The High Court was established under the Article 17(1) of the Tanganyika Order-in-

Council, 1920.24 Styled as His Majesty’s High Court of Tanganyika, the court was
vested with unlimited jurisdiction, civil and criminal, over all persons and matters in
the territory of Tanganyika. The scope of jurisdiction of the court could also be
glared from the laws it could administer. In accordance with Article 17(2) of the
Tanganyika Order-in-Council, 1920, the High Court could apply the Civil Procedure
and the Penal Codes of India, other Applied Indian Acts, Tanganyika Ordinances,
substance of the Common Law, Equity and statutes of General Application.

The High Court could also apply customary law by virtue of Article 24 of the same
Order-in-Council, which provided that:

“In all cases civil and criminal, where natives are parties, the courts shall be guided by
native law, provided it is not repugnant to morality and justice, or inconsistent with any
Order-in-Council or any written law, Doctrines of Common Law, Equity and Statutes of
General Application.”

The High Court was presided over by judges like any other of His Majesty’s High Courts
established throughout the British Colonies. The Tanganyika Order-in-Council, 1920,
did not make provisions for appeals arising from the High Court’s decisions. This was so
because, indeed, the Order-in-Council was not concerned with just setting up courts but
was a broader constitutional statute designed to set up the machinery of the colonial state
of which courts were only a part. The question of details was left to subsequent statutes.

THE SUBORDINATE COURTS

The Structure of subordinate Courts under the Courts Ordinance, 1920

Article 22(1) of the Order-in-Council provided for the constitution of the courts
subordinate to the High Court and Courts of special jurisdiction. The Courts Ordinance,
1920, established three different courts subordinate to the High Court.25 Section 3 of the
Ordinance read as follows:

“3.There shall be and are hereby constituted courts subordinate to the High Court as
follows, namely:
(1) Courts of a Magistrate of District Political Officer to be called subordinate courts of
the First Class.
(2) Courts of an Assistant District Political Officer to be called subordinate courts of
Second Class.
(3) Courts of Assistant Political Officers of the Second Grade to be called subordinate
courts of the Third Class.”
COMPOSITION

Section 4 of the Ordinance governed the composition of subordinate courts. The section
provided that in the absence of any special appointment every Magistrate of Political
Officer was to be deemed to have been appointed to hold within his district a subordinate
court of a class corresponding to his rank. The section also empowered the Governor to
appoint any political officer to preside over a subordinate court above his rank.

JURISDICTION

The powers of subordinate courts were limited both territorially and in terms of subject
matter. Under section 5, the geographical limitation of any subordinate court of the First,
Second or Third Class was the district within which such court was situated. However,
where an Assistant Political Officer was placed in charge of a sub-district or portion of a
district.

The subject matter jurisdiction of subordinate courts was governed by section 18 and the
schedule in criminal and civil matters respectively. Section 18 vested, respectively,
subordinate courts of the First, Second and Third Classes same jurisdiction and powers as
those prescribed for a Magistrate of the First, Second and the Third Class under the
Criminal Procedure Code. The Governor could exercise any of these powers in
accordance with his powers under the Fourth Schedule of the Criminal Procedure Code.

In terms of punishment, a court of First Class could pass a sentence of imprisonment for a
term not exceeding 2 years, a fine not exceeding Florins 1,500 and whipping. A court of
Second Class could give an imprisonment term not exceeding 12 months, a fine not
exceeding Florins 750 and whipping not exceeding 12 strokes. A court of Third Class
could impose a fine not exceeding Florins 250, whipping up to 8 strokes, or as the High
Court may direct and an imprisonment term of up to one month. Any imprisonment term
for more than one month or a fine exceeding Florins 50 had to be confirmed by the
District Political Officer. Section 19 provided for certain sentences and fines by
subordinate courts to be confirmed by the High Court.

Section 17(1) gave subordinate courts jurisdiction to try all suits of civil nature.
However, section 17(2) empowered the High Court to limit such jurisdiction. Further,
section 17(3) reserved for the High Court jurisdiction in suits for the subject matter of
which no money value could be assigned.

By virtue of the schedule, the ordinary jurisdiction (of subordinate courts) in suits and
proceedings of civil nature wherein the subject matter in dispute was capable of being
estimated at monetary value was limited to the value of 1,500 Florins, 500 Florins and
250 Florins for subordinate courts of the First, Second and Third Classes, respectively.
APPEALS, REVISIONS, AND SUPERVISIONS

Section 22 provided for all appeals, references, revisions and similar matters from or in
any proceedings before a subordinate court to lie and be heard and disposed of by the
High Court. The High Court also enjoyed supervisory and review powers over
subordinate courts by virtue of sections 9 25, respectively. By virtue of section 26, the
High Court could order transfer of cases from one subordinate court to another or to
itself.

Decisions of the High Court were appealable to his Majesty’s East Africa Court of
Appeal pursuant to the Court of Appeal for Eastern Africa Order-in-Council, 1921. 26 In
appropriate cases, appeals could lie to the Privy Council.27

From the structure of the subordinate courts, one fact is clear, that officers who were
purely political performed judicial duties. It seems that the fusion of the judicial and
executive functions was not accidental, and this survived until independence when
complete separation of the judiciary and the executive was achieved.

The following chart presents a diagram of the court structure under the Courts Ordinance,
1920

THE COURT STRUCTURE UNDER THE COURTS ORDINANCE, 1920

Notes:
(i) Although each of these subordinate courts had different territorial and pecuniary
jurisdiction, none of them had appellate jurisdiction over the other. Appeals from either
of these courts lay to the High Court and then, except for Native Courts, to the Court of
Appeal for Eastern Africa and finally to the Privy Council.
(ii) Appeals from Native Courts of the Second Class had to go to the Native Court of the
First Class and then to the subordinate court (1st or 2nd class) before it went to the High
Court. This was provided for by the Native Courts Proclamation, 1925.

THE STRUCTURE OF SUBORDINATE COURTS

UNDER THE COURTS ORDINANCE, 1930

New Set of Subordinate Courts

In 1930, the Subordinate Courts Ordinance, 1930 (No. 13 of 1930), was enacted to repeal
and replace the Courts Ordinance of 1920. The new ordinance established a new set of
courts subordinate to the High Court. These were enumerated by section 3 as follows:
“(a) The Court of Provincial Commissioner, to be called the court of the Provincial
Commissioner for the Province within which the Commissioner is appointed Every such
court shall be a subordinate court of the First Class;
(b) The Court of Resident Magistrate, a District Officer or an Administrative Officer in
charge of a district, to be called a subordinate court of the First Class;
(c) The Court of an Assistant District Officer, to be called a subordinate court of the
Second Class;
(d) The Court of an Administrative Officer of cadet rank, to be called a subordinate court
of the Third Class.”

COMPOSITION

The 1930 Ordinance did not make any radical change to the existing court system. The
courts were still presided over by administrative (Executive) Officers as did their
predecessors. The only notable development was the introduction of the court of a
Resident Magistrate. This marked the beginning of the professionalization of the
Judiciary in Tanganyika.

JURISDICTION

Section 11 of the Ordinance gave the subordinate courts criminal jurisdiction to try cases
in accordance with the Criminal Procedure Code. Section 12 vested the courts with
jurisdiction to try all cases of a civil nature. Section 13 required the courts in the exercise
of their civil jurisdiction to follow the principles of procedure laid down in the Civil
Procedure Code so far as the same could be applicable and suitable.
Pecuniary jurisdiction of all subordinate courts was enhanced to Shs. 4,000 in case of
subordinate courts of the First Class, Shs. 2,000 for subordinate courts of the Second
Class and Shs. 1,000 for subordinate courts of the Third Class.28

APPEALS AND REVISIONS

The right of appeal to High Court was expressly provided for in criminal matters.
However, no right of appeal on the civil side was given from any of the courts established
under the 1930 ordinance. This lacuna led to the passing of the Subordinate Courts (Civil
Appeal) Ordinance, 1935 (No. 38 of 1935).29

The chart below presents a diagram of the court structure under the Courts Ordinance,
1930.

THE COURT STRUCTURE UNDER THE COURTS ORDINANCE, 1930

Notes:
(i) Appeals from the High Court went to the Court of Appeal for Eastern Africa and
thereafter could go to the Judicial Committee of the Privy Council.
(ii) No court except the Native Subordinate Courts established under the Court Ordinance
of 1930 had appellate jurisdiction over another.

THE STRUCTURE OF SUBORDINATE COURTS UNDER

THE SUBORDINATE COURTS ORDINANCE, 1941

SUBORDINATE COURTS ESTABLISHED

The Courts Ordinance of 1930 was repealed and replaced by the Subordinate Courts
Ordinance, 1941. section 20(1) of the Ordinance reorganized the court system. The
First, Second and Third Class courts were abolished, and in their places was established
one District Court in each district in which First, Second and Third Class Magistrates
sat.30 This structure of the subordinate courts was the one which the independence
Government adopted in 1961.

COMPOSITION

The Ordinance made little other charges. In the main, the administration of the courts
remained much as it had been before. Two classes of persons could be appointed as
magistrates to man this court. First, the Provincial Commissioners, Deputy Provincial
Commissioners, Resident Magistrates, District Officers, Assistant District Officers and
Administrative Officers of the cadet rank were designated magistrates by the Ordinance.
31 Second, the Governor could, with the concurrence of the Chief Justice, appoint
persons who were not holders of administrative offices into the magistracy.

JURISDICTION

The powers and jurisdiction of the District Courts depended on the class of presiding
magistrate. The ordinary jurisdiction of a District Court when presided over by a
Resident Magistrate in suits and proceedings of a civil nature, was limited to Shs. 15,000,
whereas a District Court presided over by a First Class other than a Resident Magistrate
was limited to Shs. 4,000. A District Court presided over by a Second Class magistrate
had jurisdiction limited to Shs. 2,000 while a District Court presided over by a Third
Class magistrate had jurisdiction limited to Shs. 1,000.

Section 3(2) if the Ordinance empowered the Governor to establish “any other court
subordinate to the High Court to exercise jurisdiction throughout the territory or in any
local area.” This indicates that the courts of Resident Magistrates were established under
this section. At the beginning, such courts were established in Dar es Salaam, Mwanza,
Arusha and Tanga. Their jurisdiction being provincial, one court was established for the
five provinces, namely, Eastern, Lake, Northern, Southern Highlands and Tanga
Provinces.23 In other words, the District Courts and the Courts of Resident Magistrates
had concurrent jurisdiction.

APPEALS AND REVISIONS

Appeals from the District Courts went directly to the High Courts regardless of the class
of the magistrate who presided over the original proceedings. The High Court retained
its general powers of supervision over all the subordinate courts.34

Below is a schematic diagram of the court structure under the Subordinate Courts
Ordinance, 1941.
THE COURT STRUCTURE UNDER THE SUBORDINATE
COURTS ORDINANCE, 1941

APPEALS

Notes: From the High Court, appeals went to the Court of Appeal for Eastern Africa and
thence to the Privy Council. The latter two courts had appellate jurisdiction only.

THE NATIVE COURTS SYSTEM

The Doctrine of Indirect Rule and the Native Courts

The Native Courts (later called Local Courts) constituted the second structure of courts
that existed during the British rule. These existed parallel to the subordinate courts we
have discussed above. As was the case under the German rule, this structure was
reserved for the natives only.
Native Courts were in reality executive courts, constituting an essential component of the
administrative machinery at the local level consonant with the concept of indirect rule.
This concept, which involved the operation of local administrations, recognized
indigenous institutions. The British gave it a systematized application and rationalized it
into a philosophy of African colonial relying on local institutions rather than a centralized
bureaucracy.35

The term ‘indirect rule’ was first used in Nigeria, during the era of Governor Lugard. Sir
Donald Cameron, who was the Governor during the period from 1925 to 1931, adopted
the system for Tanganyika. Sir Cameron’s approach of the system was based on
“adapting for the purposes of local government the institutions which the native people
have evolved for themselves, so that they may develop in a constitutional manner from
their own past, guided and restrained by the traditions and sanctions which they have
inherited…and by the general advice had the effect of divorcing the local administration
from the central administration while concurrently subordinating the former to the service
of the latter.

The concept’s hypothesis was that African societies comprised tribes ruled over by
‘Chiefs’ in which a common language, a single social system and an established
customary Law could be identified. As discussed in Chapter I, prior to the establishment
of the native courts, there existed in various communities traditional institutions and
procedures for settlement of disputes. The Native Courts were not meant to succeed
these institutions but to supplement them. Indeed, section 11 of the Courts Ordinance,
1920, provided that nothing in it affected “the exercise by Tribal Chiefs or Council of
Elders or Village Headman over the members of his or their tribe or village of such
authority as may be vested in him or them by the custom of his or their tribe” except
where such authority had been affected by jurisdiction conferred to another court by the
Tanganyika Order-in-Council, 1920, or the Courts Ordinance, 1920. Along the existing
tribal institutions, therefore, the Native Courts were established and developed. These
courts were characterized by a combination of executive and judicial functions.

ESTABLISHMENT OF NATIVE COURTS

The Native Courts were first established by the Courts Ordinance, 1920, immediately
after the establishment of the Trusteeship. Section 3(4) of the Ordinance established
“Court of a Liwali, Kadhi, Akida, Chief, headman or other persons specially empowered
in that behalf by the Governor to be called Native Courts”

COMPOSITION

Section 10 of the Courts Ordinance, 1920, provided that, “A Native Court shall be held
by such a person or persons and shall exercise such jurisdiction within such limits and
subject to such conditions as to appeal or otherwise and the Governor may direct.”
Supervisory powers over these courts were given to Political Officers of the District
Court in which these courts exercised jurisdiction.

JURISDICTION

The Native Courts Proclamation, 1925

The Courts Ordinance, 1920 contained no provisions providing for their jurisdiction,
personnel and appeal system. These matters were left to the Governor who was
empowered by section 10 to make provisions for them. Pursuant to this section, the
Governor promulgated the Native Courts proclamation, 1925 (Government Notice No. 7
of 1925), setting out various matters pertaining to the Native Court System. These
regulations provided for the Jurisdiction and appeal system of the Native Courts and
other matters incidental thereto.
Clause 1(2) of the Proclamation defined who was a ‘native’ and therefore subject to the
jurisdiction of the Native Courts. The clause defined ‘native’ as a native of the
Tanganyika Territory and any member of an African race (including any Swahili or
Somali) with a permanent residence in the territory.

CLASSIFICATION OF NATIVE COURTS

Under the Native Courts Proclamation, Native Courts were classified into two categories:
Native Courts of the First Class and Native Courts of Second Class. The Native Court of
the First Class had jurisdiction to hear and decide civil cases:

(a) in which the amount or subject matter did not exceed Shs. 600; or
(b) civil cases relating to personal status, marriage and divorce under Mohammedan or
native law; or
(c) matters relating to inheritance which were not governed by the provisions of the
Deceased Native Estates Ordinance, 1922.

In criminal cases, a Native Court of Fist Class could impose imprisonment term not
exceeding 6 months, a fine not exceeding Shs. 200 and whipping not exceeding 8
strokes. A sentence of whipping required confirmation by the supervisory court.
The Native Courts of the Second Class had jurisdiction to hear and decide civil cases:

(a) in which the amount or subject matter did not exceed in value Shs. 200; or
(b) relating to personal status, marriage and divorce under Mohamedan or Native law; or
(c) relating to inheritance which are not governed by the provisions of the Deceased
Natives’ Estates Ordinance, 1922.

In criminal cases, the term of imprisonment and fine that could e imposed by such courts
were, respectively, limited to one month and 50 Shillings. Whipping was restricted to six
strokes. Section 5 of the Proclamation excluded, subject to any provision providing
otherwise, the jurisdiction of Native Courts to try five categories of subject matter. The
first exclusion was of cases punishable by death or life imprisonment. Secondly, cases in
connection with marriage other than marriages contracted in accordance with
Mohammedan or Native law were excluded. (The exception was where both parties were
of the same religion and the claim was one merely for dowry). This meant that Native
Courts and had no jurisdiction in cases in connection in marriage under the Marriages
Ordinance, 1957 which governed Christian and inter-religion marriages save where the
exception applied. It meant, however, that Native Courts did not have any jurisdiction
whatsoever in cases in connection with marriages under the Marriage, Divorce and
succession (Non-Christian Asiatics) Ordinance, 1923. The third exception concerned
cases relating to witchcraft. These were governed by the Witchcraft Ordinance and were
triable by Magistrates of First Class and the High Court. Fourthly, the native courts
lacked jurisdiction to try cognizable offences committed in any place in the District
which had been declared to be a Township. Finally, the native courts were not allowed to
adjudicate cases where a party was a non-native.

APPEALS AND REVISIONS

By virtue of clause 6(1), an appeal from a Native Court of the Second Class could lie to a
Native Court of a First Class. Clause 6(2) provided for appeals from a Native Court of a
First Class to lie to a subordinate court of the First or Second Class. Under clause 6(3),
an order creating a Native Court of the Second Class, could direct for appeal there from
to lie to a subordinate court of the First or Second Class instead of a Native Court of the
First Class.

ADMINISTRATIVE OFFICERS AND NATIVE COURTS

The Native Courts Proclamation, 1925, gave enormous powers to administrative officers
over Native Courts. The District Officer in his judicial capacity had wide general
supervisory powers over Native Courts. The Proclamation gave powers to supervisory
officers (courts) to:

(i) Direct that any case within the jurisdiction of a Native Court be tried by it.
(ii) Confirm or vary a sentence of whipping imposed by a Native Court and supervise the
implementation of that sentence.
(iii) Revise any proceedings before any Native Court.
(iv) Sanction appeals from an appellate Court under the Proclamation to lie to the High
Court.
(v) Subject to the direction of the High Court, to restrict the jurisdiction of any Native
Court.
(vi) An Administrative Officer could sit in any Native Court as advisor.

POWERS OF THE HIGH COURT OVER NATIVE COURTS

The High Court had appellate as well as supervisory powers over Native Courts. Clause
12 of the Proclamation read that:

“12. The High Court may on its own motion or on petition revise any of the
proceedings of any court having jurisdiction to hear or revise any case under
this proclamation.”

The chart below shows the Native Court structure under the Native Courts Proclamation,
1925

THE COURT STRUCTURE UNDER THE NATIVES

COURTS PROCLAMATION, 1925

NATIVE COURTS ORDINANCE, 1929

The Native Courts Ordinance, 1929, marked a further development of the Native Courts
System. This Ordinance was a result of a debate between the Executive on the one hand
and the Judiciary and the Colonial Office on the other, which started in 1923 and
culminated in Sir Cameron’s recommendation of 1929 to the Secretary of State. In his
recommendations, Sir Cameron suggested that Native Courts should be part of the native
administration and not of the state judicial machinery and hence should be under the
exclusive supervision of the Native Administrators and not the High Court. In his
dispatch, Cameron argued that:

“In native tribes such as those in Tanganyika, judicial and executive powers are
combined in the Chiefs and the Native Courts which are a vital part of the ordinary
judicial system based on European ideas, and this being so, the Native Courts should be
under the supervision of the administrative officers and not under that of the High Court.
The reasons are obvious: the judges of the High Court know nothing of the language, the
customs and the modes of life and though of the natives, whereas on the other hand, the
natives know nothing of the High Court and do not understand its intervention between
themselves and their administrative officers who in their eyes represent the Governor.
Moreover, there is always a tendency for the stronger superior court to overshadow and
dominate the weaker inferior court…”

Sir Donald Cameron’s idea was to have legislation dealing solely with Native Courts,
whose control was to be entirely the responsibility of the administration, with a chain of
appeals lying through the members of the provincial administration (acting as
administrative officers and not as magistrates) to the Governor, and leaving the High
Court with no powers either of supervision, revision or appeal. Of course, Cameron’s
objective was to have a “free hand” in the implementation of his version of the “indirect
rule” concept.

Cameron’s dispatch concluded by asking for authority to introduce a Native Courts

Ordinance, embodying the various principles which he had indicated. The Secretary of
State accordingly gave this approval. With this approval, the Native Courts Ordinance
was enacted in 1929 despite strong opposition and criticisms from various quarters
including the Chief Justice.

ESTABLISHMENT

Section 3(1) empowered a Provincial Commissioner, subject to the approval of the

Governor, to establish within his province such Native Courts as he thought fit. Under
section 3(2), the Provincial Commissioner could, with the approval of the Governor,
suspend, cancel or vary any warrant establishing a Native Court. However, section 4
required a Native Court to be constituted in accordance with the native law or customs of
the area in which the court is to have jurisdiction. The Provincial Commissioner, with
the approval of the Governor, could if he thought fit, prescribe the constitution of native
courts, or the order of precedence among the members of the native court, or powers and
duties of any persons acting as assessors to any such court.

JURISDICTION

By virtue of sections 3 and 8, every native court had full jurisdiction to the extent set
forth in its warrant, over the cases and matters in which all the parties were natives
resident or being within the area of the court. However, the Governor could direct that
any native or class of natives shall not be subject to the jurisdiction of Native Courts,
except with their consent or the consent of the Provincial Commissioner. Presumably,
such natives would be the educated and westernized elite who were deemed to be too
civilized to be governed by traditional institutions. Sections 10 and 11, respectively, gave
Native Courts criminal and civil jurisdiction to hear, try and determine cases within their
jurisdiction on matters they were authorized to adjudicate upon. Section 13 authorized
Native Courts to administer:

(a) The native law and customs prevailing in the area of the jurisdiction of the court, so
far as it is not repugnant to justice, morality or inconsistent with the provisions of any
order of the King in Councilor with any other law in force in the territory;
(b) The provisions of all rules or orders made by a Provincial Commissioner, District
Officer, or native authority under the Native Authority Ordinance, 1926;
(c) The provisions of any ordinance which the court is by or under such ordinance
authorized to administer; and
(d) The provisions of any law which the court may be authorized to administer by an
order of the Governor made under section 14.

Section 15 imposed penalties for offences against native law which were not repugnant to
natural justice and morality.

POWERS OF ADMINISTRATIVE OFFICERS

The Native Courts Ordinance, 1929, gave the Provincial Commissioner extensive
supervisory powers over Native Courts. Apart from the section 3, powers to set up
Native Courts and to define their jurisdiction, the Provincial Commissioner had powers to
suspend, and with the approval of the Governor, to dismiss any members of a native court
who abused or was unable to exercise his powers or for any other sufficient reason.
Section 23 required every native court to submit to the Provincial Commissioner or the
officer in charge of a District a report of all cases tried in such court. Under section 25,
Provincial Commissioners and District Officers could sit as advisors. Note that these
were European Officers purporting to advise in courts administering largely customary
law! Provincial Commissioners could order transfer of cases from native to jurisdictions
and their records. The Provincial and District Commissioners had powers to revise any
proceedings of Native Courts and vary any orders or sentences that might have been
imposed by Native Courts.

Section 33(i) empowered the Provincial Commissioner to appoint a native court as a

court of appeal from all or any or the causes arising therein. In the absence of such a
court, the Provincial Commissioner could direct an appeal to lie from the Native Court of
the first instance to the District Officer.

APPEALS

Section 34 regulated appeals. Appeals from a decision of a native court of first instance
went to the Native Court of Appeals, established under section 33. if such a court had not
been established in a particular area, the first appeal would lie to the District Officer.
Appeals from the decisions of the Native Court of Appeal went to the District Officer.
Decisions of the District Officer were appealable to the Provincial Commissioner. Any
person aggrieved by the decision of the Provincial Commissioner could appeal to the
Governor

The Governor delegated his appellate powers to a Board called the Governor’s Appeal
Board. This Board was formed in 1940 and consisted of the Attorney General, the
Secretary for Native Affairs and a Provincial Commissioner. The Board was supposed to
conduct a judicial inquiry and submit its finding to the Governor for approval. The
decision of the Governor was final.
The most notable aspect of the Native Courts Ordinance, 1929, is that it enhanced the
role of the executive arm of the colonial state in the administration of justice with respect
to the natives. The Ordinance took away the powers of the High Court to supervise and
hear appeals from the courts which was possible under the Courts Ordinances, 1920. The
1929 Ordinance also gave enormous powers to the Provincial Commissioners over
Native Courts.

Below is a diagram showing the court structure under the Native Courts Ordinance, 1929.

THE COURT STRUCTURE UNDER THE NATIVE

COURTS ORDINANCE, 1929

THE COURTS ORDINANCE, 1930

In 1930, a new Courts Ordinance was enacted repealing the Courts Ordinance of 1920,
which as already stated, established Native Courts for the first time. The new Ordinance
established other Courts to replace those that existed under the repealed law. The Courts
Ordinance, 1930 was, however, silent on Native Courts established by the Native Courts
Ordinance, 1929.

The question which follows is whether there were two types of “Native Courts”, those
established by the Native Courts Ordinance, 1929and others established by the Courts
Ordinance, 1930, styled as “Native Subordinate Courts.” If the answer is in the
affirmative, then what was their appeal system? These questions were answered by the
decisions of the High Court in the cases of Kitenge Binti Hamisi v. Ali Bin Saidi and the
case of Benjamin Chinjate Kassambara v. R

From the decisions of the two cases, a number of points are fairly clear: First, after the
enactment of the Courts Ordinance 1930, there were two types of Native Courts: The
“Native Subordinate Courts” established thereunder and the “Native Courts” created
under the Native Courts Ordinance, 1929. Secondly, the High Court had appellate
(including revisional) jurisdiction in respect of Civil Proceedings instituted in all
subordinate courts provided for under section 3 of the Courts Ordinance, 1930. thirdly,
the High Court had no appellate jurisdiction in respect of criminal proceedings instituted
in Native Subordinate Courts. Lastly, the High Court had no control whatsoever or
supervision over Native Courts. The final appellate authority for matters arising from
Native Courts was the Governor, not the High Court.

That is the system that remained in place until the enactment of the Local Courts
Ordinance, 1951.

THE LOCAL COURTS ORDINANCE, 1951

The Objectives of the Ordinance

The development of local courts in Tanganyika, as we have seen, was closely connected
with the policy of ‘indirect rule.’ However, by the 1950s criticisms in political circles of
the concept of a dual system of courts on a racial and tribal basis began to be more
pronounced. The Native Courts system had begun to outlive its usefulness. Thus, the
colonial government began to take some initiatives to separate the Judiciary from the
Executive. The initial steps towards the integration of the court system could be said to
have began in 1951, with the enactment of the Local Courts Ordinance 1951. The
Ordinance established a system of local courts which remained substantially unchanged
until 1963.

The objectives of the Ordinance were set out in the Government Memorandum No. 2.
The memorandum set out the following principles to be followed with respect to Local
Courts:
(i) Powers of establishing and supervising the courts would be vested in the
administrative officers.
(ii) The policy of separation of the Judiciary and the Executive should in future be taken
seriously. In particular, chiefs should be relieved of as much of court work as possible.
Chiefs should be encouraged to appoint judicial deputies so that they themselves can
remain only an executive arm of government.
(iii) The Judiciary must be professionalized. Persons should be employed and paid to
perform judicial functions. There had to be a full time stipendiary magistrate and staff.
(iv) The Local Courts system was to have no link to the High Court. However, under
paragraph 36 of the memorandum, it was proposed that the whole of the court system
should ultimately be integrated. For this to occur, local courts had to be manned by
trained personnel and had to be efficient. They also were to keep records. The various
customary laws were to be recorded and, if possible, codified. And appeal system had to
be worked out.

ESTABLISHMENT AND CONSTITUTION OF LOCAL COURTS UNDER

THE 1951 LOCAL COURTS ORDINANCE
Section 4(1) of the Ordinance gave the Provincial Commissioner authority with the
approval of the Governor, to establish such local courts in his province as was
necessary. He conferred upon them their jurisdiction and he could also revoke, suspend
or vary the warrant of any court. Section 6 gave the District Commissioners powers to
suspend any member of the local court.

JURISDICTION AND LAWS APPLICABLE

Section 10(1) conferred on Local Courts over all matters of civil or criminal nature where
parties were Africans. “An African” was defined as a person whose tribe is a tribe of
Tanganyika, Kenya, Uganda Zanzibar, Northern Rhodesia, Nyasaland, the Sudan,
Belgian, Congo, Ruanda, and Burundi. This term also included a Swahili person. Arabs,
Baluchis, Comoreans, among others, could consent to the jurisdiction of these courts.

Under section 15(a), Local Courts were to apply customary law applicable in the area
provided such law was not repugnant to natural justice and morality.

The customary laws had to be proved as prevailing in the areas of jurisdiction (i.e.
lexfori). In practice, however, this provision was ignored in favour of personal laws of
the parties.

Sections 15(b), (c) and (d) empowered local courts to apply by-laws and orders made by
chiefs in their areas of jurisdiction and the provisions of any ordinance which a local
court was empowered to administer.

CRIMINAL JURISDICTION

Under section 11, a local court had jurisdiction to try all criminal cases involving
Africans alleged to have committed offences within its jurisdiction. However, section 13
excluded the jurisdiction of local courts in serious criminal charges such as murder. In
terms of punishment, section 16 empowered local courts to impose fines and
compensation.

OFFENCES UNDER CUSTOMARY LAW

Local courts could try offences under customary law provided a party was and African
and the offence had taken place within the local court’s area of jurisdiction. However,
the Magistrates’ Courts Act, 1963 prohibited the trial of any offence under customary
law.

CIVIL JURISDICTION

The civil jurisdiction of a local court extended to the trial of all civil suits and matters in
which the cause of action arose or the defendant was ordinarily resident within the area of
the jurisdiction of such local court, except in civil proceedings relating to immovable
property which were to be taken to the local court within the area of the jurisdiction of
which the property was situate unless the District Commissioner otherwise directed.
Section 12(3) gave exclusive jurisdiction to local courts over all civil proceedings
regarding Africans involving customary marriage, inheritance and immovable property
other than freehold land, leasehold property or land held under a right of occupancy.

APPEALS

Appeals from Local Courts lay to the Local Courts of Appeal from which appeal could
lie either to the District Commissioner or the Provincial Local Courts Officer. Section 5
vested authority in the Provincial Commissioner to determine in which cases appeals
would go to the District Commissioner or to the Provincial Local Courts’ Officers. The
final appellate court was the Central Court of Appeal. The Central Court of Appeal
replaced the old Governor’s Appeal Board. This court was presided over by a president
(who was appointed by the Governor) and any other two person. Leave to appeal to this
court had to be obtained from the Provincial Commissioner.

THE LOCAL COURTS ORDINANCE, 1951

The “Local Courts” established under this Ordinance were but lineal descendants of the
Native Courts and the Liwali’s Courts. In practice, this did not mean much more than a
change in terminology since local courts in general were of similar composition and had
similar powers as those of their predecessors. Provincial Commissioners under Local
Courts Ordinance, 1951 retained general supervisory powers, but ceased to be appellate
authorities. Provincial Court Officers, on the other hand, were give supervisory,
revisional and appellate powers.

Yet viewed in its historical context, the Local Courts Ordinance, 1951, was a positive
development. It was the first serious attempt to separate the judicial functions from the
executive functions. It set in motion an irreversible trend of separating the Judiciary from
the Executive, a process which was completed after independence.

Below is a diagram showing the court structure under the Local Courts Ordinance, 1951

THE COURT STRUCTURE UNDER THE LOCAL COURTS ORDINANCE, 1951

WITH LEAVE OF THE PROVINCIAL COMMISSIONER

Note:

The Central Court of Appeal replaced the Governor’s Board established in 1940.

CONCLUSION

As we have seen in this chapter, the main feature of the administration of justice was the
creation of a dual court system that was based on racial lines. A balance sheet of the dual
court system readily reveals that the defects outweighed the benefits. Not unexpectedly,
the benefits substantially accrued to the colonial power. To the British, the native and
local courts system provided an easy and cheap method of administering justice to the
bulk of the population. In those areas where a traditional system of courts existed, there
was no disruption of the indigenous society. The laws administered were known and
accepted by the people. Similarly, the procedure was equally known and understandable
and the court holders were the familiar to the people. The system thus operated as a
cushion to the impact of foreign domination. To some extent, the system also
rationalised the judicial process at the local level and substantially put a stop to the
adjudication of cases elsewhere than in duly constituted courts. Local Courts were also
uniquely accessible as they reached down to the ward level in many places.

On the debt side, the dual court system was a tragic failure. Most tragically, the native
and local courts system was basically racial. It pandered on the sentiments of the
emergent African elite as a practice of double standards. There was growing resentment
to the subjugation of Africans to courts presided over by largely illiterate and reactionary
personnel, to unwritten and amorphous laws, and to the inability of Africans to ire
advocates. The combination of the executive and judicial functions meant that the
majority of the people were condemned to executive judicial in which impartiality and
fair play could not be guaranteed. This was, indeed, contrary to British theory and
practice. Furthermore, the system of appeal was inefficient, entailing six or more stages
before reaching the final appellate tribunal. The role of district officers as ex-officio
subordinate court magistrates, combined with operational difficulties, substantially
impaired their capability to render the required close and constant supervision.

Equally disastrous, the dual court system became a process of re-traditionalisation. It

gave vent to the emergence of tribalism and militated against the evolution of a system of
laws transcending tribal divisions. Contrary to expectations, the system did not permit of
the development and expansion of customary law to meet the people’s changing needs,
nor did it lead to the crystallization of customary law in the form of recorded rules.
Consequently, it failed to provide a framework for the development of a national law.
Furthermore, the operation of subordinate courts had not been satisfactory either. Chief
among the defects was their dependence on administrative officers as ex-officio
magistrates. Generally, the existence of subordinate court was a source of confusion to
the Africans, let alone the double standards they symbolized. In the next chapter, we will
see how post-independence Tanzania addressed the above shortcomings in its quest to
improve and modernize its administration of justice.

ADMINISTRATION OF JUSTICE AFTER INDEPENDENCE, 1961

INTRODUCTION

This chapter covers the administration of justice after the country attained its
independence in 1961 to the present. We will see that in this period the court system were
not only integrated bit also modernized in a response to a vision for an egalitarian, non
racial society. The vision, founded upon, inter alia, the bedrock of separation of powers
and respect for the rule of law, entrenched virtues of racial equality before the law,
separation of executive and judicial functions and professionalisation of the judicial. One
feature of this era, perhaps the most significant, is that the Tanzania judiciary attained a
significant level of maturity and an appreciation of the importance of the need for
efficiency and effectiveness in delivery of judicial services.

INTEGRATION OF COURT SYSTEMS

By 1961, the abolition of the dual system of courts had become inevitable and urgent
largely due to nationalist agitation. Indeed, shortly before independence, the then
independence movement leader, Mr. Julius Nyerere, declared that:

“Our judicial at every level must be independent of the executive arm of the state. Real
freedom requires that any citizen feels confident that his case will be impartially judged,
even if it is a case against the prime minister him self.”75

Immediately after independence, the Independence Government formulated plans for the
complete integration of the court systems. The minister of justice stated the policy behind
in the following words:
“The origin and purpose of the integration of the court systems is the desire to remove
the system of having a dual system of courts which operate along different lines. One
system comprising of the high court and its subordinate courts and another comprising of
the local courts with jurisdiction only over Africans. The government from as early as
1961 to change this system so as to enhance our national respect and with the intention of
improving the administration of Justice.”76

Accordingly, the independence Government initiated legislative programmed on

administration of justice with a view to achieving the following objectives:

a) Integration of the local courts with the high court.

b) Separation of the judiciary from the executive. In this regard, full time judicial
personnel with no administrative responsibilities would operate courts. The district and
power provincial commissioners would cease to have control over appointment and
dismissal of judicial officers.
c) Abolition of race as a test for jurisdiction of courts.
d) Ascertainment and unification of customary law.
e) Making provisions for resolution of internal conflict of laws.

The post independence reforms of the court systems began with the high court. They
were carried out under the constitution of Tanganyika of 1961, (the independence
constitution).77

Under article 58, the high court was to be constituted by the chief justice and not less than
6 judges as recommended by the parliament. The governor-general on advice of the
prime minister would appoint the chief justice.78 a judge had to vacate office upon
attaining the age of 62.79 He could, however, be removed from office that age due to
inability to discharge his functions arising out of insanity or misbehavior. In that instance
the governor-general had first to appoint an independent commission to investigate the
allegations against the judge to continue in office. The governor-general was bound by
the commission’s recommendation.

The independence constitution was repealed and replaced by the republican constitution
of 1962.80 this too was replaced by the interim constitution of 1965, which was
succeeded by the constitution of the united republic of Tanzania of 1977 that, as amended
from time to time, remains in force. The 1977 constitution provisions regarding the courts
have remained largely the same under all these constitutions.

The most significant legislation towards at that time was the local courts (Amendment)
ordinance, 1961.81 the ordinance abolished the central court of appeal and substituted
therefore the high court as the final appellate court in appeals originating from local
courts.

The second step, which became effective in July, 1962 was the abolition of the office of
the local courts officer, which had existed from 1951, and its replacement by a judicial
officer responsible to the high court called the local courts appeals officer, 82 to filter the
appeals to the high court. Also the power o establish local courts was vested in the
minister for justice instead of the provincial commisssioiner.83

The 1961 local courts (amendment) ordinance, 1961 also amended the 1941 subordinate
courts ordinance, so that for the future all administrative magistrates would be appointed
personally by name. the intention was that any person so appointed would be full time
magistrate, freed as far as possible from administrative duties.

At the same time, the newly established independence government made radical changes
in the system of administration. The officers of district and provincial commissioners
were abolished and in their places were created the posts of area commissioner’ and
regional commissional.’84 the functions of these new officials were both political and as
well as administrative. It was felt that it would inappropriate for such functionaries to
wield judicial powers.

Below is a diagram showing the court structure under the Local Courts (Amendment)
Ordinance, 1961

THE COURT STRUCTURE UNDER THE LOCAL COURTS

(AMENDMENT) ORDINANCE, 1961

WITH LEAVE OF THE LOCAL COURTS APPEALS OFFICER

THE MAGISTRATE’S COURTS ACT, 1963

The changes affected by the local courts (Amendment) ordinance, 1961 were only
marginal. The most radical and far-reaching changes were achieved through the
magistrates’ courts Act, 1963, which became effective on 1st July, 1964.85

This Act established the basis for the present structure of courts subordinate to the high
court.
The Acts abolished the dual system by repealing all local courts ordinances creating the
local and subordinate courts. It transferred all judicial powers to members of unified
judiciary. The local courts were totally integrated into the high court system. This
resulted in a single system of courts in the whole country.
The act created a single hierarchy of courts with a three-tier system, with primary courts
at the bottom, district and resident magistrates’ courts in the middle, with provisions for
appeals to the high court. Further appeals could lie to the court of appeal for east Africa.
Following the disintegration of the east African community in 1977, Tanzania set up its
own court of appeal in 1979, as the final appellate tribunal.

Primary courts replaced the local courts. Unlike their predecessors they did not
administer customary criminally law (which was abolished). On the contrary, they
administered the penal code86 and the customary civil law. Their jurisdiction extended to
all persons. The district courts ceased to be classified. Significant changes in their
personnel were introduced. Administrative officers no longer had judicial powers. A new
group of magistrates was created to do the work formerly done by district commissioners
in their judicial capacity. The semi-professional nature of the magistracy was, however,
maintained. The district magistrate now exercised the supervisory powers over primary
courts that had been exercised by the district commissioners. Supervisory powers in
respect district and magistrates’ courts were to be vested in the high court.87

The chief justice was vested with powers to establish courts of the resident magistrate.88
Provincial commissioners enjoyed such powers. Appeals from the primary courts went
to the district court. Appeals from the district court lay to the high court with possible
final appeal to the east African court of appeal.
Since 1979, however the court of appeal of Tanzania became the final appellate authority
in Tanzania.

REPRESENTATION

Section 29 of this act provided that:

“No advocate or public prosecutor as such may appear or act in a primary court”

The above section barred the appearance of legal or paralegal professionals before a
primary court. The intention was to insulate the court from fears that legal or semi-legal
professionals could manipulate proceeding and outcome bearing in mind that the court
was presided over by people with no formal legal training.
The magistrates’ court act 1963, has since been repealed and replaced by the magistrates’
court act, 1984, 89 which together with chapter five of the constitution of the united
republic of Tanzania, 1977, provided for the present court system of Tanzania.90

Below is a schematic diagram of the court structure under the magistrates’ courts, act,
1963.
THE COURT STRUCTURE UNDER THE MAGISTRATES’
COURTS ACT, 1963

THE PRESENT COURT SYSTEM

PRIMARY COURTS

Speaking broadly, primary courts are successor o the local courts, but fundamental
differences distinguish the two. Most outstanding, a primary court is duly constituted
when presided over by a primary court magistrate. The magistrate is required to sit with
assessors, a subject we shall examine shortly. He has no executive functions of any kind.

In matters of jurisdiction, as pointed out earlier, the racial factor was eliminated. As it
was expressed at the time, all persons in Tanganyika became” subject to the new primary
court codes both in criminal and civil cases without any distinction whatsoever. ”91
This was facilitated by a number of measures, notably, the abolition of customary
criminal law and the promulgation of rules of evidence and procedure. However, the
successful operation of these rules, particularly the rules of evidence, gives a line to the
colonial stereotypes, employed to justify keeping local courts reactionary, that the
concept of admissibility and relevance in its English sense was foreign to African
conception.
In view of the Primary Court’s jurisdiction over all persons, its territorial jurisdiction is
also wider, being co-extensive with the administrative district, but several Primary Courts
may, and do, operate in a single district. It is opportune at this juncture specially to refer
to two legacies of the erstwhile local courts, i.e, the institution of assessors and the
exclusion of advocates. It is convenient to begin with the latter.

The presumption had always existed that sooner or later, with the spread of education, it
might be possible for advocates to practice even in the lowest courts. However, the ban
was carried over in the 1963 Act and perpetuated in the Magistrates’ Courts Act, 1984.
nevertheless, it is interesting to note that, presently, the ban is couched in slightly
different terms from the position under the Local Courts Ordinance, 1951. section 25(1)
of the Ordinance provided that “No advocate or legal practitioner may appear or act for
any party before a local court.” The corresponding Section 33(1) of the present law, (i.e.
the Magistrates’ Courts Act, 1984) which is in pari materia with Section 29(1) of the
1963 Act, provides that “No advocate or public prosecutor as such may appear or act for
any party in a primary court.” The point of departure lies in the qualification contained in
the phrase “as such.” Whereas the former provision appears to have imposed a total ban
on advocates, the latter appears to make it possible for an advocate, while being unable to
appear and act for a party, to appear as plaintiff, defendant, accused or witness, and this
gives sense to the jurisdiction of primary courts over all persons It has also been
suggested that the ban extends to appearing “in a primary court”, meaning that there is
no absolute ban on advocates assisting and acting for parties outside the court. There is
also the possibility that under subsection (2) a legally qualified person who is not an
advocate “as such” may appear and act for a relative in a civil matter, the magistrate
permitting.

The apparent shift notwithstanding, the ban remains unqualified in criminal matters.
Provision exists for the transfer of cases to District or Resident Magistrates’ Court but it
is not without qualifications. In proceedings of a criminal nature an accused may elect to
be tried by a District Court if the offence charged is one punishable in the Primary Court
by imprisonment for more than twelve months exercised before the accused pleads to the
charge. Secondly, although a Primary Court may on its own motion transfer any
proceeding, this is possible only with the consent of the District or Resident Magistrate’s
court to which the transfer is proposed to be made. A definite disadvantage therefore
exists incases commencing in a Primary Court.

On the other hand, a Primary Court has in every proceeding to sit with not less than two
assessors. Originally, the court had discretion in the matter and the assessors’ opinions
were not binding, but the position altered with successive amendments to the 1963 Act.
Presently, therefore, the participation of assessors is both mandatory and their opinions
are crucial. All matters in a Primary Court, including a finding in any issue, the question
of adjourning the hearing, an application for bail, the question of guilt or innocence, the
determination of sentence, the assessment of any monetary award, and all questions and
issues whatsoever must, in the event of difference between the magistrate and the
assessors or any of them, be decided by the votes of the majority of the magistrate and the
assessors present. The courts have consistently interpreted this majority principle to
mean that the assessors can override the magistrate, and they have frequently done so. At
the grassroots level the people are thus fully involved in the administration of justice;
above all, they have an overriding power.

Yet all has not been well with the use of assessors in Primary Courts. To begin with,
their selection or no-selection continued to be a problem. Panels of assessors are required
to be set up annually but it is feared that the exercise was last carried out long time ago.
This has resulted in the specter of “professional” assessors, many of whom are too old or
too illiterate to measure up to their responsibilities. The majority principle is also fraught
with risks. It is investing too much in the mostly illiterate elders by enabling them to
override the magistrate even in questions of law. Indeed, there are indications already
that this might be affecting the quality of justice. The judicial System Review
Commission (the Msekwa Commission) appointed in 1974 reported in 1977 that:

“It is not uncommon to find (assessors) mystified and utterly confused as to what they
should do – whether they should follow the guidance of the Primary Court Magistrate or
be guided by common sense and their own conscience, neither of which has succeeded in
putting a stop to a growing number of unmerited acquittals and unjust convictions in the
Primary Courts.”

The commission strongly urged the re-examination of the majority principle but their
sentiments do not seem to have moved policy makers. In its report, presented to the
Government in 1996, the Legal Task Force also recommended that assessors’ opinions
should not be binding. This recommendation, too, apparently has not been accepted.

Considerable change is also to be found in the law administered by Primary Courts. In

civil matters a Primary Court exercises jurisdiction in all proceedings where the
applicable law is Customary Law or Islamic Law, except where the proceeding affects
the title to registered land. In such proceedings the pecuniary jurisdiction of the court is
unlimited and it may award any amount claimed. Proceedings in respect of marriage,
guardianship or inheritance under Customary Law may not be commenced in any court
other than a Primary Court unless the High Court gives leave for such proceedings to be
commenced in some other court. The customary laws governing marriage, bride wealth,
inheritance and the status of children have been codified, and Tanzania is reckoned to be
the first country in Africa to attempt a full-scale unification and codification of the
customary laws of its numerous tribal groups.

Jurisdiction is also exercisable by Primary Court in all proceedings of a civil nature for
the recovery of civil debts, rent or interest due to the Republic or local government
authority if the value of the subject matter of the suit does not exceed five million
shillings; for the recovery of an civil debt arising out of contract if the value of the
subject mater does not exceed three million shillings; and in all matrimonial proceedings
relating to civil and Christian marriages. In addition, the Chief Justice may confer upon a
Primary Court jurisdiction in the administration of deceased’s estates where the law
applicable is customary law or Islamic law. The scope of jurisdiction is therefore wider
in comparison to the local courts’ which in particular, had no jurisdiction over Christian
marriages except the customary incidents thereof like bride wealth.

In criminal matters, a Primary Court has jurisdiction over a wider range of specified
offences under the Penal Code in addition to any other offence jurisdiction over which is
conferred by any other written law. Before the enactment of the Economic and
Organized Crime Control Act, 1984, to which reference will be made later, a Primary
Court could try such serious offences like cattle theft. In the exercise of its criminal
jurisdiction the court may impose a sentence of imprisonment not exceeding twelve
months; a fine not exceeding ten thousand shillings and corporal punishment not
exceeding twelve strokes. But where a court convicts a person of an offence scheduled
under the Minimum Sentences Act, 1972, it has jurisdiction to impose the minimum
sentence of imprisonment. The court can also order the supervision of habitual
offenders; payment of compensation not exceeding one thousand shillings and forfeiture
of property in the case of unlawful possession. Some sentences. Like imprisonment for a
term exceeding six months or corporal punishment on an adult, may not be carried into
effect unless it has been confirmed by the District Court.

An overall assessment of the primary and local courts systems established a significant
deficiency in the former. Primary Courts are fewer and exercise jurisdiction over wider
territory, with obvious limitations on their accessibility and efficiency. Partly to meet the
challenge, provision was made whereby justices of the peace were attached to Primary
Courts to ensure that the administration of justice was not completely halted by the
absence of itinerant magistrates. They have power to order arrest, to remand arrests, to
remand arrested persons, grant bail, to summon witnesses, etc. unfortunately, the
arrangement has not always worked with happy consequences. Instances of justices of
the peace overreaching themselves have frequently come to the fore.

DISTRICT AND RESIDENT MAGISTRATES’ COURTS

The establishment side by side of District Courts and Courts of Resident Magistrates is a
legacy of the erstwhile subordinate courts. District Courts were established by statute
whereas power is vested in the Chief Justice to establish Courts of Resident Magistrates
and to specify the area in which they may exercise jurisdiction. The jurisdiction of a
District Court extends to the district for which it is established but the Chief Justice may,
by order, extend its jurisdiction over any other contiguous district or districts. Courts of
Resident Magistrates have been established throughout the Mainland, each exercising
jurisdiction over an administrative region comprising of several districts. In each district,
the court of a Resident Magistrate has concurrent jurisdiction with the District Court.

This arrangement is a source of confusion. A District Court is duly constituted when

presided over by a District Magistrate or a Resident Magistrate, for the expression
“District Magistrate” includes a Resident Magistrate. Court of a Resident Magistrate is
duly constituted when presided over by a Resident Magistrate. Except where the law
provides otherwise, any case may be registered in a District Court or a court of a Resident
Magistrate, the decision being dictated by practical convenience. The two courts also
share the same buildings, courtrooms, support staff and all other facilities. The two
categories of magistrates are historical and derive from their qualifications. District
Magistrates as such do not possess qualifications other than the Diploma in Law whereas
Resident Magistrates are university graduates in law. In the material days and even
immediately after independence, District Magistrates were district officers who combined
executive and judicial functions and most of them did not possess legal qualifications.
Some of the older district magistrates still in the field were in fact inherited from that
cadre after relinquishing their political functions. A number of them have risen to
become High Court Judges after acquiring a law degree.

District and Resident Magistrates’ Courts are not obliged to sit with assessors, but in any
case in which a rule of customary law or Islamic law is in issue or relevant they may sit
with assessors, and must do so if directed by the Chief Justice. Whatever the case, they
are not bound to conform with the opinion of the assessors. This permissive element has
enabled these courts conveniently to avoid sitting with assessors. But it may be observed,
that the idea of assessors as a mandatory feature in these courts has generally never
attracted more that half-hearted attention. In the 1960s, the judges and magistrates could
only observe that “there might be no harm” in the idea, while the Msekwa Commission,
already disenchanted with assessor performance in Primary Courts, expressed support for
the idea, but, “not without a great deal of trepidation. The Commission therefore
suggested that as a start the opinion of the assessors should not be binding on the
magistrate. They also recommended that the assessors should not be involved in “all
proceedings” coming before the District Court. In the event, policy makers did not react
to the recommendations.

By way of digression it is also worth mentioning that there exists a school of thought that
regards the use of assessors at any level as having outlived its necessity. As already
indicated assessors are no longer repositories of much of the Customary Law and, with
the courts being entirely staffed by Tanzanians, they are no longer better placed to
expound on the people’s customs and habits. It is argued, therefore, that to dispense with
assessors would not undermine the foundations of Justice, but that they could be
summoned when necessary as in the District Courts. It is further pointed out that
assessors are becoming a burden on the Judiciary’s budget.

Attractive as the arguments might appear, we think that assessors have an important role
to play even without being experts in any field. It is self-deception to imagine that the
sense of justice inheres only in legally trained minds, for laymen, much like the legal
expert, are capable of reaching rational decisions on a given set of facts. Besides, there is
advantage in having a judicial system that is rooted in the community it serves and
therefore commanding its trust and confidence. A judicial system operating exclusively
as society of the professional, runs the risk of true or imaginary alienation and therefore
of appearing as an instrument of state oppression. These factors outweigh any budgetary
considerations when government spending must by all means rise. It may therefore be
desirable to have assessors in the District Court although without necessarily the power to
override the magistrate. We will now turn to override the magistrate. We will now turn
to outline the jurisdiction of these courts.

A District Court exercises original civil jurisdiction when held by a civil magistrate, i.e.,
a Resident Magistrate or a District Magistrate appointed by the Chief Justice to a civil
magistrate. It used to be customary for district magistrate of senior grade and proven
ability to be appointed civil magistrates, but since 1985 possession of a Diploma in Law
became a prerequisite. When so held, a District Court has jurisdiction in proceedings for
the recovery of immovable property where the value of the subject matter does not
exceed one hundred million Shillings if the subject matter is capable of being estimated
in money value. A court of a Resident Magistrate may exercise jurisdiction and in a wide
range of other subjects over which jurisdiction is conferred on a court of a Resident
Magistrate. The Civil Procedure Code, 1966, governs the practice and procedure of these
courts.

These courts also have wide criminal jurisdiction in offences under the Penal Code and
other laws. Offences excluded from their jurisdiction are basically those attracting a
sentence of death or life imprisonment like murder, manslaughter and treason, with the
significant exception of arson and robbery with violence. In offences triable by the High
Court or the High Court sitting as an Economic Crimes Court, their jurisdiction is only to
conduct committal proceedings, consisting in reading the charge and the statements of
potential witnesses to the accused, and to commit the accused to the appropriate court for
trial. Additionally, the Minister responsible for legal affairs in consultation with the
Chief Justice may invest any Resident Magistrate with extended power to try any
category of offences ordinarily triable by the High Court. In that event the Resident
Magistrate has to be assisted by two or more assessors.

In sentencing, a District Court or court of a Resident Magistrate may impose a sentence

of imprisonment not exceeding five years except where the sentence is one governed by
the Minimum Sentences Act, 1972. They may also impose a fine not exceeding twenty
thousand Shillings and corporal punishment. It should be noted that the Criminal
Procedure Act, 1985 governs the practice and procedure in the exercise of original
criminal jurisdiction.

In addition to its original jurisdiction, a District Court exercises extensive control over the
business of Primary Courts. Appeals in all matters from a Primary Court lie to the District
Court, but not to the court of a Resident Magistrate. This is not unconnected with the
colonial system whereby appeals from local courts lay to administrative officers who
were presumed to be experts in native law and custom indeed, until well in the 1970s,
there existed a special grade of District Magistrate whose sole function was to hear and
determine civil appeals from Primary Courts. However, it is now presumed that resident
magistrates would hear Primary Courts appeals by virtue of their jurisdiction in District
Courts. Revisional jurisdiction over Primary Court proceedings is similarly exercisable
by District Court.
The Magistrates Courts Act, 1984 makes provision for the establishment of special traffic
courts. This is in response to the alarming rate of road accidents, and also seeks to ease
the congestion of cases in District Courts. A start has been made with six towns, Dar es
Salaam, Tanga, Arusha, Moshi, Mwanza and Dodoma.

THE HIGH COURT

First established by Article 17(1) of the Tanganyika Order-in-Council, 1920, the High
Court now derives its establishment from Article 108(1) of the 1977 Union Constitution
as the High Court of the United Republic. Perhaps this requires clarification.

There is a High Court for Zanzibar which according to Article. 115(2) of the Union
Constitution, enjoys concurrent jurisdiction with the High Court of the United Republic
in any law enacted by the Union Parliament which applies to both the Mainland and to
Zanzibar where jurisdiction is conferred on “a High Court.” But where jurisdiction is
specifically conferred on the High Court of the United Republic, the said Court has
exclusive jurisdiction in such law notwithstanding its application to both parts of the
United Republic. In short, the High Court of the United Republic is so called because
with certain Union laws, it has exclusive jurisdiction. However, the Court has no
territorial jurisdiction in Zanzibar unless the same is expressly conferred.

Administratively, the High Court is headed by the Jaji Kiongozi (Principal Judge), a
special assistant to the Chief Justice but without constitutionally defined powers. He
performs such functions as the Chief Justice may from time to time direct, and the Chief
Justice may resume those functions. The President appoints the Jaji Kiongozi and other
judges of the High Court after consultation with the Judicial Service Commission. The
office of a judge may not be abolished while there is a substantive holder thereof. A
judge may be removed from office only for inability to perform the functions of his office
or for misbehaviour, and may not be removed except on the recommendation of a
tribunal consisting of a Chairman and not less than two other members. The Chairman
and at least half of the other members must be persons who are judges of the High Court
or Court of Appeal in any Commonwealth country.

The court has unlimited civil and criminal jurisdiction. In civil proceedings it is not
required to sit with assessors except in admiralty causes where it may, if it thinks fit, and
must, if requested by either party to the suit, summon to its assistance two competent
assessors. In criminal matters the court must sit with not less than two assessors but it is
not bound to conform with their opinions. All criminal trials before the court are
preceded by a preliminary hearing at which the undisputed facts are settled after
committal proceedings before a subordinate court.

The High Court’s original jurisdiction in criminal matters was enormously added to by
the Economic and Organized Crime Control Act. 1984. The Act vests in the court sitting
as an Economic Crimes Court jurisdiction over offences, termed “economic offence,”
previously triable by subordinate courts. It is unnecessary to recount the history behind
the Act, but suffice it to say that its enactment was prompted by a disturbing escalation in
offences against the economy. Its purpose was therefore to make provision for the
control and eradication of offences of that class through the prescription of modified
investigation and trial procedures, now penal prohibitions, the provision of enhanced
sanctions and new remedies. Offences triable under the Act include leading organized
crime, currency trafficking, corruption, hoarding of commodities and money, cattle theft,
occasioning loss to the Government, local authority or public institution, using firearms
and offences against the protection of wildlife.

A judge of the High Court and two lay members constitute the Economic Crimes Court.
Its function is to inquire into economic offences and make such orders as it may think fit.
The Director of Public Prosecutions (DPP) or any State Attorney authorized by him may,
“by certificate under his hand, order” any offence triable by the Court to be tried by a
court of a resident magistrate. Such certificate would “constitute full authority for, and
confer jurisdiction upon” such court to try the case in question. The DPP’s power to
issue “orders” is, therefore, not merely a semantic curiosity. We suggest that it could
indicate the executive’s persisting anxiety to maintain a degree of control over the trial of
economic offences. The suggestion derives from the fact that the Act replaced the
Economic Sabotage (Special Provisions) Act, 1983 under which economic offences were
triable by a special tribunal, completely removed from the Judiciary’s control. Moreover,
all questions to be decided by the Economic Crimes Court, including the question of guilt
or innocence, are decided by agreement of the majority of the members, implying that the
lay members could override the presiding judge.

Punishment under the Act proceeds on the principle of deterrence. A person convicted of
an economic offence is liable to imprisonment for up to fifteen years. Where offence
proved is in the nature of an organized crime or one that is endangering the national
economy or public property, the court is enjoined to consider the imposition of the
maximum penalty. In any other economic offence a convicted person may be sentenced
with a sentence that is “suitably deterrent.” There is no option of a fine in economic
offences. However, there is a right of appeal to the Court of Appeal against conviction
and sentence.

Apart from its ordinary and extraordinary jurisdictions the High Court exercises general
powers of supervision over lower courts through appeal, revision, reference, review,
transfer and inspection. When hearing an appeal originating from a Primary Court in
which any rule of customary law is in issue or relevant, the Court may refer any question
of customary law to a panel of experts but, in reaching its decision, it would not be bound
to conform with their opinion. The Minister responsible for legal affairs may in relation
to any category of cases or any particular case invest any resident magistrate with the
appellate jurisdiction ordinarily exercisable by the High Court. In addition the Chief
Justice is required to appoint a Resident Magistrate-in-charge for each region to perform
supervisory, administrative and judicial functions I that capacity. He may for instance
revise proceedings in a Primary Court.
The High Court further exercise control over inferior tribunals through certiorari,
prohibition and mandamus. As guardian of individual liberty it may also issue directions
in the nature of habeas corpus.

THE COURT OF APPEAL

Article 117(1) of the Union Constitution of 1997 establishes the Court of Appeal of the
United Republic. It consists of the Chief Justice, who is also head of the Judiciary, and
not less than two Justices of Appeal. The Chief Justice and, after consultation with the
Chief Justice, the other judges of the court, are appointed by the President and enjoy the
same security of tenure as the judges of the High Court and removable I the like manner.

In the hearing of appeals the court is constituted by three judges and the decision of the
court is that of the majority. A single judge hears applications but a person dissatisfied
with the decision of the judge may refer the matter to the full court. The court’s
jurisdiction extends to the hearing and determination of appeals from the High Court and
from subordinate courts with extended jurisdiction. In this context, these courts include
the High Court of Zanzibar and courts subordinate thereto exercising extended
jurisdiction. For this reason the Court of Appeal is constitutionally a “Union Matter,” but
the Judiciary Department is not.

In civil proceedings, an appeal lies to the Court against every decree of the High Court in
the exercise of its original jurisdiction except where the decree is made with the consent
of the parties when leave of the High Court is required. An appeal lies against every
other decree with the leave of the High Court or of the court itself. No appeal lies against
an decision of the High Court in the exercise of its appellate jurisdiction in civil
proceedings originating from a Primary Court unless the High Court certifies that a point
of law is involved.

With regard to criminal trials held by the High Court or a subordinate court exercising
extended powers, an appeal lies to the court against conviction and sentence on any
ground. An appeal does not lie against a sentence of death or one fixed by law. In
criminal proceedings originating from a District Court or court of a Resident Magistrate
an appeal lies against the decision of the High Court on a matter of law only, and in
similar proceedings originating from a Primary Court an appeal lies if the High Court
certifies that a point of law is involved. An appeal also lies to the court against the
decision of the High Court in unsuccessful habeas corpus proceedings.

In dealing with any appeal, the Court of Appeal has the power, authority and jurisdiction
vested in the court form which the appeal is brought. It may confirm, reverse or vary the
decision of the High Court.

CONCLUSION
This chapter raises a number of issues in which further developments are either desirable
or foreseeable. It is necessary to conclude with a summary of the major ones. But before
doing so it is desirable to revisit one development of particular significance – the
separation of the executive and judicial functions.

This development at the magisterial level marked the inception of an independent

Judiciary at all levels. At the higher level the independence of the judges was already
guaranteed by the Constitution, which also provided for security of tenure. In contrast,
the colonial judges, the colonial judges had held office at the pleasure of the British
Crown. Independence of the judiciary does not, of course, mean that courts should
function in isolation or seclusion. The complexity and delicacy of judicial work require
that its execution must respond to the requirements of the society in which it operates.
But within that framework the judge should be independent of political or partisan forces
so that he can interpret and apply the law without fear or favour. A position has been
attained in Tanzania where not only has executive justice been eliminated but where also
the courts operate without external pressure or influence.

It is certainly unavoidable, in a young and developing society with a dismal past for its
example, that there should be problems in the march to maturity. Tanzania has not been
spared, and there is no pretence that it is done with its share of problems. Ironically, the
one persistent problem is criticism from politicians and officials that judges and
magistrates are, because of their independence, out of touch with the country’s
aspirations. But the mobility and flexibility of the Tanzania society ensures that judicial
officers are sufficiently aware of its realities.

The developments outlined in these pages have been achieved through legislative
measures. With every piece of legislation, new problems are risked and new lessons are
learnt. It is in this light that we single out the following for special observation.

To begin with, there is the problem of empanelling assessors for Primary Courts. In
order to make the people’s participation in the administration of justice actually felt, it is
necessary to make assessor selection a practical proposition. It is presently impractical
largely because its magnitude demands that it cannot be an annual exercise. The
empanelling authorities require mobilization, presently non-existent, and sufficient time
to make necessary preparations. We also submit that the majority principle is risky and
overplays the relevance of people’s participation. Democracy in the form of the
manoeuvrable vote is not a sound principle in deciding on the rights or liberty of the
individual.

Representation before Primary Courts is another area calling for re-examination. The
objective conditions that justified the colonial position do not seriously obtain today.
Unlike the local courts, Primary Courts have jurisdiction over all persons, some of whom
can afford the services of an advocate. Primary Courts also follow written rules of
evidence and procedure and exercise wider jurisdiction in civil and criminal matters. At
independence there was only one African advocate but the number has since grown and
continues to grow. Finally, the training, caliber and intellectual orientation of a Primary
Court Magistrate have nothing to compare with in the qualifications of the local court
holder. The time has, perhaps, come for advocates to be permitted to practice in Primary
Courts. Alternatively, where a party to any proceeding desires to engage an advocate the
case should be transferred to the District Court as of right.

The continued existence side by side of District and Resident Magistrates’ Courts appears
to have outlived its historical justification. It is a superfluous arrangement having regard
to the concurrent jurisdiction enjoyed by the two types of courts.

Finally, the withdrawal of “economic offences” to the High Court requires sober and
objective reappraisal. The measure has certainly not served but tended to defeat the ends
of justice considering the prevailing delays in the disposal of such cases. The entire
scheme is arguably fraught with double standards.
The foregoing notwithstanding, it is submitted that the administration of justice in
Tanzania today rests on more rational grounding and is not incomparable with the best
systems on the African continent.
COURT ADMINISTRATION AND MANAGEMENT OF CASES

INTRODUCTION

This chapter deals with two interrelated aspects of administration of justice, namely: the
administration of the courts and the management of cases. Sound and efficient
administration of justice depends not only on existence of effective and efficient
administration of justice depends not only on existence of effective and efficient
structures for court administration but also an efficient system for handling and managing
cases from the moment of their institution to disposition.

COURT ADMINISTRATION UP TO 1979

COURT ADMINISTRATION PRIOR TO INDEPENDENCE, 1961

We have noted in the preceding chapters that the colonial Judiciary was part and parcel of
the executive. There was no separate institution to administer the courts. It was the
public administrators who administered the subordinate courts. Although the Chief
Justice headed the High Court, he received orders and directives from the Governor
almost on a routine basis. The efficiency, effectiveness and the integrity of the judicial
system and the administration of justice as a whole depended on the political will and the
whims of the executive.

COURT ADMINISTRATION AFTER INDEPENDENCE-

BETWEEN 1961 AND 1979

On becoming independent in 1961, the Judicial became a separate entity from the
executive. For the first time the Judiciary, as an Institution, was embodied in the
Independence Constitution. The Republican Constitution of 1962, the Interim
Constitution of 1965 and the current Constitution of the United Republic of Tanzania,
1977, recognized the Judiciary as a separate arm of the Government, the other two arms
of the Government being the executive and the legislature.

Indeed, in the preambles to the aforesaid Constitutions, it is declared that Tanzanians

believe that in a democratic country there must exist an executive which is responsible to
a freely elected parliament constituted by representatives of the people, and where the
courts of law are free and impartial. The Judiciary, therefore, had its own
administration. It had its own personnel and manage cases filed in its several courts.

Headquartered at the High Court building in Dar es Salaam, the Judiciary was headed by
the Chief Justice. The chief executive officer was the Registrar of the High Court, who,
by virtue of his position, was also the accounting officer of the Department.

AFRICANISATION OF THE JUDICIARY

On gaining independence, Tanzania embarked upon massive and ambitious political,
economic and social transformations. The Government was keen to achieve social and
economic development within a short period. Law was used as one of the instruments for
achieving these developments. Accordingly, it was hoped that a judiciary manned by
nationals would be more sympathetic to the political, social and economic goals of the
nation. Soon after independence the government declared a policy of Africanisation of
the public service, including the Judiciary. Later this policy was replaced with a policy
of indigenization.

At independence, there were 7 judges of the High Court, none of whom was a national of
Tanzania. In 1964, the Government elevated two Tanzanians to the judgeship. In 1969,
one more was appointed. These appointments continued such that by 1971 the country
had 9 Tanzania judges out of 12 judges of the High Court. By the end of 1971, there
were a total of 25 Tanzanian High Court Judges. In 1971, the first Tanzanian Chief
Justice was appointed, namely the late Mr. Justice Augustino Saidi. The first female
Judge, The Hon. Lady Justice Julie Manning, was appointed in 1974.

As noted earlier, the administration of the Judiciary was centered at its headquarters in
Dar es Salaam. The Registrar of the High Court was the executive officer. The first
Tanzanian Registrar of the High Court, Mr. S. Tukunjoba, was appointed in 1965. By
1970, a total of 8 Registrars of the High Court had administered the Judiciary. All of
these Registrars, except Mr. Tukunjoba, become judges of the High Court.

COURT ADMINISTRATION AFTER 1979

ADMINISTRATION FROM 1979-1981

In 1977, the East African Community collapsed. With the breakdown of the Community,
its organs including the Court of Appeal for East Africa had to go along with it. Thus, it
became necessary that a final appellate court for Tanzania be established. Accordingly,
in 1979, the Court of Appeal of Tanzania (CAT) was established following the First
Constitutional amendment contained in Act No. 14 of 1979. The late President Mwalimu
J.K. Nyerere inaugurated the Court on 22nd October. The late Mr. Justice Francis L.
Nyalali became the first head of the Court by virtue of being the Chief Justice of
Tanzania.

The establishment of the Court Appeal of Tanzania changed completely the court
administration that existed since 1961. The overall administration of the Judiciary was
now vested in the Court of Appeal. The headquarters of the Judiciary, therefore, had to
be moved from the High Court to the Court of Appeal. Both the Court of Appeal and the
High Court, however, became housed in the same building. The Chief Justice became
the head of both the Court of Appeal and the Judiciary.

The Chief Executive of the Judiciary now became the Registrar of the Court of Appeal
instead of the Registrar of the High Court. The post of the Registrar of the Court of
Appeal was elevated to the status of a Principal Secretary of a Ministry. The then
Registrar of the High Court, Mr. C. G. Mtenga, became the first Registrar of the Court of
Appeal. The Registrar of the Court of Appeal is appointed and sworn in by the President
of the Republic of Tanzania.

The administration of the High Court and the subordinate courts thereto was, however,
vested in the office of Jaji Kiongozi (Principal Judge). As already pointed out, by virtue
of his position, Jaji Kiongozi is a special assistant to the Chief Justice. He performs such
functions as the Chief Justice may from time to time direct.

In the day-to-day business of the administration of the High Court and the courts
subordinate thereto, the Registrar of the High Court assists the Jaji Kiongozi. It is
important to note that the Jaji Kiongozi does not play the role of Deputy Chief Justice.

ADMINISTRATION OF THE COURT FROM 1981 TO DATE

From e1979 through 1981, the administration of the Judiciary was concentrated at the
headquarters in Dar es Salaam. The Chief Justice and the Registrar of the Court of
Appeal were basically making all the administrative decisions. In the course of time, the
system proved to be not only inefficient but also very cumbersome. At the same time, the
Judiciary, as an institution, had grown and expanded quite tremendously since 1961, to
the extent that it caused a lot of pressure and strain for the few administrative personnel at
the headquarters.

Realizing this predicament, in 1978, the Government commissioned the Ministry of

Manpower Development to undertake a consultancy with a view to making the
appropriate recommendations. In April 1980, the said Ministry finalized its management
consultancy and presented its report, contained in the Document Ref. No. EBC.29/72/09.
The Report recommended, among others, two main steps to be taken by the Judiciary,
namely:

1. To decentralize the functions of the Judiciary from the headquarters downwards. The
headquarters would deal with the main administrative and policy matters only.
2. The need for having an organizational chart and a job description for each judicial
officer. The need of having professional administrative cadres was also recommended.
On 4th October, 1980, the government accepted the consultancy report. The Judiciary
was directed to implement the recommendations. Accordingly, the Chief Justice
appointed an “Implementation Task Force” (ITF) to propose the means and the how of
implementing the recommendations. On 1st July, 1981, the ITF, led to the adoption of a
new system of court administration. That administrative set-up is still in use as of this
writing.

CURRENT ADMINISTRATIVE STRUCTURE OF THE JUDICIARY

The 1981 administrative set-up of the Judiciary decentralized some of its duties from the
headquarters downwards to zonal centres (District Registries) and further down to
Regional and District levels, and even further to the bottom of the ladder, that is, Primary
Court level. Court officials in charge of these units, that is, Judge-in-charge of a High
Court Zone, Magistrate-in-charge of a Region or District and Primary Court Magistrate-
in-charge of a station, are responsible for the administration of the Judiciary in their
respective areas.

The Judiciary’s organizational structure can be summarized as follows:

At the top of the ladder, there is the Chief Justice of Tanzania, the head of the Judiciary.
The Registrar of the Court of Appeal, as the Chief Executive and the Accounting Officer,
assists the Chief Justice. Three Directors and two officers in charge of two special units
assist the Registrar.

DIRECTORATES OF THE COURT OF APPEAL

The Court of Appeal has three directorates, namely, the Directorate of the District Courts
to the Court of Appeal, the Directorate of Administration and Personnel and Directorate
of Primary Courts.
The duties of the Director of District Courts to the Court of Appeal (DDC – CA) include
the following:

• Reform of laws concerned with the working and operation of the courts from the
District Court level up to Court of Appeal;
• The Director is responsible for processing appointments and promotions of Resident
and District Magistrates;
• The Director is responsible for all disciplinary matters concerning Resident and District
Magistrates;
• The Director deals with public complaints against Resident and District Magistrate;
• The Director compiles annual confidential reports of the Judiciary staff from District
level upwards; and
• The Director compiles courts returns from District Courts and upwards.

The Director of Administration and Personnel (DAP), discharges the following duties:

• The Director is responsible for the preparation of the department’s budgetary estimates;
• The Director is responsible for the day to day administration of the Department and
personnel development;
• The Director is responsible for the matters relating to schemes of service for various
cadres of staff; and
• The Director compiles and processes the annual confidential reports of all staff,
excluding Judges and Primary Court Magistrates.

The Duties of the Director of Primary Courts (DPC) include the following:

• The Director advises the Chief Justice and the Registrar, Court of Appeal on matters
relating to the policy and administration of Primary Courts;
• The Director is responsible for reform of the laws applicable to Primary Courts;
• The Director is responsible for the training of Primary Court Magistrates in liaison with
the Training Unit of the Department;
• The Director compiles and processes the annual confidential reports of Primary Court
Magistrates; and
• The Director is responsible for processing appointments and promotions of Primary
Court Magistrates.

Apart from the above Directorates, there are two special units, which also assist the
Registrar of the Court of Appeal. These are:

• The Internal Audit Unit and

• The Training, Research and Statistics Unit.

The Internal Audit Unit (IAU) is responsible for the internal control system and the
proper management of the financial resources of the Department. The Chief Internal
Auditor heads the unit. The Training, Research and Statistics Unit (TRS) coordinates the
activities relating to the training of judges, magistrates and the support staff. An officer
known as Chief Training, Research and Statistics Officer (CTRSO) heads the Unit.

ADMINISTRATION OF THE HIGH COURT AND THE

SUBORDINATE COURTS

The High Court is divided into zones, which are administered by Judges-in-charge. A
District Registrar assists the Judge-in-charge. Presently there are 11 High Court zones.
Below the High Court, there are the Resident and District Magistrates-in-charge of
regions and districts, respectively. A Primary Court Magistrate-in-charge mans the
lowest level of the Judiciary.

PROPOSED REVIEW OF THE PRESENT ADMINISTRATIVE SET-UP

One of the issues being considered by the Judiciary at present is whether the present
administrative set-up facilitates smooth and efficient administration of justice. There is
also the related issue of the extent to which judicial officers are engrossed in
administrative chores.

The Government, in recognition of the fact that an effective Judiciary is necessary for the
social, political and economic development of the country, appointed a Legal Task Force
(LTF) in 1993, under the chairmanship of Mr. Mark D. Bomani, to look into the
problems facing the legal sector. The LTF was and Legal Management Upgrading
Project (FILMUP). The LTF submitted its report to the Government in January, 1996.
In its report, the LTF established that the current set-up contained some organizational
weaknesses which adversely affect efficient administration of courts. These weaknesses
include the following:

• The system lacks an efficient chain of command and flow of information;

• The administrative/management work of the court is done by judicial officers, which
consumes a lot of their time that could be devoted to judicial duties;
• The present system leads to insufficient supervision of lower courts; and
• There is no department to monitor and coordinate planning and management of
premises.

The Judiciary has embarked upon the implementation of some of these recommendations
The LTF was of the opinion that there is an urgent need to review the present setup, so as
to achieve the required efficiency and effectiveness. Accordingly, the LTF made the
following recommendations:

(1.) The office of Deputy Chief Justice be established to replace the office of Principal
Judge.
(2.) The proposed Deputy Chief Justice should be the Head of the High Court.
(3.) The proposed Deputy Chief Justice should be a member of the Court of Appeal.
(4.) A Directorate of Training, Research and Statistics (DTRS) be established to take over
the duties of training, research and statistical compilation.
(5.) The following new units be established:
a. A Planning and Estates’ Management Unit.
b. A Public Relations and Social Welfare Unit
(6) The Directorates (especially, the Directorate of Administration and Personnel (DAP)
and the proposed Directorate of Training, be managed by appropriately qualified
personnel.
(7) More administrative powers e.g. powers to transfer District Magistrates within their
zones be delegated to the Judge-in-charge of zones.
(8) The posts of Deputy Registrars and District registrars be made substantive rather than
mere duty posts.
(9) The judicial authority of Registrars be enhanced in manner akin to that of “Masters”
in United Kingdom and other Commonwealth countries.
(10) District Registrar be vested with adequate disciplinary authority over support staff to
ensure greater efficiency.
(11) There is need to introduce a new cadre of staff devoted to court administration to
relieve judicial officers of this extra workload. Accordingly, a cadre of specially trained
“Court Administrators” be established.
(12) There is need to make thorough study and review of the present policies and
management system that envisage recruitment of candidates with requisite skills,
deployment, training and performance evaluation.

MANAGEMENT AND DISPOSITION OF CASES

Litigation in Tanzania is beset with excessive delays in the disposition of cases.

Although not a new phenomenon or unique to Tanzania, delays undoubtedly pose a
serious threat to the administration of justice. This shortcoming is a cause of concern to
the Judiciary, members of the legal profession and the public at large. Several attempts
have been made and ways have been devised to address the problem. In this regard, the
Judiciary has drawn advice from the experiences of other jurisdictions, as we shall see
below.

CASE FLOW MANAGEMENT COMMITTEES

Case Flow Management Committees (CFMC) were introduced into the litigation process
by the Chief Justice of Tanzania vide Chief Justice’s Circular No. 2 of 1987. the object
of the establishment of these committees was, initially, to curb delays in the disposition
of criminal cases and to alleviate congestions of remandees and convicts in prisons.
These committees bring together representatives from the Judiciary, Police Force, Prisons
and the Attorney General’s Chambers.

In 1993, the Judiciary established a Departmental Committee, Chaired by Hon. Mr.

Justice Mroso (the Mroso Committee), whose task was to consider a programme for
curbing delays in litigation disposal. The committee endorsed the institution of cases
flow management committees. The report of the Mroso Committee also commended
other measures initiated by the Chief Justice to facilitate the timely disposal of cases.

Commenting on the endeavours of the Mroso Committee, the Legal Task Force observed
that the committees had made some impact in that there was improvement in the speed
with which criminal cases were handled as a result of the committees’ functions. The
LTF was, however, skeptical about the powers of the committees which did not extend to
enforcement of cooperation. It was noted that all what these committees can do is “to
submit a report to the Chief Justice who in turn, may request/advice the appropriate
authority to take necessary action. In view of this, the LTF recommended that the
Criminal Procedure Act, 1985, be amended in order to establish the committee formally
and to require the Police and Prisons authorities to send senior officers to represent them
in the committees.

SHIFT SYSTEM

In the same year that the Case Flow Management Committees were established, the
Judiciary also introduced the Court Shift vide Chief Justice’s Circular No. 3 of 1987.
This was necessitated by lack of adequate office space (chambers) fir magistrates and
judges. In many courts, judicial officers are subjected to sharing chambers, certainly a
very frustrating situation. It also contributes a lot to delays in hearing and disposal of
cases. At any rate, the shift system has been said not to have born the fruits it was
expected to probably due to operational technicalities.

INDIVIDUAL CALENDAR SYSTEM

Prior to 1993, the courts operated under an “open calendar” system in the sense that
listing of cases to a particular magistrate or a judge was “open”. A case became the
responsibility of a particular magistrate or a judge only when it became a “partly heard
case”. Following the introduction and subsequent findings of quarterly stock taking of
pending cases and drawing from the advice of visiting American Judges from the District
Court of Columbia, the Chief Justice introduced the individual calendar system vide the
Chief Justice’s Circular No. 3 of 1994.

When introducing the Individual Calendar system, the Chief Justice argued that under the
general or open calendar, a case was normally fixed for hearing on particular dates, but
without assigning a specific magistrate or judge to hear it. That under the system the
court found itself with a heavy case load fixed for hearing, but without the judicial
manpower to hear all the cases. As a result, many of the cases fixed for hearing had to be
adjourned, regardless of the presence of witnesses and the parties. The practice gave the
court not only a bad name but also contributed a lot to delays in disposal of cases.

The Individual Calendar system enables an individual magistrate or judge to monitor, and
to supervise the events involved in the movement of cases through a court system from
the point of initiation to disposition. It is believed that the system has made cases to be
speedily tried and finalized. It has also helped to curb the problem of case files being
misplaced or lost.

ALTERNATIVE DISPUTE RESOLUTION MECHANISMS (ADR)

Another lesson learnt from the judges from the Superior Court in Washington D.C., was
an alternative system of resolving disputes commonly known as Alternative dispute
Resolution (ADR). The Mrosso Committee, formed to propose reforms in the court’s
handling of civil cases, supported in full the adoption of ADR, partly on the grounds that
the principle of amicable settlement resonated strongly with traditional methods of
dispute resolution discussed earlier in chapter I.

There was an exchange of visits, whereby some Tanzanian judges, magistrates and court
clerks visited the Washington D.C. Superior Court to study the system. Likewise, certain
judges and other experts on mediation, conciliation reconciliation and arbitration visited
Tanzania to train judges and magistrates on aspects of ADR.

In 1994, the Judiciary officially introduced ADR in three pilot areas, namely, Arusha,
Dar es Salaam and Mwanza High Court centres. The system has now been extended to
cover all court in Tanzania Mainland, except Primary Courts and the Court of Appeal.
Recognizing the importance of ADR, the Constitution of the United Republic of
Tanzania, 1977 was amended to confer court constitutional mandate to promote
reconciliation between disputing parties.

BENCH-BAR MONITORING COMMITTEES FOR CIVIL CASES

On 24th November, 1999, the Chief Justice issued Circular No. 7 of 1999, which
established the Bench-Bar Monitoring Committees (BBMC) to deal with delays in the
disposal of civil cases. The circular was introduced following the LTFs observations that
the case flow management committees have been reasonably effective in dealing with the
causes of delays which are within the control of the Judiciary, the DPP’s office or the
Bar. The circular stated that experience in the conduct of criminal cases supports the
desirability for a similar or better procedure for dealing with delays in civil cases. The
Bench-Bar Management Committees are directed to meet once a month to discuss civil
cases which have not been disposed of within the period first or subsequently scheduled
under rule 3 of Order VIIIA of the Civil Procedure Code, and advise on how best to
expeditiously finalize such cases.

SPECIALISATION OF COURT FUNCTIONS

THE NEED FOR SPECIALIZATION

The Judiciary has recently embarked upon a programme on specialization of some of its
functions. The general purpose of specialization was to speed up disposal of cases. It
also, obviously, dawned upon the Judiciary that the transition from a command economy
to a free market system in a globalizing world poses some real challenges to the Judiciary
to devise some means and a system to grapple with complex adjudication in areas such as
company law, commercial law, international business transactions, land transactions,
international financial transactions, intellectual property and other forms of litigation
associated with such transactions. All this calls for enhanced expertise and specialization.

In order to attract and sustain business investments, the private sector, both local and
foreign, requires to be guaranteed of efficient, effective and timely adjudication of
commercial disputes that might ensue. The would-be investors need to be assured of
business certainty which would enable them to have focused planning capable of
implementation. Again this calls for a high degree of judicial efficiency and
effectiveness, with clear laws and unbiased and consistent decisions, in order to attract
and sustain confidence from the business community. Appreciative of this, the
Government has embarked upon a programme to establish specialized courts within the
Judiciary. To date, two such specialized courts have been established as divisions of the
High court, namely, the Commercial and the Land Divisions of the High Court.

THE COMMERCIAL DIVISION OF THE HIGH COURT

(THE COMMERCIAL COURT)

The Commercial Division of the High Court was established under Rule 5 of the High
Court Registries Rules, 1984 as amended. The Rule provides:

“There shall be a Commercial Division of the High Court within the Registry at Dar es
Salaam and at any other registry or sub-registry as may be determined by the Chief
Justice, in which proceedings concerning commercial cases may be instituted.”

The court started functioning on 15th September, 1999. Currently, the court is manned
by three Judges, the Registrar and a Deputy, with 55 support staff. At its inception, the
court operated from rented premises on Plot No. 231, Maweni Street, Upanga, Dar es
Salaam. However, the court has, since 27th January, 2001 moved to its current premises
along Kivukoni Front, Dar es Salaam, a structure formerly occupied by Kivukoni resident
Magistrate’s Court. The premises were extensively refurbished with the kind assistance
from the Government of Denmark through the country’s International Development
Agency, DANIDA.

The Commercial Court adjudicates specialized civil matters, viz., commercial disputes.
It operates under the general laws governing the High Court matters except for a few
procedural differences which were put in place to cater for the specific needs of the
commercial community.

There are several procedural differences. First, cases that can be adjudicated upon by this
court are specified. A commercial case is defined as “a civil case involving a matter
considered to be of commercial significance, including but not limited to:

• The formation of a business or commercial organization;

• The governance of a business or commercial organization;
• The contractual relationship of a business or commercial organization with other bodies
or persons outside it;
• The liabilities of commercial or business organization or its officials arising out of its
commercial or business activities;
• The liabilities of a commercial or business person arising out of that person commercial
or business activities;
• The restructuring or payment of commercial debts by or to business or commercial
organization or person;
• The winding up or bankruptcy of a commercial or business organization or person;
• The enforcement of commercial arbitration award;
• The enforcement of awards of a regional court or tribunal of competent jurisdiction
made in accordance with a Treaty or Mutual Assistance arrangement of which the United
Republic is a signatory and which forms part of the law of the United Republic;
• Admiralty proceedings; and
• Arbitration proceedings.

Secondly, trial of all cases, unless decided otherwise by parties, should be with aid of
assessors. This feature is unique to this Division of the High Court because it applies to
all civil cases. In the General Division in the High Court, trial with assessors is only
applicable in a few specified matters such as trials for defamation under the Newspapers
Act, 1976.

So far the court has twenty three assessors on its roll. The list is composed of competent,
knowledgeable and educated people. Indeed, they are experts in their respective fields.
There are Masters’ and Ph. D degree holders, accountants, economists and bankers of
long-standing and seasoned businessmen. This high caliber group of experts assists the
court especially on technical issues. That apart, their participation enhances confidence
of the stakeholders in the court. Unfortunately, however, their participation is not
compulsory as it depends on the election of parties. Also their opinions are not binding
upon the judge but the judge should give reasons for disagreeing with their opinion.
Thirdly, ADR mechanisms are excluded where other recognized avenues to settle the
mater amicably have been tried and failed. Generally, mediation under the ADR process
(whose applicability in our jurisdiction started in 1994) is compulsory for any civil case
which is ready for trial. For this court, however, parties need not embark on this process
if they attempted and failed to settle through any other mode.

The fourth feature is that decisions of the court on interlocutory or preliminary matters
are not appealable. Until late 2002 , this was a feature obtaining only for this court.
Staring from December 2003, however an amendments to the Civil Procedure Code was
made and it now cuts across the whole High Court, This legislative measure will assist in
expediting disposal of cases. It creates an impregnable barrier to otherwise shrewd parties
advocates who used to take shield behind the appellate provisions to stall proceedings.

Fifthly, a special body called “Commercial Court Users ’Committee” is established to

advise on matters of court practice and select fit persons to be assessors. The law
establishing the committee gives the composition and ambit of its duties thus:

5B. There shall be a Commercial Court User’s Committee consisting of the Judges of the
Commercial Division of the High Court, two advocates nominated by the Tanganyika
Law Society, two State Attorneys nominated by the Attorney-General and five persons
nominated by lawfully established organizations representing the commercial
community.

5C. It shall be the responsibility of the Commercial Court Users; Committee to advise the
Commercial Division of the High Court on matters of court practice and to submit a list
of persons knowledgeable in commercial matters to serve as assessors.”

The committee has been of very great assistance to the functioning of the court by giving
advice and recommendations. The committee has been meeting after every three months
but it can, in a deserving situation, hold ad hoc meetings. It enables the court to know the
feelings of the stakeholders in relation to its functions and vice versa.

Sixthly, filing fees in the Commercial Division have no ceiling. Whereas in the High
Court general registry the maximum is T.Shs. 120,000 (approximately 120 US Dollars),
in this court, for every T.Shs.12 forming the amount claimed, a party has to pay forty
cents as fee. At first, this state of affairs generated heat, especially among the advocates,
but with time the heat subsided. Arguments against the fee structure included a feeling
that justice should be cheap and affordable to all and that this was excluding a substantial
stratum of the population. On the other hand, proponents strongly insisted that
commercial transactions are not for poor people and that the business community should
be made to pay for the good and speedy services which is being availed to them.

Finally, in order to make it a properly resourced court, the Commercial Division operates
under what in government budgetary arrangements is called “Retention Scheme”. This is
a system whereby Ministries or Government Departments are allowed to keep a
percentage of the revenue collected in any particular financial year. This is an
advantageous procedure (where revenues collections are substantial) as budgetary
arrangements are not curtailed unlike where simple budgetary allocations are determined
by the Treasury without regard to actual needs.

Undoubtedly, the Commercial Court has achieved one of the Government’s objectives of
providing a positive climate for investment and economic development. In addition, it
has instilled some confidence within the business community in the country’s judicial
ability to resolve their commercial disputes expeditiously. Indeed, it has been reported
that since its establishment, the court has demonstrated tremendous ability to determine
cases without undue delay.

THE LAND DIVISION OF THE HIGH COURT (THE LAND COURT)

One of the fundamental principles of the National Land Policy, which has been
incorporated in both the Land Act 1999 and the Village Land Act, 1999, is to “establish
an independent, expeditious and just system for the adjudication of land disputes which
will hear and determine cases without undue delay. In order to put this principle into
effect, a new dispute settlement machinery for land cases was introduced.

In May, 2001, the Chief Justice established the Land Division of the High Court, vide G.
N. No. 63 of 2001. The Land Division of the High Court was made one of the courts
vested with exclusive jurisdiction to hear and determine all manner of disputes, actions
and proceedings concerning land. Its decisions are appealable to the Court of the Court
of Appeal of Tanzania. Below the Land Division, proceedings can be commenced,
subject to certain procedural requirements, at the District Land and Housing Tribunal or,
in case of rural areas, at Ward Tribunals or Village Councils.

On 1st October, 2003, the Land Dispute Courts’ Act, No. of 2002, came into force. On
this date, the Land Division of the High Court became operational and it was thus open to
the public. The court conducts its business in rented premises, which previously housed
the Commercial Court, i.e. Plot No. 231 Maweni Street Upanga, Dar es Salaam.

SPECIAL TRIBUNALS/COMMISSIONS

Over the years, in its quest to achieve a better and an efficient system of administration of
justice, the government has established a number of special tribunals and commissions to
cater for special or particular kind of cases and also at times to deal with certain
situations. This section discusses some of these tribunals and commissions.

THE NATIONAL ECONOMIC SABOTAGE TRIBUNAL

In 1983, following the enactment of the Economic Sabotage (Special Provisions) Act, a
special tribunal was established with exclusive jurisdiction to hear and determine all
cases involving “economic sabotage.” The tribunal was known as the National Economic
Sabotage Tribunal. This tribunal was not part of the Judiciary and appeals against
severity of sentences imposed by it lay only to the President of the United Republic of
Tanzania, whose decision was final and conclusive and not subject to review by any
court. The constitutionality of this system was not tested in court. There is no doubt,
however, that from a separation of powers point of view, it was a retrogressive system.

The Economic Sabotage (Special Provisions) Act, 1983 was repealed in 1984, it was
replaced by the Economic and Organized Crime Control Act, 1984. By this Act, the
jurisdiction to hear and determine cases involving “economic offences” established by
the Act was vested in the High Court sitting as an Economic Crimes Court. When sitting
as such, the court consists of a High Court judge and two assessors.

The continued existence of the Economic Crimes Court has been bitterly criticized. The
LTF Report, for instance, observed that the existence of the court was no longer justified
in principle or any other ground. It recommended that the court be abolished and that the
offences covered by the Act be prosecuted like any other crimes; and the choice of the
forum should be determined by the seriousness of the crime alleged.

THE REGIONAL HOUSING TRIBUNALS AND THE

HOUSING APPEALS TRIBUNAL

These tribunals were created under the Rent Restriction Act, 1984, to deal with matters
incidental to or connected with the relationship of landlord and tenant. Appeals from the
Regional Housing Tribunals lie to the Housing Appeals Tribunal, with further appeal to
the High Court. These tribunals have now been disestablished following the coming into
effect of the Land Disputes Courts’ Act, No. 2 of 2002. In their place a special
mechanism has been created to deal with disputes concerning land and housing.

THE ELECTION PETITIONS COMMISSION

In the regime of elections, in 1990, a commission to deal with elections complaints was
established by virtue of Act No. 13 of 1990. the Commission replaced the High Court in
hearing of all election petitions. The decision of the Commission was final and not
subject to review by any court. The Commission, however, lasted only for a short time.
In 1992, the Elections Act of 1985 was amended and the jurisdiction to hear and
determine election petitions was restored to the High Court.

THE INDUSTRIAL COURT OF TANZANIA

In the case of labour disputes and relations, the Industrial Court of Tanzania was
established in 1990 in the place of the Permanent Labour Tribunal. The jurisdiction of
the Industrial Court includes the following:

• To hear and determine any trade dispute referred to it under the provisions of the
Industrial Court of Tanzania Act;
• To register negotiated agreements and voluntary agreements and to hear and determine
matters related to the registration of such agreements.
The Chairman of the court is appointed by the President from among the judges of the
High Court upon the advice by the Minister responsible for labour matters and after
consultation with the Chief Justice.

Currently, it has been proposed that the Industrial Court be converted into a specialized
division of the High Court vested with jurisdiction to hear and determine all trade
disputes and admiralty matters.

THE JUVENILE COURT

The Juvenile Court is a court established under the Children and Young Persons
Ordinance, Cap. 13. The common practice existing in the administration of criminal
justice is that children and young person are tried in the same courthouses as adult
offenders, although they are tried separately. The need for having a separate building to
suit the needs of children charged in courts was recognized. There was a need to crème a
friendly environment for young suspects where only guardians or parents would
accompany them in court.

The Judiciary opened a juvenile courthouse at Kisutu, Dar es Salaam on 25th July, 1997.
The court serves as a model for Juvenile Courts countrywide. It has been recognized that
there is a need to establish similar courts in the remaining districts of Tanzania.

TAX APPEALS BOARD AND TAX APPEALS TRIBUNAL

In the field of management of Government revenue, the Tax Revenue Appeals Board was
established in 2000 under the provisions of Act No. 15 of 2000. The Board is vested with
exclusive jurisdiction to deal with proceedings of civil nature in respect of disputes
arising from revenue laws administered by the Tanzania Revenue Authority (TRA). The
Tax Revenue Appeals Tribunal was also established with exclusive jurisdiction in all
appeals arising from the decisions of the Tax Appeals Board. Appeals from the Tax
Revenue Appeals Tribunal lie to the Court of Appeal.

The President of the United Republic appoints the Chairman of the Tribunal after
consultation with the Chief Justice. A person may only be appointed Chairman of the
Tribunal if he/she is a High Court judge.

TRAINING

Training is a very important component for any institution to perform efficiently and
effectively. In the midst of globalization, and the advent of information and
communications technology, the Judiciary has realized the need of making use of
refresher and induction course for its employees. Within the limited funding available,
Judiciary staff have attended different courses both within the county and abroad. There
has also been exchange of experiences through seminars and conferences between
judicial officers and support staff of different jurisdictions within the East African sub-
region and internationally.

ESTABLISHMENT OF THE INSTITUTE OF JUDICIAL ADMINISTRATION

One major development is the recent establishment of the Institute of Judicial

Administration (IJA) at Lushoto. The Institute was officially opened on 22nd October,
2000. The Hon. the Chief Justice B. A. Samatta officially launched IJA’s training
activities on 6th December 2000 and the President of Tanzania, His Excellency Benjamin
Mkapa, inaugurated the Institute on 3rd March, 2001.

The Institute’s first graduates came out on 7th December, 2001 with twelve students
obtaining the Certificate in Law award. The second batch of graduates-thirty Diplomas
in Law graduates and seventeen graduates with Certificate in Law-came out on 8th
November, 2002.

The Institute was established primarily with the objective of building capacity of staff
within the Judiciary as well as carrying out research and offering legal and other
consultancy services to the public. It will also serve as a resource centre for the Judiciary
Department.

ENHANCING JUDICIAL INTEGRITY

JUDICIAL ETHICS COMMITTEES

A judiciary comprising of judicial officers of high moral and ethical standards commands
confidence from the public. Several attempts have been made to enhance the integrity of
the Judiciary over the years.

Bearing in mind the kind of work assigned to judges and magistrates, the Code of
Conduct for Judicial Officers of Tanzania was initiated in 1984 following
recommendations made at a meeting for Judges and Resident Magistrates held in
Arusha. The Code became affective in March 1985.

In order to enhance the integrity of the Judiciary, in April 1997 the Chief Justice issued
Circular No. 2 of 1997 upon the recommendations made at a Judges and Magistrates’
seminar held in Dar es Salaam between 16th and 17th December, 1996. This circular
directed the establishment of the National and Zonal Judicial Ethics Committees. The
Committees were charged with the responsibility of promoting and ensuring compliance
with the Code of Conduct for Judicial Officers within their areas. The Committees
became operational with effect from July 1997 but so far they have not been able to
function. The Committee’s modus operandi is yet to be charted out, and also the
demarcation between their functions and that of Judicial Service Boards needs to be set
out.
Judicial officers often attend seminars and conferences on enhancing judicial integrity
and on Codes of Ethics.

LAW DAY

Introduced in 1996, Law Day is the day on which the Judiciary marks the opening of its
functions every year. It is usually held on the first working day of February, soon after
court vacations. The objective of the Law Day is to mark the official opening of court
business as well as conveying a special message to the public every year. The Chief
Justice gives a speech at the Headquarters. In the zones, regions and districts the Judge-
in-charge, Resident Magistrate-in-charge and District Magistrate-in-charge respectively
give speeches. Members of the clergy also say special prayers for wisdom and justice to
prevail in the administration of justice.

The ceremony has created awareness on the part of the public regarding the functions and
role of the Judiciary in the administration of justice. The theme for this year’s (2004’s)
Law Day, as directed by the Hon. Chief Justice, was “The Right to Safe and Clean
Environment; the Right to Demand for, and the Responsibility of the Court to Protect It.”
This augurs well with Tamko la Morogoro (the Morogoro Resolution) passed in 1993 at
Morogoro at a Master Workers’ Council at the initiation, before that organ, of the present
Chief Justice, Hon. B.A. Samatta, who was at that time the Principal Judge. The
Resolution required that the environment of every courthouse be improved and
maintained by planting trees and other plants and keeping it clean. Since he became
Chief Justice in 2000, Hon. Chief Justice B.A. Samatta has committed himself to seeing
to it that courthouses are in a condition that instills in a citizen a feeling that he/she is in a
proper place where justice will be done to him/her. In the past four years, the face of the
Judiciary has tremendously changed following enormous improvement of surroundings
of many courthouses in the country.

STRATEGIC PLANNING AND MOVING WITH THE PRESENT TIMES

In the recent years the need for proper direction and focus for the attainment of the
Judiciary’s goals and objectives has been recognized. Consequently a strategic plan has
been made with the assistance of development partners. The Medium Strategic Plan for
the Judiciary covers the period 2001-2006. The vision and mission of the Judiciary guide
it. The vision is to dispense justice with equity and compassion according to the laws of
Tanzania. The Judiciary’s mission is to carry out the administration of justice to the
general public in an effective and efficient way.

An analysis of stakeholders’ expectations led to the development of key performance

areas – 9 Key Result Areas (KRA). These are:

1. Fair and timely disposition of cases.

2. Easy and equitable access to judicial services and administration.
3. Competent and independent Judiciary (non-partisan).
4. Timely availability of decisions and orders of the court.
5. Timely execution of court orders and decrees.
6. Availability of law reports.
7. Capacity of the Judiciary to effectively carry out its functions.
8. Management information system.
9. Financial, resource management and accountability.

The above areas are those upon which the Judiciary is concentrating in the medium term
in its quest to improve administration of justice. Furthermore, following the adoption of
the above strategic plan, the Judiciary has drawn and published the “Client Service
Charter.” The charter is a customer-centred document stipulating the rights of
individuals in respect of provision of judicial services. This development promises
improvement in the delivery of judicial services.

CONCLUSION

Since the establishment of the Court of Appeal in 1979 a lot of ground has been covered
in improving performance of the Judiciary as a whole and maintaining public confidence
in the Department. This, as discussed above, has included taking a number of steps
aimed at improving the administration of courts and management of cases, which are two
important corollaries of the administration of justice. Yet, while a lot remains to be done,
there is a strong promise that the Judiciary will live up to its main objective of delivery of
judicial services and, for that reason, galvanize its relevance to the lives of the people of
Tanzania.

It is gratifying that the Judiciary still commands public confidence to the extent that
judges, whether sitting or retired, usually get appointed to head most high level
commissions-whether permanent or ad hoc – such as the Presidential Commission on
Single-Party or Multiparty Democracy in Tanzania which was headed by the late Chief
Justice Francis L. Nyalali. Other high level commissions headed by judges include the
Commission for Human Rights and Good Governance, the National Electoral
Commission and the Law Reform Commission. However, the question whether it is
proper for judicial officers to participate in affairs of commissions or committees set up
by the Government to deal with non-judicial issues is, interesting though it is, one which
cannot be answered here.