Date; 03 August, 2020

Advocate,

Kiria clan Advocates (KCA)

Arusha

Dear sir,

RE; LEGAL OPINION ABOUT KURYA MAN BEATING HIS WIFE AS AN

EXPRESSION OF LOVE IN KURYA CUSTOM

1.0 INTRODUCTION

I, the undersigned, am rendering this legal opinion emanating from your instructions to me by
you to provide you with a legal opinion for various issues, among them is the fear that beating
your wife is it something wrong as it is an expression of love in kurya customs.

2.0 ISSUES AND QUESTION RAISED

The issues that we have put forth for determination are;

2.1 Whether beating your wife as an expression of love is a crime in accordance to the
kurya custom.
2.2 Whether the act done by the Kurya man has a conflict with the written laws.
2.3 The position of a woman in accordance to the written laws and Kurya customs.
2.4 The position of customary laws in the written laws in Tanzania.
3.0 LAWS REVIEWED

In reading this optopinion, the following laws were reviewed and relied upon;

3.1 Judicature and application of laws Act CAP 358 R.E 2002
3.2 Constitution of United Republic of Tanzania 1977
3.3 Interpretation of laws Act CAP 1 R.E 2002
3.4 Magistrate Court Act CAP 11 R.E 2002

4.0 OPINION

In accordance to the status and application of customary law in Tanzania, it can be revealed that
before colonialism customary law was the main law enforced in different traditional societies. It
emerged from customs which in the cause of life were framed. During that period if such case
could occur then it could be instituted by different institutions such as tribal council, clan council
and the elder council, and before colonialism there was no fundamental difference between civil
law and criminal law.

4.1 Also during colonialism according to Tanganyika order and council 1920 under the
provision of article 24 provided that “In all civil cases and criminal cases to which
native are parties, every court shall be guided by native laws so far as it is applicable
and it is not repugnant to justice and morality or inconsistent with any order in
council or any regulations or rules made under any order”. According to this case of
kurya man beating his wife if it was applied during the colonialism period it means it
was to be consistent with written laws that were applied during that period in which it
means also the Kurya custom should not be inconsistent with or conflicting the
written laws.
4.2.1 Also according to this case it can be referred to the customary law after
independence in which the customary law therefore was confined on the civil
domain. The principal registration Judicature and Application of laws Act
provides circumstances for the application of customary law. By now
customary law is among sources of law applicable in Tanzania. Customs are
 potent source of laws in terms of customary law. Customary law apparently is
regulated and modified by different laws which include The Constitution of
United Republic of Tanzania of 1977; here customary law is regulated by the
doctrine of legitimacy and consistence. As provided under the provision of
article 12 that, all human beings are born free and are all equal and every
person is entitled to recognition and respect for his dignity, also according to
the provision of article 12 of the same law provides that all persons are equal
before the law without any discrimination. So, according to the act done by
the Kurya man it is revealed as a crime because of beating his wife as an act
of discriminating her.
4.2.2 Apart from that, the Interpretation of laws Act CAP 1 R.E 2002, gives the
meaning of customary law that is extended to include body rules whereby
right and duties are acquired or imposed established by usage in any
community in Tanzania and accepted by such community in general as having
the force of law. So, it means the Kurya custom must have the force of law in
accordance to the written laws.
4.2.3 Also according to the Magistrate court Act CAP 11 R.E 2002. This empowers
the primary court and regulates application of customary law under section 18.
4.3 Also according to this case it can be addressed on the conflict between customary law
and the written law that under section 11 (3) Judicature and application of laws Act, in
particular this section provides that in any proceedings where the law applicable is
customary law the court shall apply customary law prevailing within the area of it
locality provided that, the court shall not apply any rule or practice of customary law
which is abolished. This case can be revealed that it has a conflict between Kurya
customs and the written laws in Tanzania.
4.4 Also according to this case of Kurya man beating his wife it can be referred to the case
of MAAGWI KIMITO V GUBENO WEREMA 1985 TLR 132 whereby in this case it
was held that the customary laws of this country now have same status in our courts as
any other law subject only to the constitution and any statutory law that may provide to
the country.
5.0 CONCLUSION

This opinion is limited to matters of the Tanzania laws and practices stated herein and may not
be read as extending by implication to any matters not specifically referred to. Nothing in this
opinion should be taken as expressing an opinion in respect of any representations if warranties
or other information or any other document examined in connection with this opinion except as
expressly confirmed herein. This opinion is given for the purpose expressed in paragraph 1.0
above and should not be used by any other person other than the addressee or any other purposes
without written consent from the undersigned.