CLW 010: INTRODUCTION TO LAW NOTES

1.0 UNDERSTANDING THE LAW

1.1 Introduction
The term law has been used in many ways to signify different phenomenon. We talk about the
laws of nature and we often speak of laws of science. We also make references to rule of social
and moral behavior1 More commonly we use the term law to mean those rules which we have to
obey and if we do not obey them, we can be taken to court and be punished for ‘breaking the
law’. It is this type of law that we are concerned in our course.2
1.1.1 Meaning of Law
Philosophers and social thinkers have grappled with the meaning of law over the ages, and like
other social and historical phenomena, law too is a complex social phenomenon. There cannot be
a single answer or definition of law. We can find explore the nature of law by examining the
main elements of law one finds in various definitions as well as in our daily perceptions.

The following are some attempts to define the term 'law':-

(a) Oxford Dictionary of law, 7th Ed., 2009 (p. 316).

Define the term 'law' as the enforceable body of rules that govern the society.

(b) Hobbes
Law is an obligatory rule of conduct. The command of him or them that have coercive power.
(c) Austin
Law is a rule of conduct imposed and enforced by the sovereign.
(d)Salmond
Law is body of principles recognized and applied by the State in the administration of justice.
(e) Salwan and Narang (2008) Academic's legal dictionary. 18th Ed., p. 201.

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Shivji, I.G., et al (2004) Constitutional and Legal System of Tanzania: a Civics Sourcebook,
Dar es Salaam: Mkuki na Nyota Publishers,p.3.
2
ibid

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Refer the term law as:
(a) legislative pronouncements of the rules which should guide one's actions in society;
(b) the body of principles recognised and applied by the state in the administration of justice
(Salmond)
(c) a rule of action to which human being's conduct must conform.

Basic elements or features to be considered in defining the term 'law':

i. The law must be a body or system of obligatory rules of human conduct or behaviour.
(Not optional) to be obeyed or adhered to by every member of the society.
ii. The law must be imposed or recognised and enforced by coercive body, that is, a
sovereign or the state.(unlike moral, religious or social rule of conduct where there is no
central organ to make and enforce the rules)
iii. Sanction: The impact or consequences of violating (breach) of the law must result into
sanction/punishment/threat (i.e. coercive nature of law).
iv. The law must apply to a whole community or to a cross-section of a society (i.e. general
application).

QUESTIONS:
-How does law differ from 'religious norms or rules of morality'?
-Provide a broad definition of law.(Ref. Shivj, Issa, (2004) pg.6)

Function of Law
i. Structure government power e.g Article 4 of the Constitution of the URT.
ii. Facilitate and regulate private relations e.g the Law of Contract helps to determine the
relationship between sellers and buyers on the market, likewise the law of Property
determines who owns what.
iii. Resolving conflict. There are different institutions and mechanism for resolving
conflict. Law provide for the composition, power and procedures to be followed.

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1.1.2 Sources of Law
Tanzania’s legal system is based on the English Common Law system. There are two sources of
laws in Tanzania, namely formal/primary and non-formal/secondary.

(a) Formal/Primary sources of law:

These include:
1.The constitution.
The constitution is any document or scheme which establishes the countries government, defines
the powers and limits of the three arms of the state namely, the parliament, the judiciary, and the
Executive and also the necessary checks and balances in the manner the three arms are supposed
to function. It also defines the relationship between the state and its citizen in terms of rights and
obligations. It is the supreme law of the land in which all other laws drives power from the
constitution.
How does the constitution become source Law?
Every law of the land must comply with the provision of the constitution for it to be valid. No
law is valid if it contravenes any of the provisions in the constitution. per Article 64(5) of the
CURT 1977 as amended.
The constitution also echoes the fundamental rule of criminal justice per Art.13(6)of the
constitution of URT of 1977.
2.Statutes.
These are pieces of legislations enacted by or under the authority of the parliament. The Laws
Revisions Act of 1994 Cap 4 [R.E. 2002,] established that all legislations previously known as
Ordinances, i.e. those which were enacted by the pre independence colonial administration, as
Orders in Council, can now be legally recognized as Acts. These principal legislations and
subsidiary legislations thereto, are published in the Government Gazette and printed by the
Tanzania Government Printers. Those enacted by the parliament are known as principal
legislations, For example; The criminal procedure Act Cap 20 R.E 2002 and The evidence Act
cap 6 R.E 2002.

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Other statutes are made under the authority of the parliament are commonly known as subsidiary
legislation. They are enacted by the executives-Ministers under specific authority given to them
to do so by the principle statutes. For example
 The Habeas corpus Rules of 1930 made under section 348 of Criminal Procedure Code
Cap 20 now Section 390 of Criminal Procedure Act No.9 of 1985. Provide for some
procedure for inquiry.

3.Precedents

These are decisions by superior courts cited as binding authorities to be followed as legal
principles. Precedents which are binding must be followed unless distinguished. They are cases
from the High Court and Court of Appeal which are either reported or unreported and are to be
used as precedents, and bind lower courts thereto.

Reported Tanzanian cases are found in the Tanzania Law Reports, High Court Digests and East
Africa Law Reports.

4. Received Laws
Received Laws are established under Section 2(3) of The Judicature and Application Laws Act,
Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA) these include: Common Law, and
Doctrine of Equity, Statutes of General Application of England, applicable before the 22 of July
1920, which is deemed to be the Reception date for English Law in Tanzania.

 Common Law

These are the body of law developed through judgments of the English courts which made
reference to the customs and usage of the English people and then interpreted in courts. By
preservation of courts, they remain applicable (when there is no local law or rule) and persuasive
laws in Tanzania through the doctrine of precedents.

 Doctrine of Equity

These are the body of law developed in England through decision of King’s Courts, common
referred to as the Lord Chancellor Courts, which were developed by judges appointed by the

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King to sit in King’s court to make decisions on appeals by people aggrieved by decisions of
England courts. Since the King was referred to as ‘the fountain of justice’ he was not bound by
common law rules or decision. Thus, he dispensed justice according to conscience and fairness.
Later, the King appointed judges who were referred to as Lord Chancellor to adjudicate on his
behalf and hence developed what is called today, as ‘the doctrine of equity’. Just as the principle
of common law, the doctrine of equity remain persuasive and precedents when local
circumstances do not provide for an answer.

 Statutes of General Application

These are sets of legislation passed by the parliament of England to apply in England but were of
general nature that they would apply in other territories. However, only part of the legislations
which were in force in England on the 22 nd July 1920 (commonly referred to as the reception
date) was received to apply in Tanzania.

5. International Law (Treaties and Conventions)

International Law is the sum total of norms accepted by international community to regulate
amongst states vis a vis its subject. Treaties or Conventions apply only in Tanzania after
ratification by the parliament as per Article 63 (3) (e) of the CURT of 1977.

(b) Non-formal/Secondary sources of law:

Non-formal sources of law to be enforced [they] must be constitutional and consistent with
primary sources of law. These are:

(1) Customary laws (customs and norms of each tribes). Customary laws are established under
section 9 of JALA. Where by customary law is in effect only when it does not conflict with
statutory law. e.g. Haya customary on succession law.

(2) Religious laws, e.g. Islamic law. Islamic law is applicable to Muslims. Section 9 of the
Judicature and Applications of Laws Act, empowers courts to apply Islamic law to matters of

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succession in communities that generally follow Islamic law in matters of personal status and
inheritance.

(3) Trade usage, customs and lawful agreements or contracts or arrangements between private
individuals.

1.2 Divisions of Law

There are three broad divisions of law that common law lawyers often use. These are:
1.2.1 Criminal law and Civil law
Criminal law refers to that law which deals with crime and punishment. It also deals with the
relationship between the individual and the state, standing in for the whole society. In criminal
cases the person who is suspected of committing an offence (an accused person) is prosecuted by
the State (Prosecutor). For example, in Tanzania we have the Penal code. While Civil law is that
which deals with relationships and disputes between individuals. The state is not directly
involved except that the state provides institutions and framework for the resolution of private
disputes. In civil cases the person who sues is called plaintiff and the person who is sued is
called defendant.
Question: state the difference between Criminal law and Civil Law.
1.2.2 Public law and Private law
Public law is the law which deals with the relationship between the state and individuals, the
distribution and exercise of public powers. Braches of public law are Constitution law,
Administrative law, Regulatory law (e.g. EWURA & TCRA laws), and Criminal law (e.g. Penal
Code). While, Private law is the law which governs relationships between private individuals,
for example, law of contract, tort law, property law, succession (and trust) law, and etc. Private
laws usually do not involve the government, and are laws that allow one private entity to sue
another private entity in a civil lawsuit.
Question: state the difference between Public law and Private Law.

1.2.3 Substantive law and Procedural law

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Substantive laws are laws which governs or give rise to rights and obligations, e.g. the Penal
Code, Cap. 16 (RE: 2002). While, Procedural laws are those which concern with proof and
procedure. They govern the mechanics of how a legal case flows, such as how a case is to be
framed, in what court it shall be tried, when is to be tried.
Procedural law adheres to the legal rights owed to a person in criminal and civil actions, by
governing their rights before, during and after the actual hearing and the role of the magistrate
and police officers and witnesses in relation to the trial.
Substantive law and procedural law work together to ensure that in a criminal or civil case, the
appropriate laws are applied and the proper procedures are followed to bring a case to trial. In
this lesson, we'll discuss the differences between the two and how they relate to the legal system
as a whole.

Difference between procedural law and substantive law.

Content and structure: Substantive law deals with those areas of law which establish the rights
and obligations of individuals, what an individual may or may not do. Where else Procedural
laws deals with and lays down the ways and means by which substantive law can be enforced.
Powers: Substantive laws have independent powers to offer legal solution. It can decide the fate
of the under trial, when he wins or loses and even the compensation amount. Whereas Procedural
laws only tells us how the legal process is to be executed.
Application: substantive law cannot be applied in non legal context, whereas Procedural law
applies in non legal contexts.
Examples of substantive laws is how the degree if murder is defined depending on the
circumstances and whether the murder had intent to commit the crime. The same homicide can
fall under different levels of punishment.
Examples of procedural laws include the time allowed for one party to sue another and the rules
governing the process of the lawsuit.

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TOPIC 2: HOW TO FIND LEGAL AUTHORITIES
There are a number of places one can obtain legal materials in Tanzania, these include;

2.1. The Law Library.

In the course of studying law you will be called upon to use legal authorities to support your
answer. The Law library is the best place where one can find Legal authorities such as
legislations and case laws. The Library of the Court of Appeal of Tanzania, the High Court
Library, the High Court Land Division Library, Commercial Division of the High Court Library,
the Attorney General’s Office at the Ministry of Justice and Constitutional Affairs, University of
Dar Es Salaam, National Archives, Government Bookshop, Dar es Salaam Bookshop, the United
Nations Information Centre, The International Criminal Tribunal for Rwanda in Arusha,
St.Augustine University of Tanzania, Mzumbe University, and many more others.

2.1.1 Tracing legislations in the library.

When faced with a problem relating to a statute or statute provision it is important to consider the
following;

i. Consider the subject under which the problem places itself.ie. whether the question
relates to constitution or land or family relations.
ii. Having the subject then consider the possible sub-heading or individual rights or rent
restrictions or unlawful divorce.
iii. Both the subject and sub-heading should be checked in the indexes or textbook indexes.
iv. When you find a hint make the short title of the law or piece of legislation involved.
v. Together with the short title include the year, and number of the Act or legislation i.e.
The Criminal Procedure Act, Cap 20 [R.E 2002]. This is called the subject method, other
methods include case method in which case you consult the digest of Index of statutes or
case law on the relevant subject or statute.

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2.3.2 How to find a case

Reported cases in Tanzania can be found in a number of Law Reports. Between 1957and 1977
cases reported from the High Court of Tanzania and the East African Court of Appeal appeared
in East Africa Law Reports. Currently these are reported in the Law Africa.

We have varieties of law reports, these are just few examples;

TLR- Tanzania Law Report

HCD- High Court Digest

E.A-East Africa

L.R.T-Law Report of Tanzania

W.L.R-World Law Report

Which cases are reported in Law Reports?

Not all cases are reported. The following are criteria’s for reporting cases in Law in Tanzania.

1. Whether the case states a new rule of law or restates in modern terms an old rule
of law or modifies a rule of common law to suit particular circumstances of
Tanzania. Donoghue v. Stevenson, 1932 AC 562
2. Whether the case declares, extends, qualifies, or distinguishes an existing rule of
law. Donoghue v. Stevenson, 1932 AC 562
3. Whether the case declares a new rule of law or the common law as a guide from
another country. John Nyamuhanga Bisare v. R [1980] TLR 6.
4. Whether the case interprets a clause of common law found in contract, will e.g.
Sluis Brother (E.A) Ltd v. M. Mathias &Tawaro Kitowai [1980] TLR 294
5. Whether the case is one in which the judge deliberately sets out to clarify the new
law for the benefit of the lower class.

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 6. Whether the case is one in which the judge gives instructions or points of practice
or procedure.
7. Whether the case deals with quantum of damage to establish uniformity.
8. Whether the case establish an old rule of law so as to demonstrate that it is still
alive. Waziri Amani v. R [1980]TLR 250.
9. Whether the case is notoriously destructive, Zombes’ Case.

2.2 Citation of Statutes

In citing statutes in Tanzania a difference is made between laws which were enacted during the
colonial period-ordinance e.g. The Chattel Transfer Ordinance, Cap28 [R.E 2002] and the former
representing the Title of the statute and the latter the chapter number of the same statute.

Those enacted after independence are referred to as ‘Act’ and not ‘ordinance’ e.g The Criminal
Procedure Act, 1985(Act No.1 of 1985) now cited as The Criminal Procedure Act, Cap 20 [R.E
2002], The Evidence Act, Cap 6 [R.E 2002]. Start with short title of the statute, Chapter number
or year.

Other guides on citation of statutes should be sought from law reports, index and the citation
section of the particular statute in question.

Delegated or subsidiary legislation is cited as, Instrument under the constitution of the United
Republic of Tanzania (Government Notice No. 616 of 1986 or GN.No. 161 0f 1986)

2.3 Citation of Cases

Cases are reported in Law reports, where else law reports are repositories of cases decided by the
courts especially the Appellate courts. In common law countries, Law reports are essential
sources of law.

Citation of cases in law reports;

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There are various methods of citing cases from law Reports. These include;

1. Name of parties involved in a case

2. Year of the series of the law report in which the case is reported. The name of the series
of often abbreviated. If there are volume of the same year, the volume of the case
required is indicated.
3. Law report in which the case is reported
4. The page number at which the case commences or in other reports number of the same
case. i.e HCD n. or LRT n.

For examples;

Mwinyijuma v. R [1971] HCD n.61

Halden v. Halden [1966] W.L.R.1481

Obongo v. Municipal Council of Kisumu [1071] E.A.91

Juma Hassan v. Habibu Salum [1975] L.R.T.n.27

Names of Parties ;

In civil case: the person bringing the action is called Plaintiff , comes first, followed by the name
of the defendant- the person complained against. E.g Juma Hassan v. Habibu Salum

In criminal cases: usually the citation ‘R’ v. Smith. ‘R’ is the abbreviation for the latin word
“Rex” (king) or “Regina” (queen) or Republic( in Tanzania after independence) the charge is
Republic against the Accused person (Smith or John)

2.4 Citation of Books

 Start with Surname or second name of the author in capitals,
 First name in title case (small letters but starting with capital letter)
 Year of publication in brackets
 Title of the book in italics

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  Information of edition (if the book has several editions)
 Place of publication
 Name of publisher
 Page reference if required.
In between there should be followed by comma(,).
For example;
BROWNLIE, Ian (2001), Principles of Public International Law, 5th Ed., Oxford, Oxford
University Press.
SHOW, Malcolm(2003), International Law, United Kingdom, Cambridge University Press, p.10.
If the book is written by more than two authors, only one author is noted and the rest are covered
by the use of the Latin expression “et alia-in short- et al”. for example;
BROWNLE, Ian (et al), (2003), A Study of International Treaties, Oxford, Oxford University
Press.
2.5 Citation of Legal Commentaries
In legal commentaries we shall base on Articles from journals and internet sources other than
books.
When presenting articles from Journals or in an occasional paper, its presentation is slightly
different from the presentation of books it Starts with;
 Start with Surname or second name of the author in capitals,
 First name in title case (small letters but starting with capital letter)
 Year of publication in brackets
 Title of the article that was referred to, in italics
 Title of the Journal (which is always fixed and underlined)
 Volume number
 Place of publication
 Name of publisher
 Issue number.
In between there should be followed by comma(,).
For example;

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MAPUNDA, Benedict (2003), Treaty Making and Incorporation in Tanzania, Eastern Africa
Law Review, Vol.28-30, Dar es salaam, University of Dar es salaam.
Internet sources are simply presented by citing the URL(web address) and to indicate the date it
was accessed. For example;
http://www.lawjournals.com-accessed in January 2010.

2.6 Citation of unpublished works

Unpublished refers to any information source that is not officially released by an individual,
publishing house, or other company, and can include both paper and electronic sources. Some
examples of unpublished sources may include manuscripts accepted for publication but still "in-
press," data from an unpublished study, letters, manuscripts in preparation, memos, personal
communications (including e-mails), and raw data.
Citation Elements

1. Author(s) of Paper or Manuscript

For unpublished works, put each author's last name, then a comma, then the first initial
of the given name, then any additional initials. A period should follow each initial.
Separate the last author from the second-to-last author with a comma and ampersand
(&). Separate any additional authors by commas.

One author Wringley, B. B.

Two authors Mario, L. G., & Luigi, M. G.

Three authors Smith, J. S., Samson, M. S., & Jackson, L. J.

Institutional author The Foundation for Ancient Pig Latin Research

2. Year Written
Even though the work has not been published, the year it was written should be
included in the citation to establish the timeliness of the data presented therein. If the
paper has been revised (as can happen many times if the paper is being prepared for
publication), use the year of the draft the pertinent information is being taken from.
(1993)

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 3. Title of Paper or Manuscript
Give the full title of the paper or manuscript, including the subtitle if one is given.
Capitalize only the first word of the title, and the first word of any subtitle; also
capitalize any proper names in the title. Separate title and subtitle with a colon (:). The
title should be italicized, except in the case of raw data taken from an unpublished
study, where the topic of the study is then put in brackets to show that it is a description
of the content and not an actual title. End the title with a period (.).

4. Publication Process Information

Because the manuscript or paper may be in several different steps of the
publication process, it is important to let readers know where the source is
currently. Do not italicize this part of the citation. End with a period. If a
university is cited, separate the publication process information and the name
of the university with a comma (,). Include the city, state, and country (if
outside the United States) of the university unless such information is included
in the name of the university.

Note: if the manuscript or paper has been accepted for publication, do not use a year.
Instead, use the term "in-press." Give the title of the Journal the paper was submitted,
as you would in citing a journal article. Do not gaive the page numbers as they are not
available until publication. If the manuscript has been submitted, but not yet accepted
for publication, do not give the name of the journal or publisher the manuscript was
submitted to.

CITATION FORMATS:
1. Author, A. A. (1996). Title of paper or manuscript. Unpublished manuscript.
2. Author, A. A., & Author, B. B. (1996). Title of paper: Subtitle of paper. Manuscript
sumbitted for publication.
3. Author, A. A., Author, B. B., & Author, C. C. (1996). [Topic of study or untitle work].
Unpublished raw data.

EXAMPLE CITATIONS:

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 Spud, I. H. (1999). Constrastive analysis: A comparison of Pig
Latin and English. Unpublished manuscript.

Nala, A. (1998). Teaching vocabulary: Evidence from research

in Pig Latin Unpublished manuscript, Brigham Young University,
Provo, UT.

Clinton, W. & Carter, J. (1987). [The relationship between

pronunciation and perception in L2 learners of Pig Latin].
Unpublished raw data.

Roosevelt, F. (1997). Childhood acquisition of Pig Latin by

native speakers of English. Manuscript submitted for publication.

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TOPIC 3: BRANCHES OF LAW
Law can be classified into different branches however for the purpose of our study we adopt the
classification of branches of law from Whitehead & Kadar, A Foundation in English Law,
Stanley Thornes, 1992, p.5.
3.1 Municipal law and International law
Municipal law and International law are the two Major Branches of law.
3.1.1 Municipal Law
These are the laws which apply within nation state . these are at national level or at state. They
are further divided into two branches that are Public Law and Private Law.
3.1.2 Public law
Public Laws are laws that apply to the relationship between an individual and the government.
These include Criminal law, Constitutional Law, Administrative law and Regulatory laws.
3.1.2.1 Criminal law
Criminal law deals with the relationship between the individual and the state, standing in for the
whole society.
3.1.2.2 Constitutional law
Constitutional Law is the law which regulates relations between the citizens and principal organs
of government as well as provides for division and separation of powers among state organs per
Article 4 of the Constitution of the United Republic of Tanzania of 1977, as amended.
3.1.2.3 Administrative law
Administrative Law is the law which confers power on officials to administer affairs of the state,
and restrictive rules to prevent abuse of power.
3.1.2.4 Regulatory law
Regulatory Law these are laws by which the state creates rules and organs to oversee certain
private relations which it thinks need to be regulated in public interest. For example EWURA.
3.1.3 Private law
Private law applies to relationship between individual in a legal system. For example contract,
Tort, law of property, succession and trust.
3.1.3.1 Law of contract

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The Law of Contract governs bargains made between persons. It regulates all agreements in
trade.
3.1.3.2 Law of Torts

Law of Tort deals with civil wrongs actionable at the initiative of the aggrieved party.

According to Salmond- Tort is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of a trust or other merely equitable
obligation.

3.1.3.3 Law of Property

Law of Property deals with rights of persons over land and chattels.
3.1.3.4 Law of succession
Law of Succession deals with ways in which property devolves on death (or bankruptcy) of the
owner. Succession to property is concerned with how property of a person passes to another or
others after his death.

3.1.3.5 Law of Trust

Law of Trust deals with relation between trustees and beneficiaries.

3.2 International Law

International Law is the sum total of norms accepted by international community to regulate
amongst states vis a vis its subject. Treaties or Conventions apply only in Tanzania after
ratification by the parliament as per Article 63 (3) (e) of the CURT of 1977.
3.3.1 Public International Law
Public international laws are rules and principles of general application dealing with the conduct
of States and of international organizations in their international relations with one another and
with private individuals, minority groups and transnational companies. Agreements among
different nations are generally referred to as public international law.
Initially, Public international law strictly dealt with the relationship between states but slowly
expanded. It expanded in a dual nature;

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In terms of subjects where now individuals and international organizations are now subjects of
public international law.
In terms of branches where some are;
a. International Humanitarian Law: This is also known as the laws of war and the law of
armed conflict. It is the legal framework applicable to situations of armed conflict and
occupation. As a set of rules and principles, it aims at limiting the effects of armed
conflicts. It is part of public international law which is a broad set of treaties, customary
law, principles and norms. It traditionally regulated relationships between states but now
recognises obligations for both states and non state armed groups that are parties to armed
conflict.
b. International Human Rights Law: This is the body of international law designed to
promote and protect human rights at the international, regional and domestic levels. As a
form of international law, international human rights law is primarily made up of treaties,
agreements between states intended to have a binding legal effect between parties that
have agreed to them. It is also made up of customary international law, which are rules of
law which arise from consistent conduct of states which believe that they are supposed to
act in a certain way.
c. International Criminal Law: This is part of public international law that deals with the
criminal responsibility of individuals for international crimes. International criminal law
finds its origin in both international law and criminal law and the international crimes
which international tribunals have been given jurisdiction under international law are:
genocide, war crimes, crimes against humanity and aggression.
d. International Trade Law: This includes the appropriate rules and customs for handling
trade between countries. It is a complicated area of law because there are many levels of
trade organizations and interactions. There are bilateral trade agreements, regional trade
agreements and multilateral trade agreements; each of these having its own policies,
history and dispute settlement procedure.
e. International Environmental Law: This is part of public international law where states
establish standards that manage natural resources and environmental quality such as air
and water pollution, forest and wildlife, hazardous waste, agricultural practices and land
using planning.

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3.3.2 Private International Law
Private International Law is the body of rules of the domestic law of a state which applies when a
legal issue contains a foreign element, and it has to be decided whether a domestic court should
apply foreign law or cede jurisdiction to a foreign court. This is part of the law of every state
which deals with cases having a foreign element. It consists of agreement between private parties
(companies or citizen) residing in different nations.

3.3.3 International Organizations

An international organization is an organization with an international membership, scope, or
presence. International organizations are divided into two "basic types, that is, the 'public' variety
known as intergovernmental organizations (IGOs) and the 'private' variety, the international non-
governmental organization (INGOs)."

TOPIC 4: LEGAL SYSTEM

Legal system is the set of laws of a particular country and the way they are used. This also refers

to a procedure or process for interpreting and enforcing the laws fairly and effectively by

establishing some institutions to provide justice to the people. The major legal system in the

world consist of civil law, common law and religious law. The common law as developed in

United kingdom, forms the basis of EAC that is Tanzania ,Kenya and Uganda legal system

whereas Rwanda and Burundi use civil law system.

There are mainly four (4) types of legal system in East Africa and these include;

The Common law system is the system where judges seek principles and rules from previous

decisions. It is also called Adversarial system in which the parties are mainly involved to

establish their case while the judge is supposed to act as an impartial referee. Most countries

which were colonized by British have inherited the common law system for example Tanzania,

Kenya and Uganda.

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Civil law system is based on comprehensive codes enacted by the state and which form the main

source of law rather than decisions of courts. The civil law system is inquisitorial where judges

have more central role in the process of not only judging but also inquiring and setting the terms

of inquiry into the dispute.

Common law legal system Civil law legal system

Judges are referee Judges are chief investigator

Written constitution is not necessary Written constitution based on specific codes

Judicial decisions are binding Only legislative enactment are binding

The corpus of law has developed through Is based on comprehensive codes

system of precedents

The system is Adversarial The system is inquisitorial

Islamic law system has developed as an independent legal system especially in Arab world and
also in East Africa especially to those people who profess Islamic faith. The law and religion are
one. Law originates from Allah as revealed to his prophet Mohammed and embodied by him in
the Qua’ran. In Tanzania Islamic law is applicable to Muslims. Section 9 of the Judicature
and Applications of Laws Act, empowers courts to apply Islamic law to matters of
succession in communities that generally follow Islamic law in matters of personal status
and inheritance.

Customary law are rules of conduct which govern legal relations and are established by custom
and usage. In Tanzania Customary laws are established under section 9 of JALA. Where by
customary law is in effect only when it does not conflict with statutory law.

TOPIC 5: DISPUTE SETTLEMENT METHODS

Introduction

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Disputes are misunderstanding between two or more parties or persons. With the development of
classes is where law and state emerged hence dispute occurred due to different interest, the need
to own property, corruption, jealousy, misuse of power, power straggle, e.t.c. All these renders
dispute inevitable part of human life as such different mechanism have been developed and
therefore recognized by different societies in resolving disputes.
In dealing with the issue of dispute settlement different mechanisms are involved;
1. The Customary or traditional settlement method.
2. The modern Dispute Settlement Methods.
5.1 The Customary or traditional settlement methods
The mechanism for dispute settlement have been recognized under the customary law as one
form of settling dispute since time immemorial. In most earlier African societies customary
Arbitration, mediation or conciliation was resulted to whenever the dispute arose within a family
or clan or a group in a particular society.
In these early societies it was through an amicable ways of settling disputes for the best interest
of a particular family or clan or the whole society. The rationale of this customary dispute
settlement methods was to maintain unity, solidarity and mutual relation within the family or
clan or the entire society.
That time the main source of Dispute was land and the issue was who possess the land and not
ownership. Different communities had different ways of settling disputes on land issues.
History tells us that the pre capitalists societies were less structured and did not have an
articulated social organization. In some societies the running of public affairs was the concern of
the whole country characterized by equality of the members of the society. For example land was
community ownership.
In such societies there were no institutions for a public power like courts, no legislations. Land
was considered to be the major means of production. For one to acquire land had to obtain the
buhaisa or through inheritance, gift or clearing forest. When dispute arise were taken to relevant
authorities, such as the council of elders or village committee. In the case of Kapasia
Mwaipinga v. Mwendilimo Mwakyusa [1968] HCD 88. The dispute was between two relatives
claiming title over land through inheritance. The assessors in the district courts were of the view
that, since they were relatives the dispute could be brought to an amicable solution by dividing
the land equally between the parties. The court refused the assessors opinion on the ground that it

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is contrary to the principle of Natural Justice, to deprive the owner in his right and therefore the
court awarded the plot to Mwendelimo.(this decision was contrary to traditional methods, in
modern way of settling dispute the winner gets all and the loser losses all)
In customary ways we have different forms or method or mechanism of dispute settlement as
follows;
5.1.1 Mediation and conciliation.
For parties to opt for either mediation or conciliation depends on the gravity of the dispute.
 Mediation is the form of settling dispute by involving the third part(mediator). The
mediator should not be biased.
 Conciliation is the method of settling disputes between two parties without a mediator.
This is only possible when parties are in talking terms.
Mediation and conciliation is one of the principle features of customary or traditional dispute
settlement. Most of customary disputes were private in nature concerning relatives or people of
the same kinsman. They were solved by the lineage counselors who convened a conclave. In
Kadumes Case, the dispute was land. It was between Kadume and his Ankle Soine. The facts
were that, Kadumes’ Mother had separated from his father 10 years before the dispute arose.
After separation Makaras’(Kadumes Father) life depended on his half brother Soine. On
Makara’s death Kadume took Makara’s land, After the burial of Makara, kadume was given two
herds of cattle and three goats from the estate of his father. The rest was taken by Soine. After
one year, Kadume claimed all his fathers’ property including land . Soine did not agree and
therefore the dispute arose. Kadume presented his case to the Lineage counselor. The lineage
counselor conveyed the inner conclave of inner lineage. The inner lineage failed to reconcile the
dispute, the argument by Soine were that , Since Kadumes’ Mother had deserted her husband
Makara, Soine had been looking after him and Kadume had already inherited land in his Ankles
farm. Soine also argued that he had only got the small plot of land. The lineage counselor
decided in favor of Soine. Now Kadume was aggrieved by the decision and he insisted that the
lineage counselor should convene the internal Moot. At the internal moot Kadume was
represented by Kilevi and the argument was that, kadume was the only son of the rate Makara,
and therefore he is the one to inherit the land. But Soine emphasized that he had shortage of land.
But Kilevi said, Soine’s refusal to give Kadume the land was against the customs of the

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ancestors and therefore Soine must honor the young generation or else they will not honor him
when he id dead.
The judgment; the internal moot said, sons should honor their elders irrespective of their elders
wrongs, the internal moot also divided the land into two parties and both parties got a share and
after the settlement the internal moot retired for beer.
5.1.2 By Contests
This is where parties in dispute engage themselves in some sort of contest that both parties meet
in an event where one of them will be crowned as the winner. For example in the drumming the
scandal. This concerns dispute between Torgindi and Mtswen. Mtswen was accused to be the
cause of marriage of Torgindi to breakdown and therefore they quarreled.
Each part organized and sung a song as laud as he could so that the whole village could here. The
drumming contest went on for more than three weeks. The village elders took note of these
issues and it was the view that if the contests proceeds it would end up with the fight. The village
elders summoned the parties in the village elders council. Both parties would dram and sing and
then they would decide the case. After singing the elder heard the parties .
The decision; The elder announced the winner and he said; Torgindi won the case, but Mtswen
had the better song.
5.1.2 Drumming the Scandal
This is when parties to the dispute organize and sing a song as laud as they can so that the whole
village can here. This goes together with contest where parties contest by drumming the scandal
as it was in Torgindi and Mtswen’s Case.(supra)
5.1.4 Trial by Ordeal
Is another customary method of solving conflict in which a person is put into a test of doing
something to prove his innocence. In R. v. Paramba Fundikira (1947) 4 ECA 96. It is a
criminal case. The facts;
In this case a trial by ordeal was conducted to discover who had by witchcraft caused the death
of 11 children of the first appellant. The second appellant had forced women to take traditional
medicine called “Mwavi”. It was believed that if any one takes the medicine (Mwavi) and he is
guilty he will die and if one was not guilty after taking the mwavi would only vomit. Now two
women vomited and therefore survived while the other two women died. It was established that,
Mwavi by itself is not Poison. It becomes poison when it is connected with evil mind.

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5.2 Modern Dispute Settlement Methods.
The sources of modern Dispute Settlement originates from customary law. It is the current way
of Dispute settlement where procedures are considered to be formal and no longer informal
because there are specialized institution for settleling disputes only. For example courts of law.
This type of dispute settlement is called role enforcement method because the rules have been
laid down. The disputes are settled by courts of law or Tribunals.
Due to development of capitalism the major means of production in such as land is no longer
considered to be commodity that can be sold or bought. Now man is concerned with the
possession of the land but ownership.
5.2.1 The Common Law Dispute Settlement
This originates from England, it was developed as a result of codification of customs across
English society. It is based on precedents or decided cases or case law decided by the courts of
common law. It is based on the concept that, “ he who alleges must prove”. It is the duty of the
parties to prove their cases; magistrate/Judge is to stand as impartial judicator/ referee. They only
administer the rule.
It is the duty of the parties to bring out evidence by calling witnesses and by examining them.
Characteristics of Common Law legal System
i. The end result is that the winner takes all and the loser loses all.
ii. The rules are précised defined and strictly applied.
iii. The issue are narrowed down and also defined.
iv. The procedure and the rules of evidence are technical and advocates are necessary.
The Phrase of adversarial system is based on the following;
i. Identification of the disputed issues.
ii. Finding of the rules applicable.
iii. Discovery of the relevant facts and application of those rules to those parts.
Advantages of Adversarial System
i. It is possible to keep records of the proceedings which are necessary for uniformity and
certainty with all business transactions.
ii. Since the issues are narrowed down it saves time if the parties are well prepared.
iii. The parties have opportunity of controlling their case, by calling witnesses.
Disadvantages of Adversarial System

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 i. The Method is highly technical and complex or cumbersome due to the nature of
procedural rules and the rules of evidence.
ii. The method is expensive as it entails the use of advocate due to its technicalities.
iii. Most of the people are ignorant of their rights and do not know how to enforce them in
the court of law.
5.2.2 The Civil Law Dispute Settlement
This is another type of modern dispute settlement. It is the characteristics of continental Europe,
different from the common law legal system.
Under this system parties case is presented by the way of written submission or deposition. The
submission are exchanged between the parties or their representative and the judge. And the
judge will conduct the questioning of the parties and witnesses by enquiring.
The question which is asked are from parties themselves and parties knows what to ask whereas
the judge is not limited by the questions provided by the parties.
After the examination of the witness the judge prepares a written record of the case and report to
the panel of the judges who consider it and study the written submission and the evidence and
lastly give their judgement.
It is the judge who controls the trial and not the parties, in other words it is the duty of the court
to inquire the parties.
5.2.3 Alternative Dispute Resolution (ADR)
ADR is an acronym for Alternative dispute resolution. It is a term generally used to refer to
informal dispute resolution processes in which the parties meet with a professional third
party who helps them resolve their dispute in a way that is less formal and often more consensual
than is done in the courts. These often include, Arbitration, Mediation and Conciliation
In Tanzania ADR was introduced in 1994 through GN 422 of 1994, which amended the first
schedule to the Civil Procedure Code, Cap 33[R.E 2002](CPC) which came to operate on 1 st
Nov, 1994, thus brought in amendment to Order VIIA, VIIIB and VIIIC to the first schedule.
The provision of Order VIII is the main provision which statutorily introduced ADR in Tanzania
civil justice system.
These amendments made it mandatory requirement for civil cases to be first refereed to
mediation before full trial is conducted. The amendment to the CPC introduced new stage
between the completion of pleading and trial in given cases.

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Also 2nd schedule to the CPC permits resort to arbitration in rule 1(1) where the parties agree that
any matter of difference between them shall be referred to arbitration at ant time before judgment
is pronounced.
Forms of ADR;
i. Negotiation- is an alternative dispute resolution mechanism which involves parties
themselves or with their advisers in which the parties negotiates and try to settle their
dispute without the involvement of a third party. It is private although the resulting
agreement is not binding upon the parties. It is used when parties are in talking terms.
ii. Conciliation- is another mode of alternative dispute resolution mechanism which involves
a third party called a Conciliator. The Conciliator should normally be someone
considered to be wise with vast knowledge and experience in the subject matter in
question. In some jurisdiction conciliator renders a non binding opinion.
iii. Early neutral case evaluation- is also a type of ADR widely used. This involve a a neutral
or impartial third party called an Evaluator. The parties are asked to make representations
to him or her. The duty of the evaluator is to assess those presentations and determine, as
best he can, the probable outcome of the dispute if it were to be referred to arbitration or
to court of law. She then gives a non binding opinion.
iv. Adjudication- is also a form of ADR , which involves an independent third party called
Adjudicator. In this process, the parties present their cases, sometimes including
evidence, before the Adjudicator. After considering the respective merits of each side, the
Adjudicator makes a decision. The Adjudicator is not bound by rules of procedure
applicable in arbitration or courts. The decision of the Adjudicator is binding upon the
parties if the parties had so agreed earlier.
v. Mediation is a non- Adversarial way of resolving disputes between two or more parties
by using a neutral or impartial third party called a mediator who assists the parties in their
negotiations in resolving their dispute. The process is private and confidential. In
Tanzania we have two types of mediation that is voluntary and court- annexed mediation
in which courts annexed mediation is binding upon the parties.
vi. Arbitration- is the mechanism for resolution of civil dispute which takes place usually in
private pursuant to an agreement between the parties to the dispute under which parties
agree to be bound by the decision to the given by arbitrator according to the law.

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Benefits of ADR
 Eliminates or minimize costs in relating to the dispute resolution.
 Reduced time in dispute

 Improved satisfaction with the outcome or manner in which the dispute is resolved
among disputants
 Increased compliance with agreed solutions.
 Preserve confidentiality.
 Benefit of professionalism, neutrality and experience.
 Party participation and control of the process.
 The process is simple and flexible.

Draw backs of ADR

 It does not involve the community to which the parties belong since it is private.
 Negotiations leads to compromise of principles
 In courts annexed mediation there is no guarantee as to the result of the process.
 Since there is no appeal that means no remedy for a person who feels has been short
changed.
 Mediators or conciliator are powerless to compel attendance hence delays in disposal of
disputes where party employs delaying tactics.
 Do not rely on precedents

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