INTRODUCTION

Common law legal system is a legal system which is English based legal system. It is the
legal system which is based on English customs and traditions which have been in practice and
usage in various matters of law in England for so long to the extent of acquiring force of law.
Because of being in use and practice for a long time, these laws become very common to
everyone. As they were, and they still are, very common to every Englishman, they are now
known as common law, hence common law legal system.1

Common law legal system is also known as adversarial legal system. Common law or
adversarial legal system is practiced in England and almost commonwealth countries and United
State of America. It is the system which exists is almost all former English colonies in Africa,
Australia, America and Asia. For that common law legal system is the system for East Africa.2

Common law has no basis in statute, and is established and developed through written
opinions of judges delivered at the end of a trial. These opinions are binding on future decisions
of lower courts in the same jurisdiction. However, that is not to say that common law systems
derive all of their laws from case law. This legislation is then interpreted and applied by the
judiciary during trials; these rulings will then be applied in future cases under the doctrine of
stare decisis, another name for judicial precedent.

As with any system, the common law system has its advantages and disadvantages. The
three main arguments in favor of such a system is that it is fair, expedient and efficient. It is seen
as being fair as the strict following of precedents in all cases means that all people are treated
equally. It is expedient because basing decisions on precedent means that potential litigants have
a good idea as to what to result to expect. Finally, the existence of precedents means that the
judicial process can be relatively fast as there is already a framework in place in which to base a
ruling.3

MAINBODY
1
http://www.nyulawglobal.org/globalex/Tanzania.html
2
Deflem, Mathieu. 1994. “Law Enforcement in British Colonial Africa: A Comparative Analysis of Imperial Policing in
Nyasaland, the Gold Coast, and Kenya.” Police Studies 17(1):45-68.
3
Frank Mirindo Administration of justice in Mainland Tanzania

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As from discussion that common law legal system is the system of East Africa – Tanganyika
inclusive it is as true as the system imposed by England to their colonies is the one adopted and
just some changes were made. The following are the indicators which prove that Common legal
system was and still the legal system of Tanganyika.

Tanzanian’s legal system is governed by the Common Law system since its introduction
by the Tanganyika Order in Council of 1920. The system is however customized with some
exceptions and modifications to suit the local circumstances. This system traces its historical
background mostly from the British rule administration during colonial period. Being a British
protectorate Tanzania’s law (by then Tanganyika) was imported into Tanganyika via India by the
British administration, where it had been long established. As such, the basic structure of the
present legal system is influenced by the English legal system structure and it is much the same
from when it was first introduced into the territory in the early 1920’s. To date Tanzanian’s legal
system remain fundamental an adversarial legal system.4

The Adversarial System; as previously noted, the Tanzania legal system, which based on
the adversarial system, owes its origins to English law. The adversarial system is a procedure for
the trial of civil and criminal cases in common law countries. This system contracts with the
inquisitorial system, which is found in continental European countries. The main assumptions of
adversarial system are that; the parties before the court are wholly answerable for the conduct of
their own cases. Litigations is a game in which the court is an umpire. The rules are in the
knowledge of the court and will be declared and applied by it as required. 5 This is also the
current legal system of Tanzania but it originated from common law system.6

Judgments and Precedent system; this was a common law system and then Tanganyika
legal system as then the Judges plays active part in deciding law. Their judgments are binding on
lower Courts unless overridden by specific legislation. One of the features of a common law
legal system is that courts not only have to determine the facts in a case, but they also have to
argue all the relevant legal precedents set by previous courts making decision on similar matters.7

4
http://www.tanzania.go.tz/administrationf.html
5
F. Pollock The Expansion of the Common Law, London: Stevens and Sons Ltd, 1904,p 32
6
Frank Mirindo Administration of justice in Mainland Tanzania
7
Griffith, J.A.G., The Politics of the Judiciary, Manchester University Press, Manchester, 1977, p15

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 Law making process; with comparison to Tanganyika or currently Tanzania under the
common law legal system is similar but earlier under British rule the power to make laws were
vested to the Governor as per Article 13 (1) 8 of Tanganyika Order in Council of 1920. But later
governor made the law known as Tanganyika Legislature Council Order in council of 1926
whereas it establishes the legislature for the first time and it was known as Legislative Council
(LEGCO). And the legislature was given powers and function to make laws. As per Article 14
that repealed Article 13 of TOC But the full power were conferred to LEGCO in1955 as to
matters of making laws. Whereas it is the process up to now that the organ that is responsible for
law making is the legislature.

Court system/structure; among the indicators that prove the Common legal system was
and still the legal system of Tanganyika is the court structure. Although mere changes was later
made but with the view of British structure. As the position under common law or British rule
the court system was led by the Court of Appeal for East Africa, which was the superior one 9
followed by The High Court of Tanganyika, then the Subordinate Courts and Native courts that
are courts of same grade, and lastly the special tribunals with special jurisdiction. As currently
the court structure in Tanzania is led by the Court of Appeal which is superior then followed by
The High Court then District Court and The Court of a Resident Magistrate that are courts of
same grade and lastly the Primary court. Though their functions differ but in some they are same
they work with regard of their superiority.

CONCLUSION

Conclusively as I have indicated above it can be proved that Common legal system was and still
the legal system of Tanganyika. As by comparing the applied laws, structure and procedures are
the same to the ones that are applied up to now. Basically even most of the laws were enacted to
British colonial legal system and some amendments were made.

REFERENCES

BOOKS and ARTICLES

8
Tanganyika Order in Council of 1920 Art 13 (1)
9
Katende, J.W. and George, W, K., Legalism and Politics in East Africa: The Dilemma of the East African Court of
Appeal, Indiana University Press, 1973, p.44

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  Griffith, J.A.G., The Politics of the Judiciary, Manchester University Press, Manchester,
1977
 Katende, J.W. and George, W, K., Legalism and Politics in East Africa: The Dilemma
of the East African Court of Appeal, Indiana University Press, 1973
 Griffith, J.A.G., The Politics of the Judiciary, Manchester University
 Deflem, Mathieu. 1994. “Law Enforcement in British Colonial Africa: A Comparative
Analysis of Imperial Policing in Nyasaland, the Gold Coast, and Kenya.” Police Studies
 Frank Mirindo Administration of justice in Mainland Tanzania

STATUTES

 Tanganyika Order in Council of 1920

 The Constitution of United Republic of Tanzania of 1977
 The judicature and application of laws Act of 1962(CAP 358 R. E 2002)

INTERNET SOURCES

 http://www.tanzania.go.tz/administrationf.html
 http://www.nyulawglobal.org/globalex/Tanzania.html