JUSTICE IN TANZANIA – LESSONS FOR ENGLAND

Tanzanian law owes much to the colonial legacy of English law, which overlaid the traditional customary laws of Tanzania’s African communities, but some current developments and proposed reforms in English law reflect basic concepts familiar in Tanzanian legal experience. Some reforms already adopted in Tanzania are now under contemplation in England. These points emerged at a London meeting of the Britain Tanzania Society to welcome a party of senior members of the Tanzanian Judiciary.

Five Tanzanian judges made a study tour of Britain from 5th to 16th September 1988 following a request by the Chief Justice to the Commonwealth Magistrates’ Association; the main purpose of the visit was to allow the judges to acquaint themselves with recent developments in the English legal and judicial system as part of a current comprehensive programme of judicial development and training being undertaken by the Tanzanian Judiciary. The visitors took part in a seminar for British judges and then visited courts, judges and other relevant officials.

The three guests who addressed a keenly interested audience on “Justice in Tanzania” were Mr. Justice Mfalila (a High Court judge since 1972), Mr. January Ksoffe (Senior Deputy Registrar of the Court of Appeal), and Mr Exuper Mtui (Senior Resident Magistrate). They had all graduated from the University of Dar es Salaam and Mr. Justice Mfalila was greeted at the meeting by three of his former British teachers and one of his examiners, in the form of three University of London Law professors and a senior solicitor from a big City firm. The visitors themselves personified the ways in which the development of legal education in Tanzania, although it started only on the eve of independence in 1961, has enabled the country to help sister African states: Mr. Justice Mfalila has served with distinction as a judge of the High Court of Zimbabwe from 1984 to 1987 and Mr. Msoffe has been a resident magistrate in the Seychelles.

The judges outlined the legal history of Tanzania. Colonial policies of indirect rule had protected indigenous local laws by maintaining a dual judicial system. After independence Government policies had sought to promote unification, introducing a unified system of magistrates’ courts (1963) and systematic, statutory “Declarations of Local Customary Laws” relating to the family and succession. A notable and mainly successful and pioneering experiment in unification had given Tanzania a unique lead as the only Commonwealth African state to have introduced a unified system of family law in the Law of Marriage Act 1971: this applies a single set of procedures and standards for the contracting of marriages and the settlement of matrimonial disputes including divorce, while recognising the validity of all the existing diverse types of marriage (customary, Christian, Muslim, Hindu, civil etc.).

In some ways Tanzanian law has always differed from English law. Thus, trial by jury was never adopted and serious criminal charges are tried by a judge “with the aid of assessors”, whose individual opinions are advisory only; however, Mr . Justice Mfalila said that it was very rare far a judge to disagree with the Assessors and he had to state and record his reasons for doing so. By contrast, in the Primary (Magistrates’) Courts, where the majority of cases are dealt with, the magistrate sits with local assessors and decisions are made by majority vote. It is interesting to note that a recent official enquiry in England recommended a trial with assessors instead of a jury for certain difficult trials such as serious fraud offences.

Within a few days of the meeting a highly significant development in Tanzanian law took effect: from 1st October 1988 the Bill of Rights added to the Constitution by amendment in 1985 became “Justiciable” – enforceable by the courts, an interval having been allowed for the adjustment of any existing provisions which might have been inconsistent with the Bill of Rights. This development greatly enhances the power of he judiciary to protect individual rights. Needless to say, the United Kingdom has no Bill of Rights except insofar as the European Convention on Human Rights allows the European Court of Human Rights to adjudicate on the validity of British laws and practices: that international Court has given a number of adverse decisions an British law, most recently (November 1988) an the impropriety of special powers against terrorism in Northern Ireland. In Tanzania the much criticised Economic Crime Control Act 1984 might have been challenged if the Bill of Rights had been in force then, especially insofar as it originally denied legal representation to persons accused, a provision which was modified at an early stage. The Act has been further amended to restore jurisdiction to try “economic crimes” to the ordinary courts, applying the Penal Code.

Here is another example of Tanzanian law being ahead of the law of England. Early in 1989 English lawyers will be studying the revised version of the Draft Criminal Code prepared for the official Law Commission. This will be more than a century after an authoritative project to enact a criminal code for England was abandoned in the face of opposition. The Penal Code of Tanzania, continuously in force since its enactment in 1930, had its original source in the draft code rejected in England in 1880, via the model adopted as the Queensland Criminal Code 1899 which was introduced into Nigeria in 1904. There is at least the possibility that, before the end of the twentieth century, English law will have caught up with Tanzanian law by adopting a code of criminal law – which should be a valuable element in making a most important area of the law clearer and more accessible to the people.

The Tanzanian judges were questioned at the meeting about various aspects of Tanzanian law, and they were also asked what they had learnt from British legal institutions. They commented on the training value of judicial seminars and on techniques adopted in English courts to reduce delays in civil cases. They noted that in England it is proposed to simplify certain technical rules of evidence, e.g. those which impose unduly restrictive requirements on evidence given by children as witnesses; such changes have already been adopted in Tanzania (1985)!

Finally, attention turned to an issue of over-riding significance in the common problems of controlling crime and treating offenders. For at the time of the meeting a Government “Green Paper” was imminent in England which emphasised the importance of compensation of the victim of an offence by the offender: English courts may be required to order compensation in future, unless they can record reasons against doing so in particular cases. Yet this is to recognise a truth which was accepted as fundamental in African societies of Tanzania (and other states) long before the advent of colonial rule. Indeed it was the focal point of a conference on Penal Problems in East Africa held at the University College , Dar es Salaam more than two decades ago, when a distinguished criminologist with a lifetime of practical service in Africa declared: “The great Tsonga proverb is: ‘The repair of the damage done is restitution’ .. . . the true corrective of crime has little value if the one who suffered is not compensated.” [H.P. Junod]

Jim Read


THE JUDICIARY AND THE PARTY

The Daily News in its issue of November 3, 1988 reported on a seminar being held in Dar es Salaam on ‘The Role of the Judiciary in the Implementation of the 15-Year Party Programme.’

Party Secretary General Rashidi Kawawa, had told the participating judges that laws played a vital role in social and economic transformation especially in a society where the interests of the toiling masses were being trampled upon by the exploiting class. “The courts must at all times protect and champion the interests of the workers and peasants as a way of implementing the Party programme” he said.

Judge Goodwill Korosso, like many participants, observed that not all colonial laws were irrelevant to the aspirations of a socialist state under formation. British laws inherited at independence had been based on the principles of ‘natural justice’ which were the same for a socialist or capitalist society.

Judge Robert Kisnaga expressed concern over an allusion in the paper presented by party cadre Professor Daimon Mwaga to the effect that the courts of law could not afford to remain neutral in the overall struggle to build a state based on class interests. “I have in all my years in this job believed that the courts are an independent arm of the state” he said. He requested to be informed if the situation had changed.

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