BICOM-DRAFT NOTES

By Athanas JL.,

Assistant Lecturer-School of Law (UDOM)

CONCEPT OF THE LAW

Law surrounds us in almost every second of our life. We live in and by the law. It makes us
what we are. The law affects every aspect of our lives; it governs our conduct from the cradle
to the grave and its influence even extends from before our birth to after our death.

John Austin defines the term Law to mean ‘the command of sovereign’.

According to Salmond, Law is the body of principles recognized and applied by the state in
administration of justice. Law is an instrument of securing justice. Law is not an end in itself
but is a means to an end. The end is securing of social justice.

Further, Law refers to the body of rules and principles that regulates human conducts. It
touches the lives of individuals on daily routine, it governs what we can do and what we
cannot do. (Do’s and Don’ts).

CLASSIFICATION OF THE LAW

There are various ways in which the law may be classified; the most important are as
follows:

(a) Substantive and Procedural Law

(i) Substantive Law

This is concerned with the definition of the rights and obligations of individuals as
well as definition of the offences and their respective punishments. A good example
is the Law of Contract Act, [cap 345 R.E 2002], and the Penal Code, [Cap 16 R.E 2019].

(ii) Procedural Law

This is concerned with the procedures or steps taken to enforce the substantive laws.
It deals with the procedural aspects through which the rights and obligations of
 individuals as well as offences can be enforced in the judicial and quasi-judicial bodies.
Relevant examples here are; the Civil Procedure Code, [Cap 33 R.E 2019] and the
Criminal Procedure Act, [Cap 20 R.E 2019].

(b) Public and Private Law

(i) Private law
Private law is primarily concerned with the rights and duties of individuals towards
each other. The state’s involvement in this area of law is confined to providing a
civilised method of resolving the dispute that has arisen. Thus, the legal process is
begun by the aggrieved citizen and not by the state. Private law is also called civil law
and is often contrasted with criminal law.
(ii) Public Law

Public law is concerned with the relationship between the state and its citizens. This
comprises several specialist areas such as:

Constitutional law. Constitutional law is concerned with the workings of the British
constitution. It covers such matters as the position of the Crown, the composition
and procedures of Parliament, the functioning of central and local government,
citizenship and the civil liberties of individual citizens.

Administrative law. There has been a dramatic increase in the activities of

government during the last hundred years. Schemes have been introduced to help
ensure a minimum standard of living for everybody. Government agencies are
involved, for example, in the provision of a state retirement pension, income support
and child benefit. A large number of disputes arise from the administration of these
schemes and a body of law, administrative law, has developed to deal with the
complaints of individuals against the decisions of the administering agency.

Criminal law. Certain kinds of wrongdoing pose such a serious threat to the good
order of society that they are considered crimes against the whole community. The
criminal law makes such anti-social behaviour an offence against the state and
 offenders are liable to punishment. The state accepts responsibility for the detection,
prosecution and punishment of offenders.

(c) Civil and Criminal Law

The legal rules are generally divided into two branches namely; Criminal and Civil
Laws.
(i) Criminal Law

The criminal law is concerned with forbidding certain forms of wrongful conduct and
punishing those who engage in the prohibited acts. The proceedings are brought in
the name of the Republic or Director of Public Prosecution in case of an Appeal.
Criminal law concerns with offences against the state. This branch of the law helps to
preserve the order in the community by punishing offenders and deterring others.
The standard of proof in criminal proceedings if beyond reasonable doubt.

(ii) Civil Law

The civil law deals with the private rights and obligations which arise between
individuals. The purpose of the action is to remedy the wrong that has been suffered.
Enforcement of the civil law is the responsibility of the individual who has been
wronged; the state’s role is to provide the procedure and the courts necessary to
resolve the dispute. The purpose of this branch of law is to remedy the wrong which
has been suffered. The standard of proof in civil proceedings is on balance of
probabilities.

(d) Municipal and International Law

(i) Municipal Law

This is the branch of law which governs the domestic aspects of the government and
deals with issues between individuals and between individuals and the state.

(ii) International Law

 Thus is concerned with the relations between states (Public International Law) and
relations between individuals from different nations (Private International Law). The
application of international law in the national courts depends on whether the
country follows Monism or Dualism. Tanzania for instance falls dualism, therefore
international law will be applied in Tanzania only if it has been domesticated by any of
the methods used for domestication of international laws such as the Wording
Method, Formula Method, Subordination Method and Hybrid Method.

FUNCTIONS OF THE LAW

(Roscoe Pound)
The following below are some of the functions of the law, they are not exhaustive.
Students are urged to find more functions of the law; therefore law helps:-
(a) To regulate the conducts of individuals, the law provides for the Do’s and Don’ts.
(b) To maintain Peace and order in the community.
(c) To protect individual’s basic rights and fundamental freedoms.
(d) To punish the wrong doers (No law, no punishment. No one can be punished for
an offence not prescribed by the law) and therefore deter others from doing the
same.
(e) To settle disputes.
(f) To ensure smooth administration of institution and the country at large.
(g) To maintain the status quo in the society.
(h) Etc.

SOURCES OF LAW IN TANZANIA

The following below are the basic sources of law in Tanzania;

(a) The Constitution of United Republic of Tanzania, 1977

This is the source of law which has the highest force compared to other sources of law as
will be discussed below. Article 64 (5) of the URT Constitution provides for the
supremacy of the Constitution. It provides for the basic rights and fundamental
freedoms of individuals. It further establishes various offices like the office of the
Attorney General and that of the Director of Public Prosecution.

(b) Statutes/Legislations

These are enactments of the parliament. The parliament of Tanzania is empowered to

make principal legislations by articles 4(1), 64(1), and 97 (1) of the Constitution of United
Republic of Tanzania. Article 97 (5) of the Constitution gives power to the parliament to
delegate its legislative power to any person or department of the government to make
regulations having the force of law. This gives room for subsidiary legislations to be
made.

(c) Precedents

These are decided cases by the courts of records that is the High Court of Tanzania and
the Court of Appeal of Tanzania. The decisions by these courts are used as sources of law
and binds the courts subordinate to them.

(d) Received Laws

These are the laws which were used in England before 22 nd July 1920. They were received
and began to be used in Tanganyika (later the United Republic of Tanzania) from the
reception date (22nd July 1920). Their application in Tanzania is by virtue of section 2 (3) of
the Judicature and Application of Laws Act, [Cap 358 R.E 2019]. They are used only when
there is a lacuna or when the circumstances of Tanzania and of its inhabitants permits
(read the proviso to section 2(3) of Judicature and Application of Laws Act, [Cap 358 R.E
2019]).

(e) Customary and Islamic Law

Customary laws is the source of Laws in Tanzania and they are applied by virtue of
section 11 of the Judicature and Application of Laws Act, [Cap 358 R.E 2019]. However its
application is limited to cases of civil nature. They are further subjected to some
conditions like; customary law should not contravene with the URT Constitution and any
other written laws, it is applied to persons who are from the same tribe, and should not
be repugnant to the basic rights and fundamental freedoms of individuals.

Islamic Law is applied in Tanzania and acts as the source of law by virtue of section 11 (1)
(c) (ii) of the Judicature and Application of Laws Act, [Cap 358 R.E 2019]. Its application is
limited to persons professing Islamic religion and is only applied in matters of Marriage,
divorce, guardianship, inheritance, wakf, and similar matters in relation to the members
of a community which follows that law.

(f) International Law

This is used as a source of law in Tanzania only after domestication of the respective
international instrument. This is because Tanzania follows the so called Dualism as
opposed to Monism. Article 63 (3) (e) of the URT Constitution empowers the National
Assembly to deliberate upon and ratify all treaties and agreement to which the United
Republic is a party and the provisions of which require ratification.

(g) Hindu Laws

The law whose application in Tanzania is by virtue of the Second Schedule to the
Judicature and Application of Laws Act, [Cap 358 R.E 2019]. They are applied to persons
of Indian Origin.

Normativity of the Law

-Its capacity to provide guidance, reasons for actions and obligations. It allows for the
application of force or coercion. The coercive nature of the law is not based on an
individual laws but Law as a whole.

Relationship between State and Law

This relationship can be explained using theories; the following below are the theories
explaining on the relationship between state and the law:-

(a) The state is superior and creates the law, John Austin.
(b) The law is superior and binds the state, Sir Ivor Jennings.
(c) The state and the law are of the same level, Kelsen. They are the two sides of the
same coin.

The legal system of Tanzania

Generally, Tanzania follows the common law legal system as opposed to civil law system.
This is associated with colonization of Tanganyika, by then, by the European countries,
British in particular. When speaking of the legal system of Tanzania the following are
inclusive;

(a) The organs of the state namely Executive, Legislature and Judiciary. The URT
Constitution, 1977. Students is required to understand their respective functions
relevant to the legal system. Briefly, the Legislature is responsible for enacting laws,
the executive is responsible for enforcement of the laws and the Judiciary is
concerned with the interpretation of the laws (dispensation of justice).
(b) The Court system of Mainland Tanzania and Zanzibar. The URT Constitution, 1977 and
the Magistrates’ Courts Act, [Cap 11 R.E 2019]. Students are required to pass through
the provisions establishing the courts in the court hierarchy from mainland Tanzania
and Zanzibar.
(c) The application of Received Laws. Section 2(3) of JALA, [Cap 358 R.E 2019]. Students
are required to read the proviso to section 2 (3) of the Judicature and Application of
Laws Act, [Cap 358 R.E 2019] to get more details on the conditions for application of
received laws i.e common laws, doctrine of equity and the statutes of general
application.

NB: These notes are not exhaustive, students are urged to go further.