BUILDING THE RULE OF LAW. Jennifer A. Widner. W.W. Norton & Company, New York and London, 2001. 454 pages. $29.95.
Few judges become well-known, let alone popular, public personalities. But then, few judges have the opportunity and motivation to play a formative role beyond the court-room, by leading their nations through major constitutional changes over several decades. This book tells the important story of one who did: the subtitle, ‘Francis Nyalali and the road to judicial independence in Africa’, appears only on the paper cover -perhaps an afterthought, when the book was already printed -but aptly summarises the subject-matter. Nyalali, Chief Justice of Tanzania for 23 years, 1977-2000 (Julius Nyerere was President for the same length of time, 1962-85), was the longest-serving ‘CJ’ in the Commonwealth. (The average service for some other African Chief Justices is calculated as 3.6 years.) He could look back upon an exceptional career of public service in which he was instrumental in transforming the work of the judiciary and the life of the nation, including replacing the one-party state by a multi-party system.
This is not a biography. Key points in Nyalali’s life are briefly noted as background to his personal and professional achievements, which are examined in the context of problems facing ‘the rule of law’, the administration of justice and, especially, the independence of the judges in Tanzania and in other comparable African states. The tone is one of respectful appreciation. Nyalali’s personal story is remarkable. The Sukuma herd-boy who registered himself at primary school at the age of 11 progressed to Tabora School in the 1950s (the launch-pad for many future Tanzanian leaders, including judges) and was inspired by a visit by Nyerere, then founding TANU. After studying history at Makerere University College (no legal education in East Africa then), where he was elected President of the Students’ Guild, to Lincoln’s Inn, where he was ‘Called to the Bar’ in 1965.
The following year he was appointed Resident Magistrate in Musoma -a difficult district, not least as the President’s home area. Aware of local dissatisfaction with the judiciary, Nyalali sought remedies, ‘inspired by a personal interest in organisational problem solving’. He took justice to the people, taking his court on circuit, and won the trust of the community so that his proposed transfer to Kigoma was cancelled after local elders petitioned the President to block it.
Nyalali continued his innovatory approach in Tabora but regarded his next transfer, to teach on the training programme for primary court magistrates at Mzumbe, as a sign of disfavour; yet it gave him further opportunities for influential innovation and also, through teaching in Kiswahili, to develop his fluency in the Swahili legal vocabulary. He was soon moved again -to Bukoba, to deal with a growing backlog of cases by further innovations, including evening
From 1971 to 1974 at Nyerere’s request Nyalali was seconded from the judiciary to preside over the Permanent Labour Tribunal, in the troubled industrial situation of workers’ strikes following the adoption of the Mwongozo Guidelines. He gained experience in promoting settlements by negotiation and mediation, recognising the need for workers to be respected, including such practical steps as offering them tea in refurnished premises.
In 1974 Nyalali reached the senior judiciary, as High Court judge in Arusha. But all was not well with the judiciary (not only in Tanzania): its morale and legitimacy had declined, challenged in various ways by legislative and executive authority and provoking widespread public dissatisfaction with the courts. Indeed, Widner asserts that the rule of law had collapsed. The Judicial System Review Commission was set up, which reported in 1977.
Nyalali had decided to leave the bench to take up a new post in Geneva with the International Labour Organisation when he was mysteriously summoned by Nyerere and offered the choice of an alternative appointment: Chief Justice. It must have been a difficult decision for him. He was only 42, with relatively limited judicial experience, and was only eleventh in seniority in the High Court: would ten more experienced judges resent his leap-frogging? It was a difficult time for the judiciary and the collapse of the East African Community had removed the regional court of appeal, which had served Tanzania for decades. His wife and children were set on Geneva and the salary there would be incomparably higher. But Nyalali recalled his student days, when he aspired to serve his country. His choice was clear.
These and later landmarks of Nyalali’s life are dispersed through the book and frame its complex structure. Each episode provides a peg for an in-depth analysis of a relevant issue which concerned him. Most of these were issues of judicial policy, albeit with great significance for the wider public. Nyalali felt he had to build support, first within the judiciary and then with political leaders in the executive and legislature. He persuaded Nyerere to improve the judges’ terms of service but ‘it took him some time to learn his way around the one-party state’. His sense of history led him to restore to view the discarded portraits of colonial judges.
After coping with various challenges to judicial independence, the economic crisis of the early 1980s and the government’s severe response, including the (retrospective) Economic Sabotage Act, prompted Nyalali to speak with President Nyerere. Invitations followed to address first the Central Committee and then the whole National Executive Committee of the ruling party. These were crucial addresses to powerful, unsympathetic and even hostile audiences. His clear but uncompromising speeches, explaining the judicial role and pointing out illegalities in government policies, were turning-points in the relations between politicians and judges. The new Act was amended and the Economic Crimes Court brought within the High Court. Later Nyalali was to deliver many influential speeches and conference papers.
Widner summarises the debate which surrounded the adoption of the Bill of Rights in 1984, in which Nyalali was prominent. Addressing the University Law Faculty, he gave a clear, though cautious and coded, call for a generous judicial application of the new rights. But his greatest challenge came in 1991 when President Mwinyi asked him to chair a commission on political change to a multiparty system. Nyalali knew that such a system would help to maintain judicial independence; but would he compromise that very independence by leading the review of such a highly-charged political issue? His acceptance, and his formative influence on ‘the Nyalali Report’, was decisive, although the public prominence it gave caused him embarrassment when, before the 1995 elections, he had to rebuff invitations to stand as a candidate for the presidency.
Into this personal story, Widner, an American political scientist, weaves comprehensive and perceptive discussions of many basic problems, apart from political interference, which have beset African judges: lack of training for judges, magistrates and court staff; lack of resources -not only weather-proof court-rooms and libraries but even paper; the colonial legacy of ‘deep legal pluralism’, requiring harmonisation of common law and statutes with customary and Islamic laws; the related need to promote gender equality; massive delays in both civil and criminal trials, and especially the inhumanity and costliness of lengthy imprisonment of many defendants awaiting trial while police, prosecutors and politicians resisted wider implementation of the right to bail; the development of ‘alternative dispute resolution’ by way of negotiation and mediation; the persistent problem of corruption, in societies which paid judges poorly and lowergrade magistrates a mere pittance; problems of witchcraft and vigilantism; the promotion of ‘legal literacy’ -public knowledge and understanding of the legal system (Nyalali invited religious leaders to participate in ‘Law Day’ ceremonies, opening the legal year).
Nyalali was particularly successful in two dimensions. Within Tanzania he developed internal support, previously weak, for the judiciary. But he also found and tapped foreign sources which have provided ground-breaking and sympathetic assistance: Ireland, which has provided judicial training courses, and the United States, in particular the Superior Court of the District of Columbia, which responded vigorously to his initial approach, from which valuable judicial exchange visits, other practical help and deep friendship have followed. Nyalali admired John Marshall, fourth Chief Justice of the USA., whose response to political pressures early in the nineteenth century established judicial independence and offered instructive parallels. American support helped Nyalali to realise a personal project -the Lushoto Institute for Judicial Administration, which he opened in 1996 to serve the courts ofthe region.
Widner’s book is a mine of information, based on extensive and varied research: many interviews with Nyalali and other judges and lawyers in several countries and study of his many speeches and papers (listed in a Bibliography though not all published); many other published sources, most of them relatively recent, are briefly and uncritically, even deferentially, cited; personal observations, for example at judicial conferences, and opinion surveys are also used.
The structure of this long book causes some repetition, with too much detail of some legal issues for general readers but insufficient specificity and precision for lawyers. Widner refers to ‘the region’ -‘eastern and southern Africa’ -but this is really a book about Tanzania. She gives several detailed references to Uganda and a few to Botswana and Kenya (including unnecessarily lengthy accounts of the celebrated Dow and Olieno cases) but only general references to other countries, with some misleading over-generalisations (e.g. that they have English ‘common law’, understating the role of Roman-Dutch law in the majority of them). There are occasional errors (Lord Woolf is not Lord Chancellor). Nyalali would be the first to acknowledge, more directly than Widner does, the support which he received from most of his fellow judges, many of whom have also served Tanzania with distinction and commitment. (Your reviewer admits his partiality, having had the privilege of sharing in teaching many of these dedicated judges in those far-off days of the yOlUlg Faculty of Law in Dar es Salaam.)
There is no account of the formation of the Court of Appeal, over which Nyalali presided, or of the Conference which he organised to review its work on its tenth anniversary in 1989 (the proceedings were published). There is no systematic examination of Nyalali’s main writings -the many judgments which he delivered in the course of his long judicial service; only a few of his best-known judgments are considered at relevant points.
BWANA SHAMBA (MR AGRICULTURE). Peter M Wilson. The Pentland Press (see below), 2001. 235 pages. ISBN 1 85821 9078
This reviewer spent 4 years in the mid-1960s doing cotton research at Ilonga in the Kilosa District of Tanzania. Bwana Shamba recounts the personal experiences of Peter Wilson during his thirteen years in Tanganyika/Tanzania from 1958 to 1971 and more than two thirds of the book are devoted to his first assignment in Kilosa where he worked for three years for the Eastern Province Cotton Committee. The book is therefore of particular interest to this reviewer given the links to cotton and to the agriculture of the Kilosa District as a whole. The remainder of the book relates Peter’s experiences at Tengeru near Arusha where he taught agriculture and Swahili for about six years and in Dar es Salaam where he worked for four years in the Ministry of Agriculture. In the town of Kilosa at that time there was no electricity, many roads in the District were frequently impassable but the railway to Tabora passed through the town and there were several well stocked shops. The expatriate population in the town was sufficient to run the usual sort of Gymkhana Club and this, along with the Church, was one of the more important social centres. Peter’s description of family life at that time and of attending functions at the Club during the heat of the tropical night, wearing evening dress, seem today somewhat archaic!
But most of the book is devoted to accounts of the work of a Field Officer in attempting to develop district agriculture and there are vivid descriptions of how this was done. Communications were difficult and one of the first jobs Peter had to accomplish was to build a ‘murram’ road through the bush for some 25 miles to open up an area for cotton growing and thereby enable the cotton to be transported out to Kilosa town. Other descriptions relate to using the local train service to reach villages otherwise inaccessible by road and the welcome he received from the local people who rarely, if ever, saw outsiders. After independence Peter was based at Tengeru where he lectured to students of agriculture and then took on the task of teaching Swahili over several years to groups of expatriate volunteers. Many of these volunteers then worked in remote parts of the country where a knowledge of Swahili was essential. Peter’s accounts of organising the Swahili courses give an interesting insight into the life of expatriates after independence in contrast to the lifestyle he had previously followed in Kilosa.
Anyone who knows Tanzania, and particularly those with experience in agricultural development, will find many of the chapters and reminiscences in this book very interesting and those readers who were in Tanganyika before 1961 may well know many of the people and places mentioned in Kilosa.
(It is understood that the Pentland Press of Bishop Auckland, which used to claim a special interest in books concerning Africa, has gone into receivership. This means that anyone who has ordered any book from them will receive neither the book nor money back. Those wishing to obtain this book should apply to Peter Wilson, P 0 Box 304 Horley RH6 7NE. The price is £15.00 plus £5,00 p&p -Editor).
PINK STRIPES AND OBEDIENT SERVANTS: AN AGRICULTURALIST IN TANGANYIKA. John Ainley. The Ridings Publishing Company Ltd.
John Ainley was appointed as an Agricultural Field Officer in the Department of Agriculture in 1949 at the age of 23. He was recruited through the Crown Agents. John’s time in Tanganyika/Tanzania included three years in Iringa and Njombe in the then Southern Highlands Province, two tours in Handeni in Tanga Province, ending with his promotion to Agricultural Officer (Tanganyika) whilst on leave. A tour in Bukoba in West Lake Province followed, during which he was promoted to Provincial Agricultural Officer and finally posted to Head Office in Dar es Salaam, where he witnessed the transition of the country to independence. This tour was followed by leave in England and a final tour of duty in Bukoba.
This book recounts in some detail the author’s various experiences and duties during his sixteen years of service.To quote a few examples: his description of walking safaris through the Livingstone Mountains and across the Elton Plateau, the resettlement of Mau Mau detainees in the Handeni District, the part played by the District Team in locating the wreck of a Central African Airways machine which came down in remote bush country, his becoming a ‘script writer’ for the Tanganyika Broadcasting Services’ programme for farmers based on the idea of ‘The Archers’ and acting as Presiding Officer in the first ever elections held in the country.
Throughout he displays a most remarkable ability to recall names and dates and one suspects that he must have been a committed diarist! The author has included some personal details of life on a station, home leaves and his marriage in 1955. One is able to appreciate the part played by his wife, often under extremely adverse conditions. The variety of tasks undertaken and included in the job description ‘general extension work’ is truly remarkable and even more so in the case of a man who progressed from Field Officer to Provinvcial Agricultural Officer in the course of his service. It is worth recording that during his time in Head Office his duties included editorship of ‘Uklima wa Kisasa’.
The variety of tasks undertaken and included in the job description ‘general extension work’ is truly remarkable and even more so in the case of a man who progressed from Field Officer to Provinvcial Agricultural Officer in the course of his service. It is worth recording that during his time in Head Office his duties included editorship of ‘Uklima wa Kisasa’, a monthly agricultural newspaper for the more progressive farmers, this adding the skill of journalism to his many talents.
This book contains no ‘message’. It is written in a straight forward style and is merely an account of a life, or a good part of one, of service. The total commitment of the author, ably assisted by his wife, to the task in hand and to the people he is working amongst, is obvious. Such an attitude seems to be quite contrary to the populist view of today that ‘colonialism’ was completely wrong and totally exploitive.
The Epilogue describes the Joint Commemoration and Thanksgiving service for Her Majesty’s Overseas Colonial Service and the Corona Club held in Westminster Abbey on May 25 1999 at which the author was one of eight ex-Overseas Service Officers presented to Her Majesty the Queen and the Duke of Edinburgh.
CA (Tony) Waldron
ECOLOGY, CIVIL SOCIETY AND THE INFORMAL ECONOMY IN NORTH WEST TANZANIA. C.D.Smith. Ashgate. 2000. 222pp. £43.95
This book will be of interest to students of Development Studies and to staff and supporters of N.G.O.’s working in Tanzania. It may well also be of interest to B.T.S. members not intimidated by the sociological language of the early chapters.
It challenges two widely held views: first the commonly expressed pessimism about the present and future prospects of the mass of the Tanzanian people; and secondly the idea that successful development must necessarily involve agriculture based on large estates for export crops and/or industrial projects, both requiring heavy capital investment.
After some early fairly theoretical chapters, it examines the physical and human environment of the Kagera Region, the effects of AIDS, the impact of Rwandan refugees, the place of bananas in the life of the people and the role of coffee production in the local economy. Detailed findings are based on the study of some 250 households in Kagera. Particular attention is paid to the differences between rich and poor farmers and to the situation of women heads of households (who comprised 30% of the sample ).
The author suggests that, so far from being merely a subsistence economy, it is to a considerable extent cash-based and much less dependent on coffee than is generally supposed. He contends that the people have shown remarkable innovative skill in confronting their economic problems and that official figures, since they ignore the informal economy and illegal trade, greatly underestimate this. Readers may find it interesting to compare his work with that of Aili M. Tripp (1997) which examined the informal economy in Dar es Salaam in a not dissimilar fashion.
Smith believes that the best short and medium term policy for development—in Kagera at least—would be the injection of capital to assist the poorer farmers who are held back only by the lack of relatively small amounts of investment capital. It is a pity the book did not receive better proof-reading and editing. There are typographical and grammatical errors and the punctuation is, to put it mildly, idiosyncratic.. Nevertheless, this reader found it both challenging and thought provoking
EXPLORE KILIMANJARO. Jaquetta Megarry. Rucksack Readers, 2001 ISBN 1 898481 105 £l2.50, 64pp maps photos. E-mail: email@example.com Web: www.rucsacs.com
Nearly 20 years ago in the mid’80’s a friend and I, equipped with little more than two 2 pieces of advice proffered by the elderly German owner of the Marangu Hotel, our base, set off to scale the mountain. “Take it slow and steady” she counselled and “Should you reach Gilman’s Point then little extra effort is involved in getting to the summit. Heeding her words, I at least made it to Uhuru Peak. My companion went no further than the rim and has since very much regretted it!
Today for those intending to climb the highest mountain in Africa, there is an alternative and rather more detailed source of reference. This handy, spiral bound, tightly packed guide provides a ‘step by step’ practical approach to doing Kili. It takes the would be trekker through the planning and preparation stages necessary before stepping a foot on the mountain, offering such advice as when best to go, what to take in the way of clothing and equipment, altitude sickness etc. By means of maps and illustrations, it then directs the reader along the two most popular (Marangu and the more arduous Machame) routes. Other sections are devoted to the habitats/zones and wildlife to be found along the way, and some background history and local culture. A useful addition to the pack, particularly for those intending to attempt the mountain for the first time, and even myself who is half tempted by the Machame route second time round!
A LIVELIHOOD PERSPECTIVE ON NATURAL RESOURCE MANAGEMENT AND ENVIRONMENTAL CHANGE IN SEMI-ARID TANZANIA. T Birch-Thomsen et al Economic Geography. 77 (l)January 2001. 23 pages.
ENGENDERED ENCOUNTERS: MEN OF THE CHURCH AND THE “CHURCH OF WOMEN” IN MASAILAND, TANZANIA 1950-1993 Dorothy L. Hodgson. Comparative Studies in Society and History VoI41.4. Oct. 1999 (pp 758 to 781)
This is a fascinating account of the consequences of the encounter between Christian missionaries and the Masai. It begins by pointing out that in many parts of Africa there tends to be a preponderance of female converts despite concerted efforts by most mainstream missionary groups to convert men, and this indeed is what has happened in Masailand.
The Congregation of the Holy Ghost, also known as the ‘Spiritans’, has spent forty years attempting to evangelise Masai men with virtually no success. The article describes the three strategies employed, first the setting up of schools, second the providing of instruction in the Masai homesteads, and finally the setting up of ‘individual’ instruction classes. Masai women were restricted from attending school, tolerated but not encouraged to attend homestead instruction and dissuaded from holding formal leadership positions in the church. The Christian churches tend to manifest a patriarchal culture with a preference for men as priests and leaders and the Roman Catholic church still does not accept women priests. Yet in spite of all this, significantly more women than men have sought instruction and baptism in the Catholic church.
There is a clear account of the political and economic changes which took place up to the 1950s as a result of various colonial interventions and which affected the gender relations between the Masai, with a marked reduction in the role of women, in these fields. However, despite this the women retained their involvement in the religious domains of everyday life. While men prayed to their one God, Eng’ai, (whose prefix shows her to be female) on special occasions, women prayed throughout the day most importantly at the early morning and evening milking when they would sprinkle a little milk on the ground thanking and entreating Eng’ai for the continued protection, preservation, and expansion oftheir family and herds.
The school strategy largely failed because conversion was seen as a threat to Masai maleness. You could not be a Christian and a Masai at the same time. Conversion meant that the progression from uncircumcised youth to morran to elder could not be maintained and those who did convert were despised as ormeek and essentially excluded from the clan.
The homestead strategy failed with the men precisely because the main thrust was towards the conversion of the men, particularly the elders of the group who were those consulted initially and who had to agree to the missionaries working in the homestead. The aim was to try to convert the whole homestead at once so that it would form a unified Christian community. However, the elders were those who were least receptive and they often simply did not appear at the scheduled meetings so that the missionaries became frustrated because they were not reaching them. In contrast, because these meetings were conducted in KiMasai, and involved discussion about key religious concepts, the women found themselves with direct access to the missionaries so that they could hear the Christian message and became regular and active participants in the sessions to the point of actually speaking out in public.
The ‘individual’ strategy became possible with the government’s villagisation policy and here the gender differences became vividly apparent. Now that anyone was free to attend religious instruction regardless of school enrolment or homestead residence, women flocked to the classes and women outnumbered men by two to one at baptism. Some missionaries still refuse to teach Just women’ claiming it would divide the family, others disparage the ‘church of women’ and insist on the need for a church to be a proper community with proper (male) leadership.
Many Masai women feel that conversion to Christianity enhances their already substantial spiritual life by providing yet another place to sing to and praise God, and they perceive little difference between the Masai god Eng’ai and the Christian God or between the prayers and rituals of Masai religion and of Catholicism. The church provides frequent opportunities for the women to meet as a group, talk to one another in small circulating groups both before and after services or classes and to sing and pray together.
Thus it is that through both direct and indirect means the women have overcome the disinterest of missionaries and the resistance of men to their participation in the church and there is evidence that that is a source of joy to them.
PROMPTING DEMOCRATIC TRANSITIONS FROM ABROAD: INTERNATIONAL DONORS AND MULTIP ARTYISM IN TANZANIA. Jessica I Vener. Democratization, vol. 7, no. 4, Winter 2000, pp 133-162,
The author uses Tanzania as a case study to assess the extent to which international donors tied commitment to the democratization process as a condition for aid. Noting that using aid as a reward for promoting democratic modes of governance is essentially a post -cold war policy, and that by 1992 all of Tanzania’s major donors had “incorporated democratization as a contingency for continued economic assistance”, the author asks whether foreign donors explicitly required this as a condition for aid. Tracking aid statistics for the years 1985-1995, the author concludes that while there were numerous increases or decreases in funding, interviews with donor representatives indicated that these fluctuations were a result of circumstances, e.g., specific Tanzanian needs, or donor fatigue, rather than any demands for democratic contingency. However, local sentiment suggested otherwise. Using interviews as a means of assessing perspectives among Tanzanian government leaders, opponents of the one party system, and various leaders within the civil society, the author found they expressed a strong sense of external pressures for some measure of democratization. Nevertheless, these leaders also acknowledged that changing domestic circumstances had minimized the efficacy of the one-party system and stimulated the move to multi-partyism. Since Tanzania did not test whether economic sanctions would be applied if it did not liberalize its political process, the causal role of donor pressures on future democratization remains to be seen.
ZANZIBAR TOURISM DIRECTORY 2002. Swahili Coast Publications. 48 pages in full colour with information on Zanzibar and contact details on tourism companies.