Introduction to the legal system of Tanzania

The United Republic of Tanzania is made up of Tanzania Zanzibar and the

Mainland. The estimated population size of Tanzania in 2008 was 38.7 million,
with an average 2.9 annual population growth. The official language in Tanzania is
Kiswahili. English is also used as a primary language of commerce, scientific
research, administration and higher education. The Tanzanian public authority is
divided into central and local government authorities (decentralized governance).
Local governments are allowed to create binding by-laws to govern various issues
in the districts.

The political governance structure of Tanzania is divided into three parts.

According to Article 4 of the Constitution of the United Republic of Tanzania of
1977, these parts are the Executive, the Legislature and the Judiciary.

Tanzania's legal system is based on English common law. According to

Section 2 of the Judicature and Application of Laws Act, Cap. 358, common law,
doctrines of equity and statutes of general application are enforceable in Tanzania
[but only so far as the circumstances of Tanzania and its inhabitants permit, and
subject to such qualifications as local circumstances may render necessary].
Therefore, the key issues in the code of medical ethics and professionalism such as
Consent, Confidentiality, Non-Maleficence, Beneficence, Professional Conduct
(fiduciary relationship) and Duty of Care, which are mainly common laws, are
enforceable in Tanzania although the national legislation and regulations do not
include effective provisions.

The supreme law of the country is the Constitution of the United Republic of
Tanzania of 1977 as amended from time to time. The Constitution vests in the state
authorities (under Article 9) the responsibility to ensure that, in discharging their
duties, human dignity and other human rights are respected and cherished and that
human dignity is preserved and upheld in accordance with the spirit of the
Universal Declaration of Human Rights of 1948 (Article 9(f)).

Part three of the Constitution (Articles 12 to 29) provides for the Bill of Rights and
Duties. The rights enshrined include; the right to equality (Arts. 12 and 13); right
to life (Art. 14); right to personal freedom (Art. 15); right to privacy and personal
security (Art. 16); right to freedom of movement (Art. 17); freedom of expression
and right to information (Art. 18); freedom of religion (Art. 19); freedom of
association (Art. 20) and the right to take part in public affairs (Art. 21). There is
no specific provision relating to health research; however, pieces of legislation
enacted pursuant to this Constitution make provision for those issues. The redress
for violation of human rights in Tanzania is sought in court through the Basic
Rights and Duties Enforcement Act, Cap. 3 of 1994. Moreover, other non-human
rights procedures such as under the Criminal Procedure Act, Cap. 20 of 1985 and
Civil Procedure Act, Cap. 33 can as well be invoked to acquire appropriate legal
remedy.

International treaties or code of conducts in any fields are not applicable in

Tanzania unless they are ratified pursuant to Article 63 of the Constitution by the
legislature. However, English common laws (of any kind) are applicable in
Tanzania pursuant to the provisions of the Judicature and Application of Laws Act,
Cap. 358 of 1920. Other foreign laws and court decisions have persuasive value in
Tanzania. That is, they are used by the courts to interpret or widen the legal
principles.
Apart from rules legislated by the parliament, the local governments and some of
the statutory bodies such as the National Institute for Medical Research (NIMR)
are also allowed to make bylaws, rules, regulations, procedures and orders (called
in general subsidiary legislation), which are binding pursuant to the parent
legislation. Therefore, professional ethics such as the Guiding Principles on
Medical Ethics and Human Rights in Tanzania (of the Medical Association of
Tanzania); Guidelines on Ethics for Health Research in Tanzania (of the Tanzania
National Health Research Forum) and the Standard Operating Procedures for the
National Health Research Ethics Review Committee of Tanzania (of the NIMR),
which are made pursuant to certain provisions of the laws, are also binding.

In order to avoid any contradiction between national laws and international legal
instruments, Tanzania uses a coherent approach, whereby existing laws which are
inadequate or which contradict the provisions of the international instruments are
amended in order to make sure that the norms set forth in those instruments are
domesticated in the Tanzanian laws. For instance, in November 1997, the
provisions of the National Institute for Medical Research Act, Cap. 59 of 1979
were amended to accommodate the principles of CIOMS Ethical Guidelines.
Besides, the current trend of judicial decisions indicates that judges have been
using ratified international instruments in making their decisions.

Moreover, it is worth pointing out here that there are statutory bodies created under
various laws in Tanzania. These bodies are given powers to initiate sub-regulatory
committees such as Research Ethics Committees (RECs). The procedures devised,
for instance, to approve the protocols are legally binding despite the fact that there
would be no specific law or regulation which details the procedures.
At the Ministerial level, health research in Tanzania is governed by the Ministry of
Health and Social Welfare and the Ministry of Science and Technology, and at the
institutional level, the Commission for Science and Technology (COSTECH) is
vested with overall supervisory powers of all scientific research in Tanzania.
However, there are a number of institutions which are vested with statutory powers
to coordinate specific research areas such as those linked to cancer, orthopedics,
HIV/AIDS, food, drugs, chemicals, wildlife and the like.

The Tanzanian legal system is therefore a wide one. Its framework consists
of rules and regulations from those enacted by the parliament to those formulated
by other statutory and professional bodies. The enforcement of those rules and
regulations once breached is also multidimensional. It can be done through a court
of law or through the law enforcing institutions and monitoring bodies such as
RECs and COSTECH. Besides, the podium through which legal redress can be
sought is spacious in the sense that normal procedural laws can be used alongside
specific laws on human rights violations or professional misconduct as discussed in
this Module.

It should be noted that the laws of Tanzania are referred to as “Acts” or

“legislation”. They are arranged in a series of chapter numbers called “Cap.”
However, other laws are still arranged in years – those enacted from 1st of August
2002 to the present 2009. A process is underway to put all laws in “Cap.” The
subsidiary legislation is printed through government notices (G.Ns). Professional
ethical guidelines are found in G.Ns like other normal publications such as
booklets.
  Constitution of the United Republic of Tanzania of 1977, article 4; 9; 12-29
 Judicature and Application of Laws Act, Cap. 358 of 1920, section 2
 Basic Rights and Duties Enforcement Act, Cap. 3 of 1994
 Criminal Procedure Act, Cap. 20 of 1985
 Civil Procedure Act, Cap. 33
 Guiding Principles on Medical Ethics and Human Rights in Tanzania
 Guidelines on Ethics for Health Research in Tanzania
 Standard Operating Procedures for the National Health Research Ethics
Review Committee of Tanzania
 National Institute for Medical Research Act, Cap. 59 of 1979
 CIOMS Ethical Guidelines
 Universal Declaration of Human Rights of 1948, article 9(f)

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