Legal Considerations for Foreign Investors Executing Documents Outside Tanzania

Notarisation and Legalisation of Documents
Under Section 93 of the Evidence Act, Cap. 6 R.E 2022 (the “Evidence Act”), any private document executed outside of Tanzania and intended to
be used as evidence in Tanzanian courts must be notarised and legalised in the country where it was executed. This process ensures that the document has been properly executed in accordance with the laws of the jurisdiction where it was signed.

Authentication Process
The authentication process varies depending on the country where the document was executed:

• For documents from Uganda, Kenya, Malawi or Zambia:
  Authentication must be carried out by a magistrate, registrar, judge with an official court seal, or by a notary public with their signature and seal.
• For documents from other countries:
  Authentication is valid if the document is endorsed by:

1. A Tanzanian foreign service officer or a diplomatic representative of a Commonwealth country in that place (for example, the Tanzanian embassy in the country where the document was executed, or at the embassy of that country in Tanzania), or
2. A Secretary of State, Minister, Under-Secretary of State, or another authorised official, as confirmed by a Tanzanian foreign service officer or a diplomatic representative of a Commonwealth country in that place.

Private Documents
The Evidence Act defines public documents under Section 83 to include documents forming part of the acts or records of the President, official bodies, tribunals, and public officers, as well as public records of private documents. All other documents, under Section 84, are deemed private documents. This means that documents such as private contracts, share purchase agreements, and loan security documents are considered private, even though the Act does not expressly list them.

Authentication Timeline
Authentication can be done either at the time the documents are executed or later, when the parties anticipate a dispute in Tanzanian courts. However, the authentication process can be costly and time-consuming in some jurisdictions, as certain embassies require notarisation before authentication. To avoid complications, it is advisable to authenticate documents at the time of execution.

Consequences of Non-Authentication
While failure to authenticate private documents does not affect their binding nature, it may impact their admissibility as evidence in Tanzanian courts. This could potentially weaken the legal case, even though the documents can still be submitted for registration if required.

Legalisation vs. Authentication
While the terms “legalisation” and “authentication” are often used interchangeably in Tanzania, they have distinct meanings in international legal practice. Legalisation refers to additional steps required to make a document valid for use in another country, while authentication confirms that a document has been executed in accordance with the laws of its country of origin. In Tanzania, these terms are often conflated, but it’s important to understand the difference.

Apostille vs. Authentication
Apostille is the process of certifying public documents for use in another country, in accordance with the 1961 Hague Apostille Convention. Countries such as Canada, the United Kingdom, and South Africa use apostillation. However, Tanzania and Kenya are not signatories to the Hague Convention, meaning documents from these countries must undergo authentication instead of apostillation.

Practical Consideration for Foreign Investors
In light of the above, foreign investors and companies conducting transactions in Tanzania should be aware of the authentication and legalisation requirements under the Evidence Act. Key considerations include:

• Electronic signatures do not exempt documents from the authentication process.
• Consult legal counsel early to navigate the authentication and legalisation procedures efficiently.

By ensuring proper authentication at the time of execution, businesses and individuals can avoid delays and legal challenges when presenting documents in Tanzanian courts.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Geofrey Dimoso or Shemane Amin

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Contributor
Bupe Kabeta – Principal Associate