Unlike other countries, in Tanzania, the company must have a secretary. For example, in Kenya, a private company must have a secretary only if it has a paid-up capital of five million shillings or more. Anything else required or authorized to be done by the company's secretary may be done by a director or a person authorized generally or specifically for that purpose by the directors.
The company secretary is the chief advisor for various operational issues of the company's directors. He should be present in all company meetings and on the board of directors. He should know well the memorandum and articles of association and all the documents, including the rules that the company sets for itself in day-to-day operation.
In his position as a company secretary, act as a first counselor to the board of directors in matters of law, operations, and even in sensitive economic issues. Here the law means all the laws of the country and international laws, especially applicable laws according to the nature of the business that the company is doing. And regarding the operation, he should be aware of the work environment, employees, office equipment and tools, and all other things that make the company continue to exist and grow.
Section 187 (I) of the Companies Act, Cap. 212 Two hundred twelve set a mandatory requirement for every company to have a secretary. His office is so fundamental and unique that it doesn't need to stay open. Due to the nature of the responsibilities of the office of the company secretary, it is good for the company to have an Assistant or Deputy Secretary.
The Assistant or Deputy Secretary should have qualifications like those of the secretary so that he can work at the same standards and quality if the secretary is absent or unable for various reasons.
As I said above, this is a compassionate office. In the beginning, the law-imposed responsibility on the directors of the public company to ensure that it employs a person who appears to them to have the requisite knowledge and experience to discharge the functions of the Secretary. This means that, the directors were only required to hire any person whom they felt was suitable to perform the duties of the secretary.
In 2021 the government, through the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 published to the Special Gazette of the United Republic of Tanzania No.41. Vol.102 dated 11th October, 2021, amended the provision of section 187 whereby it provided prerequisites qualification for a person to hold the office of Secretary in a public company. In response to these changes, it is now mandatory for a public company to appoint a person as a secretary or joint secretary who is either an advocate, certified public accountant, auditor, or such other qualifications as the Minister may prescribe in the regulations.
Unlike other countries that provide a requirement for a secretary of a public company to be the holder of a practicing certificate issued under the Certified Public Secretaries, the amendment did not set the criteria for the company secretary to have a secretarial qualification certificate from the relevant authority. Also, it does not provide terms of appointment. The company can give the word of work in the employment contract.
For a private, the amendment did not limit or provide qualifications. It requires directors to take all reasonable steps to secure a secretary or each joint secretary of the company who appears to have the requisite knowledge and experience of discharging the functions of the secretary of a private company.
This change requires the company to choose a natural person and not a corporate body to be the secretary. In other jurisdictions like Zambia, a company is free to choose a secretary, either an individual who is a legal practitioner, a chartered accountant, or a member of the chartered institute of secretaries and resident in Zambia or a body corporate incorporated in Zambia having an officer who qualifies to be appointed as company secretary.
Another thing in this law is that it does not require the secretary to reside in Tanzania, unlike other countries such as Zimbabwe and Zambia, which need a secretary to live in Zimbabwe and Zambia, respectively, ordinarily. Moreover, it does not prevent the secretary from being employed in another company.
1. Once a person is employed as a company secretary, they hold a very senior position in the chief Executive Officer's Department. They access all files, both ordinary and confidential files. This position was confirmed in the case of DAWASCO V. Robert Mugabe (Revision Application 157 of 2021) [2022] TZHCLD 614 (21 April 2022). In this case, the advocate for the applicant raised an issue that the applicant was represented by the advocate, who was once the applicant’s company secretary. This senior position made him the custodian of all corporate documentation, including the respondent’s confidential file, hence the conflict of interest.
The court agreed with the submissions of the applicant's lawyer since it is undisputed that the respondent’s advocate was a company secretary of the applicant. This high-level position allows him unlimited access to all employee information, and he had a conflict of interest in representing the respondent.
After discussing the importance of the secretary's office, below I have listed its duties and functions.
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