TOPIC 1: INTRODUCTION TO LEGAL SYSTEM

1. INTRODUCTION
The legal system of a country is very important. This is because the legal system defines the
culture, history and future of the country. There are basically three major known legal systems
known as common law, civil law and religious law. The legal systems define the legal tradition such
as how laws are made and applied. Tanzania follows a common law legal system.
The Tanzanian legal system can be better understood in the context of the meaning of law
generally, and the institutions through which the law operates. This should also define the subjects
and objects of law. This is because for there to be a legal system there must be those expected to
be regulated by the law, institutions to enforce the law and officials to administer the law. Thus, the
phrase legal system includes rules, institutions and officials responsible for the
administration and enforcement of the law.

Definition of law

A law is an obligatory rule of conduct. It is defined as the commands of him or them that have
coercive power (Hobes).
A law is a rule of conduct imposed and enforced by the Sovereign (Austin).
Also the term law is the body of principles recognised and applied by the State in the
administration of justice (Salmond).
Blackstone, however, maintained that a rule of law made on a pre-existing custom exists as
positive law apart from the legislator or judge.

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

1. An element of obligation to obey the law.

2. Institutions (of the state) responsible for enforcement of the law such as courts of law and
the police force.
3. Officials presiding in the respective institutions for the enforcement of the law such as
judges, magistrates and police officers.
Another important aspect of law is the element of punishment. Law is a rule of action to which men
and women are obliged to make their conduct conform. It is a command enforced by a sanction or
punishment, to acts or forbearance of a class.

Law and Morality

1. Morality is what is right and wrong according to a setoff values or beliefs governing a group
behavior

2. Morality is not a fixed and will vary from one group of society to another, moral values may
also change from time to time.
3. Law and morality always overlap on major issues but may differ on other matters
4. Murder is among of an overlapping. It is both legally and morally wrong.
5. Law and morality diverge on many issues e.g

abortion is legally wrong under the laws of Tanzania unless allowed by a doctor but
there are some others who believe it is not morally wrong.

smoking marijuana is legally wrong but many people believe it is not morally wrong

Whether law and morality should be the same is the question that is debated
ROLE AND FUNCTIONS OF LAW
There are conflicting views as to what actually is the role or aim of the law in the society. On one
hand, Marxist scholars see it as a tool of a ruling class (haves) to protect their interest and status
quo in the society (i.e. law as an instrument of oppression and domination, e.g. Apartheid laws,
Nazi laws, Negro laws, colonial laws, e.g. property law, treason and anti-revolution laws, and etc).
On the other hand, Bourgeois scholars conceptualise law as a tool of development, justice and
peaceful working and co-existence of individuals in the society or between societies (i.e. law as
social engineering, e.g. property ownership laws, city or town planning laws, electoral laws,
succession laws, and etc). Specifically, law has the following functions in the society;
General functions of law:
(a) To structure and distribute public powers to both individual personnel and organs/institutions of
the state (e.g. Judiciary, Legislature and Executive; or powers of the president as opposed to
powers of the DPP or Attorney General and etc.
(b) To regulate private relations or dealings (e.g. land law, contract law, marriage) and etc.
(c) To provide a way of resolving or avoiding conflicts/disputes in the society.
Specific functions of law:
(i) To maintain public order, e.g. criminal law
(ii) To regulate human and state dealings and cooperation/interaction, e.g. law of contract,
international laws, and etc.
(iii) To act as a medium of dispute resolution, e.g. law of tort, procedural laws and etc
(iv) To protect public morality, e.g. criminalizing homosexuality, prostitution, pornography, and etc.
(v) To regulate governmental powers, e.g. constitutional law, administrative law
(vi) To protect individual rights and freedom, e.g. bill of rights, anti-discrimination legislation.

2. A LEGAL SYSTEM
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Professor Hart gave five factors which he thought had to coexist to create a legal system. These
are as follows
a. rules that forbid certain conduct and rules that compel certain conduct on pain of sanctions
b. rules requiring people to compensate those whom they injure
c. the rule stating what needs to be done in certain mechanical areas of law, such as making
a contract or making a will.
d. a system of court to determine what the rules are, whether they have been broken and
what the appropriate sanctions is.
e. a body whose responsibility it is to make rules and amend or repeal them when necessary.

TOPIC 3: THE JUDICIAL SYSTEM OF TANZANIA

The legal system of Tanzania is largely based on common law principles. It also accommodates
Islamic and customary laws. The latter source is mostly applicable in relation to personal or family
matters but also in contracts which are based on customs.
The judiciary is formed of the various courts of judicature which are organised in the hierarchical
manner. The judiciary is made up of the Court of Appeal at the apex, followed by the High Courts
of Tanzania (mainland), the Resident Magistrate Court and the District Court; the two which are at
the same judicial hierarchy and finally the Primary Court.
The High Court of Tanzania has a main registry for general cases such as family law, probate and
administration law cases etc. and also special registries relevant to business law. These include
the Commercial court division of the High Court, Land division of the High Court and the Labour
Court division of the High Court. The aim of establishing these specialised divisions of the High
court is to facilitate completion of cases relevant to business and hence economic development in
the country. There are other organisations which are not part of a judiciary per se but which
perform some adjudicatory functions to a certain extent. These are the Special Constitutional Court
of Tanzania and some tribunals as described below.
Diagram 1: The Judicial system of Tanzania

The Special Constitutional Court of Tanzania

The special Constitutional Court is established by the Constitution of the United Republic of
Tanzania of 1977 under its Article 125. It is of an ephemeral status. Its major function according to
the Constitution is reconciliatory in case there is a dispute between the Governments of the
Mainland Tanzania and that of the Revolutionary of Zanzibar concerning the interpretation of the
Constitution of the United Republic of Tanzania.
The Court has a mandate to determine its own procedures and is expected to dissolve as soon as
the respective dispute ends or is resolved. Article 126(3) of the Constitution of URT provides that
every conciliatory decision of the special constitutional court shall be final and no right of appeal to
any other forum shall lie therein.
On the other hand, there are tribunals that are established by different laws. These are
administrative or quasi judicial bodies. Examples of these include the Land and Housing tribunals,
Ward Land tribunals, village land councils etc. There are also other administrative bodies which
perform some judicial functions such as the Commission for Mediation and Arbitration. This will be
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discussed in detail in Study Guide E2. The Judiciary in Tanzania has four tiers: The Court of
Appeal of the United Republic of Tanzania, the High Courts for Tanzania and Tanzania Zanzibar,
Magistrates Courts, which are at two levels, i.e. the Resident Magistrate Courts and the District
Court, both of which have concurrent jurisdiction. Primary Courts are the lowest in the judicial
hierarchy as illustrated below.
The Judiciary in Tanzania can be described as follows:
1. Court of Appeal
The Court of Appeal of Tanzania is established under Article 117(1) of the Constitution of URT. It is
the highest Court in the hierarchy of the Judiciary in Tanzania. It consists of the Chief Justice and
other not less than 15 Justices of Appeal who are all appointed by the President. The Court of
Appeal of Tanzania is the court of final appeal at the apex of the Judiciary in Tanzania. The High
Court of Tanzania (for mainland Tanzania) and the High Court of Zanzibar are courts of unlimited
original jurisdiction, and appeals from there go to the Court of Appeal.
2. High Courts
The High Court of Tanzania is established under Article 108(1) of the Constitution of URT and it
has unlimited original jurisdiction to entertain all types of cases. Article 108(2) of the Constitution of
URT provides that the High Court has unlimited jurisdiction (powers) to hear and determine any
matter which the Constitution or any other law does not expressly preclude it from it being heard by
the High Court as a Court of first instance.
Similarly, the same High Court has powers under the same Article 102(2) to deal with any matter
which according to legal traditions and conventional practices obtaining is ordinarily dealt with by a
High Court.
Moreover, Section 2(1) of the Judicature and Application of Laws Act Cap. 543provides that the
High Court has full (i.e. unlimited) civil and criminal jurisdiction. Such jurisdiction is however subject
to the jurisdiction of the Court of Appeal of Tanzania as provided for by the Constitution of URT and
any other written laws. In the case of Northern Tanzania Farmer's Coop Society Ltd v
Shelukindo (1978), the High Court held that: ''The High Court is an organ deriving its
establishment and existence by the operation of the constitution of this country. This organ unless
otherwise expressly restricted by the legislature has unlimited criminal and civil jurisdiction,
pecuniary...Apart from the Court of Appeal, it is the highest court for the administration of justice in
this country.''
The High Court also exercises original jurisdiction on matters of a constitutional nature including
cases under the Bill of Rights section of the Constitution of URT and have powers to entertain
election petitions. The High Courts Main Registry, (which includes the sub-Registries available in
different parts of the country) caters for all civil and criminal matters. It also has three specialised
divisions, namely, the Commercial Court Division, the Land Division and the Labour Court Division
of the High Court. The High Court of Tanzania (Mainland Tanzania) has established 13 sub
Registries in different zones of the Country.
All appeals from subordinate courts may go to the High Court of Tanzania and finally to the Court
of Appeal but in a latter case only for the determination of a point of law if any.
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3. Resident Magistrate (RM's) courts and the District courts

The Resident Magistrate Courts and the District Courts, both enjoy concurrent jurisdiction.
These courts are established under the Magistrate Courts Act (MCA) of 1984.The RM's Courts
also known as subordinate courts are established by orders of Chief Justices published in the
Government Gazette in accordance with section 5(1) of the MCA. The same Order of the Chief
Justice designates the territorial jurisdiction.
The District Courts, unlike the Resident Magistrates Courts, are found throughout all the districts
in Tanzania (the local government units) in accordance with section 6 of the MCA. The District
Court is established by section 4(1) of the MCA. They receive appeals from the Primary Courts,
several of which will be found in one district.
The Resident magistrate Courts commonly referred to as regional courts, are located in
designated regions the designation which has to be done by the Chief Justice of Tanzania. In
practice the Resident Magistrates Courts are found in major towns, municipalities and cities, which
serve as the regional headquarters.
4. Primary courts
The primary courts are the lowest courts in the hierarchy and are established under section 3(1) of
the Magistrates Courts Act of 1984 in every district. They deal with criminal cases and civil cases.
Civil cases on property and family law matters which apply customary law and Islamic law may be
initiated at the level of the Primary Court (unless an advocate is involved by any of the parties to
the suit), where the Magistrates sits with lay assessors.
5. Tribunals
There are specialized tribunals, which form part of the judicial structure. These for example include
District Land and Housing Tribunal, Tax Tribunal and the Tax Appeals Tribunal and the Commission
for Mediation and Arbitration which deals with labour matters.
1.4 Judicial System of the Revolutionary Government of Zanzibar
The High Court of Zanzibar has exclusive original jurisdiction for all matters in Zanzibar, as is the
case for the High Court on mainland Tanzania.
The Zanzibar court system is quite similar to the Tanzania mainland system, except that Zanzibar
retains Islamic courts. These adjudicate Muslim family cases such as divorces, child custody and
inheritance. All other appeals from the High Court of Zanzibar go to the Court of Appeal of
Tanzania.
The structure of the Zanzibar legal system is as follows:
Diagram 2: Structure of the Zanzibar legal system

1. Court of Appeal of Tanzania

The Court of Appeal of Tanzania handles matters from the High Court of Zanzibar except those
involving Islamic law.
2. High Court
The High Court of Zanzibar is structured with the same structure as the High Court of Tanzania
Mainland and it handles all appeals from the lower subordinate courts.
3. Magistrates Court
These Courts have jurisdiction to entertain cases of different nature, except for cases under
Islamic law, which they have no jurisdiction to try which are tried in the Kadhis courts.
4. Kadhis Appeal Court
The main role of the Kadhis Appeal Court of Zanzibar is to hear all appeals from the Kadhis court,
which adjudicates on Islamic law.
5. Kadhis Courts
These are the lowest courts in Zanzibar which adjudicate all Islamic family matters such as
divorce, distribution of matrimonial assets, custody of children and inheritance but only with Muslim
families.
6. Primary Courts
These have the same rank as the Kadhis Courts and they deal with criminal and civil cases of
customary nature.

TOPIC 4. CLASSIFICATION OF LAWS OF TANZANIA

All legal systems worldwide deal with more or less the same problems of crimes or civil liabilities.
Yet, different countries have different ways of approaching legal wrongs including crimes and civil
wrongs. The crimes definitions for example vary from one country to another, the individual
criminal or civil justice functions are designed differently in different countries.
In some countries several legal systems may co-exist with each system having its own different
approach to crimes or civil wrongs. However, the types or classifications of legal systems leading
to classification of laws can be grouped. The criteria used for such groupings usually base on the
historical background of a country and development, characteristic mode of thought, type of a
countrys institutions, the judiciarys use of legal sources and the countrys ideology.
However, the major legal systems of the world can be said to include common law, civil law,
Islamic or religious and the socialist legal systems. Tanzania follows the common law system.
Within the common law judicial institutions, regulations and procedures function within the orbit of
some classified fields of law as explained below:
1. Public law and Private law
(a) Public Law
Public law concerns matters relating to society as a whole, particularly the activities of state bodies
such as the legislature, the departments of central government and the very large number of
bodies and agencies stemming from these departments, court and tribunals, local government and
the police.
It is therefore concerned with the state in its political or sovereign nature and regulates relations
between the state or governmental agencies, and the citizen on the one hand and between
different governmental agencies on the other. It is concerned with how the state and its organs
carry out its duties in relation with the citizens.
The main branches of public law are Constitutional law, Administrative Law and Criminal Law.
(b) Private Law
Private law deals with the rights and duties existing between one individual and another in their
private capacities. We may therefore define private law as the law regulating the relation between
private persons and organizations or associations. Examples of private law include the law of
contract, which regulates agreements between individuals or between organizations, agency
where one person acts on behalf of another person, property law generally and land law governing
ownership of land and regulating mortgages of land among many other things.
Also the law of torts, which determines when compensation is to be paid to another person whose
legal rights, have been infringed by another e.g. tort of trespass to land, trespass to person and
defamation among others. Under private law the state is neither the subject nor the object of duty.
However, the machinery of the state is involved in settling disputes between individuals.
2. Civil Law and Criminal law
(a) Civil Law
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The term civil law is used to connote different meanings. Mainly it means the law that is used to
regulate different civil wrongs or actions, as opposed to criminal law which deals with crimes. Civil
wrong is a breach of private duty, which may arise from an agreement between individuals or
which is imposed by a rule of law as in the law of torts.
(b) Criminal law
Criminal law is a branch of law which falls under public law. It deals with crimes or offences. The
parties in a criminal offence which is governed by criminal law are the state or republic and
individuals. Thus offences are committed against the republic and hence if a matter is to be taken
to court it will be taken by the Director of Public Prosecution even though allows also individuals to
prosecute criminal offence. In most cases, an individual who appears to have been wronged (the
victim of criminal offence) against in the public view appears as a witness in a respective case
Civil and criminal law have separate functions. It is important to understand the differences.
Civil
Criminal
Regulates
relationships
Prevention of certain types of
between individuals
conduct
Disputes settlement
Enforcement of behavior
Enforcement of rights
Punishment of offenders
Burden of proof
Balance of probability
Beyond reasonable doubt
Outcome of the Liability decidedcivil remedy awared Guilty or innocence decided
case
eg
Imprisonment
Damages
Community order
Injuction
fine
declaration
Purpose

3. Common Law and Equity

(a) Common law
Common law is that body of law which developed from the customs and practices of the English
people as interpreted and applied by courts. In the judgments of the courts, customs and practices
became legal rules, which in turn were gradually developed by judges through the system of
precedence, that is, the system of interpreting and applying rules to resolve a case before the court
by reference to previous decisions.
The common law system is practised in most of countries colonised or has had very strong ties
with England such as East African Countries (Tanzania, Kenya and Uganda), Australia, the United
States, Singapore and Zambia. Traditionally common law system relied most on customs
established through case law but today legislation also plays a significant role. Another
characteristic of the common law system is the adversarial mode of litigation where the
prosecution and defence sides appear as enemies competing before an impartial judge.
(b) Equity
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Equity system was also a judicial tradition which existed in England under the Courts of
Chancellor. These courts were manned or presided over by the King who was not bound by
previous decisions but instead guided by conscience. Thus persons who were aggrieved under the
common law system ran to the king under the equity system for kings mercies or pardon. The
equity rules and court system applied parallel to the common
law system until 1875 when the dual court system was abolished in England.

4. Substantive Law and procedural law

(a) Substantive Law
This is a branch of law which deals with the rights and duties which are provided for in statutes,
cases law and
other sources of law. The violation of such rights or breach of such duties may lead to litigation of
either criminal
or civil nature. It is the basis upon which a cause of action (legal claim) may be based. For
example the law providing for ownership of property, contractual rights, employment rights etc.
(b) Procedural Law
It is a branch of law which deals with the procedures for obtaining the rights (substantive rights) or
enforcing the duties established in substantive legal framework. For example while a Penal code
provides that any person who breaches duty by committing murder or robbery the Criminal
Procedure Act provide for the procedure on how to establish the said offences, how to reach to a
conviction, judgment and conviction.
The same applies in civil law, where for example the law under the law of torts of contract provide
for remedies for trespass to person or property or breach of contract the Civil Procedure Code
provides for the procedure applicable in instituting a suit in court. This procedure include the
documents applicable such as a plaint, the written Statement of Defence, reply to the written
statement of defence, the procedure for making various applications in court and so forth
5. International law and domestic law
(a) International Law
These are laws which govern intercourse or relations between sovereign states, or individuals and
sovereign states at international level, e.g. law of high seas, diplomacy, and international crimes
(e.g. genocide, crimes against humanity, and etc).
International law is divided into public international law and private international law.

Public international law is a branch of law which originally and traditionally is that part of law
which regulates states. One major source of public international law is what is referred to
by a numerous names such as Convention, Treaty, Covenant.

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Private international law deals with relations across different legal jurisdictions (and
nationalities) between persons, and sometimes also companies, corporations and other
legal entities.

(b) Domestic law

Municipal law is the law obtaining and applicable in the individual sovereign state as per the

BRANCHES OF LAW
(a) Civil Law
Civil law is a branch of law which is of a civil nature dealing with private legal wrongs; that is legal
wrongs between private parties. It is regulated by laws which are applicable to individual interests
such as the law of contract which regulates private persons (as opposed to public matters) in their
private relationship. Other relevant laws include the law Marriage. The procedural aspects of civil
law in Tanzania are regulated by the Civil Procedure Code. The remedy to the victim in civil law is
compensation.
(b) Criminal Law
Criminal law is a branch of law which deals with criminal offences committed against the public.
The offences
are created by penal statutes such as the Penal Code and the procedural aspects of criminal law
are regulated by the Criminal Procedure Code. The remedy in criminal law is punishment such as
fines and imprisonment.
(c) Case Law
Case law is a system of legal rules which are developed basing on previous decided cases of
courts of record such as the high court and the court of appeal. It is a system which is typical of the
common law system whereby judges refer to previously decided cases of similar nature as those
before them for determination. It operates on the basis of the doctrine of precedent that is once a
matter has been settled in a case it will inform decisions in future cases/disputes.
(d) Statutory Law
Statutory law is a system of rules laid down by parliament in legislation. It includes the Constitution,
Acts of parliament and subsidiary legislation. While the procedure for enacting the three mentioned
types of statutory law (i.e. constitution, Acts of Parliament and subsidiary legislation) may differ
considerably

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