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The High Court was established under the Article 17(1) of the Tanganyika Order-inCouncil, 1920.

24 Styled as His Majestys High Court of Tanganyika, the court was vested with unlimited jurisdiction, civil and criminal, over all persons and matters in the territory of Tanganyika. The scope of jurisdiction of the court could also be glared from the laws it could administer. In accordance with Article 17(2) of the Tanganyika Orderin-Council, 1920, the High Court could apply the Civil Procedure and the Penal Codes of India, other Applied Indian Acts, Tanganyika Ordinances, substance of the Common Law, Equity and statutes of General Application. The High Court could also apply customary law by virtue of Article 24 of the same Order-in-Council, which provided that: In all cases civil and criminal, where natives are parties, the courts shall be guided by native law, provided it is not repugnant to morality and justice, or inconsistent with any Order-in-Council or any written law, Doctrines of Common Law, Equity and Statutes of General Application. The High Court was presided over by judges like any other of His Majestys High Courts established throughout the British Colonies. The Tanganyika Order-in-Council, 1920, did not make provisions for appeals arising from the High Courts decisions. This was so because, indeed, the Order-in-Council was not concerned with just setting up courts but was a broader constitutional statute designed to set up the machinery of the colonial state of which courts were only a part. The question of details was left to subsequent statutes. THE SUBORDINATE COURTS The Structure of subordinate Courts under the Courts Ordinance, 1920 Article 22(1) of the Order-in-Council provided for the constitution of the courts subordinate to the High Court and Courts of special jurisdiction. The Courts Ordinance, 1920, established three different courts subordinate to the High Court.25 Section 3 of the Ordinance read as follows: 3.There shall be and are hereby constituted courts subordinate to the High Court as follows, namely: (1) Courts of a Magistrate of District Political Officer to be called subordinate courts of the First Class. (2) Courts of an Assistant District Political Officer to be called subordinate courts of Second Class. (3) Courts of Assistant Political Officers of the Second Grade to be called subordinate courts of the Third Class. COMPOSITION Section 4 of the Ordinance governed the composition of subordinate courts. The section provided that in the absence of any special appointment every Magistrate of Political

Officer was to be deemed to have been appointed to hold within his district a subordinate court of a class corresponding to his rank. The section also empowered the Governor to appoint any political officer to preside over a subordinate court above his rank. JURISDICTION The powers of subordinate courts were limited both territorially and in terms of subject matter. Under section 5, the geographical limitation of any subordinate court of the First, Second or Third Class was the district within which such court was situated. However, where an Assistant Political Officer was placed in charge of a sub-district or portion of a district. The subject matter jurisdiction of subordinate courts was governed by section 18 and the schedule in criminal and civil matters respectively. Section 18 vested, respectively, subordinate courts of the First, Second and Third Classes same jurisdiction and powers as those prescribed for a Magistrate of the First, Second and the Third Class under the Criminal Procedure Code. The Governor could exercise any of these powers in accordance with his powers under the Fourth Schedule of the Criminal Procedure Code. In terms of punishment, a court of First Class could pass a sentence of imprisonment for a term not exceeding 2 years, a fine not exceeding Florins 1,500 and whipping. A court of Second Class could give an imprisonment term not exceeding 12 months, a fine not exceeding Florins 750 and whipping not exceeding 12 strokes. A court of Third Class could impose a fine not exceeding Florins 250, whipping up to 8 strokes, or as the High Court may direct and an imprisonment term of up to one month. Any imprisonment term for more than one month or a fine exceeding Florins 50 had to be confirmed by the District Political Officer. Section 19 provided for certain sentences and fines by subordinate courts to be confirmed by the High Court. Section 17(1) gave subordinate courts jurisdiction to try all suits of civil nature. However, section 17(2) empowered the High Court to limit such jurisdiction. Further, section 17(3) reserved for the High Court jurisdiction in suits for the subject matter of which no money value could be assigned. By virtue of the schedule, the ordinary jurisdiction (of subordinate courts) in suits and proceedings of civil nature wherein the subject matter in dispute was capable of being estimated at monetary value was limited to the value of 1,500 Florins, 500 Florins and 250 Florins for subordinate courts of the First, Second and Third Classes, respectively. APPEALS, REVISIONS, AND SUPERVISIONS Section 22 provided for all appeals, references, revisions and similar matters from or in any proceedings before a subordinate court to lie and be heard and disposed of by the High Court. The High Court also enjoyed supervisory and review powers over subordinate courts by virtue of sections 9 25, respectively. By virtue of section 26, the

High Court could order transfer of cases from one subordinate court to another or to itself. Decisions of the High Court were appealable to his Majestys East Africa Court of Appeal pursuant to the Court of Appeal for Eastern Africa Order-in-Council, 1921. 26 In appropriate cases, appeals could lie to the Privy Council.27 From the structure of the subordinate courts, one fact is clear, that officers who were purely political performed judicial duties. It seems that the fusion of the judicial and executive functions was not accidental, and this survived until independence when complete separation of the judiciary and the executive was achieved. The following chart presents a diagram of the court structure under the Courts Ordinance, 1920

THE COURT STRUCTURE UNDER THE COURTS ORDINANCE, 1920

Notes: (i) Although each of these subordinate courts had different territorial and pecuniary jurisdiction, none of them had appellate jurisdiction over the other. Appeals from either of these courts lay to the High Court and then, except for Native Courts, to the Court of Appeal for Eastern Africa and finally to the Privy Council. (ii) Appeals from Native Courts of the Second Class had to go to the Native Court of the First Class and then to the subordinate court (1st or 2nd class) before it went to the High Court. This was provided for by the Native Courts Proclamation, 1925.

THE STRUCTURE OF SUBORDINATE COURTS UNDER THE COURTS ORDINANCE, 1930 New Set of Subordinate Courts In 1930, the Subordinate Courts Ordinance, 1930 (No. 13 of 1930), was enacted to repeal and replace the Courts Ordinance of 1920. The new ordinance established a new set of courts subordinate to the High Court. These were enumerated by section 3 as follows: (a) The Court of Provincial Commissioner, to be called the court of the Provincial Commissioner for the Province within which the Commissioner is appointed Every such court shall be a subordinate court of the First Class; (b) The Court of Resident Magistrate, a District Officer or an Administrative Officer in charge of a district, to be called a subordinate court of the First Class; (c) The Court of an Assistant District Officer, to be called a subordinate court of the Second Class; (d) The Court of an Administrative Officer of cadet rank, to be called a subordinate court of the Third Class. COMPOSITION The 1930 Ordinance did not make any radical change to the existing court system. The courts were still presided over by administrative (Executive) Officers as did their predecessors. The only notable development was the introduction of the court of a Resident Magistrate. This marked the beginning of the professionalization of the Judiciary in Tanganyika. JURISDICTION Section 11 of the Ordinance gave the subordinate courts criminal jurisdiction to try cases in accordance with the Criminal Procedure Code. Section 12 vested the courts with jurisdiction to try all cases of a civil nature. Section 13 required the courts in the exercise of their civil jurisdiction to follow the principles of procedure laid down in the Civil Procedure Code so far as the same could be applicable and suitable. Pecuniary jurisdiction of all subordinate courts was enhanced to Shs. 4,000 in case of subordinate courts of the First Class, Shs. 2,000 for subordinate courts of the Second Class and Shs. 1,000 for subordinate courts of the Third Class.28 APPEALS AND REVISIONS The right of appeal to High Court was expressly provided for in criminal matters. However, no right of appeal on the civil side was given from any of the courts established under the 1930 ordinance. This lacuna led to the passing of the Subordinate Courts (Civil Appeal) Ordinance, 1935 (No. 38 of 1935).29

The chart below presents a diagram of the court structure under the Courts Ordinance, 1930. THE COURT STRUCTURE UNDER THE COURTS ORDINANCE, 1930

Notes: (i) Appeals from the High Court went to the Court of Appeal for Eastern Africa and thereafter could go to the Judicial Committee of the Privy Council. (ii) No court except the Native Subordinate Courts established under the Court Ordinance of 1930 had appellate jurisdiction over another. THE STRUCTURE OF SUBORDINATE COURTS UNDER THE SUBORDINATE COURTS ORDINANCE, 1941 SUBORDINATE COURTS ESTABLISHED The Courts Ordinance of 1930 was repealed and replaced by the Subordinate Courts Ordinance, 1941. section 20(1) of the Ordinance reorganized the court system. The First, Second and Third Class courts were abolished, and in their places was established one District Court in each district in which First, Second and Third Class Magistrates sat.30 This structure of the subordinate courts was the one which the independence Government adopted in 1961. COMPOSITION The Ordinance made little other charges. In the main, the administration of the courts remained much as it had been before. Two classes of persons could be appointed as magistrates to man this court. First, the Provincial Commissioners, Deputy Provincial Commissioners, Resident Magistrates, District Officers, Assistant District Officers and Administrative Officers of the cadet rank were designated magistrates by the Ordinance. 31 Second, the Governor could, with the concurrence of the Chief Justice, appoint persons who were not holders of administrative offices into the magistracy.32

JURISDICTION The powers and jurisdiction of the District Courts depended on the class of presiding magistrate. The ordinary jurisdiction of a District Court when presided over by a Resident Magistrate in suits and proceedings of a civil nature, was limited to Shs. 15,000, whereas a District Court presided over by a First Class other than a Resident Magistrate was limited to Shs. 4,000. A District Court presided over by a Second Class magistrate had jurisdiction limited to Shs. 2,000 while a District Court presided over by a Third Class magistrate had jurisdiction limited to Shs. 1,000. Section 3(2) if the Ordinance empowered the Governor to establish any other court subordinate to the High Court to exercise jurisdiction throughout the territory or in any local area. This indicates that the courts of Resident Magistrates were established under this section. At the beginning, such courts were established in Dar es Salaam, Mwanza, Arusha and Tanga. Their jurisdiction being provincial, one court was established for the five provinces, namely, Eastern, Lake, Northern, Southern Highlands and Tanga Provinces.23 In other words, the District Courts and the Courts of Resident Magistrates had concurrent jurisdiction. APPEALS AND REVISIONS Appeals from the District Courts went directly to the High Courts regardless of the class of the magistrate who presided over the original proceedings. The High Court retained its general powers of supervision over all the subordinate courts.34 Below is a schematic diagram of the court structure under the Subordinate Courts Ordinance, 1941.

THE COURT STRUCTURE UNDER THE SUBORDINATE COURTS ORDINANCE, 1941

APPEALS

Notes: From the High Court, appeals went to the Court of Appeal for Eastern Africa and thence to the Privy Council. The latter two courts had appellate jurisdiction only. THE NATIVE COURTS SYSTEM The Doctrine of Indirect Rule and the Native Courts The Native Courts (later called Local Courts) constituted the second structure of courts that existed during the British rule. These existed parallel to the subordinate courts we have discussed above. As was the case under the German rule, this structure was reserved for the natives only. Native Courts were in reality executive courts, constituting an essential component of the administrative machinery at the local level consonant with the concept of indirect rule. This concept, which involved the operation of local administrations, recognized indigenous institutions. The British gave it a systematized application and rationalized it into a philosophy of African colonial relying on local institutions rather than a centralized bureaucracy.35 The term indirect rule was first used in Nigeria, during the era of Governor Lugard. Sir Donald Cameron, who was the Governor during the period from 1925 to 1931, adopted the system for Tanganyika. Sir Camerons approach of the system was based on adapting for the purposes of local government the institutions which the native people have evolved for themselves, so that they may develop in a constitutional manner from their own past, guided and restrained by the traditions and sanctions which they have inheritedand by the general advice had the effect of divorcing the local administration from the central administration while concurrently subordinating the former to the service of the latter. The concepts hypothesis was that African societies comprised tribes ruled over by Chiefs in which a common language, a single social system and an established customary Law could be identified. As discussed in Chapter I, prior to the establishment of the native courts, there existed in various communities traditional institutions and procedures for settlement of disputes. The Native Courts were not meant to succeed these institutions but to supplement them. Indeed, section 11 of the Courts Ordinance, 1920, provided that nothing in it affected the exercise by Tribal Chiefs or Council of Elders or Village Headman over the members of his or their tribe or village of such authority as may be vested in him or them by the custom of his or their tribe except where such authority had been affected by jurisdiction conferred to another court by the Tanganyika Order-in-Council, 1920, or the Courts Ordinance, 1920. along the existing tribal institutions, therefore, the Native Courts were established and developed. These courts were characterized by a combination of executive and judicial functions. ESTABLISHMENT OF NATIVE COURTS

The Native Courts were first established by the Courts Ordinance, 1920, immediately after the establishment of the Trusteeship. Section 3(4) of the Ordinance established Court of a Liwali, Kadhi, Akida, Chief, headman or other persons specially empowered in that behalf by the Governor to be called Native Courts COMPOSITION Section 10 of the Courts Ordinance, 1920, provided that, A Native Court shall be held by such a person or persons and shall exercise such jurisdiction within such limits and subject to such conditions as to appeal or otherwise and the Governor may direct. Supervisory powers over these courts were given to Political Officers of the District Court in which these courts exercised jurisdiction. JURISDICTION The Native Courts Proclamation, 1925 The Courts Ordinance, 1920 contained no provisions providing for their jurisdiction, personnel and appeal system. These matters were left to the Governor who was empowered by section 10 to make provisions for them. Pursuant to this section, the Governor promulgated the Native Courts proclamation, 1925 (Government Notice No. 7 of 1925), setting out various matters pertaining to the Native Court System. These regulations provided for the Jurisdiction and appeal system of the Native Courts and other matters incidental thereto. Clause 1(2) of the Proclamation defined who was a native and therefore subject to the jurisdiction of the Native Courts. The clause defined native as a native of the Tanganyika Territory and any member of an African race (including any Swahili or Somali) with a permanent residence in the territory. CLASSIFICATION OF NATIVE COURTS Under the Native Courts Proclamation, Native Courts were classified into two categories: Native Courts of the First Class and Native Courts of Second Class. The Native Court of the First Class had jurisdiction to hear and decide civil cases: (a) in which the amount or subject matter did not exceed Shs. 600; or (b) civil cases relating to personal status, marriage and divorce under Mohammedan or native law; or (c) matters relating to inheritance which were not governed by the provisions of the Deceased Native Estates Ordinance, 1922. In criminal cases, a Native Court of Fist Class could impose imprisonment term not exceeding 6 months, a fine not exceeding Shs. 200 and whipping not exceeding 8 strokes. A sentence of whipping required confirmation by the supervisory court.

The Native Courts of the Second Class had jurisdiction to hear and decide civil cases: (a) in which the amount or subject matter did not exceed in value Shs. 200; or (b) relating to personal status, marriage and divorce under Mohamedan or Native law; or (c) relating to inheritance which are not governed by the provisions of the Deceased Natives Estates Ordinance, 1922. In criminal cases, the term of imprisonment and fine that could e imposed by such courts were, respectively, limited to one month and 50 Shillings. Whipping was restricted to six strokes. Section 5 of the Proclamation excluded, subject to any provision providing otherwise, the jurisdiction of Native Courts to try five categories of subject matter. The first exclusion was of cases punishable by death or life imprisonment. Secondly, cases in connection with marriage other than marriages contracted in accordance with Mohammedan or Native law were excluded. (The exception was where both parties were of the same religion and the claim was one merely for dowry). This meant that Native Courts and had no jurisdiction in cases in connection in marriage under the Marriages Ordinance, 1957 which governed Christian and inter-religion marriages save where the exception applied. It meant, however, that Native Courts did not have any jurisdiction whatsoever in cases in connection with marriages under the Marriage, Divorce and succession (Non-Christian Asiatics) Ordinance, 1923. The third exception concerned cases relating to witchcraft. These were governed by the Witchcraft Ordinance and were triable by Magistrates of First Class and the High Court. Fourthly, the native courts lacked jurisdiction to try cognizable offences committed in any place in the District which had been declared to be a Township. Finally, the native courts were not allowed to adjudicate cases where a party was a non-native. APPEALS AND REVISIONS By virtue of clause 6(1), an appeal from a Native Court of the Second Class could lie to a Native Court of a First Class. Clause 6(2) provided for appeals from a Native Court of a First Class to lie to a subordinate court of the First or Second Class. Under clause 6(3), an order creating a Native Court of the Second Class, could direct for appeal there from to lie to a subordinate court of the First or Second Class instead of a Native Court of the First Class. ADMINISTRATIVE OFFICERS AND NATIVE COURTS The Native Courts Proclamation, 1925, gave enormous powers to administrative officers over Native Courts. The District Officer in his judicial capacity had wide general supervisory powers over Native Courts. The Proclamation gave powers to supervisory officers (courts) to: (i) Direct that any case within the jurisdiction of a Native Court be tried by it. (ii) Confirm or vary a sentence of whipping imposed by a Native Court and supervise the implementation of that sentence. (iii) Revise any proceedings before any Native Court.

(iv) Sanction appeals from an appellate Court under the Proclamation to lie to the High Court. (v) Subject to the direction of the High Court, to restrict the jurisdiction of any Native Court. (vi) An Administrative Officer could sit in any Native Court as advisor. POWERS OF THE HIGH COURT OVER NATIVE COURTS The High Court had appellate as well as supervisory powers over Native Courts. Clause 12 of the Proclamation read that: 12. The High Court may on its own motion or on petition revise any of the proceedings of any court having jurisdiction to hear or revise any case under this proclamation. The chart below shows the Native Court structure under the Native Courts Proclamation, 1925

THE COURT STRUCTURE UNDER THE NATIVES COURTS PROCLAMATION, 1925

NATIVE COURTS ORDINANCE, 1929 The Native Courts Ordinance, 1929, marked a further development of the Native Courts System. This Ordinance was a result of a debate between the Executive on the one hand and the Judiciary and the Colonial Office on the other, which started in 1923 and culminated in Sir Camerons recommendation of 1929 to the Secretary of State. In his recommendations, Sir Cameron suggested that Native Courts should be part of the native administration and not of the state judicial machinery and hence should be under the exclusive supervision of the Native Administrators and not the High Court. In his dispatch, Cameron argued that: In native tribes such as those in Tanganyika, judicial and executive powers are combined in the Chiefs and the Native Courts which are a vital part of the ordinary judicial system based on European ideas, and this being so, the Native Courts should be under the supervision of the administrative officers and not under that of the High Court. The reasons are obvious: the judges of the High Court know nothing of the language, the customs and the modes of life and though of the natives, whereas on the other hand, the natives know nothing of the High Court and do not understand its intervention between themselves and their administrative officers who in their eyes represent the Governor.

Moreover, there is always a tendency for the stronger superior court to overshadow and dominate the weaker inferior court Sir Donald Camerons idea was to have legislation dealing solely with Native Courts, whose control was to be entirely the responsibility of the administration, with a chain of appeals lying through the members of the provincial administration (acting as administrative officers and not as magistrates) to the Governor, and leaving the High Court with no powers either of supervision, revision or appeal. Of course, Camerons objective was to have a free hand in the implementation of his version of the indirect rule concept. Camerons dispatch concluded by asking for authority to introduce a Native Courts Ordinance, embodying the various principles which he had indicated. The Secretary of State accordingly gave this approval. With this approval, the Native Courts Ordinance was enacted in 1929 despite strong opposition and criticisms from various quarters including the Chief Justice. ESTABLISHMENT Section 3(1) empowered a Provincial Commissioner, subject to the approval of the Governor, to establish within his province such Native Courts as he thought fit. Under section 3(2), the Provincial Commissioner could, with the approval of the Governor, suspend, cancel or vary any warrant establishing a Native Court. However, section 4 required a Native Court to be constituted in accordance with the native law or customs of the area in which the court is to have jurisdiction. The Provincial Commissioner, with the approval of the Governor, could if he thought fit, prescribe the constitution of native courts, or the order of precedence among the members of the native court, or powers and duties of any persons acting as assessors to any such court. JURISDICTION By virtue of sections 3 and 8, every native court had full jurisdiction to the extent set forth in its warrant, over the cases and matters in which all the parties were natives resident or being within the area of the court. However, the Governor could direct that any native or class of natives shall not be subject to the jurisdiction of Native Courts, except with their consent or the consent of the Provincial Commissioner. Presumably, such natives would be the educated and westernized elite who were deemed to be too civilized to be governed by traditional institutions. Sections 10 and 11, respectively, gave Native Courts criminal and civil jurisdiction to hear, try and determine cases within their jurisdiction on matters they were authorized to adjudicate upon. Section 13 authorized Native Courts to administer: (a) The native law and customs prevailing in the area of the jurisdiction of the court, so far as it is not repugnant to justice, morality or inconsistent with the provisions of any order of the King in Councilor with any other law in force in the territory; (b) The provisions of all rules or orders made by a Provincial Commissioner, District

Officer, or native authority under the Native Authority Ordinance, 1926; (c) The provisions of any ordinance which the court is by or under such ordinance authorized to administer; and (d) The provisions of any law which the court may be authorized to administer by an order of the Governor made under section 14. Section 15 imposed penalties for offences against native law which were not repugnant to natural justice and morality. POWERS OF ADMINISTRATIVE OFFICERS The Native Courts Ordinance, 1929, gave the Provincial Commissioner extensive supervisory powers over Native Courts. Apart from the section 3, powers to set up Native Courts and to define their jurisdiction, the Provincial Commissioner had powers to suspend, and with the approval of the Governor, to dismiss any members of a native court who abused or was unable to exercise his powers or for any other sufficient reason. Section 23 required every native court to submit to the Provincial Commissioner or the officer in charge of a District a report of all cases tried in such court. Under section 25, Provincial Commissioners and District Officers could sit as advisors. Note that these were European Officers purporting to advise in courts administering largely customary law! Provincial Commissioners could order transfer of cases from native to jurisdictions and their records. The Provincial and District Commissioners had powers to revise any proceedings of Native Courts and vary any orders or sentences that might have been imposed by Native Courts. Section 33(i) empowered the Provincial Commissioner to appoint a native court as a court of appeal from all or any or the causes arising therein. In the absence of such a court, the Provincial Commissioner could direct an appeal to lie from the Native Court of the first instance to the District Officer. APPEALS Section 34 regulated appeals. Appeals from a decision of a native court of first instance went to the Native Court of Appeals, established under section 33. if such a court had not been established in a particular area, the first appeal would lie to the District Officer. Appeals from the decisions of the Native Court of Appeal went to the District Officer. Decisions of the District Officer were appealable to the Provincial Commissioner. Any person aggrieved by the decision of the Provincial Commissioner could appeal to the Governor The Governor delegated his appellate powers to a Board called the Governors Appeal Board. This Board was formed in 1940 and consisted of the Attorney General, the Secretary for Native Affairs and a Provincial Commissioner. The Board was supposed to conduct a judicial inquiry and submit its finding to the Governor for approval. The decision of the Governor was final.

The most notable aspect of the Native Courts Ordinance, 1929, is that it enhanced the role of the executive arm of the colonial state in the administration of justice with respect to the natives. The Ordinance took away the powers of the High Court to supervise and hear appeals from the courts which was possible under the Courts Ordinances, 1920. The 1929 Ordinance also gave enormous powers to the Provincial Commissioners over Native Courts. Below is a diagram showing the court structure under the Native Courts Ordinance, 1929.

THE COURT STRUCTURE UNDER THE NATIVE COURTS ORDINANCE, 1929

THE COURTS ORDINANCE, 1930 In 1930, a new Courts Ordinance was enacted repealing the Courts Ordinance of 1920, which as already stated, established Native Courts for the first time. The new Ordinance established other Courts to replace those that existed under the repealed law. The Courts Ordinance, 1930 was, however, silent on Native Courts established by the Native Courts Ordinance, 1929. The question which follows is whether there were two types of Native Courts, those established by the Native Courts Ordinance, 1929and others established by the Courts Ordinance, 1930, styled as Native Subordinate Courts. If the answer is in the affirmative, then what was their appeal system? These questions were answered by the decisions of the High Court in the cases of Kitenge Binti Hamisi v. Ali Bin Saidi and the case of Benjamin Chinjate Kassambara v. R From the decisions of the two cases, a number of points are fairly clear: First, after the enactment of the Courts Ordinance 1930, there were two types of Native Courts: The Native Subordinate Courts established thereunder and the Native Courts created under the Native Courts Ordinance, 1929. Secondly, the High Court had appellate (including revisional) jurisdiction in respect of Civil Proceedings instituted in all

subordinate courts provided for under section 3 of the Courts Ordinance, 1930. thirdly, the High Court had no appellate jurisdiction in respect of criminal proceedings instituted in Native Subordinate Courts. Lastly, the High Court had no control whatsoever or supervision over Native Courts. The final appellate authority for matters arising from Native Courts was the Governor, not the High Court. That is the system that remained in place until the enactment of the Local Courts Ordinance, 1951. THE LOCAL COURTS ORDINANCE, 1951 The Objectives of the Ordinance The development of local courts in Tanganyika, as we have seen, was closely connected with the policy of indirect rule. However, by the 1950s criticisms in political circles of the concept of a dual system of courts on a racial and tribal basis began to be more pronounced. The Native Courts system had begun to outlive its usefulness. Thus, the colonial government began to take some initiatives to separate the Judiciary from the Executive. The initial steps towards the integration of the court system could be said to have began in 1951, with the enactment of the Local Courts Ordinance 1951. The Ordinance established a system of local courts which remained substantially unchanged until 1963. The objectives of the Ordinance were set out in the Government Memorandum No. 2. The memorandum set out the following principles to be followed with respect to Local Courts: (i) Powers of establishing and supervising the courts would be vested in the administrative officers. (ii) The policy of separation of the Judiciary and the Executive should in future be taken seriously. In particular, chiefs should be relieved of as much of court work as possible. Chiefs should be encouraged to appoint judicial deputies so that they themselves can remain only an executive arm of government. (iii) The Judiciary must be professionalized. Persons should be employed and paid to perform judicial functions. There had to be a full time stipendiary magistrate and staff. (iv) The Local Courts system was to have no link to the High Court. However, under paragraph 36 of the memorandum, it was proposed that the whole of the court system should ultimately be integrated. For this to occur, local courts had to be manned by trained personnel and had to be efficient. They also were to keep records. The various customary laws were to be recorded and, if possible, codified. And appeal system had to be worked out. ESTABLISHMENT AND CONSTITUTION OF LOCAL COURTS UNDER THE 1951 LOCAL COURTS ORDINANCE Section 4(1) of the Ordinance gave the Provincial Commissioner authority with the approval of the Governor, to establish such local courts in his province as was

necessary. He conferred upon them their jurisdiction and he could also revoke, suspend or vary the warrant of any court. Section 6 gave the District Commissioners powers to suspend any member of the local court. JURISDICTION AND LAWS APPLICABLE Section 10(1) conferred on Local Courts over all matters of civil or criminal nature where parties were Africans. An African was defined as a person whose tribe is a tribe of Tanganyika, Kenya, Uganda Zanzibar, Northern Rhodesia, Nyasaland, the Sudan, Belgian, Congo, Ruanda, and Burundi. This term also included a Swahili person. Arabs, Baluchis, Comoreans, among others, could consent to the jurisdiction of these courts. Under section 15(a), Local Courts were to apply customary law applicable in the area provided such law was not repugnant to natural justice and morality. The customary laws had to be proved as prevailing in the areas of jurisdiction (i.e. lexfori). In practice, however, this provision was ignored in favour of personal laws of the parties. Sections 15(b), (c) and (d) empowered local courts to apply by-laws and orders made by chiefs in their areas of jurisdiction and the provisions of any ordinance which a local court was empowered to administer. CRIMINAL JURISDICTION Under section 11, a local court had jurisdiction to try all criminal cases involving Africans alleged to have committed offences within its jurisdiction. However, section 13 excluded the jurisdiction of local courts in serious criminal charges such as murder. In terms of punishment, section 16 empowered local courts to impose fines and compensation. OFFENCES UNDER CUSTOMARY LAW Local courts could try offences under customary law provided a party was and African and the offence had taken place within the local courts area of jurisdiction. However, the Magistrates Courts Act, 1963 prohibited the trial of any offence under customary law.

CIVIL JURISDICTION The civil jurisdiction of a local court extended to the trial of all civil suits and matters in which the cause of action arose or the defendant was ordinarily resident within the area of the jurisdiction of such local court, except in civil proceedings relating to immovable property which were to be taken to the local court within the area of the jurisdiction of

which the property was situate unless the District Commissioner otherwise directed. Section 12(3) gave exclusive jurisdiction to local courts over all civil proceedings regarding Africans involving customary marriage, inheritance and immovable property other than freehold land, leasehold property or land held under a right of occupancy. APPEALS Appeals from Local Courts lay to the Local Courts of Appeal from which appeal could lie either to the District Commissioner or the Provincial Local Courts Officer. Section 5 vested authority in the Provincial Commissioner to determine in which cases appeals would go to the District Commissioner or to the Provincial Local Courts Officers. The final appellate court was the Central Court of Appeal. The Central Court of Appeal replaced the old Governors Appeal Board. This court was presided over by a president (who was appointed by the Governor) and any other two person. Leave to appeal to this court had to be obtained from the Provincial Commissioner. THE LOCAL COURTS ORDINANCE, 1951 The Local Courts established under this Ordinance were but lineal descendants of the Native Courts and the Liwalis Courts. In practice, this did not mean much more than a change in terminology since local courts in general were of similar composition and had similar powers as those of their predecessors. Provincial Commissioners under Local Courts Ordinance, 1951 retained general supervisory powers, but ceased to be appellate authorities. Provincial Court Officers, on the other hand, were give supervisory, revisional and appellate powers. Yet viewed in its historical context, the Local Courts Ordinance, 1951, was a positive development. It was the first serious attempt to separate the judicial functions from the executive functions. It set in motion an irreversible trend of separating the Judiciary from the Executive, a process which was completed after independence. Below is a diagram showing the court structure under the Local Courts Ordinance, 1951

THE COURT STRUCTURE UNDER THE LOCAL COURTS ORDINANCE, 1951

WITH LEAVE OF THE PROVINCIAL COMMISSIONER Note: The Central Court of Appeal replaced the Governors Board established in 1940. CONCLUSION As we have seen in this chapter, the main feature of the administration of justice was the creation of a dual court system that was based on racial lines. A balance sheet of the dual court system readily reveals that the defects outweighed the benefits. Not unexpectedly, the benefits substantially accrued to the colonial power. To the British, the native and local courts system provided an easy and cheap method of administering justice to the bulk of the population. In those areas where a traditional system of courts existed, there was no disruption of the indigenous society. The laws administered were known and accepted by the people. Similarly, the procedure was equally known and understandable and the court holders were the familiar to the people. The system thus operated as a cushion to the impact of foreign domination. To some extent, the system also rationalised the judicial process at the local level and substantially put a stop to the adjudication of cases elsewhere than in duly constituted courts. Local Courts were also uniquely accessible as they reached down to the ward level in many places. On the debt side, the dual court system was a tragic failure. Most tragically, the native and local courts system was basically racial. It pandered on the sentiments of the emergent African elite as a practice of double standards. There was growing resentment to the subjugation of Africans to courts presided over by largely illiterate and reactionary personnel, to unwritten and amorphous laws, and to the inability of Africans to ire advocates. The combination of the executive and judicial functions meant that the majority of the people were condemned to executive judicial in which impartiality and fair play could not be guaranteed. This was, indeed, contrary to British theory and practice. Furthermore, the system of appeal was inefficient, entailing six or more stages before reaching the final appellate tribunal. The role of district officers as ex-officio subordinate court magistrates, combined with operational difficulties, substantially impaired their capability to render the required close and constant supervision. Equally disastrous, the dual court system became a process of re-traditionalisation. It gave vent to the emergence of tribalism and militated against the evolution of a system of laws transcending tribal divisions. Contrary to expectations, the system did not permit of the development and expansion of customary law to meet the peoples changing needs, nor did it lead to the crystallization of customary law in the form of recorded rules. Consequently, it failed to provide a framework for the development of a national law. Furthermore, the operation of subordinate courts had not been satisfactory either. Chief among the defects was their dependence on administrative officers as ex-officio magistrates. Generally, the existence of subordinate court was a source of confusion to

the Africans, let alone the double standards they symbolized. In the next chapter, we will see how post-independence Tanzania addressed the above shortcomings in its quest to improve and modernize its administration of justice.

ADMINISTRATION OF JUSTICE AFTER INDEPENDENCE, 1961 INTRODUCTION This chapter covers the administration of justice after the country attained its independence in 1961 to the present. We will see that in this period the court system were not only integrated bit also modernized in a response to a vision for an egalitarian, non racial society. The vision, founded upon, inter alia, the bedrock of separation of powers and respect for the rule of law, entrenched virtues of racial equality before the law, separation of executive and judicial functions and professionalisation of the judicial. One feature of this era, perhaps the most significant, is that the Tanzania judiciary attained a significant level of maturity and an appreciation of the importance of the need for efficiency and effectiveness in delivery of judicial services. INTEGRATION OF COURT SYSTEMS By 1961, the abolition of the dual system of courts had become inevitable and urgent largely due to nationalist agitation. Indeed, shortly before independence, the then independence movement leader, Mr. Julius Nyerere, declared that: Our judicial at every level must be independent of the executive arm of the state. Real freedom requires that any citizen feels confident that his case will be impartially judged, even if it is a case against the prime minister him self.75 Immediately after independence, the Independence Government formulated plans for the complete integration of the court systems. The minister of justice stated the policy behind in the following words: The origin and purpose of the integration of the court systems is the desire to remove the system of having a dual system of courts which operate along different lines. One system comprising of the high court and its subordinate courts and another comprising of the local courts with jurisdiction only over Africans. The government from as early as

1961 to change this system so as to enhance our national respect and with the intention of improving the administration of Justice.76 Accordingly, the independence Government initiated legislative programmed on administration of justice with a view to achieving the following objectives: a) Integration of the local courts with the high court. b) Separation of the judiciary from the executive. In this regard, full time judicial personnel with no administrative responsibilities would operate courts. The district and power provincial commissioners would cease to have control over appointment and dismissal of judicial officers. c) Abolition of race as a test for jurisdiction of courts. d) Ascertainment and unification of customary law. e) Making provisions for resolution of internal conflict of laws. The post independence reforms of the court systems began with the high court. They were carried out under the constitution of Tanganyika of 1961, (the independence constitution).77 Under article 58, the high court was to be constituted by the chief justice and not less than 6 judges as recommended by the parliament. The governor-general on advice of the prime minister would appoint the chief justice.78 a judge had to vacate office upon attaining the age of 62.79 He could, however, be removed from office that age due to inability to discharge his functions arising out of insanity or misbehavior. In that instance the governor-general had first to appoint an independent commission to investigate the allegations against the judge to continue in office. The governor-general was bound by the commissions recommendation. The independence constitution was repealed and replaced by the republican constitution of 1962.80 this too was replaced by the interim constitution of 1965, which was succeeded by the constitution of the united republic of Tanzania of 1977 that, as amended from time to time, remains in force. The 1977 constitution provisions regarding the courts have remained largely the same under all these constitutions. The most significant legislation towards at that time was the local courts (Amendment) ordinance, 1961.81 the ordinance abolished the central court of appeal and substituted therefore the high court as the final appellate court in appeals originating from local courts. The second step, which became effective in July, 1962 was the abolition of the office of the local courts officer, which had existed from 1951, and its replacement by a judicial officer responsible to the high court called the local courts appeals officer, 82 to filter the appeals to the high court. Also the power o establish local courts was vested in the minister for justice instead of the provincial commisssioiner.83

The 1961 local courts (amendment) ordinance, 1961 also amended the 1941 subordinate courts ordinance, so that for the future all administrative magistrates would be appointed personally by name. the intention was that any person so appointed would be full time magistrate, freed as far as possible from administrative duties. At the same time, the newly established independence government made radical changes in the system of administration. The officers of district and provincial commissioners were abolished and in their places were created the posts of area commissioner and regional commissional.84 the functions of these new officials were both political and as well as administrative. It was felt that it would inappropriate for such functionaries to wield judicial powers. Below is a diagram showing the court structure under the Local Courts (Amendment) Ordinance, 1961 THE COURT STRUCTURE UNDER THE LOCAL COURTS (AMENDMENT) ORDINANCE, 1961

WITH LEAVE OF THE LOCAL COURTS APPEALS OFFICER

THE MAGISTRATES COURTS ACT, 1963 The changes affected by the local courts (Amendment) ordinance, 1961 were only marginal. The most radical and far-reaching changes were achieved through the magistrates courts Act, 1963, which became effective on 1st July, 1964.85

This Act established the basis for the present structure of courts subordinate to the high court. The Acts abolished the dual system by repealing all local courts ordinances creating the local and subordinate courts. It transferred all judicial powers to members of unified judiciary. The local courts were totally integrated into the high court system. This resulted in a single system of courts in the whole country. The act created a single hierarchy of courts with a three-tier system, with primary courts at the bottom, district and resident magistrates courts in the middle, with provisions for appeals to the high court. Further appeals could lie to the court of appeal for east Africa. Following the disintegration of the east African community in 1977, Tanzania set up its own court of appeal in 1979, as the final appellate tribunal. Primary courts replaced the local courts. Unlike their predecessors they did not administer customary criminally law (which was abolished). On the contrary, they administered the penal code86 and the customary civil law. Their jurisdiction extended to all persons. The district courts ceased to be classified. Significant changes in their personnel were introduced. Administrative officers no longer had judicial powers. A new group of magistrates was created to do the work formerly done by district commissioners in their judicial capacity. The semi-professional nature of the magistracy was, however, maintained. The district magistrate now exercised the supervisory powers over primary courts that had been exercised by the district commissioners. Supervisory powers in respect district and magistrates courts were to be vested in the high court.87 The chief justice was vested with powers to establish courts of the resident magistrate.88 Provincial commissioners enjoyed such powers. Appeals from the primary courts went to the district court. Appeals from the district court lay to the high court with possible final appeal to the east African court of appeal. Since 1979, however the court of appeal of Tanzania became the final appellate authority in Tanzania. REPRESENTATION Section 29 of this act provided that: No advocate or public prosecutor as such may appear or act in a primary court The above section barred the appearance of legal or paralegal professionals before a primary court. The intention was to insulate the court from fears that legal or semi-legal professionals could manipulate proceeding and outcome bearing in mind that the court was presided over by people with no formal legal training. The magistrates court act 1963, has since been repealed and replaced by the magistrates court act, 1984, 89 which together with chapter five of the constitution of the united republic of Tanzania, 1977, provided for the present court system of Tanzania.90 Below is a schematic diagram of the court structure under the magistrates courts, act, 1963.

THE COURT STRUCTURE UNDER THE MAGISTRATES COURTS ACT, 1963

THE PRESENT COURT SYSTEM PRIMARY COURTS Speaking broadly, primary courts are successor o the local courts, but fundamental differences distinguish the two. Most outstanding, a primary court is duly constituted when presided over by a primary court magistrate. The magistrate is required to sit with assessors, a subject we shall examine shortly. He has no executive functions of any kind. In matters of jurisdiction, as pointed out earlier, the racial factor was eliminated. As it was expressed at the time, all persons in Tanganyika became subject to the new primary court codes both in criminal and civil cases without any distinction whatsoever. 91 This was facilitated by a number of measures, notably, the abolition of customary criminal law and the promulgation of rules of evidence and procedure. However, the successful operation of these rules, particularly the rules of evidence, gives a line to the colonial stereotypes, employed to justify keeping local courts reactionary, that the concept of admissibility and relevance in its English sense was foreign to African conception. In view of the Primary Courts jurisdiction over all persons, its territorial jurisdiction is also wider, being co-extensive with the administrative district, but several Primary Courts may, and do, operate in a single district. It is opportune at this juncture specially to refer

to two legacies of the erstwhile local courts, i.e, the institution of assessors and the exclusion of advocates. It is convenient to begin with the latter. The presumption had always existed that sooner or later, with the spread of education, it might be possible for advocates to practice even in the lowest courts. However, the ban was carried over in the 1963 Act and perpetuated in the Magistrates Courts Act, 1984. nevertheless, it is interesting to note that, presently, the ban is couched in slightly different terms from the position under the Local Courts Ordinance, 1951. section 25(1) of the Ordinance provided that No advocate or legal practitioner may appear or act for any party before a local court. The corresponding Section 33(1) of the present law, (i.e. the Magistrates Courts Act, 1984) which is in pari materia with Section 29(1) of the 1963 Act, provides that No advocate or public prosecutor as such may appear or act for any party in a primary court. The point of departure lies in the qualification contained in the phrase as such. Whereas the former provision appears to have imposed a total ban on advocates, the latter appears to make it possible for an advocate, while being unable to appear and act for a party, to appear as plaintiff, defendant, accused or witness, and this gives sense to the jurisdiction of primary courts over all persons It has also been suggested that the ban extends to appearing in a primary court, meaning that there is no absolute ban on advocates assisting and acting for parties outside the court. There is also the possibility that under subsection (2) a legally qualified person who is not an advocate as such may appear and act for a relative in a civil matter, the magistrate permitting. The apparent shift notwithstanding, the ban remains unqualified in criminal matters. Provision exists for the transfer of cases to District or Resident Magistrates Court but it is not without qualifications. In proceedings of a criminal nature an accused may elect to be tried by a District Court if the offence charged is one punishable in the Primary Court by imprisonment for more than twelve months exercised before the accused pleads to the charge. Secondly, although a Primary Court may on its own motion transfer any proceeding, this is possible only with the consent of the District or Resident Magistrates court to which the transfer is proposed to be made. A definite disadvantage therefore exists incases commencing in a Primary Court. On the other hand, a Primary Court has in every proceeding to sit with not less than two assessors. Originally, the court had discretion in the matter and the assessors opinions were not binding, but the position altered with successive amendments to the 1963 Act. Presently, therefore, the participation of assessors is both mandatory and their opinions are crucial. All matters in a Primary Court, including a finding in any issue, the question of adjourning the hearing, an application for bail, the question of guilt or innocence, the determination of sentence, the assessment of any monetary award, and all questions and issues whatsoever must, in the event of difference between the magistrate and the assessors or any of them, be decided by the votes of the majority of the magistrate and the assessors present. The courts have consistently interpreted this majority principle to mean that the assessors can override the magistrate, and they have frequently done so. At the grassroots level the people are thus fully involved in the administration of justice; above all, they have an overriding power.

Yet all has not been well with the use of assessors in Primary Courts. To begin with, their selection or no-selection continued to be a problem. Panels of assessors are required to be set up annually but it is feared that the exercise was last carried out long time ago. This has resulted in the specter of professional assessors, many of whom are too old or too illiterate to measure up to their responsibilities. The majority principle is also fraught with risks. It is investing too much in the mostly illiterate elders by enabling them to override the magistrate even in questions of law. Indeed, there are indications already that this might be affecting the quality of justice. The judicial System Review Commission (the Msekwa Commission) appointed in 1974 reported in 1977 that: It is not uncommon to find (assessors) mystified and utterly confused as to what they should do whether they should follow the guidance of the Primary Court Magistrate or be guided by common sense and their own conscience, neither of which has succeeded in putting a stop to a growing number of unmerited acquittals and unjust convictions in the Primary Courts. The commission strongly urged the re-examination of the majority principle but their sentiments do not seem to have moved policy makers. In its report, presented to the Government in 1996, the Legal Task Force also recommended that assessors opinions should not be binding. This recommendation, too, apparently has not been accepted. Considerable change is also to be found in the law administered by Primary Courts. In civil matters a Primary Court exercises jurisdiction in all proceedings where the applicable law is Customary Law or Islamic Law, except where the proceeding affects the title to registered land. In such proceedings the pecuniary jurisdiction of the court is unlimited and it may award any amount claimed. Proceedings in respect of marriage, guardianship or inheritance under Customary Law may not be commenced in any court other than a Primary Court unless the High Court gives leave for such proceedings to be commenced in some other court. The customary laws governing marriage, bride wealth, inheritance and the status of children have been codified, and Tanzania is reckoned to be the first country in Africa to attempt a full-scale unification and codification of the customary laws of its numerous tribal groups. Jurisdiction is also exercisable by Primary Court in all proceedings of a civil nature for the recovery of civil debts, rent or interest due to the Republic or local government authority if the value of the subject matter of the suit does not exceed five million shillings; for the recovery of an civil debt arising out of contract if the value of the subject mater does not exceed three million shillings; and in all matrimonial proceedings relating to civil and Christian marriages. In addition, the Chief Justice may confer upon a Primary Court jurisdiction in the administration of deceaseds estates where the law applicable is customary law or Islamic law. The scope of jurisdiction is therefore wider in comparison to the local courts which in particular, had no jurisdiction over Christian marriages except the customary incidents thereof like bride wealth. In criminal matters, a Primary Court has jurisdiction over a wider range of specified offences under the Penal Code in addition to any other offence jurisdiction over which is

conferred by any other written law. Before the enactment of the Economic and Organized Crime Control Act, 1984, to which reference will be made later, a Primary Court could try such serious offences like cattle theft. In the exercise of its criminal jurisdiction the court may impose a sentence of imprisonment not exceeding twelve months; a fine not exceeding ten thousand shillings and corporal punishment not exceeding twelve strokes. But where a court convicts a person of an offence scheduled under the Minimum Sentences Act, 1972, it has jurisdiction to impose the minimum sentence of imprisonment. The court can also order the supervision of habitual offenders; payment of compensation not exceeding one thousand shillings and forfeiture of property in the case of unlawful possession. Some sentences. Like imprisonment for a term exceeding six months or corporal punishment on an adult, may not be carried into effect unless it has been confirmed by the District Court. An overall assessment of the primary and local courts systems established a significant deficiency in the former. Primary Courts are fewer and exercise jurisdiction over wider territory, with obvious limitations on their accessibility and efficiency. Partly to meet the challenge, provision was made whereby justices of the peace were attached to Primary Courts to ensure that the administration of justice was not completely halted by the absence of itinerant magistrates. They have power to order arrest, to remand arrests, to remand arrested persons, grant bail, to summon witnesses, etc. unfortunately, the arrangement has not always worked with happy consequences. Instances of justices of the peace overreaching themselves have frequently come to the fore.

DISTRICT AND RESIDENT MAGISTRATES COURTS The establishment side by side of District Courts and Courts of Resident Magistrates is a legacy of the erstwhile subordinate courts. District Courts were established by statute whereas power is vested in the Chief Justice to establish Courts of Resident Magistrates and to specify the area in which they may exercise jurisdiction. The jurisdiction of a District Court extends to the district for which it is established but the Chief Justice may, by order, extend its jurisdiction over any other contiguous district or districts. Courts of Resident Magistrates have been established throughout the Mainland, each exercising jurisdiction over an administrative region comprising of several districts. In each district, the court of a Resident Magistrate has concurrent jurisdiction with the District Court. This arrangement is a source of confusion. A District Court is duly constituted when presided over by a District Magistrate or a Resident Magistrate, for the expression District Magistrate includes a Resident Magistrate. Court of a Resident Magistrate is duly constituted when presided over by a Resident Magistrate. Except where the law provides otherwise, any case may be registered in a District Court or a court of a Resident Magistrate, the decision being dictated by practical convenience. The two courts also share the same buildings, courtrooms, support staff and all other facilities. The two

categories of magistrates are historical and derive from their qualifications. District Magistrates as such do not possess qualifications other than the Diploma in Law whereas Resident Magistrates are university graduates in law. In the material days and even immediately after independence, District Magistrates were district officers who combined executive and judicial functions and most of them did not possess legal qualifications. Some of the older district magistrates still in the field were in fact inherited from that cadre after relinquishing their political functions. A number of them have risen to become High Court Judges after acquiring a law degree. District and Resident Magistrates Courts are not obliged to sit with assessors, but in any case in which a rule of customary law or Islamic law is in issue or relevant they may sit with assessors, and must do so if directed by the Chief Justice. Whatever the case, they are not bound to conform with the opinion of the assessors. This permissive element has enabled these courts conveniently to avoid sitting with assessors. But it may be observed, that the idea of assessors as a mandatory feature in these courts has generally never attracted more that half-hearted attention. In the 1960s, the judges and magistrates could only observe that there might be no harm in the idea, while the Msekwa Commission, already disenchanted with assessor performance in Primary Courts, expressed support for the idea, but, not without a great deal of trepidation. The Commission therefore suggested that as a start the opinion of the assessors should not be binding on the magistrate. They also recommended that the assessors should not be involved in all proceedings coming before the District Court. In the event, policy makers did not react to the recommendations. By way of digression it is also worth mentioning that there exists a school of thought that regards the use of assessors at any level as having outlived its necessity. As already indicated assessors are no longer repositories of much of the Customary Law and, with the courts being entirely staffed by Tanzanians, they are no longer better placed to expound on the peoples customs and habits. It is argued, therefore, that to dispense with assessors would not undermine the foundations of Justice, but that they could be summoned when necessary as in the District Courts. It is further pointed out that assessors are becoming a burden on the Judiciarys budget. Attractive as the arguments might appear, we think that assessors have an important role to play even without being experts in any field. It is self-deception to imagine that the sense of justice inheres only in legally trained minds, for laymen, much like the legal expert, are capable of reaching rational decisions on a given set of facts. Besides, there is advantage in having a judicial system that is rooted in the community it serves and therefore commanding its trust and confidence. A judicial system operating exclusively as society of the professional, runs the risk of true or imaginary alienation and therefore of appearing as an instrument of state oppression. These factors outweigh any budgetary considerations when government spending must by all means rise. It may therefore be desirable to have assessors in the District Court although without necessarily the power to override the magistrate. We will now turn to override the magistrate. We will now turn to outline the jurisdiction of these courts.

A District Court exercises original civil jurisdiction when held by a civil magistrate, i.e., a Resident Magistrate or a District Magistrate appointed by the Chief Justice to a civil magistrate. It used to be customary for district magistrate of senior grade and proven ability to be appointed civil magistrates, but since 1985 possession of a Diploma in Law became a prerequisite. When so held, a District Court has jurisdiction in proceedings for the recovery of immovable property where the value of the subject matter does not exceed one hundred million Shillings if the subject matter is capable of being estimated in money value. A court of a Resident Magistrate may exercise jurisdiction and in a wide range of other subjects over which jurisdiction is conferred on a court of a Resident Magistrate. The Civil Procedure Code, 1966, governs the practice and procedure of these courts. These courts also have wide criminal jurisdiction in offences under the Penal Code and other laws. Offences excluded from their jurisdiction are basically those attracting a sentence of death or life imprisonment like murder, manslaughter and treason, with the significant exception of arson and robbery with violence. In offences triable by the High Court or the High Court sitting as an Economic Crimes Court, their jurisdiction is only to conduct committal proceedings, consisting in reading the charge and the statements of potential witnesses to the accused, and to commit the accused to the appropriate court for trial. Additionally, the Minister responsible for legal affairs in consultation with the Chief Justice may invest any Resident Magistrate with extended power to try any category of offences ordinarily triable by the High Court. In that event the Resident Magistrate has to be assisted by two or more assessors. In sentencing, a District Court or court of a Resident Magistrate may impose a sentence of imprisonment not exceeding five years except where the sentence is one governed by the Minimum Sentences Act, 1972. They may also impose a fine not exceeding twenty thousand Shillings and corporal punishment. It should be noted that the Criminal Procedure Act, 1985 governs the practice and procedure in the exercise of original criminal jurisdiction. In addition to its original jurisdiction, a District Court exercises extensive control over the business of Primary Courts. Appeals in all matters from a Primary Court lie to the District Court, but not to the court of a Resident Magistrate. This is not unconnected with the colonial system whereby appeals from local courts lay to administrative officers who were presumed to be experts in native law and custom indeed, until well in the 1970s, there existed a special grade of District Magistrate whose sole function was to hear and determine civil appeals from Primary Courts. However, it is now presumed that resident magistrates would hear Primary Courts appeals by virtue of their jurisdiction in District Courts. Revisional jurisdiction over Primary Court proceedings is similarly exercisable by District Court. The Magistrates Courts Act, 1984 makes provision for the establishment of special traffic courts. This is in response to the alarming rate of road accidents, and also seeks to ease the congestion of cases in District Courts. A start has been made with six towns, Dar es Salaam, Tanga, Arusha, Moshi, Mwanza and Dodoma.

THE HIGH COURT First established by Article 17(1) of the Tanganyika Order-in-Council, 1920, the High Court now derives its establishment from Article 108(1) of the 1977 Union Constitution as the High Court of the United Republic. Perhaps this requires clarification. There is a High Court for Zanzibar which according to Article. 115(2) of the Union Constitution, enjoys concurrent jurisdiction with the High Court of the United Republic in any law enacted by the Union Parliament which applies to both the Mainland and to Zanzibar where jurisdiction is conferred on a High Court. But where jurisdiction is specifically conferred on the High Court of the United Republic, the said Court has exclusive jurisdiction in such law notwithstanding its application to both parts of the United Republic. In short, the High Court of the United Republic is so called because with certain Union laws, it has exclusive jurisdiction. However, the Court has no territorial jurisdiction in Zanzibar unless the same is expressly conferred. Administratively, the High Court is headed by the Jaji Kiongozi (Principal Judge), a special assistant to the Chief Justice but without constitutionally defined powers. He performs such functions as the Chief Justice may from time to time direct, and the Chief Justice may resume those functions. The President appoints the Jaji Kiongozi and other judges of the High Court after consultation with the Judicial Service Commission. The office of a judge may not be abolished while there is a substantive holder thereof. A judge may be removed from office only for inability to perform the functions of his office or for misbehaviour, and may not be removed except on the recommendation of a tribunal consisting of a Chairman and not less than two other members. The Chairman and at least half of the other members must be persons who are judges of the High Court or Court of Appeal in any Commonwealth country. The court has unlimited civil and criminal jurisdiction. In civil proceedings it is not required to sit with assessors except in admiralty causes where it may, if it thinks fit, and must, if requested by either party to the suit, summon to its assistance two competent assessors. In criminal matters the court must sit with not less than two assessors but it is not bound to conform with their opinions. All criminal trials before the court are preceded by a preliminary hearing at which the undisputed facts are settled after committal proceedings before a subordinate court. The High Courts original jurisdiction in criminal matters was enormously added to by the Economic and Organized Crime Control Act. 1984. The Act vests in the court sitting as an Economic Crimes Court jurisdiction over offences, termed economic offence, previously triable by subordinate courts. It is unnecessary to recount the history behind the Act, but suffice it to say that its enactment was prompted by a disturbing escalation in offences against the economy. Its purpose was therefore to make provision for the control and eradication of offences of that class through the prescription of modified investigation and trial procedures, now penal prohibitions, the provision of enhanced sanctions and new remedies. Offences triable under the Act include leading organized crime, currency trafficking, corruption, hoarding of commodities and money, cattle theft,

occasioning loss to the Government, local authority or public institution, using firearms and offences against the protection of wildlife. A judge of the High Court and two lay members constitute the Economic Crimes Court. Its function is to inquire into economic offences and make such orders as it may think fit. The Director of Public Prosecutions (DPP) or any State Attorney authorized by him may, by certificate under his hand, order any offence triable by the Court to be tried by a court of a resident magistrate. Such certificate would constitute full authority for, and confer jurisdiction upon such court to try the case in question. The DPPs power to issue orders is, therefore, not merely a semantic curiosity. We suggest that it could indicate the executives persisting anxiety to maintain a degree of control over the trial of economic offences. The suggestion derives from the fact that the Act replaced the Economic Sabotage (Special Provisions) Act, 1983 under which economic offences were triable by a special tribunal, completely removed from the Judiciarys control. Moreover, all questions to be decided by the Economic Crimes Court, including the question of guilt or innocence, are decided by agreement of the majority of the members, implying that the lay members could override the presiding judge. Punishment under the Act proceeds on the principle of deterrence. A person convicted of an economic offence is liable to imprisonment for up to fifteen years. Where offence proved is in the nature of an organized crime or one that is endangering the national economy or public property, the court is enjoined to consider the imposition of the maximum penalty. In any other economic offence a convicted person may be sentenced with a sentence that is suitably deterrent. There is no option of a fine in economic offences. However, there is a right of appeal to the Court of Appeal against conviction and sentence. Apart from its ordinary and extraordinary jurisdictions the High Court exercises general powers of supervision over lower courts through appeal, revision, reference, review, transfer and inspection. When hearing an appeal originating from a Primary Court in which any rule of customary law is in issue or relevant, the Court may refer any question of customary law to a panel of experts but, in reaching its decision, it would not be bound to conform with their opinion. The Minister responsible for legal affairs may in relation to any category of cases or any particular case invest any resident magistrate with the appellate jurisdiction ordinarily exercisable by the High Court. In addition the Chief Justice is required to appoint a Resident Magistrate-in-charge for each region to perform supervisory, administrative and judicial functions I that capacity. He may for instance revise proceedings in a Primary Court. The High Court further exercise control over inferior tribunals through certiorari, prohibition and mandamus. As guardian of individual liberty it may also issue directions in the nature of habeas corpus. THE COURT OF APPEAL

Article 117(1) of the Union Constitution of 1997 establishes the Court of Appeal of the United Republic. It consists of the Chief Justice, who is also head of the Judiciary, and not less than two Justices of Appeal. The Chief Justice and, after consultation with the Chief Justice, the other judges of the court, are appointed by the President and enjoy the same security of tenure as the judges of the High Court and removable I the like manner. In the hearing of appeals the court is constituted by three judges and the decision of the court is that of the majority. A single judge hears applications but a person dissatisfied with the decision of the judge may refer the matter to the full court. The courts jurisdiction extends to the hearing and determination of appeals from the High Court and from subordinate courts with extended jurisdiction. In this context, these courts include the High Court of Zanzibar and courts subordinate thereto exercising extended jurisdiction. For this reason the Court of Appeal is constitutionally a Union Matter, but the Judiciary Department is not. In civil proceedings, an appeal lies to the Court against every decree of the High Court in the exercise of its original jurisdiction except where the decree is made with the consent of the parties when leave of the High Court is required. An appeal lies against every other decree with the leave of the High Court or of the court itself. No appeal lies against an decision of the High Court in the exercise of its appellate jurisdiction in civil proceedings originating from a Primary Court unless the High Court certifies that a point of law is involved. With regard to criminal trials held by the High Court or a subordinate court exercising extended powers, an appeal lies to the court against conviction and sentence on any ground. An appeal does not lie against a sentence of death or one fixed by law. In criminal proceedings originating from a District Court or court of a Resident Magistrate an appeal lies against the decision of the High Court on a matter of law only, and in similar proceedings originating from a Primary Court an appeal lies if the High Court certifies that a point of law is involved. An appeal also lies to the court against the decision of the High Court in unsuccessful habeas corpus proceedings. In dealing with any appeal, the Court of Appeal has the power, authority and jurisdiction vested in the court form which the appeal is brought. It may confirm, reverse or vary the decision of the High Court. CONCLUSION This chapter raises a number of issues in which further developments are either desirable or foreseeable. It is necessary to conclude with a summary of the major ones. But before doing so it is desirable to revisit one development of particular significance the separation of the executive and judicial functions. This development at the magisterial level marked the inception of an independent Judiciary at all levels. At the higher level the independence of the judges was already

guaranteed by the Constitution, which also provided for security of tenure. In contrast, the colonial judges, the colonial judges had held office at the pleasure of the British Crown. Independence of the judiciary does not, of course, mean that courts should function in isolation or seclusion. The complexity and delicacy of judicial work require that its execution must respond to the requirements of the society in which it operates. But within that framework the judge should be independent of political or partisan forces so that he can interpret and apply the law without fear or favour. A position has been attained in Tanzania where not only has executive justice been eliminated but where also the courts operate without external pressure or influence. It is certainly unavoidable, in a young and developing society with a dismal past for its example, that there should be problems in the march to maturity. Tanzania has not been spared, and there is no pretence that it is done with its share of problems. Ironically, the one persistent problem is criticism from politicians and officials that judges and magistrates are, because of their independence, out of touch with the countrys aspirations. But the mobility and flexibility of the Tanzania society ensures that judicial officers are sufficiently aware of its realities. The developments outlined in these pages have been achieved through legislative measures. With every piece of legislation, new problems are risked and new lessons are learnt. It is in this light that we single out the following for special observation. To begin with, there is the problem of empanelling assessors for Primary Courts. In order to make the peoples participation in the administration of justice actually felt, it is necessary to make assessor selection a practical proposition. It is presently impractical largely because its magnitude demands that it cannot be an annual exercise. The empanelling authorities require mobilization, presently non-existent, and sufficient time to make necessary preparations. We also submit that the majority principle is risky and overplays the relevance of peoples participation. Democracy in the form of the manoeuvrable vote is not a sound principle in deciding on the rights or liberty of the individual. Representation before Primary Courts is another area calling for re-examination. The objective conditions that justified the colonial position do not seriously obtain today. Unlike the local courts, Primary Courts have jurisdiction over all persons, some of whom can afford the services of an advocate. Primary Courts also follow written rules of evidence and procedure and exercise wider jurisdiction in civil and criminal matters. At independence there was only one African advocate but the number has since grown and continues to grow. Finally, the training, caliber and intellectual orientation of a Primary Court Magistrate have nothing to compare with in the qualifications of the local court holder. The time has, perhaps, come for advocates to be permitted to practice in Primary Courts. Alternatively, where a party to any proceeding desires to engage an advocate the case should be transferred to the District Court as of right.

The continued existence side by side of District and Resident Magistrates Courts appears to have outlived its historical justification. It is a superfluous arrangement having regard to the concurrent jurisdiction enjoyed by the two types of courts. Finally, the withdrawal of economic offences to the High Court requires sober and objective reappraisal. The measure has certainly not served but tended to defeat the ends of justice considering the prevailing delays in the disposal of such cases. The entire scheme is arguably fraught with double standards. The foregoing notwithstanding, it is submitted that the administration of justice in Tanzania today rests on more rational grounding and is not incomparable with the best systems on the African continent.

COURT ADMINISTRATION AND MANAGEMENT OF CASES INTRODUCTION

This chapter deals with two interrelated aspects of administration of justice, namely: the administration of the courts and the management of cases. Sound and efficient administration of justice depends not only on existence of effective and efficient administration of justice depends not only on existence of effective and efficient structures for court administration but also an efficient system for handling and managing cases from the moment of their institution to disposition. COURT ADMINISTRATION UP TO 1979 COURT ADMINISTRATION PRIOR TO INDEPENDENCE, 1961 We have noted in the preceding chapters that the colonial Judiciary was part and parcel of the executive. There was no separate institution to administer the courts. It was the public administrators who administered the subordinate courts. Although the Chief Justice headed the High Court, he received orders and directives from the Governor almost on a routine basis. The efficiency, effectiveness and the integrity of the judicial system and the administration of justice as a whole depended on the political will and the whims of the executive. COURT ADMINISTRATION AFTER INDEPENDENCEBETWEEN 1961 AND 1979 On becoming independent in 1961, the Judicial became a separate entity from the executive. For the first time the Judiciary, as an Institution, was embodied in the Independence Constitution. The Republican Constitution of 1962, the Interim Constitution of 1965 and the current Constitution of the United Republic of Tanzania, 1977, recognized the Judiciary as a separate arm of the Government, the other two arms of the Government being the executive and the legislature. Indeed, in the preambles to the aforesaid Constitutions, it is declared that Tanzanians believe that in a democratic country there must exist an executive which is responsible to a freely elected parliament constituted by representatives of the people, and where the courts of law are free and impartial. The Judiciary, therefore, had its own administration. It had its own personnel and manage cases filed in its several courts. Headquartered at the High Court building in Dar es Salaam, the Judiciary was headed by the Chief Justice. The chief executive officer was the Registrar of the High Court, who, by virtue of his position, was also the accounting officer of the Department. AFRICANISATION OF THE JUDICIARY On gaining independence, Tanzania embarked upon massive and ambitious political, economic and social transformations. The Government was keen to achieve social and economic development within a short period. Law was used as one of the instruments for achieving these developments. Accordingly, it was hoped that a judiciary manned by nationals would be more sympathetic to the political, social and economic goals of the

nation. Soon after independence the government declared a policy of Africanisation of the public service, including the Judiciary. Later this policy was replaced with a policy of indigenization. At independence, there were 7 judges of the High Court, none of whom was a national of Tanzania. In 1964, the Government elevated two Tanzanians to the judgeship. In 1969, one more was appointed. These appointments continued such that by 1971 the country had 9 Tanzania judges out of 12 judges of the High Court. By the end of 1971, there were a total of 25 Tanzanian High Court Judges. In 1971, the first Tanzanian Chief Justice was appointed, namely the late Mr. Justice Augustino Saidi. The first female Judge, The Hon. Lady Justice Julie Manning, was appointed in 1974. As noted earlier, the administration of the Judiciary was centered at its headquarters in Dar es Salaam. The Registrar of the High Court was the executive officer. The first Tanzanian Registrar of the High Court, Mr. S. Tukunjoba, was appointed in 1965. By 1970, a total of 8 Registrars of the High Court had administered the Judiciary. All of these Registrars, except Mr. Tukunjoba, become judges of the High Court. COURT ADMINISTRATION AFTER 1979 ADMINISTRATION FROM 1979-1981 In 1977, the East African Community collapsed. With the breakdown of the Community, its organs including the Court of Appeal for East Africa had to go along with it. Thus, it became necessary that a final appellate court for Tanzania be established. Accordingly, in 1979, the Court of Appeal of Tanzania (CAT) was established following the First Constitutional amendment contained in Act No. 14 of 1979. The late President Mwalimu J.K. Nyerere inaugurated the Court on 22nd October. The late Mr. Justice Francis L. Nyalali became the first head of the Court by virtue of being the Chief Justice of Tanzania. The establishment of the Court Appeal of Tanzania changed completely the court administration that existed since 1961. The overall administration of the Judiciary was now vested in the Court of Appeal. The headquarters of the Judiciary, therefore, had to be moved from the High Court to the Court of Appeal. Both the Court of Appeal and the High Court, however, became housed in the same building. The Chief Justice became the head of both the Court of Appeal and the Judiciary. The Chief Executive of the Judiciary now became the Registrar of the Court of Appeal instead of the Registrar of the High Court. The post of the Registrar of the Court of Appeal was elevated to the status of a Principal Secretary of a Ministry. The then Registrar of the High Court, Mr. C. G. Mtenga, became the first Registrar of the Court of Appeal. The Registrar of the Court of Appeal is appointed and sworn in by the President of the Republic of Tanzania.

The administration of the High Court and the subordinate courts thereto was, however, vested in the office of Jaji Kiongozi (Principal Judge). As already pointed out, by virtue of his position, Jaji Kiongozi is a special assistant to the Chief Justice. He performs such functions as the Chief Justice may from time to time direct. In the day-to-day business of the administration of the High Court and the courts subordinate thereto, the Registrar of the High Court assists the Jaji Kiongozi. It is important to note that the Jaji Kiongozi does not play the role of Deputy Chief Justice. ADMINISTRATION OF THE COURT FROM 1981 TO DATE From e1979 through 1981, the administration of the Judiciary was concentrated at the headquarters in Dar es Salaam. The Chief Justice and the Registrar of the Court of Appeal were basically making all the administrative decisions. In the course of time, the system proved to be not only inefficient but also very cumbersome. At the same time, the Judiciary, as an institution, had grown and expanded quite tremendously since 1961, to the extent that it caused a lot of pressure and strain for the few administrative personnel at the headquarters. Realizing this predicament, in 1978, the Government commissioned the Ministry of Manpower Development to undertake a consultancy with a view to making the appropriate recommendations. In April 1980, the said Ministry finalized its management consultancy and presented its report, contained in the Document Ref. No. EBC.29/72/09. The Report recommended, among others, two main steps to be taken by the Judiciary, namely: 1. To decentralize the functions of the Judiciary from the headquarters downwards. The headquarters would deal with the main administrative and policy matters only. 2. The need for having an organizational chart and a job description for each judicial officer. The need of having professional administrative cadres was also recommended. On 4th October, 1980, the government accepted the consultancy report. The Judiciary was directed to implement the recommendations. Accordingly, the Chief Justice appointed an Implementation Task Force (ITF) to propose the means and the how of implementing the recommendations. On 1st July, 1981, the ITF, led to the adoption of a new system of court administration. That administrative set-up is still in use as of this writing. CURRENT ADMINISTRATIVE STRUCTURE OF THE JUDICIARY The 1981 administrative set-up of the Judiciary decentralized some of its duties from the headquarters downwards to zonal centres (District Registries) and further down to Regional and District levels, and even further to the bottom of the ladder, that is, Primary Court level. Court officials in charge of these units, that is, Judge-in-charge of a High Court Zone, Magistrate-in-charge of a Region or District and Primary Court Magistrate-

in-charge of a station, are responsible for the administration of the Judiciary in their respective areas. The Judiciarys organizational structure can be summarized as follows: At the top of the ladder, there is the Chief Justice of Tanzania, the head of the Judiciary. The Registrar of the Court of Appeal, as the Chief Executive and the Accounting Officer, assists the Chief Justice. Three Directors and two officers in charge of two special units assist the Registrar. DIRECTORATES OF THE COURT OF APPEAL The Court of Appeal has three directorates, namely, the Directorate of the District Courts to the Court of Appeal, the Directorate of Administration and Personnel and Directorate of Primary Courts. The duties of the Director of District Courts to the Court of Appeal (DDC CA) include the following: Reform of laws concerned with the working and operation of the courts from the District Court level up to Court of Appeal; The Director is responsible for processing appointments and promotions of Resident and District Magistrates; The Director is responsible for all disciplinary matters concerning Resident and District Magistrates; The Director deals with public complaints against Resident and District Magistrate; The Director compiles annual confidential reports of the Judiciary staff from District level upwards; and The Director compiles courts returns from District Courts and upwards. The Director of Administration and Personnel (DAP), discharges the following duties: The Director is responsible for the preparation of the departments budgetary estimates; The Director is responsible for the day to day administration of the Department and personnel development; The Director is responsible for the matters relating to schemes of service for various cadres of staff; and The Director compiles and processes the annual confidential reports of all staff, excluding Judges and Primary Court Magistrates. The Duties of the Director of Primary Courts (DPC) include the following: The Director advises the Chief Justice and the Registrar, Court of Appeal on matters relating to the policy and administration of Primary Courts; The Director is responsible for reform of the laws applicable to Primary Courts; The Director is responsible for the training of Primary Court Magistrates in liaison with the Training Unit of the Department; The Director compiles and processes the annual confidential reports of Primary Court

Magistrates; and The Director is responsible for processing appointments and promotions of Primary Court Magistrates. Apart from the above Directorates, there are two special units, which also assist the Registrar of the Court of Appeal. These are: The Internal Audit Unit and The Training, Research and Statistics Unit. The Internal Audit Unit (IAU) is responsible for the internal control system and the proper management of the financial resources of the Department. The Chief Internal Auditor heads the unit. The Training, Research and Statistics Unit (TRS) coordinates the activities relating to the training of judges, magistrates and the support staff. An officer known as Chief Training, Research and Statistics Officer (CTRSO) heads the Unit. ADMINISTRATION OF THE HIGH COURT AND THE SUBORDINATE COURTS The High Court is divided into zones, which are administered by Judges-in-charge. A District Registrar assists the Judge-in-charge. Presently there are 11 High Court zones. Below the High Court, there are the Resident and District Magistrates-in-charge of regions and districts, respectively. A Primary Court Magistrate-in-charge mans the lowest level of the Judiciary. PROPOSED REVIEW OF THE PRESENT ADMINISTRATIVE SET-UP One of the issues being considered by the Judiciary at present is whether the present administrative set-up facilitates smooth and efficient administration of justice. There is also the related issue of the extent to which judicial officers are engrossed in administrative chores. The Government, in recognition of the fact that an effective Judiciary is necessary for the social, political and economic development of the country, appointed a Legal Task Force (LTF) in 1993, under the chairmanship of Mr. Mark D. Bomani, to look into the problems facing the legal sector. The LTF was and Legal Management Upgrading Project (FILMUP). The LTF submitted its report to the Government in January, 1996. In its report, the LTF established that the current set-up contained some organizational weaknesses which adversely affect efficient administration of courts. These weaknesses include the following: The system lacks an efficient chain of command and flow of information; The administrative/management work of the court is done by judicial officers, which consumes a lot of their time that could be devoted to judicial duties; The present system leads to insufficient supervision of lower courts; and

There is no department to monitor and coordinate planning and management of premises. The Judiciary has embarked upon the implementation of some of these recommendations The LTF was of the opinion that there is an urgent need to review the present setup, so as to achieve the required efficiency and effectiveness. Accordingly, the LTF made the following recommendations: (1.) The office of Deputy Chief Justice be established to replace the office of Principal Judge. (2.) The proposed Deputy Chief Justice should be the Head of the High Court. (3.) The proposed Deputy Chief Justice should be a member of the Court of Appeal. (4.) A Directorate of Training, Research and Statistics (DTRS) be established to take over the duties of training, research and statistical compilation. (5.) The following new units be established: a. A Planning and Estates Management Unit. b. A Public Relations and Social Welfare Unit (6) The Directorates (especially, the Directorate of Administration and Personnel (DAP) and the proposed Directorate of Training, be managed by appropriately qualified personnel. (7) More administrative powers e.g. powers to transfer District Magistrates within their zones be delegated to the Judge-in-charge of zones. (8) The posts of Deputy Registrars and District registrars be made substantive rather than mere duty posts. (9) The judicial authority of Registrars be enhanced in manner akin to that of Masters in United Kingdom and other Commonwealth countries. (10) District Registrar be vested with adequate disciplinary authority over support staff to ensure greater efficiency. (11) There is need to introduce a new cadre of staff devoted to court administration to relieve judicial officers of this extra workload. Accordingly, a cadre of specially trained Court Administrators be established. (12) There is need to make thorough study and review of the present policies and management system that envisage recruitment of candidates with requisite skills, deployment, training and performance evaluation. MANAGEMENT AND DISPOSITION OF CASES Litigation in Tanzania is beset with excessive delays in the disposition of cases. Although not a new phenomenon or unique to Tanzania, delays undoubtedly pose a serious threat to the administration of justice. This shortcoming is a cause of concern to the Judiciary, members of the legal profession and the public at large. Several attempts have been made and ways have been devised to address the problem. In this regard, the Judiciary has drawn advice from the experiences of other jurisdictions, as we shall see below.

CASE FLOW MANAGEMENT COMMITTEES Case Flow Management Committees (CFMC) were introduced into the litigation process by the Chief Justice of Tanzania vide Chief Justices Circular No. 2 of 1987. the object of the establishment of these committees was, initially, to curb delays in the disposition of criminal cases and to alleviate congestions of remandees and convicts in prisons. These committees bring together representatives from the Judiciary, Police Force, Prisons and the Attorney Generals Chambers. In 1993, the Judiciary established a Departmental Committee, Chaired by Hon. Mr. Justice Mroso (the Mroso Committee), whose task was to consider a programme for curbing delays in litigation disposal. The committee endorsed the institution of cases flow management committees. The report of the Mroso Committee also commended other measures initiated by the Chief Justice to facilitate the timely disposal of cases. Commenting on the endeavours of the Mroso Committee, the Legal Task Force observed that the committees had made some impact in that there was improvement in the speed with which criminal cases were handled as a result of the committees functions. The LTF was, however, skeptical about the powers of the committees which did not extend to enforcement of cooperation. It was noted that all what these committees can do is to submit a report to the Chief Justice who in turn, may request/advice the appropriate authority to take necessary action. In view of this, the LTF recommended that the Criminal Procedure Act, 1985, be amended in order to establish the committee formally and to require the Police and Prisons authorities to send senior officers to represent them in the committees. SHIFT SYSTEM In the same year that the Case Flow Management Committees were established, the Judiciary also introduced the Court Shift vide Chief Justices Circular No. 3 of 1987. This was necessitated by lack of adequate office space (chambers) fir magistrates and judges. In many courts, judicial officers are subjected to sharing chambers, certainly a very frustrating situation. It also contributes a lot to delays in hearing and disposal of cases. At any rate, the shift system has been said not to have born the fruits it was expected to probably due to operational technicalities. INDIVIDUAL CALENDAR SYSTEM Prior to 1993, the courts operated under an open calendar system in the sense that listing of cases to a particular magistrate or a judge was open. A case became the responsibility of a particular magistrate or a judge only when it became a partly heard case. Following the introduction and subsequent findings of quarterly stock taking of pending cases and drawing from the advice of visiting American Judges from the District Court of Columbia, the Chief Justice introduced the individual calendar system vide the Chief Justices Circular No. 3 of 1994.

When introducing the Individual Calendar system, the Chief Justice argued that under the general or open calendar, a case was normally fixed for hearing on particular dates, but without assigning a specific magistrate or judge to hear it. That under the system the court found itself with a heavy case load fixed for hearing, but without the judicial manpower to hear all the cases. As a result, many of the cases fixed for hearing had to be adjourned, regardless of the presence of witnesses and the parties. The practice gave the court not only a bad name but also contributed a lot to delays in disposal of cases. The Individual Calendar system enables an individual magistrate or judge to monitor, and to supervise the events involved in the movement of cases through a court system from the point of initiation to disposition. It is believed that the system has made cases to be speedily tried and finalized. It has also helped to curb the problem of case files being misplaced or lost. ALTERNATIVE DISPUTE RESOLUTION MECHANISMS (ADR) Another lesson learnt from the judges from the Superior Court in Washington D.C., was an alternative system of resolving disputes commonly known as Alternative dispute Resolution (ADR). The Mrosso Committee, formed to propose reforms in the courts handling of civil cases, supported in full the adoption of ADR, partly on the grounds that the principle of amicable settlement resonated strongly with traditional methods of dispute resolution discussed earlier in chapter I. There was an exchange of visits, whereby some Tanzanian judges, magistrates and court clerks visited the Washington D.C. Superior Court to study the system. Likewise, certain judges and other experts on mediation, conciliation reconciliation and arbitration visited Tanzania to train judges and magistrates on aspects of ADR. In 1994, the Judiciary officially introduced ADR in three pilot areas, namely, Arusha, Dar es Salaam and Mwanza High Court centres. The system has now been extended to cover all court in Tanzania Mainland, except Primary Courts and the Court of Appeal. Recognizing the importance of ADR, the Constitution of the United Republic of Tanzania, 1977 was amended to confer court constitutional mandate to promote reconciliation between disputing parties. BENCH-BAR MONITORING COMMITTEES FOR CIVIL CASES On 24th November, 1999, the Chief Justice issued Circular No. 7 of 1999, which established the Bench-Bar Monitoring Committees (BBMC) to deal with delays in the disposal of civil cases. The circular was introduced following the LTFs observations that the case flow management committees have been reasonably effective in dealing with the causes of delays which are within the control of the Judiciary, the DPPs office or the Bar. The circular stated that experience in the conduct of criminal cases supports the desirability for a similar or better procedure for dealing with delays in civil cases. The Bench-Bar Management Committees are directed to meet once a month to discuss civil

cases which have not been disposed of within the period first or subsequently scheduled under rule 3 of Order VIIIA of the Civil Procedure Code, and advise on how best to expeditiously finalize such cases. SPECIALISATION OF COURT FUNCTIONS THE NEED FOR SPECIALIZATION The Judiciary has recently embarked upon a programme on specialization of some of its functions. The general purpose of specialization was to speed up disposal of cases. It also, obviously, dawned upon the Judiciary that the transition from a command economy to a free market system in a globalizing world poses some real challenges to the Judiciary to devise some means and a system to grapple with complex adjudication in areas such as company law, commercial law, international business transactions, land transactions, international financial transactions, intellectual property and other forms of litigation associated with such transactions. All this calls for enhanced expertise and specialization. In order to attract and sustain business investments, the private sector, both local and foreign, requires to be guaranteed of efficient, effective and timely adjudication of commercial disputes that might ensue. The would-be investors need to be assured of business certainty which would enable them to have focused planning capable of implementation. Again this calls for a high degree of judicial efficiency and effectiveness, with clear laws and unbiased and consistent decisions, in order to attract and sustain confidence from the business community. Appreciative of this, the Government has embarked upon a programme to establish specialized courts within the Judiciary. To date, two such specialized courts have been established as divisions of the High court, namely, the Commercial and the Land Divisions of the High Court. THE COMMERCIAL DIVISION OF THE HIGH COURT (THE COMMERCIAL COURT) The Commercial Division of the High Court was established under Rule 5 of the High Court Registries Rules, 1984 as amended. The Rule provides: There shall be a Commercial Division of the High Court within the Registry at Dar es Salaam and at any other registry or sub-registry as may be determined by the Chief Justice, in which proceedings concerning commercial cases may be instituted. The court started functioning on 15th September, 1999. Currently, the court is manned by three Judges, the Registrar and a Deputy, with 55 support staff. At its inception, the court operated from rented premises on Plot No. 231, Maweni Street, Upanga, Dar es Salaam. However, the court has, since 27th January, 2001 moved to its current premises along Kivukoni Front, Dar es Salaam, a structure formerly occupied by Kivukoni resident Magistrates Court. The premises were extensively refurbished with the kind assistance from the Government of Denmark through the countrys International Development Agency, DANIDA.

The Commercial Court adjudicates specialized civil matters, viz., commercial disputes. It operates under the general laws governing the High Court matters except for a few procedural differences which were put in place to cater for the specific needs of the commercial community. There are several procedural differences. First, cases that can be adjudicated upon by this court are specified. A commercial case is defined as a civil case involving a matter considered to be of commercial significance, including but not limited to: The formation of a business or commercial organization; The governance of a business or commercial organization; The contractual relationship of a business or commercial organization with other bodies or persons outside it; The liabilities of commercial or business organization or its officials arising out of its commercial or business activities; The liabilities of a commercial or business person arising out of that person commercial or business activities; The restructuring or payment of commercial debts by or to business or commercial organization or person; The winding up or bankruptcy of a commercial or business organization or person; The enforcement of commercial arbitration award; The enforcement of awards of a regional court or tribunal of competent jurisdiction made in accordance with a Treaty or Mutual Assistance arrangement of which the United Republic is a signatory and which forms part of the law of the United Republic; Admiralty proceedings; and Arbitration proceedings. Secondly, trial of all cases, unless decided otherwise by parties, should be with aid of assessors. This feature is unique to this Division of the High Court because it applies to all civil cases. In the General Division in the High Court, trial with assessors is only applicable in a few specified matters such as trials for defamation under the Newspapers Act, 1976. So far the court has twenty three assessors on its roll. The list is composed of competent, knowledgeable and educated people. Indeed, they are experts in their respective fields. There are Masters and Ph. D degree holders, accountants, economists and bankers of long-standing and seasoned businessmen. This high caliber group of experts assists the court especially on technical issues. That apart, their participation enhances confidence of the stakeholders in the court. Unfortunately, however, their participation is not compulsory as it depends on the election of parties. Also their opinions are not binding upon the judge but the judge should give reasons for disagreeing with their opinion. Thirdly, ADR mechanisms are excluded where other recognized avenues to settle the mater amicably have been tried and failed. Generally, mediation under the ADR process (whose applicability in our jurisdiction started in 1994) is compulsory for any civil case

which is ready for trial. For this court, however, parties need not embark on this process if they attempted and failed to settle through any other mode. The fourth feature is that decisions of the court on interlocutory or preliminary matters are not appealable. Until late 2002 , this was a feature obtaining only for this court. Staring from December 2003, however an amendments to the Civil Procedure Code was made and it now cuts across the whole High Court, This legislative measure will assist in expediting disposal of cases. It creates an impregnable barrier to otherwise shrewd parties advocates who used to take shield behind the appellate provisions to stall proceedings. Fifthly, a special body called Commercial Court Users Committee is established to advise on matters of court practice and select fit persons to be assessors. The law establishing the committee gives the composition and ambit of its duties thus: 5B. There shall be a Commercial Court Users Committee consisting of the Judges of the Commercial Division of the High Court, two advocates nominated by the Tanganyika Law Society, two State Attorneys nominated by the Attorney-General and five persons nominated by lawfully established organizations representing the commercial community. 5C. It shall be the responsibility of the Commercial Court Users; Committee to advise the Commercial Division of the High Court on matters of court practice and to submit a list of persons knowledgeable in commercial matters to serve as assessors. The committee has been of very great assistance to the functioning of the court by giving advice and recommendations. The committee has been meeting after every three months but it can, in a deserving situation, hold ad hoc meetings. It enables the court to know the feelings of the stakeholders in relation to its functions and vice versa. Sixthly, filing fees in the Commercial Division have no ceiling. Whereas in the High Court general registry the maximum is T.Shs. 120,000 (approximately 120 US Dollars), in this court, for every T.Shs.12 forming the amount claimed, a party has to pay forty cents as fee. At first, this state of affairs generated heat, especially among the advocates, but with time the heat subsided. Arguments against the fee structure included a feeling that justice should be cheap and affordable to all and that this was excluding a substantial stratum of the population. On the other hand, proponents strongly insisted that commercial transactions are not for poor people and that the business community should be made to pay for the good and speedy services which is being availed to them. Finally, in order to make it a properly resourced court, the Commercial Division operates under what in government budgetary arrangements is called Retention Scheme. This is a system whereby Ministries or Government Departments are allowed to keep a percentage of the revenue collected in any particular financial year. This is an advantageous procedure (where revenues collections are substantial) as budgetary arrangements are not curtailed unlike where simple budgetary allocations are determined by the Treasury without regard to actual needs.

Undoubtedly, the Commercial Court has achieved one of the Governments objectives of providing a positive climate for investment and economic development. In addition, it has instilled some confidence within the business community in the countrys judicial ability to resolve their commercial disputes expeditiously. Indeed, it has been reported that since its establishment, the court has demonstrated tremendous ability to determine cases without undue delay. THE LAND DIVISION OF THE HIGH COURT (THE LAND COURT) One of the fundamental principles of the National Land Policy, which has been incorporated in both the Land Act 1999 and the Village Land Act, 1999, is to establish an independent, expeditious and just system for the adjudication of land disputes which will hear and determine cases without undue delay. In order to put this principle into effect, a new dispute settlement machinery for land cases was introduced. In May, 2001, the Chief Justice established the Land Division of the High Court, vide G. N. No. 63 of 2001. The Land Division of the High Court was made one of the courts vested with exclusive jurisdiction to hear and determine all manner of disputes, actions and proceedings concerning land. Its decisions are appealable to the Court of the Court of Appeal of Tanzania. Below the Land Division, proceedings can be commenced, subject to certain procedural requirements, at the District Land and Housing Tribunal or, in case of rural areas, at Ward Tribunals or Village Councils. On 1st October, 2003, the Land Dispute Courts Act, No. of 2002, came into force. On this date, the Land Division of the High Court became operational and it was thus open to the public. The court conducts its business in rented premises, which previously housed the Commercial Court, i.e. Plot No. 231 Maweni Street Upanga, Dar es Salaam. SPECIAL TRIBUNALS/COMMISSIONS Over the years, in its quest to achieve a better and an efficient system of administration of justice, the government has established a number of special tribunals and commissions to cater for special or particular kind of cases and also at times to deal with certain situations. This section discusses some of these tribunals and commissions. THE NATIONAL ECONOMIC SABOTAGE TRIBUNAL In 1983, following the enactment of the Economic Sabotage (Special Provisions) Act, a special tribunal was established with exclusive jurisdiction to hear and determine all cases involving economic sabotage. The tribunal was known as the National Economic Sabotage Tribunal. This tribunal was not part of the Judiciary and appeals against severity of sentences imposed by it lay only to the President of the United Republic of Tanzania, whose decision was final and conclusive and not subject to review by any court. The constitutionality of this system was not tested in court. There is no doubt, however, that from a separation of powers point of view, it was a retrogressive system.

The Economic Sabotage (Special Provisions) Act, 1983 was repealed in 1984, it was replaced by the Economic and Organized Crime Control Act, 1984. By this Act, the jurisdiction to hear and determine cases involving economic offences established by the Act was vested in the High Court sitting as an Economic Crimes Court. When sitting as such, the court consists of a High Court judge and two assessors. The continued existence of the Economic Crimes Court has been bitterly criticized. The LTF Report, for instance, observed that the existence of the court was no longer justified in principle or any other ground. It recommended that the court be abolished and that the offences covered by the Act be prosecuted like any other crimes; and the choice of the forum should be determined by the seriousness of the crime alleged. THE REGIONAL HOUSING TRIBUNALS AND THE HOUSING APPEALS TRIBUNAL These tribunals were created under the Rent Restriction Act, 1984, to deal with matters incidental to or connected with the relationship of landlord and tenant. Appeals from the Regional Housing Tribunals lie to the Housing Appeals Tribunal, with further appeal to the High Court. These tribunals have now been disestablished following the coming into effect of the Land Disputes Courts Act, No. 2 of 2002. In their place a special mechanism has been created to deal with disputes concerning land and housing. THE ELECTION PETITIONS COMMISSION In the regime of elections, in 1990, a commission to deal with elections complaints was established by virtue of Act No. 13 of 1990. the Commission replaced the High Court in hearing of all election petitions. The decision of the Commission was final and not subject to review by any court. The Commission, however, lasted only for a short time. In 1992, the Elections Act of 1985 was amended and the jurisdiction to hear and determine election petitions was restored to the High Court. THE INDUSTRIAL COURT OF TANZANIA In the case of labour disputes and relations, the Industrial Court of Tanzania was established in 1990 in the place of the Permanent Labour Tribunal. The jurisdiction of the Industrial Court includes the following: To hear and determine any trade dispute referred to it under the provisions of the Industrial Court of Tanzania Act; To register negotiated agreements and voluntary agreements and to hear and determine matters related to the registration of such agreements. The Chairman of the court is appointed by the President from among the judges of the High Court upon the advice by the Minister responsible for labour matters and after consultation with the Chief Justice.

Currently, it has been proposed that the Industrial Court be converted into a specialized division of the High Court vested with jurisdiction to hear and determine all trade disputes and admiralty matters. THE JUVENILE COURT The Juvenile Court is a court established under the Children and Young Persons Ordinance, Cap. 13. The common practice existing in the administration of criminal justice is that children and young person are tried in the same courthouses as adult offenders, although they are tried separately. The need for having a separate building to suit the needs of children charged in courts was recognized. There was a need to crme a friendly environment for young suspects where only guardians or parents would accompany them in court. The Judiciary opened a juvenile courthouse at Kisutu, Dar es Salaam on 25th July, 1997. The court serves as a model for Juvenile Courts countrywide. It has been recognized that there is a need to establish similar courts in the remaining districts of Tanzania. TAX APPEALS BOARD AND TAX APPEALS TRIBUNAL In the field of management of Government revenue, the Tax Revenue Appeals Board was established in 2000 under the provisions of Act No. 15 of 2000. The Board is vested with exclusive jurisdiction to deal with proceedings of civil nature in respect of disputes arising from revenue laws administered by the Tanzania Revenue Authority (TRA). The Tax Revenue Appeals Tribunal was also established with exclusive jurisdiction in all appeals arising from the decisions of the Tax Appeals Board. Appeals from the Tax Revenue Appeals Tribunal lie to the Court of Appeal. The President of the United Republic appoints the Chairman of the Tribunal after consultation with the Chief Justice. A person may only be appointed Chairman of the Tribunal if he/she is a High Court judge. TRAINING Training is a very important component for any institution to perform efficiently and effectively. In the midst of globalization, and the advent of information and communications technology, the Judiciary has realized the need of making use of refresher and induction course for its employees. Within the limited funding available, Judiciary staff have attended different courses both within the county and abroad. There has also been exchange of experiences through seminars and conferences between judicial officers and support staff of different jurisdictions within the East African subregion and internationally. ESTABLISHMENT OF THE INSTITUTE OF JUDICIAL ADMINISTRATION

One major development is the recent establishment of the Institute of Judicial Administration (IJA) at Lushoto. The Institute was officially opened on 22nd October, 2000. The Hon. the Chief Justice B. A. Samatta officially launched IJAs training activities on 6th December 2000 and the President of Tanzania, His Excellency Benjamin Mkapa, inaugurated the Institute on 3rd March, 2001. The Institutes first graduates came out on 7th December, 2001 with twelve students obtaining the Certificate in Law award. The second batch of graduates-thirty Diplomas in Law graduates and seventeen graduates with Certificate in Law-came out on 8th November, 2002. The Institute was established primarily with the objective of building capacity of staff within the Judiciary as well as carrying out research and offering legal and other consultancy services to the public. It will also serve as a resource centre for the Judiciary Department. ENHANCING JUDICIAL INTEGRITY JUDICIAL ETHICS COMMITTEES A judiciary comprising of judicial officers of high moral and ethical standards commands confidence from the public. Several attempts have been made to enhance the integrity of the Judiciary over the years. Bearing in mind the kind of work assigned to judges and magistrates, the Code of Conduct for Judicial Officers of Tanzania was initiated in 1984 following recommendations made at a meeting for Judges and Resident Magistrates held in Arusha. The Code became affective in March 1985. In order to enhance the integrity of the Judiciary, in April 1997 the Chief Justice issued Circular No. 2 of 1997 upon the recommendations made at a Judges and Magistrates seminar held in Dar es Salaam between 16th and 17th December, 1996. This circular directed the establishment of the National and Zonal Judicial Ethics Committees. The Committees were charged with the responsibility of promoting and ensuring compliance with the Code of Conduct for Judicial Officers within their areas. The Committees became operational with effect from July 1997 but so far they have not been able to function. The Committees modus operandi is yet to be charted out, and also the demarcation between their functions and that of Judicial Service Boards needs to be set out. Judicial officers often attend seminars and conferences on enhancing judicial integrity and on Codes of Ethics. LAW DAY

Introduced in 1996, Law Day is the day on which the Judiciary marks the opening of its functions every year. It is usually held on the first working day of February, soon after court vacations. The objective of the Law Day is to mark the official opening of court business as well as conveying a special message to the public every year. The Chief Justice gives a speech at the Headquarters. In the zones, regions and districts the Judgein-charge, Resident Magistrate-in-charge and District Magistrate-in-charge respectively give speeches. Members of the clergy also say special prayers for wisdom and justice to prevail in the administration of justice. The ceremony has created awareness on the part of the public regarding the functions and role of the Judiciary in the administration of justice. The theme for this years (2004s) Law Day, as directed by the Hon. Chief Justice, was The Right to Safe and Clean Environment; the Right to Demand for, and the Responsibility of the Court to Protect It. This augurs well with Tamko la Morogoro (the Morogoro Resolution) passed in 1993 at Morogoro at a Master Workers Council at the initiation, before that organ, of the present Chief Justice, Hon. B.A. Samatta, who was at that time the Principal Judge. The Resolution required that the environment of every courthouse be improved and maintained by planting trees and other plants and keeping it clean. Since he became Chief Justice in 2000, Hon. Chief Justice B.A. Samatta has committed himself to seeing to it that courthouses are in a condition that instills in a citizen a feeling that he/she is in a proper place where justice will be done to him/her. In the past four years, the face of the Judiciary has tremendously changed following enormous improvement of surroundings of many courthouses in the country. STRATEGIC PLANNING AND MOVING WITH THE PRESENT TIMES In the recent years the need for proper direction and focus for the attainment of the Judiciarys goals and objectives has been recognized. Consequently a strategic plan has been made with the assistance of development partners. The Medium Strategic Plan for the Judiciary covers the period 2001-2006. The vision and mission of the Judiciary guide it. The vision is to dispense justice with equity and compassion according to the laws of Tanzania. The Judiciarys mission is to carry out the administration of justice to the general public in an effective and efficient way. An analysis of stakeholders expectations led to the development of key performance areas 9 Key Result Areas (KRA). These are: 1. Fair and timely disposition of cases. 2. Easy and equitable access to judicial services and administration. 3. Competent and independent Judiciary (non-partisan). 4. Timely availability of decisions and orders of the court. 5. Timely execution of court orders and decrees. 6. Availability of law reports. 7. Capacity of the Judiciary to effectively carry out its functions. 8. Management information system. 9. Financial, resource management and accountability.

The above areas are those upon which the Judiciary is concentrating in the medium term in its quest to improve administration of justice. Furthermore, following the adoption of the above strategic plan, the Judiciary has drawn and published the Client Service Charter. The charter is a customer-centred document stipulating the rights of individuals in respect of provision of judicial services. This development promises improvement in the delivery of judicial services. CONCLUSION Since the establishment of the Court of Appeal in 1979 a lot of ground has been covered in improving performance of the Judiciary as a whole and maintaining public confidence in the Department. This, as discussed above, has included taking a number of steps aimed at improving the administration of courts and management of cases, which are two important corollaries of the administration of justice. Yet, while a lot remains to be done, there is a strong promise that the Judiciary will live up to its main objective of delivery of judicial services and, for that reason, galvanize its relevance to the lives of the people of Tanzania. It is gratifying that the Judiciary still commands public confidence to the extent that judges, whether sitting or retired, usually get appointed to head most high level commissions-whether permanent or ad hoc such as the Presidential Commission on Single-Party or Multiparty Democracy in Tanzania which was headed by the late Chief Justice Francis L. Nyalali. Other high level commissions headed by judges include the Commission for Human Rights and Good Governance, the National Electoral Commission and the Law Reform Commission. However, the question whether it is proper for judicial officers to participate in affairs of commissions or committees set up by the Government to deal with non-judicial issues is, interesting though it is, one which cannot be answered here.