How Laws Work in Tanzania?

Part 1: Historical Foundations and Legal Heritage

1.1 Colonial Legacy and Legal Origins

The contemporary Tanzanian legal system is deeply rooted in its colonial history, which created a dual legal framework that persists to this day. Understanding how laws work in Tanzania requires examining how different legal traditions were superimposed over indigenous systems and how post-independence governments have attempted to harmonize these sometimes conflicting sources of law.

German Colonial Period (1884-1919)

When German colonizers established control over mainland Tanzania (then known as Tanganyika), they implemented a legal system based on German civil law traditions. The Germans recognized the importance of local customs and established a dual system where German law applied to Europeans and assimilated Africans, while indigenous laws governed native populations in personal matters. This recognition of customary law, while pragmatic, created a hierarchy that placed European legal traditions at the apex of the legal system. The Germans established courts with different jurisdictions based on the racial identity of litigants, a system that would influence post-independence legal development.

The German colonial administration introduced formal legal codes covering criminal law, commercial transactions, and land ownership. They also established the concept of registered land, which would later become crucial in post-independence land reform. German colonial law was characterized by its authoritarian nature—designed primarily to facilitate colonial administration and economic extraction rather than to protect individual rights or promote justice for the colonized population.

British Mandatory Period and Trusteeship (1919-1961)

After World War I, the League of Nations placed Tanganyika under British administration as a mandate territory, later becoming a United Nations trusteeship. This period fundamentally shaped the Tanzanian legal system because the British brought their common law traditions, which differ significantly from the civil law traditions of the Germans. British common law introduced concepts such as judicial precedent (stare decisis), adversarial trial procedures, and the presumption of innocence. These concepts remain central to Tanzanian law today.

The British approach to colonial law was characterized by indirect rule, particularly in areas where they lacked resources for direct administration. This approach utilized existing indigenous political and legal structures, recognizing traditional authorities as agents of colonial governance. In the legal context, this meant that customary law was not merely tolerated but actively incorporated into the colonial legal framework, provided it did not conflict with British notions of justice and public policy.

The British also established a more formal court hierarchy, including resident courts, district courts, and the High Court, which formed the foundation of the modern Tanzanian judiciary. They introduced legal professionals—judges, magistrates, and attorneys—trained in English common law traditions. The Tanganyika Order in Council of 1920 established the basic court structure that would evolve into the current system.

The Union with Zanzibar (1964)

When Tanganyika united with Zanzibar to form the United Republic of Tanzania in 1964, a new legal complexity emerged. Zanzibar had its own distinct legal history, influenced by Omani Arab rule, Swahili culture, and Islamic law. The union created a situation where the mainland and Zanzibar have parallel but not identical legal systems. Zanzibar maintains its own court system and legislative authority for non-union matters, while union matters are governed by common legislation and the Court of Appeal of Tanzania.

This arrangement creates a unique federal-like structure within a unitary state. Matters such as defense, foreign affairs, and certain economic policies are union responsibilities, while Zanzibar retains significant autonomy over local matters including its own legal and judicial systems. The Zanzibar High Court operates alongside the mainland High Court, with the Court of Appeal serving as the highest court for both jurisdictions.

1.2 Post-Independence Legal Development

The Arusha Declaration and Socialist Orientation (1967)

President Julius Nyerere's Arusha Declaration of 1967 fundamentally redirected Tanzania's development trajectory toward African socialism (Ujamaa). This had profound implications for the legal system. The declaration emphasized collective ownership and state control of the means of production, which required new legal frameworks for nationalization and state enterprises. The Legal Notice No. 3 of 1967 authorized the government to acquire shares in major enterprises, fundamentally altering the landscape of commercial law and property rights.

The socialist orientation also influenced the approach to law and justice. Nyerere envisioned a legal system that served the masses rather than the elite, leading to experiments with people's courts and informal justice mechanisms. The Legal Aid and Advice Act of 1970 established the Legal Aid Bureau, reflecting a commitment to making justice accessible to ordinary citizens. However, the socialist period also saw concentration of power in the executive branch, which had implications for judicial independence.

One-Party State and Constitutional Changes (1977)

The formation of the Tanganyika African National Union (TANU) and its merger with the Afro-Shirazi Party of Zanzibar created a de facto one-party state. The Constitution of 1977 formally established the Chama Cha Mapinduzi (CCM) as the sole legal political party. During this period, the legal system was subordinated to party authority, and the distinction between party and state institutions became blurred. The Constitution granted the president extensive powers, including authority to rule by decree in certain circumstances.

The 1977 Constitution, which remains in force with amendments, established the basic framework of government that persists today. It created the positions of president and vice president, established a bicameral parliament (National Assembly and Zanzibar House of Representatives), and defined the relationship between union and Zanzibar governments. The Constitution also included a bill of rights, though its enforcement mechanisms were limited.

Return to Multi-Party Politics (1992)

The return to multi-party politics in 1992 marked a significant turning point in Tanzania's legal development. The Constitution was amended to permit the formation of opposition parties, and a new political pluralism emerged. This transition required significant legal reforms to accommodate political competition, including amendments to laws governing elections, public assembly, and freedom of expression. The return to pluralism also renewed attention to constitutional reform and the balance between executive power and judicial independence.

 

Part 2: Constitutional Framework

2.1 The Constitution as Supreme Law

The Constitution of the United Republic of Tanzania, adopted in 1977 and substantially amended in 1984, 1992, 1995, and 2000, serves as the supreme law of the land. Chapter One establishes the United Republic as a sovereign, socialist, democratic state committed to the principles of African socialism. The Constitution proclaims that all organs of government derive their authority from the people and are obligated to respect and uphold human dignity.

The supremacy clause (Article 4) establishes that the Constitution is the supreme law of the land and that any law inconsistent with its provisions is void to the extent of the inconsistency. This establishes the foundation for judicial review, though the practical exercise of this power has varied over time. The Constitution also establishes Tanzania as a one-party state until 1992, with subsequent amendments permitting multi-party politics.

2.2 Fundamental Rights and Freedoms

Chapter Three of the Constitution contains an extensive bill of rights that guarantees fundamental freedoms to all citizens. These include the right to life (Article 14), personal liberty (Article 15), freedom from slavery and forced labor (Article 16), protection from inhuman treatment (Article 17), and the right to a fair trial (Article 13(6)). The Constitution also guarantees freedom of expression (Article 18), assembly (Article 20), and association (Article 21), as well as freedom of religion (Article 19).

The right to property is guaranteed under Article 24, though this right has been subject to significant limitations through land nationalization and subsequent legislation. The Constitution also recognizes the rights of women, children, and persons with disabilities, though specific protections for these groups have been strengthened through subsequent legislation such as the Law of the Child Act of 2009.

2.3 Limitations on Rights

The Constitution permits limitations on fundamental rights under specific circumstances. Article 30 allows Parliament to enact laws that are "reasonably necessary in a democratic society" for purposes including national security, public safety, public order, public morality, public health, and the protection of the rights and freedoms of others. This limitation clause has been invoked to justify restrictions on freedom of expression, assembly, and association, particularly during periods of political tension.

The application of these limitations has been controversial. Critics argue that the broad language of Article 30 has allowed governments to restrict rights beyond what would be permissible in genuine democratic societies. The sedition provisions of the Penal Code, restrictions on public assembly requiring police permits, and limitations on media freedom have all been justified under these limitation clauses.

2.4 Constitutional Amendments

The Constitution can be amended through a process outlined in Article 47. Amendments require a two-thirds majority in the National Assembly and, in some cases, approval by a majority of members of the Zanzibar House of Representatives. Certain "entrenched" provisions require additional procedures, including approval by a majority of the total membership of the National Assembly and subsequent approval by a majority of the electorate in a national referendum.

This amendment procedure has been used frequently, with over 20 amendments since 1977. The most significant amendments include those establishing multi-party politics (1992), creating the position of Prime Minister (1992), and strengthening the bill of rights (1984). The frequent amendments have led some scholars to question the stability and coherence of the constitutional framework.

 

Part 3: Sources of Law

3.1 Statutory Law

Statutory law—laws enacted by Parliament—constitutes the primary source of law in Tanzania. The legislative process involves the introduction of bills, committee review, debate in the National Assembly, and presidential assent. Once assented to by the President, bills become Acts of Parliament and are published in the Government Gazette. Acts are organized by subject matter and assigned chapter numbers in the Laws of Tanzania Revised Edition.

The scope of parliamentary legislation is theoretically unlimited, though constitutional limits exist. Parliament has authority to make laws for the peace, order, and good governance of the United Republic. In practice, Parliament's legislative role has been influenced by executive dominance, with most legislation originating from the government rather than individual members. The parliamentary committee system provides some oversight, but capacity limitations constrain thorough review of complex legislation.

Subsidiary legislation—regulations, rules, and orders made by ministers and other authorities—constitutes a significant portion of the legal framework. This delegated legislation allows detailed implementation of broad statutory frameworks without requiring full parliamentary consideration. However, concerns exist about the scope of delegated legislation and the limited parliamentary oversight of its content.

3.2 Common Law and Judicial Precedent

Tanzania's common law tradition, inherited from British colonial rule, recognizes judicial precedent as a source of law. The doctrine of stare decisis requires courts to follow the decisions of higher courts in the same jurisdiction. The Court of Appeal is bound by its own previous decisions, though this rule has some flexibility. The High Court is bound by decisions of the Court of Appeal and, in the absence of local authority, may follow decisions of other common law jurisdictions.

The reception of English common law occurred through the Tanganyika Order in Council of 1920, which provided that the common law of England should apply to the extent of local circumstances. This reception was modified by subsequent legislation and judicial interpretation. Today, English common law applies only where it is not inconsistent with local statutes and where local circumstances permit. The courts have developed a body of Tanzanian case law that adapts common law principles to local conditions.

3.3 Customary Law

Customary law represents one of the most significant and complex sources of law in Tanzania. Recognized under Section 3 of the Law of Limitation Act and confirmed by judicial decisions, customary law governs various aspects of personal life, particularly in rural areas where formal legal institutions have limited reach. Customary law encompasses rules relating to marriage, divorce, inheritance, land rights, and chieftaincy.

The recognition of customary law is subject to important limitations. Courts will not apply customary law if it is contrary to public policy, natural justice, or any written law.

References:

• Nyerere, J. K. (1968). Ujamaa: Essays on Socialism. Oxford University Press.
• Nyerere, J. K. (1973). Freedom and Socialism/Uhuru na Ujamaa: A Selection from Writings and Speeches 1965-1967. Oxford University Press.
• Bienen, H. (1974). Tanzania: Transition from Socialism. Princeton University Press.
• Malima, K. A. (1996). The Political Economy of Tanzania. Mkuki na Nyota Publishers.
• Mtei, E. (2009). From Go-Slow to Open Politics: The Journey of Tanzanian Economic Reforms. Mkuki na Nyota Publishers.
• Mutahaba, G. (1989). Public Administration in Tanzania. Tanzania Publishing House.