Salwan and Narang (2008) refer the
term law as:
(a) legislative pronouncements of the rules which should guide one's actions in
society; (b) the body of principles recognised and applied by the state in the
administration of justice; (c) a rule of action to which human being's conduct
must conform.
Labour law (Employment law) is the body
of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people
and their organizations. As such, it mediates many aspects of the
relationship between trade unions,
employers and employees. It is the
body of law that governs the employer-employee relationship, including
individual employment contracts, the application of tort and contract doctrines, and a large group of
statutory regulation on issues such as the right to organize and
negotiate collective bargaining agreements, protection from discrimination,
wages and hours, and health and safety. There are many different sources of law
in any society. Some laws will be written in the country's Constitution; others
will be passed by the legislature (usually a parliament or congress); others
will come from long social tradition. The following are sources of law.
A
constitution is a set of fundamental principles or established
precedents according to which a state
or other organization is governed. These rules together make up, i.e. constitute,
what the entity is. When these principles are written down into a single
document or set of legal documents, those documents may be said to embody a written
constitution; if they are written down in a single comprehensive document, it
is said to embody a codified constitution. In any country with a written
Constitution, the Constitution will take precedence over any other source of
law. For example, if the Constitution says there is freedom of speech for all
citizens, but the social tradition is for women not to speak in public, a court
will protect the right of any woman to speak in public if she chooses to do so;
the Constitution takes priority over tradition.
Acts of Parliament/Local Laws: These are sets
of written law or statutory laws passed by the parliament of Tanzania since
independence in 1961 and sets of laws passed by the colonial legislative
council. All sets laws are subject to the basic law of the land which is the
Constitution of the United Republic of Tanzania of 1977 as amended severally.
Apart from ‘Acts’ there are other written laws passed through delegated powers
and commonly referred to as subsidiary, subordinate or delegated legislation.
(i)
Statutory Law: These
are laws passed by local legislature and are called “Acts’ to refer to laws
passed by the local legislature as from the period of independence in 1961 and
those passed by colonial legislative council are called ‘Ordinances’. However,
as of 2002, through an Act of Parliament, The Laws Revisions Act of 1994
Chapter Four of the laws of Tanzania [R.E. 2002,] all legislations previously
known as Ordinances, (laws enacted before independence i.e. laws enacted by
colonial administration-Orders in Council, commonly referred to as Ordinances)
are now legally recognized as Acts. Presently, all Tanzanian laws, including
Ordinances are referred to as ‘Acts’ and have been codified together in
Chapters making it a common reference of ‘Chapters’ or abbreviated as ‘Cap’.
The principal legislations and subsidiary legislations thereto, are published
in the Government Gazette and printed by the Tanzania Government Printers.
Therefore anyone can order for statutes through the Government Publication
Agency.
(ii)
Delegated/Subsidiary Legislation (By law, Rules, Regulations), Orders
and Directives
Pre-existing Laws-Customary and/or Religious Laws:
Customary and/or religious law is another of law that makes another authority
to Tanzanian sources of law. Customary law and Islamic law is established under
section 9 of the Judicature and Application of Laws Act, Chapter 358 of the
Laws of Tanzania [R.E. 2002] (JALA).These are sets of rules developed through
customs, practices and/or usages of Tanzanian ethnic tribes and they are
accepted by Tanzanian as binding rules. The customs were accepted by the
colonial regime thus accepted to be applicable in ‘native courts’ to native
parties. At independence these rules continued to be binding and were made part
of the laws of Tanzania in all courts having exclusive application at the
primary courts. The application of customary laws is only limited to; i) civil
cases particularly on issues of marriage, succession, inheritance, land and
family relations. ii) Customary law applies only to members of the community
concerned. iii) Customary law applies only when there is no written law, does
not conflict with statutory law and as of today’s conception, to circumstances
which are not repugnant to principles of human rights. To date customary laws
include: codified customary laws, Islamic laws and other religious laws.
(i) Codified customary laws or
Statutory Laws
These are sets of rules codified
under the procedure set forth in the Judicature and Application of Laws
Ordinance. They include a few of rules on the laws of person, rules of
inheritance in some tribes, and rules on wills. They are commonly found in the
Local Customary Law (Declaration) Order (Numbers one to eight), 1963.
(ii) Islamic Laws
These are few sets of law which
apply to Moslems inhabiting in Tanzania but they are not applied in its whole
fashion as it is in Islamic legal system countries. It is application falls
under the Judicature and Applications of Laws Act, Chapter 358 of the Laws of
Tanzania [R.E. 2002] (JALA). As such, it empowers courts to apply Islamic law
to matters of succession in communities and parties that generally follow
Islamic law in matters of personal status and inheritance. Driving their
sources from the Qua’ran, the Sunna of the Prophet, Ijma (the consensus of the
orthodox community) and the qiyas (the method of analogy), the decisions of
courts impose lenience application as compared to strict Islamic rules. The
local legislature and a mixture of customs have contributed to its modification
and application. However, before independence a double tier system of courts
allowed its application in Tanganyika where by the liwali courts applied
Islamic law and secular courts applied other civil and customary laws. By 1963
one system was adopted to merge the two. In Zanzibar however, a double
tier system still exists where by Islamic courts known as Kadhi
co-exists with secular courts. In Mainland Tanzania, the common issues decided
under these laws are those under the Law of Marriage Act, Chapter 29 R.E. 2002;
THE Administration (Small Estate) Ordinance, Chapter 30 R.L; the Restatement of
Islamic Laws Acts, Act No. 57 of 1964; the Magistrates Courts’ Act, Chapter 11
R.E. 2002 and the Waqf Commission Ordinance, Chapter 326 R.L
(iii)
Personal and Other Religious Laws
Much
as the application of Islamic law is in place and enjoy application in Tanzania
courts through Section 9(1) of the Judicature and Application of Law Ordinance
of 1961. The courts, particularly the Primary courts and High Court of Tanzania
have been liberal to apply other rules from personal and other religion in
dispensing justice where written laws do not provide for solution.
Received
Law: Received law is applicable in Tanzania only when there is no local
written law to address the matter at issue and when local circumstances
permits. Received Law is established under Section 2.3 of The Judicature and
Application Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA).
Judges may make reference to received law with such necessary modifications to
suit local circumstances. The sets of received law are common law, doctrine of
equity and statutes of general application in force in England on 22nd
July, 1920.
(i) Common Law
These are the body of law developed
through judgments of the English courts which made reference to the customs and
usage of the English people and then interpreted in courts. By preservation of
courts, they remain applicable (when there is no local law or rule) and
persuasive laws in Tanzania through the doctrine of precedents.
(ii) Doctrine of Equity
These are the body of law developed
in England through decision of King’s Courts, common referred to as the Lord
Chancellor Courts, which were developed by judges appointed by the King to sit
in King’s court to make decisions on appeals by people aggrieved by decisions
of England courts. Since the King was referred to as ‘the fountain of justice’
he was not bound by common law rules or decision. Thus, he dispensed justice
according to conscience and fairness. Later, the King appointed judges who were
referred to as Lord Chancellor to adjudicate on his behalf and hence developed
what is called today, as ‘the doctrine of equity’. Just as the principle of
common law, the doctrine of equity remain persuasive and precedents when local
circumstances do not provide for an answer.
(iii) Statutes of General
Application
These are sets of legislation passed
by the parliament of England to apply in England but were of general nature
that they would apply in other territories. However, only part of the
legislations which were in force in England on the 22nd July 1920
(commonly referred to as the reception date) was received to apply in
Tanzania.
Case
Law/Court Decisions:
Is
the set of existing rulings which have made new interpretations of law and,
therefore, can be cited as precedent. It is another important source of law in Tanzania. These
are cases arising from the decision of the High Court and Court of Appeal. They
are either reported cases or unreported. Therefore they form the basic
precedents of Tanzanian laws and bind lower courts thereto. Reported cases in
Tanzania can be found in a number of Law Reports. Between 1957and
1977 cases reported from the High Court of Tanzania and the East African Court
of Appeal appeared in East Africa Law Reports. Any case law that is from a
court of equal or higher rank to the one where a case is now being heard, will
normally take precedence over common law, should they differ. Also, a decision
by a higher court (for example a court of appeal or supreme court) is binding
upon a lower court. The lower court must follow what the higher court has said,
in another case where the circumstances are similar. The main sources of
Tanzanian court decisions are found in the following documents.
-The High Court Digest (HCD) -The Tanganyika Law Reports (TLR).
This is the collection of cases decided
by the High Courts and Court of Appeal (Supreme
Court) of Tanzania
-Unreported Cases of the High Court
and Court of Appeal
-The East African Court of Appeal (EACA)
and others)
International
laws: 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 may be
divided into two classes;
(i) Public international law:
law governing relations between states, or a state and private individuals.
(ii) Private international law: law governing
relations between people across nations,
e.g. marriage and divorce between a Tanzanian man and Canadian woman.
General
principle of law or general legal principle refers to a principle that is recognized in all kinds of legal
relations, regardless of the legal system to which it belongs. It can also be a
principle that is widely recognized by people whose legal order has attained a
certain level of sophistication. In International law, it refers to a principle
that gives rise to international legal obligations. The adjective ‘general’
indicates that they are principles which are applied generally in all cases of
the same kind which arise in international law. For example, the principle of
nonintervention. Likewise International tribunals rely on these
principles.
Writings
of Publishers:
These are sources of law regarding to the intellectual property protection,
i.e. Copyrights. This requires anyone who wants to use the writings/material of
an author to recognize him/her. For example: Misra, S. N (2007), Labour and Industrial Laws, 23rd
Edition, Central Law Publications, Allahabad
Conclusively, in any
society, everybody is subject to the law. Everybody must do as the law says, or
face the punishments which can be handed out to law-breakers. Employers are no
different. They, too, must obey the laws of their organisations. Societies have
laws in order to protect people from the actions of other people. It is clearly
impossible for everybody in any society to have absolute freedom as one person
exercised that freedom, it would trample upon somebody else's freedom. Labour law
which is the body of law, governs the employer-employee relationship, including individual employment
contracts and makes sure that rights of employees are abide to.
REFERENCES
Black, H.C (1979), Black Law Dictionary, West Publishing Company, USA Farrar and Dugdale (1990), Introduction to Legal Method.
3rd Edition; Sweet & Maxwell; London
Mihayo,
P.B. (1983), Industrial Conflict and
Change in Tanzania; Tanzania Publishing House,
Dar es Salaam
Misra, S. N (2007), Labour and Industrial Laws, 23rd Edition, Central Law
Publications, Allahabad
Salwan and Narang (2008) Academic's legal
dictionary. 18th Ed., p. 201
Shivji, I.G., et al (2004), Constitutional and
Legal System of Tanzania: a Civics Sourcebook, Mkuki na Nyota Publishers, Dar es Salaam
United
Republic of Tanzania (2005), The
Constitution of the United Republic of Tanzania 1977 (G.N No.250 of 2005)
Webber,
G.J. (1967), The Law of Master and
Servant; 5th Edition, Sir Isaac Pitman and Sons Ltd. London
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