Kadhis Court Juridistriction PDF

British Institute of International and Comparative Law
Administration of Justice in Tanzania and Zanzibar: A Comparison of Two Judicial

Systems in One Country
Author(s): Rainer Michael Bierwagen and Chris Maina Peter
Source: The International and Comparative Law Quarterly, Vol. 38, No. 2 (Apr., 1989), pp.
395-412
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
Stable URL: https://www.jstor.org/stable/760038
Accessed: 23-01-2020 08:32 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
British Institute of International and Comparative Law, Cambridge University Press

are collaborating with JSTOR to digitize, preserve and extend access to The International and
Comparative Law Quarterly
This content downloaded from 197.149.178.130 on Thu, 23 Jan 2020 08:32:54 UTC
All use subject to https://about.jstor.org/terms
APRIL 1989] Sterilisation and the Mentally Disabled 395
woman. Doctors, as always, must be careful in making their decisions, and the
possibility of legal redress against them for assault if there is no real necessity33
should act as sufficient incentive to them to act with caution and care in coming
to this fundamentally important decision.
E. Conclusion
The best interests test may be a difficult one to interpret and apply. But th
clearly the sole test paid regard to by the courts in both Canada and Eng
Issues of public policy, fundamental rights, and the treatment of the me
disabled in general may be important matters, but they take second place to
basic test. The treatment of Re Eve by the House of Lords in Re B. illust
the dangers of uncritically paying regard to the outcome of a particular
without detailed analysis of how that decision was reached. A unani
decision of the Supreme Court of Canada, reached after many years of
debate, deserves better treatment in the supreme court of the English ju
system than the cursory and factually invalid dismissal that Re Eve was s
to in the House of Lords.
KENNETH McK. NORRIE
ADMINISTRATION OF JUSTICE IN TANZANIA AND

ZANZIBAR: A COMPARISON OF TWO JUDICIAL SYSTEMS
IN ONE COUNTRY
A. Introduction
Administration of justice in any society is one of the key barometers of adh

ence to rule of law in that particular society. It differentiates between a dem
cratic and an authoritarian system. Therefore, the system of administerin
justice stands as one of distinctive characteristics of any society in the mode
world. As to whether a particular system is just or unjust, depends especially o
the organisation and power structure of institutions which deal with adjudi
cation. These institutions may be judicial, legislative or executive. Central
among these are the judicial ones and particularly the courts of law. In each a
every democratic society courts of law as bastions of justice must, as of right,
free to dispense justice and it is only in such an atmosphere that administratio
of justice can be said to be fair and just.
This article examines the process of administration of justice in the Unite
Republic of Tanzania, which is composed of two autonomous entities, namel
Tanzania Mainland (formerly known as Tanganyika) and Zanzibar (also know
as Unguja). The two entities existed as two separate States until 1964 when th
united to form one State.' Consequently, they had different colonial expe
ences as far as administration of justice was concerned and they established dif
33. As in Murray v. McMurchy (1949) 2 D.L.R. 442, and Devi v. West Midlands
Regional Health Authority, 9 Dec. 1981 (unreported, available on LEXIS).
1. On the Union see (1964) 3 I.L.M. 763-769. See further M. F. Lofchie, Zanzibar
Background to Revolution (1965); R. M. Bierwagen and C. M. Peter, The Constitution
the United Republic of Tanzania: A Study of the Fifth Amendment of 1984 (1988, mimeo
and idem, "Tanzania" in Constitutiones Africae, Vol.6 (1989).
396 International and Comparative Law Quarterly [VOL. 38
ferent judicial systems after independence. The union between them did not
alter the situation; they continued operating two parallel systems within the
Union.
The work is divided into three main parts. In the first part we briefly refer to
the judicial set-up in the two entities during the colonial period; the second part
examines the development of the court system in the post-colonial period and
focuses on the judicial institutions which cover the two parts of the Union; and
in the third part we evaluate and compare the two judicial systems.
B. Administration of Justice in the Colonial Period
1. Tanganyika
(a) German colonial rule. The colonial history2 of the territory which later
came to be known as Tanganyika began in November 1884 when the German
Carl Peters on behalf of the Society for German Colonisation concluded 12
"treaties" of protection and understanding with African headmen which he used
to assert his claim to a large area north of Dar es Salaam.3 The Sultan of Zanzi-
bar, who laid claim to this territory, protested in vain. The German Empire
(Deutsches Reich) became involved in the colonisation of Tanganyika when on
27 February 1885 it issued letters patent (Imperial Charter) for the protection of
the society's interests. On 1 April 1890 the German Empire declared Tan-
ganyika its protectorate (Schutzgebiet).4
The German colonial administration set up two branches of judicial adjudi-
cation, one for foreigners and the other for natives.5 The white foreign popula-
tion, and persons deemed equal,6 enjoyed a variation of the consular judiciary
which applied German law. The native population, however, did not enjoy the
advantage of an independent judiciary. The Germans maintained a close con-
nection between the executive and the judiciary.
In civil matters the district officers, or officers in charge of military stations,
could (and did) delegate adjudication of cases to local leaders who continued to
exercise executive functions. These were liwalis, kadhis, and akidas. A liwali
2. For further references on this subject see the bibliographies in C. Darch, Tanzania
(World Bibliographical series; 54) (1985); and Bierwagen and Peter, idem, App.7.
3. These "treaties" are called into question because of the way they were entered into.
There was no consensus ad idem. See E. E. Seaton and S. T. Maliti, Tanzania Treaty Prac-
tice (1973); G. M. Fimbo, "Land, Socialism and the Law in Tanzania" (1973) 6 Eastern
Africa L. Rev. 215.
4. Following an agreement between the Empire and the Deutsch-Ostafrikanische
Gesellschaft, the Empire assumed the administrative power in Tanganyika on 1 Jan. 1891.
5. See J. P. Moffett, "Native Courts in Tanganyika: A History of the Development of
Native Courts from German Times" (1952) 4 Jo. African Administration 17-21; K.
Lugakingira, "The Administration of Justice in Tanzania: Reflections on Transition and
Development" (paper presented at the annual conference of the African Law Association,
at Heidelberg, Germany, 6 Nov. 1987); R. M. Bierwagen, "Die Entwicklung der ordent-
lichen Gerichtsbarkeit in Ostafrika in kolonialer und postkolonialer Zeit am Beispiel Tan-
sania" (1988) 101 Zeitschrift fOr Zivilprozess 50-69, with references to the German
literature.
6. The term white population excluded coloured persons (then indigenous Africans,
Arabs, Indians and Baluchis) but not Japanese, Goans, and Parsees.
APRIL 1989] Courts in Tanzania and Zanzibar 397
was, originally, a representative of the Sultan with almost complete ex

and judicial powers.7 A kadhi was the judge where the liwali did not ha
judicial functions. An akida was an executive on the country side.
The cases were to be decided in accordance with the local law as Africans
were considered to be insufficiently advanced to come under German law.
Instructions were given to the effect that
since there were no explicit regulations governing native law, the law to be applied
must be determined by general legal considerations, whereby an analogy of the law
applicable to non-natives must be resorted to and, above all, regard must be given
to the legal practice of the natives insofar as this is not-from the point of view of
civilised nations-contrary to healthy common sense and good morals.8
Appeals laid to the governor who delegated his adjudication powers to the
Superior Judge of the Supreme Court.
In criminal matters district officers did not delegate the adjudication powers
but elders and indigenous executive officers participated in the proceedings as
assessors. The punishment was subject to the governor's approval in certain
cases and to his administrative review. The district officers applied German
penal law with alteration where deemed appropriate.
(b) The British colonial rule. After its surrender in the First World War the
German Empire ceded by virtue of Article 119 of the Versailles Peace Treaty of
1919 its colonies to the allied powers.9 Tanganyika became a British colonial
protectorate in 192010 and a mandate of the League of Nations." On 18 April
1946 Tanganyika became a trust territory of the United Nations.
The British forces were the de facto administrators of Tanganyika from 1916
and were given a mandate for the territory in the Versailles Peace Treaty. In
1920 the Tanganyika Order in Council was enacted as the basic law of the terri-
tory. The Courts Ordinance12 was enacted to regulate the administration of jus-
tice in the territory.
Section 3 of the Courts Ordinance established the courts of a "Liwali, Cadi,
Akida, Chief, Headman or other person or persons specially empowered in that
behalf by the Governor" as native courts subordinate to the High Court. This
enactment allowed the retention of the prevailing system of separate jurisdic-
tion.13
Native courts were instituted for the indigenous population. Sections 17 and
7. This arrangement had its origin in convenience, because a kadhi is the proper judge
in a Muslim community.
8. German Foreign Office Decree of 15 Jan. 1907 in the translation given by Moffett,
op. cit. supra n.5, at p.18; the situation in Kenya was similar, see U. Wacker, Der Konflikt
verschiedener Rechtssysteme vor, wiihrend und nach der Kolonialzeit in Kenia (1976),
pp.102 et seq.
9. See B. T. Chidzero, Tanganyika and International Trusteeship (1961).
10. Cf. J. S. R. Cole and W. N. Denison, Tanganyika-The Development of its Laws
and Constitution (1964), pp.6 et seq.; W. Morris-Hale, British Administration in Tangan-
yika from 1920 to 1945 (thesis, Geneva, 1969); Chidzero, idem.
11. Text reprinted in Morris-Hale, idem, pp.312 et seq.
12. Native Courts Ordinance, No.6 of 1920.
13. See generally Moffett, op. cit. supra n.5; A. K. Datta, Tanganyika: A Government
in a Plural Society (thesis, Leiden, 1955), pp.47 et seq.; Bierwagen, op. cit. supra n.5.
22 of the Ordinance allowed for retention of the existing courts by conferring
competence on them. A Proclamation in 1925 provided for further details and a
possible appeal to the High Court if allowed by an administrative officer. More-
over, the High Court was empowered to revise, on its own motion, any of the
proceedings of a native court.
When Sir Donald Cameron became governor in 1925 he was able to
implement his personal view of "indirect rule", which in his opinion required
judicial functions to be retained by the local chiefs performing administrative
functions.14 Consequently, the Native Courts Amendment Ordinance 1929 put
the courts under the control of the provincial commissioners and provided for an
appeal from a native court to a superior native court, thence to a district officer,
from him to the provincial commissioner and finally to the governor.15
In 1940 the governor's appellate powers were devolved upon an appeal board,
which in 1950 was composed of the Attorney General, the member for local
government and the native courts adviser. This situation prevailed until 1951
when the trend was reversed.16 The Tanganyika Local Courts Ordinance 1951
renamed the native courts "local courts". Local courts of first instance, local
courts of appeal, and the Central Court of Appeal were to be set up.17
Even before independence the Central Court of Appeal was abolished and its
functions were thence to be exercised by the High Court.'8 Assessors, versed in
customary law, were to sit with the judge but their votes were not binding.
In all civil and criminal cases in which natives were parties, courts were: (a) to
be guided by native law so far as it was applicable, and it was not repugnant to
justice and morality or inconsistent with any Order in Council or ordinance; and
(b) to decide all such cases according to substantial justice without undue regard
to technicalities of procedure and without undue delay.19
In striking contrast there were courts of common law for the white popula-
tion. These were the district magistrates' courts. the resident magistrates' courts
14. His views were strongly opposed by the then Chief Justice Sir Alison Russell who
said that the conception of rule through the native chiefs was not new to East Africa. See
Moffett, idem, pp.19-21. For the background see D. C. Cameron, My Tanganyika Service
and Some Nigeria (1939); Lord W. Hailey, Native Administration and Political Develop-
ment in British Tropical Africa (Confidential paper, London 1940-42), and Native Admin-
istration in the British African Territories (1950), Part I (both reprinted Nendeln: Krauss
1979).
15. See Moffett, op. cit. supra n.5, at p.21.
16. See for the policy discussion A. J. Loveridge, "The Future of Native Courts" (1949)
1 Jo. African Admin. 8; R. E. Robinson, "The Administration of African Customary
Law" idem, p.158; Moffett, idem; Judicial Advisers Conference 1956, Nigeria, Native
Courts and Native Customary Law in Africa, Supplement to Jo. African Admin. 1957;
African Conference on Local Courts and Customary Law, Records of the Proceedings,
Dar es Salaam 1963; E. Cotran, "Integration of Courts and Application of Customary
Law in Tanganyika" (1965) 1 E. African L. J. 108-123.
17. This set-up is described in E. Cotran, "Tanganyika", in A. N. Allott (Ed.), Judicial
and Legal Systems in Africa (1st edn, 1962), pp.98 et seq.
18. Local Courts (Amendment) Ordinance, No.38 of 1961.
19. S.24 Tanganyika Order in Council 1920; but see s.13(1), Native Courts Ordinance
1920: "The law to be administered by Native Courts: (1) Native law and custom prevailing
in the area of the court's jurisdiction so far as it is not repugnant" (italics supplied). For an
interpr6tation see Cole and Denison, op. cit. supra n.10, at pp.128 et seq.; and J. N. D.
Anderson, Islamic Law in Africa (1955, reprinted 1970), pp.122-147.
(if necessary), and the High Court. The High Court had an exclusive and
current original jurisdiction as well as one as a court of appeal. A further
lay to the Court of Appeal for Eastern Africa (in Kenya). This Court wa
lished in 1902 for Kenya; it became competent inter alia for appeals f
Uganda in 1904, from Zanzibar in 1914, and from Tanganyika in 1922.2
final appeal could be heard by the Privy Council in London on behalf o
Majesty.21
2. Zanzibar
Zanzibar, which consists of two large islands (Unguja and Pemb

smaller ones,22 had. a different development. The Muslim-
influence was predominant as was the Arabs' dominance as the la
trading class even though they were numerically a minority. T
influence in Zanzibar23 grew remarkably in the 19th century, w
pean powers competed vigorously for influence on the islands. E
spheres of influence were agreed upon and the ruling Sultan pla
under British protection on 14 June 1890. The Treaty of 1890 conf
tanate to the ruling Sultan and his successors. The British retain
foreign affairs.
The peculiarity of the Zanzibar court system under British rule
jurisdiction. On the British side, there were a High Court and
called British subordinate courts; on the Zanzibar side, a parallel
with the Sultan's Court and subordinate courts.24 Provisions w
first-, second-, and third-class subordinate courts, kadhis' courts, mudirial
courts, and juvenile courts. It should be noted that mudirial courts were similar
to third-class subordinate courts, and that kadhis' courts administered a limited
range of civil litigation in which the parties were Muslims.25
C. Administration of Justice after Independence
1. Tanganyika
With the Tanganyika Independence Act 1961,26 Tanganyika became an inde-

pendent member of Her Majesty's Dominions on 9 December 1961. The
20. Bierwagen, op. cit. supra n.5, at pp.61 et seq.

21. See Cotran, op. cit. supra n.17, at pp.98 and 99.
22. The so-called Coastal Strip formed part of the dominions of the Sultan but has been
administered as if it were an integral part of Kenya, and became an integral part of Kenya
by virtue of the Agreement of 8 Oct. 1963 (Agreement and letters, Cmnd. 2161).
23. L. W. Hollingsworth, Zanzibar under Foreign Office 1890-1913 (1953); Miuller,
Deutschland-Zanzibar--Ostafrika (1959); J. Middleton and J. Campbell, Zanzibar--its
Society and its Politics (1965); Lofchie, op. cit. supra n.1; W. H. Ingrams, Zanzibar-His-
tory and People (1967); N. R. Bennett, A History of the Arab State of Zanzibar (1978).
24. See Anderson, op. cit. supra n.19, at pp.58-80; Cotran, "Zanzibar", in Allott, op.
cit. supra n. 17, at pp. 118 et seq.; J. H. Vaughan, The Dual Jurisdiction in Zanzibar (1935).
See further H. E. Kingdon, The Conflict of Laws in Zanzibar (1940).
25. See Cotran, idem, pp.121-123; Anderson, idem, pp.58-80, for the applicable law.
26. 1() & 11 Eliz. 2 c. 1. Cf. Report of the Tanganyika Constitutional Conference, Cmd.
1380, 1961.
Tanganyika (Constitution) Order in Council 1961 provided in its Second Sched-

ule for "The Constitution of Tanganyika".27 Tanganyika became a member of
the British Commonwealth with the Queen as the Head of State although it had
not belonged to the British before.
First, after becoming a republic in 1962, a law terminated the system of
appeals to the Crown acting through the Judicial Committee of the Privy Coun-
cil in England.28 Second, a complete separation was effected between the judici-
ary and the executive. During the colonial period, as we have seen, it was
common to find administrators, e.g. district officers, also adjudicating cases; in
1962 all performance of judicial functions by the members of the executive
ceased.29 Third, the government did away with the separate court system which
had been established by the colonial power on the basis of the colour of the liti-
gants.30
The Magistrates' Courts Act 1963 introduced a single three-tier court system
in Tanganyika, and the Magistrates' Courts Act 1984 retained it. The courts set
up were: the primary court at the bottom, followed by the district court (which
included the resident magistrates' court), and the High Court at the top.31
Thence, the subject matter of the suit and not the colour of the litigants became
the determining factor in deciding which court to apply to for relief. Appeals
were to be heard by the Court of Appeal for East Africa.
(a) The subordinate courts. Today these comprise primary courts, district
courts, and resident magistrates' courts. Under the 1984 Act, section 3, the
primary court is the lowest court in the country; one is established in every dis-
trict (section 6(1)) and presided over by a primary court magistrate. Primary
court magistrates are persons who have done a short law course to enable them
to know the basics of the law.32 The jurisdiction extends, inter alia, to civil cases
where the law applicable is customary law or Islamic law, to recovery of civil
debts not exceeding TSh. 10,000 or 20,000 (depending on the suit's subject
matter), and to matrimonial proceedings (section 18). The First Schedule to the
Act lists their jurisdiction in criminal cases. Section 63 provides that the jurisdic-
tion is as a general rule exclusive in respect of marriage, guardianship, or inheri-
tance under customary law, and limited in respect of immovable property.
27. S.I. 1961 No.2274. An assessment of its stipulations is found in Cole and Denison,
op. cit. supra n.10, at pp.15-24; E. E. Seaton and J. S. Warioba, "The Constitution of
Tanzania, An Overview" (1978-81) 11-14 E. Africa L. Rev. 35, 35-40; K. Rabl, "Consti-
tutional Development and Law of the United Republic of Tanzania" (1967) 16 Jahrbuch
fir 6ffentliches Recht, neue Folge 567 et seq. For the law of the land see Judicature and
Application of Laws Ordinance, No.57 of 1961, as amended; and Cole and Denison, idem,
pp.123 et seq.
28. See Cole and Denison, idem, p.90 for details.
29. See Local Courts (Minister for Justice and Regional Local Courts Officers) Act
1962, No.16 of 1962. E. Cotran, "Tanzania", in Allott, op. cit. supra n.17 (2nd edn, 1970),
pp.145 et seq.
30. See P. T. Georges, "The Court in the Tanzania One-Party State", in G. F. A. Saw-
yerr (Ed.), East African Law and Social Change (1967), p.26.
31. It should be noted that the High Court was not established by the Magistrates'
Courts Act. It was provided for under the Constitution and in the Judicature and Appli-
cation of Laws Ordinance 1961.
32. There is no provision in the law as to their qualifications.
A primary court magistrate sits with no less than two assessors who part
in the decision (section 7). The procedure in this court is somewhat simp
for criminal cases a Primary Courts Procedure Code has been provide
Appeals from primary courts are allowed by way of petition to the distric
(section 20(1)-(3)). The district court may even exercise its revisional ju
tion (section 22). Finally, under section 25(3), a district court's decision
taken to the High Court by way of petition. Questions of customary la
then be referred to a panel of experts, but the Court is not bound by
opinion.34 The High Court has powers of general supervision under sect
and 31.
Section 4 of the 1984 Act establishes a district court in every district. It is pre-
sided over by a district resident or a magistrate (section 6(1)). District magis-
trates are usually primary court magistrates who have served for a long time and
have then been promoted to that position.35 The district court's jurisdiction is
large and varies according to the presiding magistrate. In civil matters it is
limited to values at issue of TSh. 200,000 or 300,000 where immovables are con-
cerned. A district magistrate can sit with assessors in any case in which any rule
of customary law or Islamic law is at issue.36 The procedure and appeals are gov-
erned by the Criminal Procedure Code 1985 and the Civil Procedure Code.37 In
addition, the High Court may exercise its supervisory jurisdiction.
Courts of a resident magistrate can be established under section 5 of the 1984
Act for designated areas. Their jurisdiction comprises that of the district court
but is enlarged by the matters listed in the Second Schedule to the Act (section
41). A resident magistrate is normally a graduate from the university.38 The pro-
cedure is governed by the rules which apply to the district court.
In 1985 an attempt was made to revive and strengthen arbitration and concili-
ation vide the Ward Tribunals Act,39 which made provision for a ward tribunal
in every ward, i.e. an administrative unit, to be presided over by an administrat-
ive officer and sitting with at least four persons." The Act has not been imple-
mented so far.
The appointments to the subordinate courts are made by the Judicial Service
Commission. This powerful Commission is established under Article 112 of the
Constitution. It is composed of the Chief Justice, a justice of appeal appointed
by the President after consultation with the Chief Justice, the Principal Judge,
and two other members appointed by the President who are neither Members of
33. S.19 and the Code in the Third Schedule to the Act. See further the Fourth and
Fifth Schedules.
34. S.27(4); see also s.37(3).
36. S.7(3); he may be directed to sit with assessors by the appropriate authority.
37. See s.44, Magistrates' Courts Act 1984.
39. Act No.7 of 1985. See also Judicial Review Commission, Report (1977), pp.114 et
seq.
40. The ward tribunal is to settle litigation by mediation but can render a decision as
well. Its jurisdiction encompasses those of the arbitration tribunals, local party branch
offices, marriage reconciliation boards, and can be extended to petty misdemeanours if the
parties consent. There is an appeal open to the primary court and a further appeal, limited
to questions of law, to the district court.
Parliament nor civil servants. By Article 113(1)(b) the Judicial Service Com-
mission determines the conditions of service in the subordinate courts and also
deals with disciplinary matters including removal from office.
(b) The High Court. The next in hierarchy is the High Court, which is provided
for by the Constitution.41 Article 108(1) of the Constitution establishes the High
Court of Tanzania. Notwithstanding its name, this court's competence is
restricted to Tanzania Mainland only. However, the Court of Appeal recently
held that the High Court of Tanzania has exclusive jurisdiction in laws applying
to both Mainland and Zanzibar where the law confers jurisdiction specifically on
the "High Court of Tanzania".42 Under Article 108(2) the High Court also has
jurisdiction as a court of appeal for cases from subordinate courts. Subordinate
courts may state a question of constitutional interpretation relevant in a pro-
ceeding for the High Court's ruling.43 Furthermore, the Economic and Organ-
ised Crime Control Act 1984 vested in the Court, sitting as an economic crimes
court, jurisdiction over offences termed economic.44
The High Court is administratively headed by the Principal Judge (Jaji Kion-
gozi). Under Article 109(2) the Principal Judge and other puisne judges (whose
number is supposed to be not less than 15) are appointed by the President after
consulting the Chief Justice. The Principal Judge is also the principal assistant to
the Chief Justice in all administrative matters in the Judiciary Department.
However, as a judge, he can sit only in the High Court.
To be eligible for appointment as a judge to the High Court, a person has to
qualify for being enrolled as an advocate.45 These qualifications include pos-
session of a law degree from a recognised university. The appointee must also
have worked in a law-related field after law studies for at least five years unless
the President waives this requirement (Article 109(9)). This may occur where
the President is of the opinion that the person deserves nomination. The
appointment is not limited in time.
The tenure of a judge is secure. By Article 110(5) a judge may be removed
from office only for inability to perform his duties due to illness or other reasons,
or for misconduct. Where the President is of the opinion that the removal of a
41. See Part 1 of Chap. Five of the Constitution of the United Republic of Tanzania
1977.
42. See Jina Khatibu v. Juma Selemani Nungu & the Attorney-General, Court of Appeal
(Dar es Salaam), Civil Appeal No.23/86 where the Court of Appeal held that the High
Court of Tanzania alone can try election petitions. In our opinion this ruling overlooks the
fact that justice and the High Court are not Union matters.
43. S.7, Appellate Jurisdiction Act 1979.
44. This Act replaced the strongly criticised Economic Sabotage (Special Provisions)
Act 1983. For background to these and related laws and their effect on society.see P. G.
Mwanukuzi and G. J. Mjemmas, "A Socio-Economic and Legal Critique of the Economic
Sabotage (Special Provisions) Act, 1983" (mimeo, 3rd year research paper, Faculty of
Law, University of Dar es Salaam, 1983/84); and C. M. Peter, "The Economic Sabotage
(Special Provisions) Act, 1983: Some Notes" (mimeo, public lecture delivered at the Tan-
zania School of Journalism, Kurasini Dar es Salaam, on 4 Aug. 1983).
45. On the qualifications and procedure for enrolment as an advocate in Tanzania see
Advocates Ordinance, Chap.341 of the Laws of Tanzania.
judge requires an investigation, he is to set up a commission for that pur

and is expected to adhere to the recommendation of that commission.4
Court judge must retire at the age of 60, unless the President requests
stay in office and the judge agrees. At 55 years of age, a judge may retir
President agrees.
(c) The Court of Appeal. The highest court in the land is the Court of
which is a Union matter. It is competent to hear appeals from both T
Mainland and Zanzibar court decisions. The set-up of this court is d
infra.
Specialised tribunals, such as the Permanent Labour Tribunal48 and the econ-
omic sabotage tribunals established in 1983,49 are not discussed in this article.
2. Zanzibar
Internal self-government was granted to Zanzibar in June 1963. The C

tion of the State of Zanzibar came into force on 10 December 1963, w
pendence. However, racial tensions heightened and the Sultan's gov
was overthrown on 12 January 1964. After independence50 and revol
Courts Decree 1966 made provision for a High Court, district courts
courts, primary courts, and juvenile courts. Mudirial courts were ab
were the British courts.
The most significant event in post-revolution Zanzibar was the introduction of
the people's courts on 1 January 1970 by the People's Court Decree 1969.51 This
Decree established a different and a distinct court system for the islands, com-
prising five types of courts: the people's area courts; the people's district courts;
the kadhis' courts; the High Court; and the Supreme Council.52
A silent revolution took place in the organisation of the judicial system in
Zanzibar in 1984 and 1985. This came with the enactment of several new laws,
46. Such commission shall be composed of a chairman and not less than two other
members. The chairman and at least half of the members should be judges or persons who
have been High Court or Appeal Court judges in the Commonwealth.
47. This is not clearly expressed in case the commission recommends the removal,
Art.110(7). However, it seems to follow from a close reading of Art.110(7) and (8).
48. Permanent Labour Tribunal Act, No.41 of 1967 as amended.
49. Established under the Economic Sabotage (Special Provisions) Act 1983, the tri-
bunals dealt exclusively with economic sabotage offences. The punishability of certain
behaviour was enacted ex post facto. See Mwanukuzi and Mjemmas, op. cit. supra n.44;
Peter, op. cit. supra n.44, for references.
50. With independence, the British courts were abolished. Art.92 of the Constitution
established a High Court; the Courts Decree, No.22 of 1963 established magistrates'
courts, mudirial courts, kadhis' courts, and juvenile courts.
51. Other relevant legislation included the Constitution of the Revolutionary Govern-
ment of Zanzibar 1979; the High Court Decree 1964; and the Supreme Council Decree
1970.
52. On this system see the article by the current Chief Justice of Zanzibar, A. S. L.
Ramadhani, "Judicial System of Tanzania, Zanzibar" (1978-81) 11-14 E. Africa L. Rev.
225-239.
which effectively did away with the novel system of people's courts and ushered
back the common law system of adjudication: the High Court Act 1985, the
Kadhis' Court Act 1985 and the Magistrates' Courts Act 1985.53 These laws pro-
vide for three types of courts in Zanzibar: the High Court of Zanzibar, the kad-
his' court, and the magistrates' court.
(a) The High Court. Part One of Chapter Six of the Constitution of Zanzibar
of 1984 establishes the High Court as a court of record with unlimited jurisdic-
tion in both civil and criminal matters.54 It is manned by the Chief Justice and
other judges whose number must not be less than two (Article 93(2)). The High
Court can exercise its jurisdiction notwithstanding any vacancies in its establish-
ment. At the same time, an office of a judge shall not be abolished while there is
a substantive holder. The High Court shall hold its sessions in any place that the
Chief Justice appoints.
The High Court Act 1985 remains today the main source of the powers and
the duties of the High Court of Zanzibar.55 The High Court has wide powers,56
including power to hear appeals from all subordinate courts in Zanzibar and to
make such orders as it deems fit (section 7), to review the proceedings of all sub-
ordinate courts and where necessary set them aside or correct them (section
8(1)), and to supervise all subordinate courts (section 8(3)). Section 19 of the
Act empowers the Chief Justice to make Rules of the Court and to regulate the
Court's business.
In its proceedings either in civil or criminal cases, the High Court may invite
lay assessors to advise the judge on points of fact. However, their advice is not
binding (section 10). The assessors provision does not apply to Islamic law and
cases originating from the kadhis' courts (section 10(3)). Section 14(1) provides
for its proceedings to be in an open court, and subsection (2) for its language to
be Kiswahili and English.
Articles 97 and 98 of the Constitution provide that appeals from the High
Court lie to the Court of Appeal of Tanzania, which is, however, precluded by
Article 98(2) from exercising jurisdiction in respect of certain matters: interpret-
ation of the Constitution of Zanzibar; Islamic matters originating in the kadhis'
courts; and any other matter approved under the Constitution of Zanzibar or
any other law enacted by the House of Representatives.
The head of the judiciary is the Chief Justice, who is appointed by the Presi-
dent of Zanzibar (Article 94(1)). Other High Court judges are appointed by the
President after consultation with the Chief Justice (Article 94(2)). The qualifi-
53. (Zanzibar) Acts No.2, 3 and 6 of 1985. They are to be read together with the
(changes in the) Constitution and the Interpretation of Laws and the General Provisions
Act 1984, (Zanzibar) Act No.7 of 1984.
54. The High Court of Zanzibar is provided for under three different laws, namely the
Constitution of the United Republic, the Constitution of Zanzibar (Art.93(1)) and the
High Court Act. The Constitution of the United Republic recognises the continuation or
the establishment of a High Court of Zanzibar which shall have powers as shall be pro-
vided by the laws applicable in Zanzibar.
55. Act No.2 of 1985 repealing the High Court Decree No.2 of 1964 and the Supreme
Court Decree No.4 of 1970.
56. But see supra n.42.
cations required for being appointed a judge of the High Court are more
ous than those of the High Court of Tanzania. Article 94(3) states three
lative conditions: the candidate must hold a law degree of a recog
university or institution; he should be or must have been a judge of
which is on a par with the High Court of Zanzibar in respect of all crimin
civil matters either in Tanzania or elsewhere in the Commonwealth, or
have been a judge of a court of appeal, or he must have been an advoc
Zanzibar or Tanzania; and his experience as a judge and advocate to
should not be less than seven years.
By Article 95(1), compulsory retirement age for judges of the High Co
Zanzibar is 65. The position of a judge is safely secured; he can be rem
from office only for inability to perform his duties for any reason, or for m
duct.57 Before a judge can be removed from office, the President must ap
commission to.enquire into his conduct and to make recommendation

commission, comprising a chairman and two other members, shall be co
of persons who are or have been judges of the High Courts of Zanzibar
zania or the Court of Appeal of Tanzania.
In an attempt to protect the integrity of the judges, it is provided that n
(including the Chief Justice) shall accept or perform any other office or
able activity not authorised by law.58 At the same time, both judges and m
trates are immune from being sued for any act done or ordered to be done
discharge of their duties whether within or outside their jurisdiction, p
the act complained of was done in good faith.59
(b) Magistrates' courts. Below the High Court there are three types of
trates' courts: resident magistrates' courts, district courts, and primary
These have been established by the Magistrates' Courts Act 1985.
A primary court is established in every district of Zanzibar.60 The pow
the primary court are limited. In criminal matters it has power to impose
tence of imprisonment not exceeding one year or a fine not exceedin
2,000, corporal punishment not exceeding six strokes, or to impose a restr
order for a convict to stay in his home area and to engage in developme
jects and the like (section 4(1)). In civil cases the subject matter of th
should not exceed TSh. 10,000 and subject to this limit the court may
compensation, order the restitution of property or specific performan
(section 4(2)). The Chief Justice may make rules vide orders to be publi
the Gazette (section 4(3)) on the procedures to be followed by the pri
courts and other subordinate courts.
Primary court magistrates are appointed by the Judicial Service Com-
57. For the procedure see Art.95(3).

58. S.15, High Court Act. This may have been enacted purposely to avoid the temp-
tations of engaging in other activities which might compromise the judges' position as
guardians of the law.
59. S.18(1); the protection is extended to judicial officers executing lawful orders of the
court.
60. S.3(1), Magistrates' Courts Act 1985. Where the need arises the Chief Justice
establish more primary courts in a district.
mission.61 They must hold a certificate in law62 or any other equivalent and
recognised certificate.63
By section 6(1) of the 1985 Act the primary court magistrate must sit with two
assessors. All issues before the court are decided by the majority of votes, which
means that the magistrate can be overruled by his assessors (section 6(2)). The
language of the court is Kiswahili. Section 8(1) provides that advocates and
State attorneys may not appear or act for any party before a primary court.
However, the Act provides that wakyls may appear for or on behalf of a party.64
A district court is established in every district of Zanzibar (section 9(1)). Each
district court is presided over by a district magistrate appointed by the Judicial
Service Commission.65 The district magistrate must either hold a diploma or a
degree in law or its equivalent from any recognised university or institution.
The magistrate has both original and appellate jurisdiction (in cases emanat-
ing from a primary court). In exercise of his revisional jurisdiction the magis-
trate may, under section 13 of the 1985 Act, call for and examine the record of
the proceedings of a primary court case. In civil matters the original jurisdiction
is established: in proceedings for the recovery of immovable property up to a
value of TSh. 300,000; and in other proceedings up to the value of TSh. 200,000
if the value can be determined. In criminal cases the magistrate can impose a
sentence of up to five years' imprisonment or a fine not exceeding TSh. 25,000,
or both cumulatively.
The language of the district court may be either Kiswahili or English (section
23). Section 32 permits advocates and State attorneys to appear for and on
behalf of any party.
Resident magistrates' courts are established in every region of Zanzibar.66
Section 19(1) of the 1985 Act vests power to appoint the resident magistrates in
the Chief Justice of Zanzibar, not in the Judicial Service Commission. The
necessary qualification is a law degree and not less than three years' professional
experience (section 19(3)).
Resident magistrates have both original and appellate jurisdiction in criminal
and civil cases, and are ex officio chairmen of the juvenile courts (section 22).
Section 21 limits the subject matter's value in civil cases to TSh. 100,000. On
appeal the magistrate hears all cases emanating from district magistrates' courts
(section 25). This is a novel idea; in Tanzania Mainland no appeal lies from the
61. The Judicial Service Commission is composed of the Chief Justice as chairman, the
Attorney-General as vice-chairman, two persons who are either judges of the High Court
or Court of Appeal (the Constitution does not say who appoints these two persons. It is
assumed that it is the President who makes the appointment), the Chairman of the Civil
Service Commission, and one other person appointed by the President; see ss.101 and 102
of the Constitution of Zanzibar 1984.
62. Usually a certificate of the University of Dar es Salaam.
63. Usually a certificate issued by the Institute of Development Management in Moro-
goro.
64. Note that neither the Magistrates' Courts Act nor the Interpretation of Laws and
General Provision Act provides a definition of who a wakyl is. In Kiswahili wakyl or wakili
means an advocate or a representative; we suggest that in this context it means a represen-
tative who is not an advocate.
65. See s.10(1).
66. S.18; i.e. currently five.
district magistrate to a resident magistrate as both appeals go straight

High Court.67 The resident magistrate also has supervisory powers over bo
primary and the district courts.
The language of the court is either Kiswahili or English, and both ad
and State attorneys have locus standi.
(c) Kadhis' courts. These are established by the Kadhis' Courts Act 198
There are kadhis' courts in each district of Zanzibar, and a Chief Kadhi'
for Zanzibar.
The jurisdiction is restricted to the adjudication of questions of Muslim law
relating to personal status, marriage, divorce, and inheritance, in cases in which
all parties are professing Muslims. The rules of evidence applicable in kadhis'
courts depart from those applicable under the normal Islamic law. This depar-
ture is noticeable in two areas: in hearing evidence all witnesses called shall be
heard without discrimination on grounds of religion, sex or otherwise;69 and
each issue of fact shall be decided upon the assessment of the credibility of all
evidence before the court and not upon the number of witnesses who have given
evidence. The Judicial Service Commission has the power to appoint ten to fif-
teen kadhis in consultation with the Chief Kadhi (section 5(1)). Only a person
professing and following Muslim faith as well as possessing knowledge of Islamic
law applicable to any sect or sects of Muslims qualifies to be appointed a kadhi.70
The Chief Kadhi's Court has no original jurisdiction; it acts as an appellate court
for all kadhis' courts (section 10). The President may appoint to the position of
Chief Kadhi a person who professes and follows the Muslim religion and pos-
sesses the appropriate knowledge of Islamic law to qualify him (section 4(3)).
The present holder of that office is Sheikh Ameir Taju. The Chief Kadhi is
assisted by two senior kadhis, one based in Zanzibar and the other in Pemba.
Section 4(4) gives them power to hear appeals in banco or alone. An appeal
from any judgment of the Chief Kadhi's Court lies to the High Court. Section
10(2) of the Kadhis' Courts Act provides for these appeals to be decided by High
Court judges together with four sheikhs who are well conversant in Islamic law;
their decision is rendered by a majority vote, which section 10(3) provides shall
be final.
3. Courts of the United Republic
Notwithstanding the fact that the two parts of the United Republic have two
distinct court systems there are two areas of co-operation, namely the Court of
Appeal of Tanzania and the Constitutional Court.
(a) The Court of Appeal. Today, the highest court in Tanzania is the Court of
Appeal of Tanzania. This Court hears appeals which used to go to the then
67. Actually, the resident magistrate is included in the definition of a district magis-
trate. See s.2, Magistrates' Courts Act 1984 (Tanzania Mainland).
68. Act No.3 of 1985 in pursuance of Art.99(1) of the Constitution.
69. Usually the evidence of women under Sharia (Islamic law) is regarded as inferior to
that of men.
70. S.5(3). Kadhis and other persons acting judicially are protected from suit as are
magistrates and High Court judges; see s.ll.
Court of Appeal for East Africa, set up in Kenya in 1902 to hear appeals, inter
alia, from Kenyan, Ugandan, Zanzibar and Tanganyika courts.71 It became
defunct when the East African Community collapsed in 1977. Tanzania with-
drew and set up the Court of Appeal for Tanzania.72 The Constitution provides
for this Court in Part Four of Chapter Five.73 The Court of Appeal is a Union
matter,74 and entertains only appeals from the High Court and from subordinate
courts with extended jurisdiction.'" It is therefore not a court of first instance.
Except in criminal cases appeals are restricted to matters of law.76 With respect
to constitutional interpretation the Court hears appeals from opinions in cases
stated for the High Court's ruling.77
The head of the Court of Appeal is the Chief Justice, who also heads the
whole judiciary in the United Republic.78 He is assisted by justices of appeal:
not less than two in normal cases and not less than five in special sessions
(Article 118(1)).
Article 118(2) and (3) provides that the Chief Justice is appointed by the Pre-
sident, and the justices of appeal by the President after consultation with the
Chief Justice. For a person to be appointed as a justice of appeal, he has to qual-
ify for appointment to the High Court of Tanzania or the High Court of Zanzi-
bar as a judge. The tenure of justices of appeal and acting justices of appeal
depends primarily on the terms of the appointment itself (Article 118(6)).
Although administratively controlling both the Court of Appeal and the High
Court, as a judge the Chief Justice may sit only in the Court of Appeal, as
indeed may other judges of the Court of Appeal by virtue of Article 119. As the
Court of Appeal hears appeals both from Mainland and Zanzibar,79 Article
116(3) of the Constitution provides that the Chief Justice must consult his
counterpart in Zanzibar on matters relating to the running of the Court and par-
ticularly on the appointment of justices of appeal.
Also, as in the case of the High Court the tenure of the justices of appeal is
71. See Eastern African Protectorates (Court of Appeal) Order in Council 1902; East-
ern Africa Court of Appeal Order in Council 1961 (A.L./24 B/); Part IIA of the Constitu-
tion of the Eastern Africa Common Services Organisation; finally, Art.80, Treaty for East
African Co-operation 1967.
72. Vide s.8 of Sheria ya mwaka 1979 ya kubadilisha baadhi ya masharti ya Katiba ya
Jamhuri ya Muungano wa Tanzanai, ya mwaka 1977, No.14 of 1979 (amendment to the
Constitution of 1979), replacing Art.68 and inserting Art.68A-G.
73. Art.68 was replaced vide s.26 of the Fifth Amendment of the Constitution of 1984;
it is now Art.116. Art.68A-G is now Arts.117-123 with minor alterations.
74. Note that the Court of Appeal appears for the first time as a Union matter in No.17
of the First Addendum to the Constitution vide the Fifth Amendment of 1984.
75. S.3, Appellate Jurisdiction Act, No.15 of 1979.
76. In criminal trials held by the High Court or a subordinate court with extended juris-
diction appeals lie to the Court on any ground, save that no appeal lies against a sentence
of death or one fixed by law.
77. S.6, Appellate Jurisdiction Act 1979.
78. Art.118(2). In Kiswahili Chief Justice is Jaji Mkuu, a justice of appeal is jaji wa
rufaa, whereas the head of the High Court is the Principal Judge, Jaji Kiongozi, and a
judge of the High Court is jaji wa mahakama kuu.
79. The Court has actually started holding sessions in Zanzibar dealing with the first
appeals from Zanzibar; the first session was held 9-10 Mar. 1987. See Daily News, Dar es
Salaam, 29 Feb. and 10 Mar. 1987. Note that the regulation of the Court of Appeal was
added to the Union matters not in the 1979 constitutional amendment but in 1984.
constitutionally secured. It is not an easy matter to remove a justice of ap
the only grounds being inability to perform his duties due to illness or any ot
reason, or misconduct (Article 120(5)). The procedure is the same as that
removing a High Court judge (Article 110). The compulsory retirement age
justices of appeal is 65.80
(b) The Constitutional Court. Articles 125 to 128 of the Constitution of

United Republic and Article 123(2)(a) of the Constitution of Zanzibar prov
for a Special Constitutional Court of the United Republic.
According to Article 126(1) of the former, the sole function of the Spe
Constitutional Court is to hear disputes brought before it and to offer an am
able settlement over any issue involving the interpretation of the Constitu
where that interpretation or its execution is in dispute between the governm
of the United Republic and the government of Zanzibar.
First, it must be noted that this Court has no basis in the Constitution. To h
and settle disputes between the United Republic and Zanzibar is essentia
Union matter but neither a constituent assembly for both Tanzania Mainl
and Zanzibar nor the Fifth Amendment made it a Union matter; and its a
nowledgement in the Constitution of Zanzibar is not in itself sufficient.
Second, as the Constitution of the United Republic stipulates that Tanza
Mainland has no separate executive and legislature but is governed by the Uni
executive and legislature, and as the Zanzibaris are constitutionally represe
in the government and the legislature, it is impossible to settle disputes betw
Tanzania Mainland and Zanzibar. Furthermore, it is inconceivable how disp
between the Union government (including the Vice-President hailing from Za
zibar) and Zanzibar can arise.
Third, as the practice shows there exist conflicts between the two parts of
Union over the allocation of revenue, the interpretation of the Articles
Union, and over necessary clarification of Union matters in the Constitutio
the United Republic.8l However, all these matters notwithstanding, the Co
tutional Court has never been convened. Any attempt to convene could
easily interpreted as an attempt to undermine the Union.
D. Evaluation and Comparison of the Two Judicial Systems
An evaluation of a judicial system entails examination of how that system

with the rights of the citizens and whether these rights are respected and gua
teed. This helps to answer the question whether there is rule of law in
80. Art. 120. However, the President, for public interest, may ask a justice to remai
office for a specified time, if the justice agrees. On attaining the age of 60, a justi
appeal may retire if the President accepts his resignation.
81. Apart from the constant disagreements over finances in the Union, there is a
controversy over the translation of the term "aviation" in the Kiswahili version of the
Constitution of the United Republic, where it is said to be usafiri na Usafiri wa a
which means transportation and air transport. This is heavily opposed by the Zan
side, which argues that that translation is wrong as it attempts to include a new item in
list of Union matters. Zanzibar has its own shipping line and might be on the way to se
up its own air line. The objection is therefore quite understandable. See also infra.
society or not. With respect to Tanzania we shall address ourselves to three
issues which we believe are important as far as administration of justice is con-
cerned: independence of the judiciary, rectification of certain laws, and unifica-
tion of the judiciary.
1. Independence of the judiciary
An independent judiciary is the basis of the rule of law in any society which
characterises itself as democratic. In Tanzania it is not easy to gauge the inde-
pendence of the courts.82 It is, however, a fact that the executives in both parts
of the Union and the sole political party exert both pressure and considerable
influence particularly in what are considered to be sensitive cases. The main
influence comes through the medium of appointments.83 To some extent the
appointees feel obliged to toe the line of the appointing authority.84 Where the
judiciary attempts to stand firm in dispensing justice, there follows open harass-
ment by the agencies of the executive. There are many examples of this, but suf-
fice it to quote the case of R. v. Kassella Bantu and Others,85 in which a
magistrate who released an accused on bail pending trial was himself detained
by the police. There are also reported cases of total disrespect of court orders;
particularly in habeas corpus cases where security forces rearrest persons
declared innocent and set free by the courts.86 Related to this is the refusal by
police and prison officers to obey court summonses. This behaviour frustrates
the courts, which feel powerless. However, to quote Justice Mwesiumo, that is
not only contempt of court but also contempt of the laws of the country and its
Constitution.87
2. Rectification of certain laws
There are areas in the laws of the country which require fundamental changes
so that administration of justice is made easy. A tendency has developed in both
parts of the Union to ignore or not to take legal issues seriously. Political
decisions and wishes seem to have more weight than legality. It is only when the
State runs into a cul-de-sac that it rushes to the legislature with a bill for a new
82. See also C. M. Peter and M. K. B. Wambali, "Independence of the Judiciary in

Tanzania: A Critique" (1988) 21 Verfassung und Recht in Ubersee 72.
83. This is particularly clear where the executive is allowed by the law to appoint even
lay persons to perform legal functions. See e.g. the appointment of the personnel in the
people's courts of Zanzibar, discussed at length in Ramadhani, op. cit. supra n.52.
84. There are reports of judges blindly supporting the government and the party, par-
ticularly some former Chief Justices. See e.g. "Put Ujamaa first", Daily News, Dar es
Salaam, 26 Sept. 1972. Various other instances of subservience are given in R. W. James,
"Implementing the Arusha Declaration-The Role of the Legal System" (1973) 5 Dar es
Salaam Univ. L.J. 1.
85. [1969] H.C.D. 170. See also The Standard, Tanzania, 27 Sept. 1968.
86. See e.g. Happy George Washington Maeda v. Regional Prisons Officer Arusha,
High Court of Tanzania at Arusha, Miscellaneous Criminal Case No.36 of 1979.
87. He said this in Edward Mlaki and Liston Matemba v. Regional Police Commander
Kilimanjaro Region and Secretary Regional Security Committee Kilimanjaro Region, High
Court of Tanzania at Arusha, Miscellaneous Civil Application No.38 of 1979.
law.88 The State reacts to situations and there is no preparation for eventuali
Also, there is a tendency to underrate the intelligence of the population
assuming that particular issues will not be called to question and thus to sides
them in order to avoid resolving the underlying problems." The Constituti
Court is a case in point: although it is provided for in the Constitutions of bo
the United Republic and Zanzibar, it is not provided as a Union matter. A
have explained, its existence is unconstitutional." The fact that it has ne
been convened, notwithstanding the many unsolved or controversial iss
within the Union,91 is an indication of the fact that it has been set up with no
intention of putting it into use. In other words, it is a political tool aimed at s
fying the population that in the event of problems relating to interpretation
the Constitution there is an institution to resort to. An attempt in 1984 by t
former President of Zanzibar, Sheikh Aboud Jumbe, to put into operation
legal provisions relating to the Court led to him losing his job.92
Since independence the two parts of the Union have tended to follow two v
distinct political philosophies. The Union might have been a result more of
graphical proximity than of anything else. Some scholars have actually referr
to it as a marriage of convenience.93 This is because while the Mainland
always been an open society,94 Zanzibar has undergone various social chan
In the period immediately after revolution it was a completely closed soci
88. The Tanzanian State is known to enact oppressive laws particularly during tim
economic crisis. See, for instance, Local Government Finances Act, No.9 of 1982; Hu
Resources Deployment Act, No.6 of 1983; and the Economic Sabotage (Special P
visions) Act 1983. For background to these laws and their effect on society see Mwanu
and Mjemmas, op. cit. supra n.44; and Peter, op. cit. supra n.44.
89. On all major issues the people's opinions are not sought. A case in point is the
act of uniting Tanganyika and Zanzibar. On this issue see Wolfgang Dourado, "C
ments on Part IV of NEC Proposals for Amendments to the Constitution of the Un
Republic of Tanzania: The Consolidation of the Union--A Basic Reappraisal" (pa
presented at a seminar organised by the Tanganyika Law Society on 28 July 1983).
paper led to Dourado's detention under the notorious Preventive Detention Act 19
Dourado was the Attorney-General of Zanzibar for 13 years (1964 to 1978). Also, du
the constitutional debate, the party dictated what parts of it should be debated by
population. See Chama Cha Mapinduzi, 1983 NEC Proposals for Changes in the Const
tion of the United Republic and the Constitution of the Revolutionary Government of
zibar (1983). See also C. M. Peter, "The African Charter and the New Tanzanian Bil
Rights" (paper presented at the special conference on "The African Charter on Hu
and People's Rights" organised by the Gesellshaft fuir Afrikanisches Recht e. V.,
1987 at Rijksuniversiteit Limburg, Maastricht, the Netherlands).
90. Cf. that the Court of Appeal was also not provided as a Union matter from
inception.
91. See supra.
92. It is alleged that Aboud Jumbe was pressurised to resign from his party and govern-
ment offices because he and his aides were preparing to ask for the calling of the Consti-
tutional Court. See A. Versi, "Zanzibar in Turmoil", New African, London, Mar. 1984,
p.19.
93. See Y. Vonhoff, "Union Without Unity: the Case of Tanganyika and Zanzibar"
(mimeo, a Master of Laws Dissertation, University of Leiden, the Netherlands, 1987).
94. Openness here is used in relative terms and in the comparison with Zanzibar only.
There are also many types of restrictions in Tanzania Mainland some of which might be
said to border on violation of fundamental rights and freedoms of the individual. See R.
Martin, Personal Freedom and the Law in Tanzania (1976).
There was little respect for the fundamental rights and freedoms of the citizens.
There was a time when the State determined even how the citizens should dress
and their hairstyles.95 However, in the last ten years and particularly in the 1980s
considerable changes have occurred in Zanzibar. There has been a slow but con-
sistent movement towards opening up and totally liberalising the hitherto closed
Zanzibar society.96 This trend has brought Zanzibar nearer to its partner in the
Union in many areas.
3. Unification of the judiciary
In the legal field the changes effected in 1984/85 which introduced a system of
adjudication almost similar to that on the Mainland paved the way to more co-
operation between the two judicial departments. Experienced judicial personnel
from the Mainland have now been seconded to the islands to assist in strength-
ening the new system.97 This is an encouraging development.
It would therefore seem that, while differences might still exist in certain areas
particularly due to the fact that the Zanzibaris would still like to maintain their
autonomy within the Union, there are areas where total unity might be said to
be only a question of time. In our view the judiciary is one such area. A unified
judiciary will definitely further cement the respect for rule of law in the country.
This is clear from its past record, particularly where individual rights are con-
cerned. Notwithstanding the seemingly uncomfortable climate under which it
operates in Tanzania, the judiciary has contributed considerably in campaigning
for the rule of law in the country and the development of its laws.98
RAINER MICHAEL BIERWAGEN and CHRIS MAINA PETER
95. For reference to the hard times in Zanzibar see "Zanzibar: Karume Evil Rule",
New African, London, Apr. 1988, p.43.
96. Liberalisation of the economy in Zanzibar began when Ali Hassan Mwinyi was
elected President in 1984 and has continued unaltered thereafter. In 1985 Mwinyi was
elected President of the United Republic of Tanzania and was replaced in Zanzibar by
Idris Abdul Wakil.
97. For example the secondment of M. M. J. Lugulu, Resident Magistrate to the Zanzi-
bari Judiciary. See Zanzibar, Legal Notice, Nos.47 and 60 of 1986, signed by the former
Chief Minister of Zanzibar Seif Shariff Hamad and the Chief Justice of Zanzibar Augus-
tino Ramadhani respectively.
98. See e.g. the case Hawa Mohamed v. Ally Sefu, Court of Appeal of Tanzania at Dar
es Salaam, Civil Appeal No.9 of 1983, where the justices recognised a wife's housework as
a contribution entitling her to matrimonial property at divorce; cf. B. A. Rwezaura, "Div-
ision of Matrimonial Assets under the Tanzanian Marriage Law" (1984) 17 Verfassung
und Recht in ibersee 177.

Kadhis Court Juridistriction PDF

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Kadhis Court Juridistriction PDF

Încărcat de

Drepturi de autor:

Formate disponibile

British Institute of International and Comparative Law

Administration of Justice in Tanzania and Zanzibar: A Comparison of Two Judicial

British Institute of International and Comparative Law, Cambridge University Press

KENNETH McK. NORRIE

ADMINISTRATION OF JUSTICE IN TANZANIA AND

Administration of justice in any society is one of the key barometers of adh

B. Administration of Justice in the Colonial Period

was, originally, a representative of the Sultan with almost complete ex

Zanzibar, which consists of two large islands (Unguja and Pemb

C. Administration of Justice after Independence

With the Tanganyika Independence Act 1961,26 Tanganyika became an inde-

20. Bierwagen, op. cit. supra n.5, at pp.61 et seq.

Tanganyika (Constitution) Order in Council 1961 provided in its Second Sched-

judge requires an investigation, he is to set up a commission for that pur

Internal self-government was granted to Zanzibar in June 1963. The C

commission to.enquire into his conduct and to make recommendation

57. For the procedure see Art.95(3).

district magistrate to a resident magistrate as both appeals go straight

3. Courts of the United Republic

(b) The Constitutional Court. Articles 125 to 128 of the Constitution of

D. Evaluation and Comparison of the Two Judicial Systems

An evaluation of a judicial system entails examination of how that system

1. Independence of the judiciary

2. Rectification of certain laws

82. See also C. M. Peter and M. K. B. Wambali, "Independence of the Judiciary in

3. Unification of the judiciary

RAINER MICHAEL BIERWAGEN and CHRIS MAINA PETER

S-ar putea să vă placă și