NELSON MANDELA AFRICAN INSTITUTE OF SCIENCE AND TECHNOLOGY

BASICS OF LAW LECTURE NOTES

TOPIC ONE: A COUNTRYS LEGAL SYSTEM

We are going to cover:

definition of law and legal system sources of law, legislative process and a country's court system the rule of law institutions

Definition of law (1) A set of rules made by some authority to govern/regulate human behaviour authority rules

Legislative Council Ordinances (LEGICO) (Divided into Chapters) Parliament Acts of Parliament i.e., National assembly (given numbers + President according to year of passing) In 2002- revised edition of the laws - all are Acts and have been divided into chapters

Definition of law (contn)

Local authorities,

e.g. byMinisters and other Institutions empowered by Parliament in parent Act to make rules

delegated or subsidiary legislation, laws, orders, etc

(2) A set of rules made by persons themselves to govern their relationship contract (3) A set of rules recognized by the courts as conferring certain rights on certain persons and imposing certain obligations on certain persons - Tort

TYPES OF LAWS

You may have noticed that the term law has a very wide range of meaning. And, indeed there are many types of laws: The constitution: This is the mother of all laws [grundnorm]. A constitution is a set of rules made by the people to regulate their relationship. It is the law that is made by all the people of the country through elected representatives who make up a constituent assembly. A constitution of a country
Establishes three arms/organs of the state namely- the executive, the legislature and the judiciary

CONSTITUTION (CONTN) Provides for the functions, powers and limits of such functions and powers in respect of each organ. A constitution: gives power to the legislature, which comprises members of parliament and the President, to make laws which are known as Acts of Parliament; provides for the functions of government and judiciary.

Acts of Parliament principal legislation Subsidiary legislation a parent Act of Parliament allows the making, by another authority, of rules to govern human relations Other laws, e.g., contract or tort Customary and religious laws, e.g. Islamic law or Canon law

SOURCES OF LAW

Local sources
The people: the people make the constitution under which Parliament is established Parliament (the peoples representatives) which makes Local laws statutory law (Ordinances and Acts), and empowers making of delegated legislation (by-laws) Courts by making law through the doctrine of precedent Communities, religions, etc. sources of customary law and religious law Received law common law, principles of equity and statutes of general application

Foreign sources

Main divisions of law

Public law criminal law certain acts or omissions are forbidden by law crimes. These are forbidden under the Penal Code. Commission of a forbidden act becomes a crime punishable under the law. The one who has committed the crime is proceeded against by the state, i.e., all people in the country. The people are represented by a public prosecutor. The one who has committed or omitted stands accused of either

commission or omission. So the matter is between the state or republic and the accused person. R.v. Accused. This is a criminal case. Private law individual persons may have disputes or grievances against each other. These disputes or grievances are commonly known as civil matters; are a subject of civil suits as opposed to criminal cases. The aggrieved party may take the matter to court. He will sue the party who has violated his legitimate right. He is the plaintiff. The one who has wronged him is called defendant. So Plaintiff v. Defendant.

 In certain cases the law provides that one must petition (must make a formal prayer or request to someone in authority). So the one who petitions is called petitioner and the one who is petitioned against is called respondent. A person who wants to divorce his wife has to petition for divorce Where a party appeals to a higher court he is called appellant and the party against whom the appeal is made is called respondent. International and municipal law. The law that governs relations between states or countries is called international law. The law that governs relations between subjects of a certain country or state, e.g., Tanzania is known as municipal law

A COUNTRYS COURT SYSTEM COURTS THAT ADMINISTER THE LAWS

The court system of Tanzania Mainland is as follows The lowest court is the Primary Court Above it there is a District Court and the Court of Resident Magistrate High Court of Tanzania Court of Appeal of Tanzania The primary court, district court and the court of resident magistrate are established under the Magistrates Courts Act. The High Court and the Court of Appeal are creatures of the Constitution of the United Republic of Tanzania. Article 108 establishes the High Court and Article 117 creates the Court of Appeal of Tanzania. Primary court (PC) A primary court is established for a district. And, therefore, its jurisdiction extends to a whole district in which it is established. However, in practice the jurisdiction of a primary court is supposed to be confined within the geographical area where it operates. A primary court has got original jurisdiction only. It hears cases for the first time; it does not hear appeals. Pecuniary jurisdiction of a PC is up to TShs 12m for immovable property and Tshs. 10 m. for movable property.

District court and resident magistrates court (DC and RMC) A district court is established for a district. Its jurisdiction extends to the whole district in which it is established. A resident magistrates court is established for a region and its jurisdiction extends to the whole region in which it is established. while the jurisdiction of a resident magistrates court is for a region where it is established. A district and resident magistrates court have got original jurisdiction as well as appellate jurisdiction in that they may hear and determine appeals from primary courts. Please note that, normally, no appeals lie from a district court to a court of resident magistrate; appeals from both these courts lie to the High Court.

RULE OF LAW

The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law and certain other legal systems. The phrase has been used since the 17th century, but the concept is older. For example, the Greek philosopher Aristotle said, "Law should govern. What Rule of Law entails: That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals. A government of law and not of men. The law rules. Distinguished from the 'rule of man' where, for example, in a monarchy, tyrannical or theocratic form of government, governance and rules of conduct is set and altered at the discretion of a single person, or a select group of persons. In a political system which adheres to the paramountcy of the rule of law, the law is supreme over the acts of the government and the people.

RULE OF LAW (CONT)

Meaning: every civilized country or nation is governed according to law and not according to whims of the rulers or governors. This means that for whatever act or omission one must be able to show the legal basis of such act or omission, i.e., a law that empowers him/her to act or omit to act Importance of rule of law: ensures equality before the law. Ensures and engenders democratic principles to thrive in a country. "The core of the ... principle is ... that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefits of laws publicly made ... and publicly administered in the courts. The phrase "rule of law" is often found in contemporary constitutions. For example, Canada's includes the phrase: "Canada is founded upon principles that recognize the supremacy of God and the rule of law.

In Tanzania Art. 13 provides for rule of law.