In a wide-ranging and revealing speech on October 5 1994 at the School of Oriental and African Studies (SOAS), in subsequent questions and in discussion with ‘Tanzanian Affairs’, Chief Justice Francis Lucas Nyalali spoke about the substantial changes which have taken place since independence in the functions and power of the judiciary in Tanzania. There follows a summary of what he said.
For almost thirty years Tanzania, under the inspiration of what came to be widely known as the Arusha Declaration, assumed the form of a one-party state with the aspiration of establishing a society based on African socialism. Partly as a result of the collapse of the Soviet Union and partly because of peculiar circumstances within Tanzania, this one party state came to an end in mid-1992. Early in 1991 a Presidential Commission of Inquiry had been appointed by President Mwinyi, to determine whether Tanzania should transform itself from a one-party state into a multi-party state. I had the privilege and honour of being appointed to head that Commission.
Although the Commission found that 80% of the people of Tanzania did not want to make the change, the Commission’s recommendations were in favour. The bulk of the recommendations were accepted by the relevant authorities and subsequently attracted popular support. Obviously, the transformation of a one-party state into a multi-party democratic state necessarily entails corresponding reforms of the law to reflect and underpin the new democratic order.
THE DOMINANCE OF PARTY IDEOLOGY IN THE SIXTIES AND SEVENTIES
Under the one-party state, law reflected that reality and judges were expected to respect the law in harmony with political party ideology and party directives. Under that system, the crucial bonds which hold people together within the nation state were neither the law of the land nor the government of the country, but the party ideology and the party organization. It was for that reason that:
- the ruling party ideology and party constitution was taught in Tanzanian schools, and the party was organised at all levels and in all sectors of the society, from the national level down to the cell level consisting of ten households;
- civics and the country’s constitution ceased to be taught in Tanzanian schools by the end of the 1960′s;
- it was possible to move the majority of the rural population into about 800 new Ujamaa villages without enacting or using any law to legalise such a far reaching programme;
- it was possible to nationalize a wide range of commercial private enterprises by skeleton legislation, which disapplied the time-tested Companies Ordinance, without providing for alternative legal norms to regulate the activities of the nationalised firms; – the government was managed by a politicized civil service which increasingly became ignorant of administrative law and practice ;
- public offices ceased to keep proper records of statutes or Acts of Parliament; – court libraries ceased to be supplied with new law books; and,
- the programme of codification of African customary law, initiated soon after political independence, died a natural death towards the end of the 1960′s.
There are endless illustrations of this state of affairs right up to the time when the historic decision to change from a one party to a multi-party democratic state was made.
RE-ESTABLISHING THE RULE OF LAW
It is realized in Tanzania that, under a multi-party democracy, law and government must replace political party ideology and organisation as the fundamental bonds which hold people together in the nation state. There can be no doubt that, without establishing law and government or such new bonds, the process of change from a one party state could lead to the disintegration of society. There are numerous illustrations of this phenomenon including Somalia, Rwanda and former Yugoslavia.
It is not surprising therefore that of the four elements which were identified by the Presidential Commission on political change as being essential to a true democracy, the first two concern the law. According to the Commission a true democracy must have the following four essentials:
- an environment of respect for the Rule of Law; – an environment of respect for Human Rights;
- a leadership periodically elected in free and fair elections;
- a free flow of information.
Obviously, in order that law may serve as a crucial bond between the people within the nation state, it has to be law which is common to all the people and has to be reasonably known to a reasonable number of people. In Tanzania, there are two kinds of law which are not common to all the people. These are customary law and Islamic Law.
CUSTOMARY LAW AND ISLAMIC LAW
During the first half of the 1960′s a programme of codification of customary law was undertaken for the purpose of making it more certain. With the benefit of hindsight, it may now be said that the programme was flawed. It was mistaken in that it put great emphasis on codification of the rules of customary law rather than on the broad principles underlying such rules. History has shown that the codified rules did, in due course of time, become unacceptable to changing society and were ignored by the people, who evolved new customary rules in line with new circumstances. Had the exercise of codification dealt with broad principles, the courts would have been able to articulate and apply the principles of the new circumstances in the manner the English Common Law was developed by English courts. Since the majority of the people of Tanzania, particularly the rural population, still respect their customary laws, it is incumbent on us to establish a new programme to codify the common principles underlying African customary law in Tanzania. Once that is done, it would be for the Tanzanian courts to articulate and apply those principles to specific cases and changing times.
Islamic law, on the other hand, by reason of its world-wide religious validity, cannot be integrated with customary law. In the Tanzanian context, Islamic law may be and is applied in peaceful coexistence with both customary law and statute law. On the mainland of Tanzania Islamic law applies only in family and inheritance matters in cases where the parties belong to the Islamic faith. In Zanzibar, Islamic law applies not only to matters of the family and inheritance, but also to matters not covered by statute law. The applicability of Islamic law is thus more extensive in Zanzibar than is the case on the mainland. That is one of the reasons why Zanzibar has, and must continue to have, its own autonomous legal system from the High Court downwards.
AWARENESS OF THE LAW
It is unfortunate that the majority of the people of Tanzania are unaware of the law of the land, with the exception of customary law. Obviously Tanzanian law will not serve as a bond holding the people together unless and until a reasonable number of the people are made aware of it. This widespread ignorance of the law of the land is a threat to the integrity of the new multi-party democratic state. Realizing this danger Tanzanian judges and magistrates launched a public law literacy programme in March 1993 which is conducted through the radio, newspapers and public halls.
One other matter which has to be addressed at once to facilitate the people’s awareness of their law is the translation of existing law into the common language of the people – that is – KISWAHILI. The Tanzanian parliament should start enacting statutes in Kiswahili instead of in English. I am one of a growing number of people who do not understand why this change has not been made up to now. After all, the Constitution of the United Republic as well as the Constitution of Zanzibar are in Kiswahili. The debates in the Parliament of Tanzania and in the House of Representatives in Zanzibar are conducted in Kiswahili.
Of all the measures of legal reform that have been taken, that which lies within the field of Human Rights, is the most definitive of the new democratic order in Tanzania. In 1984 the Constitutions of the United Republic of Tanzania and Zanzibar were amended to incorporate a Bill of Rights. This historic step, taken four years before the collapse of the world-wide one party state system, necessarily requires the amendment or repeal of some legislation which is inconsistent with Human Rights. At the time when the Bill of Rights was introduced in the two constitutions, it was agreed that the Union Government should be given a period of grace of three years to put its house in order before the basic rights under the Union Constitution could be enforced in court. No similar period was required for the Zanzibar Government. It was understood that after the expiry of the period of grace, Human Rights reforms would be undertaken in the light of court decisions made in specific cases involving constitutional issues.
That period of grace expired in 1987. Between 1987 and 1990 there were two cases in which the constitutionality of certain statutes was successfully challenged in the High Court. Then came 1991, when the Presidential Commission was appointed. In its report, submitted early in 1992, the Commission identified 40 laws which, in its opinion, were oppressive and violative of the Constitution. A large number of these laws are Zanzibar laws. The Commission recommended the amendment or repeal of these laws in order to create an environment conducive to the establishment of multi-party democracy. The Commission’s findings and recommendations appear to have served as a catalyst for the institution of court cases challenging the constitutionality of many of the laws listed as oppressive by the Commission. Undoubtedly this trend is bound to generate some heat between the Judiciary on the one hand and the Executive and the Legislature on the other, if the trend is mishandled. Fortunately, the Executive, which appears to be genuinely committed to the cause of human rights, has recently invited the Geneva-based Centre for Human Rights to assist it in formulating appropriate reforms and mechanisms.
TIMETABLE FOR THE NEW LEGAL ORDER
Obviously, reform of the law without reform of the mechanisms and institutions which administer the law cannot be successful. It is for that purpose that a wide-ranging study of the entire legal system in Tanzania has been initiated by the Tanzanian Government with the support of the World Bank and donor countries. The recommendations of the Study should have been presented to the Government towards the end of 1994. A donor’s conference is to be convened early in 1995 to determine how best the international community can assist Tanzania to establish a new legal order to underpin the new multi-party democratic state. Undoubtedly Tanzania faces a daunting task of reform of the legal order. Fortunately for us there is the will and commitment to do so. With appropriate assistance from the international community, Tanzania could be a model for African nation states ruled by law, rather than by the barrel of the gun.
ANXIETY ABOUT THE RULE OF LAW
Asked about how difficult it had been for him during one party rule the Chief Justice said, with a smile on his face, that he was afraid that he was going to be asked how he could be taken seriously in view of what had happened at the time. He said that he had appeared twice before the CCM Political Bureau and the Party’s National Executive Committee in 1983 and had expressed his anxieties about actions which undermined the rule of law. The CCM had then called upon every Tanzanian to respect the rule of law but there had not been much follow-up action. One of the reasons why he had been chosen to head the Presidential Commission was that the Judiciary was the only organ of the state which had not been politicised.
TWO GOVERNMENTS OR THREE. PRESENT SYSTEM DOES NOT WORK.
In subsequent discussions the Chief Justice said that the Commission had recommended a true federal state (with three governments) but this was the one part of the recommendations which had not been unanimous. He maintained however that there was and is a consensus that the present (two-government) system does not work. In spite of the present acceptance of the status quo the issue would arise again.
USING THE LAW
As if to underline what the Chief Justice said above on the importance of constitutional law, judgement has been given recently on a number of constitutional issues. At the High Court in Dodoma in mid-September, in what was described in the Business Times as a landmark case which would be a test of the independence of the judiciary, the firebrand politician the Rev. Christopher Mtikila presented a petition. Two judges indicated that they would prefer not to take the case. A third judge then took over.
The petition proposed that there should be amendments to the 1977 Constitution, a referendum on the future of the Union, the convening of a national constitutional conference before the next elections, the proclamation of a Tanganyika Government, the amendment of the Political Parties Act of 1992, and permission for independent candidates (those not belonging to a political party) to take part in the elections.
On September 22nd Judge Kahwa Lugakingira, at a packed hearing, dismissed the demands for changes in the Constitution because this was the function of Parliament and also rejected the idea of a referendum and a transitional government because these were matters to be decided at the ballot box.
However, on October 24th, the Judge null if ied a provision of the Political Parties Act of 1992 under which parties were required to obtain permits from District Commissioners before holding rallies and he also agreed that independent candidates should be able to contest leadership positions. The judge said that some 20 million Tanzanians did not belong to political parties and DC’s were known to be CCM cadres. It was a joke for DC’s to exercise justice under such powers.
This matter is of great concern to the popular Rev. Mtikila who would probably like to stand for president even though his party is not registered.
In another case, this time taken by CHADEMA, High Court Judge Josephat Mackanja ordered Radio Tanzania to stop broadcasting a number of programmes produced by the CCM. But Constitutional Affairs Minister Samuel Sitta refused to accept part of these judgements and issued an order on November 10th stating that the restriction on holding rallies would continue and gave notice of appeal. This immediately placed District Commissioners and the Police in a precarious position. Zanzibar’s Chief Minister Omar Ali Juma said permits would still be required there. Zanzibar had its own High Court he said.