."

The recent economic liberalization world trend has generated a worldwide movement led by multilateral institutions ( UN, UNCTAD, OECD, etc) to introduce systemic competition oversight worldwide. Emerging markets, those of the third world and former soviet block, have been a fertile ground for growth and experimentation. In Tanzania some kind of competition oversight was made through the Price Regulation mechanisms inherited from the colonial state2. When the statute was repealed a task force was set up whose recommendations resulted into the introduction of a statutory organs to oversee competition in 1994. The background to that process is detailed elsewhere and the challenges arising thereby enumerated (See Mkocha, UNCTAD, 2003). Competition authorities were set up for the first time to oversee the market roles of the three players; Government, Suppliers and Consumers; more robust legislative schemes coming in from 2001. Legislation on ‘fair competition’ has, on the one hand, established a Fair Competition Commission (FCC), a Fair Competition Tribunal (FCT) and a National Consumer Advocacy Council (NCAC).3 On the other hand, regulation of the ‘natural monopolies’ has been established in transport

2 See Nditi, Nicholas N.N, Consumer Protection Law and Practice: Its Relevance and Reality in a Developing Economy with Special Reference to Tanzania. [PhD Thesis, 1987, University of Dar Es Salaam]. 3 The Fair Competition Act, 2003

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(SUMATRA)4, energy and utilities (EWURA)5, communications (TCRA)6, and air transportation (TCAA)7, have all been enacted to provide a robust oversight of the market.

5. Competition oversight alone does not create fair markets, and economic justice in terms of giving a fair deal to consumers is not possible without institutionalizing what one may call, for want of a better word, consumer oversight. The statutory form of this kind of oversight is termed Consumer Protection. It is an acknowledged fact that out of all the market players - government, business and consumers - it is the consumer group that is largest, but at the same time it is the weakest in terms of its actual market power. Consumers are often uninformed about market conditions and rely on the sellers, and possibly government, to get correct information about the quality of products offered in the markets. Advertisement and marketing strategies of the sellers routinely victimize and abuse unsuspecting consumers by using a wide range of misinformation techniques from highly sophisticated methods to outright lies. Consumer protection provides a safety net against this kind of market-power abuse. Competition authorities are mandated to provide channels for consumer education and advocacy enabling consumers to unleash their vast potential power of choice in the market, while the State’s enforcement power provides the background for compliance.

B. Regulatory Intervention, and Consumer Protection;

Given existence of market imperfections regulatory superintendence and intervention becomes necessary in order to achieve “fair” competition and Consumer Protection.

In America regulatory intervention started from the end of the 18 th century with the emergency of Anti-Trust Laws that regulated cartels and monopolies. But active consumer protection started in the early 1960s from the so-called Kennedy Principles, which outlined the rights of consumer that required protection. Later on a World wide movement of Consumer Associations took root and today the Consumer International is the key player in Consumer advocacy.

Today consumer organisations have flourished as a necessary aspect of Markets. Key players in the Markets today are threefold:

Producers (Suppliers of Goods and Services).

Government (Licensing functions and Regulators of Markets).

Consumers (End users of Goods and Services).

4 The Surface and Marine Transport Authority Act, 2001 [Cap. 413]5 The Energy & Water Utilities Regulatory Authority, 2001 [Act No. 11 of 2001]6 The Tanzania Communications Regulatory Authority Act, 2003 [Act No. 12 of 2003]7 The Tanzania Civil Aviation Authority Act, 2003 [Act No. 10 of 2003]

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Accordingly the Consumer is not any buyer of goods and services as popularly known. In terms of consumer protection the Consumer is the ‘end user’ of goods and services. The Fair Competition Act, 2003, differentiates a ‘Consumer’ from a ‘Customer’ and defines the Consumer as: "consumer'' includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale but does not include a person who purchases any goods or services for the purpose of using them in the production or manufacture of any goods or articles for sale’

3. Consumer Protection Models:

Consumer Protection is manifested through two interconnected processes or frameworks: Compliance Frameworks and Consumer Education Framework.8

3.1 Compliance Framework:

The competition authority, such as the FCC, and the regulatory authorities, e.g. The Tanzania Communications Regulatory Authority (TCRA) and, quality control and licensing legislation, give effect to consumer protection through enforcement of consumer rights. The expected outcome is to equate and balance consumer power in the market to that of producers. Consumer power is expected to be a “countervailing force” to what is perceived as increasing producer power and influence in the Markets. Three types of compliance frameworks have been in use: The Command and Control; Self Regulation; and, Co-Regulation.

‘Command and Control’ Compliance Framework

The initial compliance framework was through compliance legislation - the “Command and Control” model. Enforcement would be through use of criminal law and enforcement units that would search the Markets for deviant producers of goods and providers of services. In Tanzania colonial legislation was of this nature. There were Penal Code provisions, based on criminal law, that penalised market fraudsters. Against the rule of “Caveat emptor” (Buyer beware!) there were statutory provisions under the Sales of Goods Ordinance9, requiring sellers of goods to comply to the quality presented to buyers. Furthermore, there were Price-Control Legislations, e.g. the Price Control Ordinance,10 which after independence saw the setting up of a National Price Commission, under Section 3 of the Regulation of Prices Act, 1973.11

8 S. Sothi Rachagan, "Policies and activities for Consumer Education and Consumer Information in Malaysia," Third East Asia Symposium on Consumer Policy, www.ciroap.org (Tokyo: Consumer International - Asia Pacific Office, 2002). See generally his analytical framework which is adopted here9 The Sale of Goods Ordinance, 1931 (No.18 of 1931); presently it is the Sale of Goods Act, Cap.214 [R.E. 2002]; compliance here is based on the Law of Contract and provisions rely on misrepresentation, warranties on fitness to purpose and quality, etc.10 Colonial Price Control Ordinance, Cap.30911 Independence the Regulation of Prices Act, 1973 (Act No. 19 of 1973)

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Professor Nditi in his PhD thesis12 has reviewed these developments and it is obvious that the framework was not as successful. The cost of enforcement is particularly high, and changing business conditions, at every moment outpace any “conduct-specific legislation”. The enforcement units were often passive and generally affected by graft from money-oiled suppliers. The contractual based Sale of Goods provisions assumed the consumer would help himself by voluntarily accessing the courts. Not many consumers had the knowledge or financial wherewithal for undertaking legal proceedings.

Self-Regulation Compliance Framework

The inadequacy of “Command and Control” framework led in some countries to give free reign to what has been termed as Self-Regulation. In this framework Suppliers design codes of practice and charters on the basis of which they make a pledge to the buyers that they would adhere to what is stated in their Charters. This also has not been successful. Producers through their Chambers of Commerce and Associations have been most self-serving and rarely lack the muscle to enforce the Charters against their deviant members. At law it is unclear what status the charters have in relation to Consumer rights and enforcement. In Tanzania this phenomenon has taken root only recently and the Civil Service and some Parastatals, eg. NSSF, have been at the forefront in producing Consumer Charters. The Media has been widely used with TV programmes showing how an “empowered consumer” demands prompt service on the basis of a Charter. Commercial organisations, especially Banks, have consumer charters that are not well publicised. If you visit the Website of the Tanzania Bankers Association (TBA), there is a promise there that the banking industry is working towards a Tanzania Bankers Code of Practice. This has been a promise that has seen no active action. A study launched in 2007 by FinScope 13 on the Financial Services Sector in Tanzania tells it all – consumers of Banking services have still a long way to go despite the existence of rights they have under the financial institutions legislation with regards to information, services and privacy. TCRA has its own code of conduct and in its Website a Consumer Charter. The enforcement of the Codes of the basis of self-regulation clearly begs the question of whether it is realistic.

It is obvious that self-regulation is also a non-starter. Worse still it punishes the supplier who complies with the Charter, as he restricts himself from breaching the code, and the deviant one benefits as he goes unpunished for his misdeeds.

Co-Regulation Compliance Framework:

This compliance framework involves the creation of a statutory framework on the basis of which all market players “Self-regulate” themselves. Regulators provide the

12 Nditi, supra, 1987.13 FinScope Survey, “Consumer Perceptions of Financial Services and Barriers to Access”. 2006. Launched in May, 2007.

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medium for setting producer standards and codes with the participation of Producers and Consumer representatives. Once the standards and codes are agreed upon producers and their organisations are expected to enforce them. The Regulators have the power to intervene, but only in cases where producer enforcement is ineffective. The participatory approach to this kind of compliance framework has the advantage of allowing all parties to be involved in the design of standards and codes. It allows self-regulation but has a safety net of regulator intervention14. Critical to this framework is consumer participation. And effective Consumer participation is ineffective where Consumers are not aware of their rights and responsibilities. This brings to the fore the central issue of consumer education. The case of the Daladala transporters in Dar Es Salaam who failed to adhere to fare benchmarks settled by themselves with SUMATRA - the regulator - is instructive. Had consumer participation been effective the transporters would not have dared to breach the agreement. The co-regulation model is the basis for the TCRA consumer protection and compliance framework.

3.2. Consumer Education Framework

Consumer Education is the sum of processes whereby individuals are equipped with skills and knowledge which they need to negotiate and function effectively and responsibly in an increasing complex marketplace.15 This knowledge includes how the market operates and much more critical, the measures taken for consumers protection and the consumers’ role in it.

In many countries where consumer movement has been well established, consumer education is the basis of school curricula and civic education from primary, secondary schools to Universities.

The public education programmes are developed through media participation and other mass communication alternatives. It is now accepted that an informed consumer is critical to well being of an economic system.

The focus of consumer education has undergone several stages:

(a) The “value for money” Paradigm Focus on household economics Consumer Education emphasizes the hierarchy of needs and wants, economic utility and understanding the mechanisms of Market Economy.

(b) The “Right and Power to the Consumer” Paradigm (1970’s) focus on the market structures

14 DTI ‘Comparative Report on Consumer Policy Regimes’ (UK, 2003)15 Australian Consumers' Association, "Educating Australian Consumers," IOUC Consumer Education Workshop (Oslo, IOUC, 1984)

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Consumer Education emphasizes: Empowerment of Consumers Organizations Development of Consumers Policy and legislations

(c) The “Quality of Life”

Paradigm based on the analyses of social and Green Consumerism (1980) focus on social and Environmental responsibility versus wasteful

consumption Sustainable Consumption Product-line assessment Understanding local and global markets

Consumer Education emphasizes on: Integration of Home Economics courses, social studies and value education. Acting responsibly in relation to society. Consumer conduct that takes cognizance of

finite resources. Need of consumption that is sustainable over

time.

The movement has been able to articulate what are the essential Consumer Rights and Obligations through a rights- based analysis. Consumer Rights.

Right to satisfy basic needs Right to safety Right to be Informed Right to choice Right to be heard Right to redress Right to a healthy environment Right to Consumer Education

Incipient Rights Right to boycott Right to Opportunity

Consumer Responsibilities. Critical Awareness Action Social Concern Environmental Concern/Sustainable Consumption

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Working Together/Collective Action

Distinction between Consumer Education and Consumer Information

Consumer Education is a process of gaining knowledge and skills for managing consumer resources and prepares the consumer to initiate action to influence market decisions. It trains us on how to cope with existing market relations and structures and how to influence changes for the future.

Consumer Information on the other hand is the process of providing data relating to a particular product or range of products to enable one to make a decision for purchasing the product. It covers as well data on an existing industries and its regulation.

Consumer Information thus focuses on a particular product and services whilst Consumer Education relates to effective use of such information in the market place. Such consumer rights as the right to be informed and right to choice, cover aspects of Consumer Information.

C. Consumer Rights/Protections.

Consumer education and advocacy cannot be the mandate of competition authorities themselves. This mandate is only justified on limited grounds which include the fact that government plays an important role in the provision of a level playing field, providing correct information to the Players, setting standards, providing avenues for dispute processing and redress, etc. The larger advocacy role is that played by the Consumers themselves. Consumer power cannot be fully unleashed and felt in the market without an organized consumer base. This organized base is woefully lacking in Tanzania and reports and market reviews have constantly noted this weakness. Government on its part to remedy this lacunae has set up a mechanism to provide advisory functions on the basis on which such a consumer base could be cultivated. This is the rationale for the NCAC and the Consumer Consultative Councils (Triple Cs) of TCRA, SUMATRA, EWURA and TCAA. Both Competition Superintendence and Consumer Oversight must reflect, as a starting point, the basis on which consumer education, organization and oversight may be achieved. The International Consumer movement has come a long way in developing best practices for consumer advocacy. The starting point is the understanding of consumer rights and responsibilities.

1. The Right to Satisfy Basic Needs i. Consumers have the right to basic goods and services which guarantee survival,

including adequate food, clean water supplies, clothing, shelter, health care, education and sanitation. Access to basic goods and services is critical to people in developing countries. This consumer right is often overlooked by people in industrialized nations but it is important for developing countries. [Nathan, 2003]

ii. There is also constitutional support for this Right. Article 14 of the Constitution

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of URT 1977 guarantees the Right to Life. Article 11 directs the State to make provision for the Right to Work, Self Education and Welfare of the Individual citizen to be realized. Various Statutes in this regard are in place for Education, Health, provision of utilities, welfare and Economic Empowerment of the citizenry.

2. The Right to Safety i. This guarantees consumers the Right to be protected against products, processes

and services that are hazardous to health or life. In order for 'Consumers to exercise the right to life and to safety , it depends wholly on full prior disclosure being made by chemical, pesticides and such industries, manufacturers of goods, products and service providers concerning the degree of safety of their industrial activities or reliability of goods, products or services, precautions that should be taken to avoid accidents, or to mitigate damages or injuries in the case of accidents, and who is to be held liable where consumers have grievances concerning such activities, goods, products or services'. [CISA Report, 1999]

ii. The Right to Life in the Constitution complements this Consumer Right. 'A basic responsibility of any Government is to protect the health and safety of its people. Consumer laws and regulations that establish standards of safety for food, and other basic products, are essential to ensure a safe marketplace. Agencies that inspect food and other products at traders and manufacturers premises, and maintain the quality of services sold, are important for consumer safety'. ['Coca or Coconut ',CI 1996].

In Tanzania statutes geared towards this right include, inter alia:

The Occupational Health and Safety Act, 2003 (5 of 2003). An Act that repealed the Factories Ordinance, Cap.297; makes provisions for the safety, health and welfare of persons at work in factories and other places of work; provides for the protection of persons other than persons at work (eg. Consumers) against hazards to health and safety arising out of or in connection with activities of persons at work; and provides for other connected matters.

The Tanzania Food, Drugs and Cosmetics Act, 2003. An Act that provides for the efficient and comprehensive regulation and control of food, drugs, medical devices, cosmetics, herbal drugs and poisons and repeals the Food (Control of Quality) Act, 1978, the Pharmaceuticals and Poisons Act, and provides for other matters related thereto..

The Industrial and Consumer Chemicals (Management and Control) Act, 2003. An Act that provides for the management and control of the production, importation, transportation, exportation, storage, dealing, and disposal of chemicals and for matters connected therewith.

The MERCHANDISE MARKS ACT Cap. 85, R.E. 2002 [Act No. 20 of 1963. R.L. Cap. 519]. An Act enacted in 1963 to control the use of Marks

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and Trade Descriptions in relation to Merchandise and consequentially amended the relevant parts of the Penal Code Cap. 16 of the Laws of Tanzania. The Act enables the Minister to appoint an Inspector of Merchandise (presently the Director General of FCC) who has the mandate to investigate all Forgeries and Deceptive Applications in relation to Merchandise (i.e. Counterfeits) and the Inspector has powers of seizure of such goods and on conviction in Court the condemned goods may be destroyed and the offender may be fined not more than Tshs. 10,000/= or imprisoned for not more than a year.. The Act applies to the widest range of deceptive goods and applies to all types of false trade descriptions. The statutory language for counterfeits under the Act is as follows:

" 'false trade description' means a trade description which is false or misleading in a material respect as regards the goods to which it is applied, and includes any alteration of a trade description, whether by way of addition, effacement or otherwise, where that alteration makes the description false or misleading in a material respect, and the fact that a trade description is a trade mark, or part of a trade mark, shall not prevent such trade description from being a false trade description within the meaning of this Act".

3. The Right to be Informed i. The right to be protected against dishonest or misleading advertising or labeling,

and the right to be given the facts and information needed to make an informed choice is important to establish a fair and safe marketplace. Consumer information includes: labeling of products, packaging, advertising and publicity. Information should be available in plain language that ordinary people can read and understand. Translation of consumer information into popular languages is an important step in achieving this right. Proper information allows a consumer to make informed choice which is central to fair competition and consumer welfare.

ii. Article 18 of the Constitution of URT enshrines Freedom of Expression and under it guarantees the Right to disseminate and receive information vital to one's life. In terms of protection against misleading and fraudulent information in the market place laws related to honest trading and contracting, related to standards, weights and measures are in place. These include: The Fair Competition Act , provisions relating to dishonest or misleading

advertisements, labelling, etc. The Weights and Measures Act, Cap. 340 [R.E. 2002]. An Act that revises

and consolidates the law relating to weights and measures and provides for the introduction of the International System of Units (SI) and related matters. Repealed and saved the Weights and Measures Ordinance [R.L. Cap. 426];, the Sale of Goods (Weights and Measures) Ordinance [R.L. Cap.427], the Weights and Measures (Metric System) Act, No. 46 of 1968; and the Metric

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System (Amendment of Written Laws) Act, No. 52 of 1969.] The Standards Act Cap. 130 - R.E. 2002 [Act. No. 3 of 1975]. An Act that

provides for the promotion of the standardization of specifications of commodities, establishes the Tanzania Bureau of Standards and provides for the functions, management and control of the Bureau. The Bureau is enjoined to establish standards and specify standards that are compulsory (SS.16 and 17 of the Act].

4. The Right to Choice i. This is the right to choose products and services at competitive prices with an

assurance of satisfactory quality, and access to a variety of products and services. Where there is only one trader, as is the case in many rural and urban communities in developing countries like Tanzania, there may be little choice for consumers and a monopoly may develop. In these situations choice is reduced and consumers need to be well informed and alert to unfair trading practices which include:

v Price Fixing. Where two or more traders agree to a set price for goods or services. A fixed price is higher because there is no competition between traders.

v Monopolies. Where there is one trader controlling a particular product or service and there is no competition for price. If people need the product or service, they have to pay for what the trader asks, as there is no alternative supplier.

v Cartels. An informal association of manufacturers or suppliers to maintain high prices and control production and marketing arrangements.

v Artificial Shortages. Importers can influence market supply to inflate prices by creating an artificial shortage, manipulating the law of supply and demand keeps prices high.

ii. Consumer power is an effective means of helping to ensure prices are fair, but government needs to establish laws and regulations to control restrictive market practices, punish dishonest traders and create a fair and just marketplace. Fair Trading laws are designed to control unfair trading practices and Anti-Trust laws or designed to control cartels and monopolies and the Fair Competition Act is a classic example of this kind of legislative effort. Regulatory Authorities (SUMATRA, EWURA, TCRA, TCAA, etc.) have specific functions in their spheres to monitor anti-competitive behavior within the given industry or sector.

5. The Right to be Heard i. This is the right to have consumer interests represented and expressed In the

making and execution of government policy. This means that a process of consultation with the community, with consumers, needs to be established for marketplace policy and law making. To be heard, consumers need to be organized, seek representation and make a positive contribution to discussions on consumer issues.

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ii. Assurance of Governments mandate to promote and protect consumer interest is essential. The Government has put in place mechanisms for realization of its commitment to Consumer interests: FCC's Directorate Consumer Affairs. FCC's oversight in relation to COUNTERFEIT Goods - Merchandise Marks

Act Cap. 85 R.E. 2002. National Consumer Advocacy Council (NCAC). TCRA & other Regulatory Authorities' Consumer Councils.

iii. Consumer Organizations Tanzania Consumers Association Other Organizations

6. The Right to Redress i. The right to fair settlement of just claims, to be compensated for

misrepresentation of defective goods or poor services. Consumers need to return bad goods and refuse unsatisfactory services, and to get a cash refund or a replacement provided by the trader or manufacturer.

ii. Remedies under the Law of Contracts, Torts, Sale of Goods and other quality control legislation.

iii. Remedies through FCC's Mechanismsiv. TCRA has a Disputes Resolution procedure under the Act: Complaints and

Disputes Resolution provisions (Part VIII of the Act) give certain enforcement powers to the Authority:

41.- The Authority may make an order (a) requiring a party to supply goods or services for specified periods; (b) requiring a party to supply goods or services or specified terms and conditions;(c) requiring a party to pay the costs of another party or of a person appearing at the hearing or producing documents;(d) dismissing a complaint;(e) imposing fines;(f) for specific performance;(g) for refunds;(h) appointing trustees;(i) setting up of escrow accounts; and for such other relief as may be deemed necessary or reasonable.

Appeals from the Authority go the Fair Competition Tribunal (Section 42 TCRA Act).

7. The Right to a Healthy Environment i. The right to live and work in an environment which is neither threatening nor

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dangerous and which permits a life of dignity and well being for present and future generations. The production, use and disposal of consumer goods and services need to be considered by consumers. Particularly the impact of consumer products on the fragile ecosystems. A sustainable environment can be passed onto future generations without any damage and harm to the people.

ii. There is in place a statutory scheme for addressing these matters: The Environmental Management Act, 2004 - (Act No. 20/04). The Act

provides for legal and institutional framework for sustainable management of environment; it outlines principles for management, impact and risk assessments, prevention and control of pollution, waste management, environmental quality standards, public participation, compliance and enforcement; it further provides the basis for implementation of international instruments on environment; provides for implementation of the National Environment Policy; repeals the National Environment Management Act, 1983 and provides for continued existence of the National Environment Management Council; provides for establishment of the National Environmental Trust Fund and provides for other related matters

8. The Right to Consumer Education i. The right to gain the knowledge and skills necessary to make informed, confident

choices about purchasing goods and services while being aware of basic consumer rights and responsibilities. Consumer education may be provided by governments or NGOs, or by traders, in schools and the community or in the marketplace.

ii. Active Consumer Education is absent.

9. Incipient Rightsi. The Right to Boycott

The right to resist and boycott any person, goods or services in the event of conflict with consumer's interest

CUTS of India elaborates that "Boycott can be defined as the social and commercial intercourse: to refuse to take part in, deal with, handle by way of trade, etc. It can be defined as the refusal to social and commercial relation with (a person, group, country, etc.) or refusal to handle or use the goods".

Precedents to this right have happened against products produced by Racist Regimes, Corporations violative of Human, Social and Cultural Rights. Independence movements have used Boycott against colonial masters: American, India and African Independence movements.

ii. The Right to Opportunity The right to opportunities to acquire basic needs which will enable one to

work and to earn a living, without exploitation.

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According to CUTS "opportunity can be defined as the means through which human beings find the wherewithal to function in the society as consumers. The existence of opportunity gives a person the freedom of enlargement of his activities (both economic as well as social) in the dynamics of participatory governance".

D. Consumer Responsibilities.

1. Critical Awarenessi. The responsibility to be alert and questioning about the price and quality of the

goods and services we buy and use. To look, listen and ask questions. We need to shop around, checking the facts of products and services: Are they value for money, value for people and value for the environment?

2. Actioni. The responsibility to assert ourselves and act to ensure that consumers get a fair

deal. As long as they remain passive consumers they will continue to be exploited. When something is wrong; one must act to put it right.

3. Social Concerni. The responsibility to be aware of the impact of the use of consumer goods and

services on other citizens, especially disadvantaged and powerless groups whether in the local, national, regional or international community. Consumers need to make sure that the products and services that they use are not produced in a situation that harms others.

4. Environmental Concern/Sustainable Consumptioni. The responsibility to understand the environmental and other consequences of

our consumption. We should recognize our individual and collective responsibility to conserve natural resources and protect the earth for future generations. We need to make sure that the production, use and disposal of goods and services do not harm the environment.

ii. Sustainable consumption is “the use of goods and services that responds to basic needs and brings a better quality of life, while minimising the use of natural resources, toxic materials and emissions of waste and pollutants over the life cycle, so as not to jeopardize the needs of future generations.” Consumptions patterns that are responsive and sensitive to the earth’s carrying capacity for present and future generations.

5. Working Together/Collective Actioni. The responsibility to organise together as consumers to develop the strength and

influence to promote and protect the interests of consumers. To stand with others who are working for a fair and just marketplace and world. To do this we need to establish consumer organizations in our communities and countries, and work with other organizations that aim to.

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E. CONSUMERS’ RIGHTS & DUTIES AS CUSTOMIZED BY TCRA-CCC FOR THE COMMUNICATIONS SECTOR16:

1. RIGHTS

a) Access A consumer has a right to have access to basic communications services at

reasonable prices.

b) Information A consumer has a right to full pre-contractual information that is clear

(understandable), helpful, adequate and accurate on the services and choices offered by a service provider/operator to facilitate the making of an informed choice.

Consumers have a right to receive information assistance to assist them in use of services.

Consumers have a right to have access to sector governing information. Consumers have a right to have comparative information.

c) Quality of Service Consumers have a right to receive a service with a quality that reflects the cost of

the service (Value for money). Consumers have a right to receive the level of quality of service that is quoted or

stated by the service provider/operator in the service agreement.

d) Fairness A consumer has a right to fair treatment without undue discrimination from

another consumer. Consumers have a right to fair terms of service.

e) Complaint A consumer has a right to complain about quality, delay, quantity and tariff with

regard to the nature of the communication service provided.

f) Redress A consumer has a fright to an effective system for handling of complaints.

g) Safety and security Consumers have a right to be provided services that are safe and secure.

h) Privacy

16 Adopted from TCRA’s Document entitled ‘Know Your Rights: Rights and Obligations of Consumers in the Communications Sector’ Available on TCRA’s Website.

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Every Consumer has a Right to Privacy.

i) Consumer Education Consumers have a right to be educated on services being offered to them.

j) Notification of termination of service Consumers have the right to a notification of termination of service particularly

that of a basic service or Internet access. Consumers have a right to make representations to those delivering, regulating or

governing the communications services on matters pertaining to the services offered to them and other consumer preference

k) Representation Consumers have a right to make representations to those delivering, regulating or

governing the communications services on matters pertaining to the services offered to them and other consumer preference.

l) Billing Information Consumers have a right to access billing information.

2. CONSUMER DUTIES:

a) Prompt payment of bills Consumers have obligations to pay all their bills and clear these when they fall

due.

b) Environmental Protection Each consumer has a responsibility of ensuring that his/her utilization or

consumption of communication services is not in a manner hazardous to the environment.

c) Awareness It is the responsibility of the consumer to be alert and to question issues such as

terms and conditions of service.

d) Action A consumer has an obligation to be assertive so as to ensure that he/she and other

users of the service(s) receive a fair deal.

e) Protection of communication facilities A consumer has a responsibility to protect all communication equipment and

facilities within his/her vicinity.

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II. ESTABLISHMENT OF THE TCRA CONSUMER CONSULTATIVE COUNCIL .

A. The 2003 TCRA Act1. Defining the Consumer: The communications consumer is the consumer of regulated

services under the TCRA Act not directly defined but in principle similar to the definition given under the Fair Competition Act 2003 – see above).

2. Protecting the Consumer: By regulating service providers and suppliers of goods in the regulated sector. Compliance machinery is established and the Regulator has both quasi-legislative and quasi-judicial powers for enforcement of compliance.

3. Redress: Covered under the TCRA Act by giving quasi investigative and judicial powers to the Regulator’s decisions are appealable to the Fair Competition Tribunal as established by the Fair Competition Act, 2003.

B. Establishing the TCRA Consumer Consultative Council1. Establishment of the Council.[Section 37]

i. The TCRA-CCC is established under Section 37(1) of the TCRA Act. It is styled as a Consumer Consultative Council, but an analysis of the Functions of the Council show that it is expected not to be merely advisory but also does some advocacy work.

ii. The Minister is empowered under Section 37(2) to appoint between 7 and 10 persons who shall be Members of the Council with a tenure of three years.

iii. The appointment of Council members is a process that takes cognizance of the complicated pro-consumer functions Council members have to undertake, especially carrying out consultative and advisory function to market players who occupy opposite, but complimentary, positions in the market - buyer, seller, government. The Minister canvasses eligible names from the public by a Public Notice in the media and publishes the names received for public comments, objections and representation – Section 37(4). Once that is done a short list is prepared for interview by professional consultants who, after the interviews, place their Report before the Minister.

iv. In making appointments to the Council the Minister is enjoined by the Act [section 37(5)] to have regard to the desirability of the Council, as a group, to have: knowledge and understanding of the interests of consumers and knowledge

of the regulated services, as a primary focus. The regulated services meaning those covered by the regulated sector in “telecommunications, broadcasting, postal services, allocation and management of radio spectrum and converging electronic technologies including the internet and other Information Communication and Technologies (ICT) applications” (Section 2)

as a secondary focus, consideration of the interests of:v low income, rural and disadvantaged persons;v industrial and business users;v government and community organizations.

v. The Council in consultation with the Minister is empowered to make its own

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Rules regulating its procedures and other matters related to its functions [Section 37(6)].

2. Functions and powers of the Council. [Section 38] to represent the interest of consumers by making submissions to,

providing views and information to and consulting with the Authority, Minister and sector Ministers;

to receive and disseminate information and views on matters of interest to consumers of regulated goods and services;

to establish local, regional and sector consumer committees and consult with them;

to consult with industry, government and other consumer groups on matters of interest to consumers of regulated goods and services.

The Authority is mandated by statute to provide for Secretarial Functions to the Consultative Council in its first three years of existence and after that the Council is required to maintain its own Secretariat, which is the case presently.

III. Challenges and Prospects for Consumer Advocacy A. Rights-Based Challenges

1. The TCRA-CCC and other Consumer Councils must make an Audit of all Consumer Issues that arise from each basic right of the Consumer. The Consultative Council has already made significant strides in formulating a Consumer Rights Code for the Communications Sector Consumers. It is imperative that informed choices can only be made by an Informed Consumer who requires information, knowledge and skill that may only arise if there is effort to organize and learn about such rights. A quick look at the table attached herewith from Consumer International styled "The Eye of the Consumer" lists issues an ordinary consumer must consider before purchasing a product or retaining a service. The range of issues that must cross his mind before making the purchase clearly shows what it takes to be an informed consumer. With the onslaught of Consumer goods and imports, plus sophisticated gadgetry typical in the communications sector, the Tanzania consumer is highly vulnerable and unprepared. The Consumer Councils have to put on an emergency plan to put action into words. A joint consumer council forum presently Chaired by Professor Katima of EWURA is being prepared to be the basis for joint action for all Consumer Councils including TCRA-CCC.

B. Institutional Set-Up Challenges1. The TCRA-CCC must put up its Strategic Plans and build a National Network

whereby it can effectively reach Tanzanians. So far the TCRA-CCC is still a Dar Es Salaam and major urban-areas phenomenon.

2. The funding options are still questionable as TCRA, like the other Triple Cs, does not have an independent funding base. Presently great reliance is upon funding from the Authority. This is seen by all the Councils as a conflicting set-up and may result in making the Councils the pawns or hostages of the Regulators who hold the cash

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strings. In a co-regulation model the regulator has to be institutionally independent from the market stakeholders i.e. Government, Suppliers and Consumers.

3. There are serious challenges in the Consumer’s Dispute Settlement framework. The Regulator appears to be a quasi – legislator in the sense of being given rule-making powers; the Regulator has also quasi judicial powers in that within the complaints and dispute resolution area he may settle disputes; and finally the Regulator has Executive powers of issuing licenses and enforcement of compliance. Consumers are somehow concerned about these extensive powers of the Regulator rife with conflict of interest situations. Yet they do not have recourse to easily accessible dispute settlement forums. The small claims courts, popular in UK and other countries, appear to be an attractive solution. A mobile phone user in Ngara District who has been abused by a service provider how is she going to get a remedy from a Regulator centered in Dar Es Salaam? These are challenges that must be resolved within the whole Consumer Protection framework. The government and all stakeholders must come out with a comprehensive consumer protection policy that would cover all these issues.

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Resources & Literature:1. Rachagan, S. Sothi. "Competition Policy and Law in the Consumer and Development

Interest". [UNCTAD & CI-Asia Pacific, July, 2003]2. Singh, Ajit. "Competition and Competition Policy in Emerging Markets:

International and Developmental Dimensions" [UNCTAD, March 2002]3. Nathan, S.S. Consumer Responsibilities & Rights; Workbook for Students

[CONCERT, Chennai, India. 2003]4. Emmert, et al. "Analysis of Statements for and Against Competition Policies for

Emerging Market Economies.' [University of Halle, Germany. 2005]5. ESRF Competition Law & Policy - A Tool for Development in Tanzania [CUTS

India, 2002]6. CAG. Reaching Out to Young Consumers: A Manual for Trainers [CAG Chennai

India, 2003]7. CI-South Pacific "Cola or Coconut? - Consumer Education for Pacific Students"

[1996]8. Asian Development Bank (ADB) "Competition Tool-Kit"

http://www.adb.org/Documents/Others/OGC-Toolkits/Competition-Law/default.asp9. Mkocha, Godfrey E. " Submission Made to UNCTAD on Interface between

Competition and Regulatory Bodies in Tanzania." [UNCTAD - 2002]10. Mkocha, Godfrey E. " Explanatory Notes to the Fair Competition Act 2003"

[UNCTAD - 2003]11. Mkocha, Godfrey E. "Greater Economic Development through the Promotion of

Competition" [OECD, 2004]12. Mkocha, Godfrey E. " Competition Issues and Policies in Tanzania." A paper

presented at the Fair Competition Tribunal's Workshop on Competition Issues and Available Remedies at Protea Courtyard Hotel, March 23-24, 2007.

13. NCAC - "Consumer Protection: What Should Tanzania Consumers Know." [FCC - Consumer Affairs Directorate - March, 2007].

14. Cseres, Kati, "The Impact of Consumer Protection on Competition and Competition Law: The Case of Deregulated Markets “. Amsterdam Center for Law & Economics Working Paper No. 2006-05. Available at SSRN: http://ssrn.com/abstract=903284

15. Nditi, Nicholas N.N, Consumer Protection Law and Practice: Its Relevance and Reality in a Developing Economy with Special Reference to Tanzania. [PhD Thesis, 1987, University of Dar Es Salaam].

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