TABLE OF CONTENT

INTRODUCTION

The scope of the questions

The meaning of the keysterms

THE MAIN BODY

With aid of relevant authority explain historically development of family law in Tanzania and source of
family law in Tanzania

The following are three periods of family law in Tanzania

( i) Family law before colonialism

(ii) Family law during colonialism

(iii) Family law after independence

The following are the sources of family law in Tanzania

(i) The Constitution of United Republic of Tanzania of 1977

(ii) Principal legislation

(iii) Case law or precedent

(iv) Subsidiary legislation

(v) Customary law

CONCLUSION

REFERENCE
 REFERENCE

The Constitution of United Republic of Tanzania of 1977 [ CAP 2 As amended]

Tanganyika Order Council [1920]

BOOKS

A. Garner ,(1999), Black law Dictionary , American ,page 637, 8 Edition.

E. Martin (2006), Oxford Dictionary of law, Dar es salaam, page 218, 6 Edition.

N.Lowe, and G.Douglas (198), Bromley's Family law, Australia, 9 Edition ,ch.1,page 3

Holcombe wives and property (1983), stetson a woman's Issue:

Philips ,A (1961), Survey of Africa marriage and Family life,an introductory essay

STATUTES

The Law of Marriage Act [ CAP 29 R:E 2019]

The Law of Child Act [ CAP 13 R:E 2022]

The Judicature and Application of Law Act [ CAP 358 R:E 2019]

CASES

Bi hawa Mohamed vs Ally seif [ 1983] TLR No 62.

Hyde Vs Hyde [ 1886] LRTPL. IDD 130.

R .V.R [1992] AC 559

 1.0 INTRODUCTION

1.1 The scope of the questions

The questions required to explain historically development of family law in Tanzania and
source of family law in Tanzania ,so proves this statement by using different example, cases and
book.

1.2 The meaning of the keys terms

Family, means is the primarly unit of human organisation. According to Dictionary of

law , state that; Is the group of people connected by a close relationship 1, also for legal
purposes a family is usually limited to relationship by blood, marriage or adoption2. Or
According to black law dictionary, State that; Is the group consisting of parents and their
children3,Also family originated from Latin word familial and there are three types of family
which as extended family, nuclear family and single parent family.

Law, According to Encyclopedia Britannica says that ; Is the comprises of all principals,
rules and enactments that are applied in courts and enforced by the the state. So therefore ,
inorder law to be obeyed by individual or people within the country, the government decided
to enacted the sanctions to those who violation of law or go against the law, they will be
punished according to the kind of offences committed. For example, Death sentence , life
imprisonment and payment of compensation4.

Family law, means is the branch of law that deal or regulate matter pattern to family.
or According to Black law dictionary, say that,Is the body of law deal with marriage, divorce,
children custody and support , child abuse and neglect, paternity, juvenile delinquency and

1
E. Martin (2006), Oxford Dictionary of law, Dar es salaam, page 218, 6 Edition.

2
Ibid

3
A. Garner ,(1999), Black law Dictionary , American ,page 637, 8 Edition.

4
[CAP 16 R:E 2022]
domestic relations issues5. Also family law provide a socially arrangements, and relationship
among the members of family, and the members can be wife , husband, children and other
relatives like Uncle, grandmother, Aunt , and also family law cover the matter of marriage,
custody of children, and right duties of children.

Historically development of family law in Tanzania, so therefore, Development,

means as gradually change from lower stage to higher stage. Also the historically development
of family law in Tanzania developed during the nineteenth (19) century and especially the
twentieth (20) century certain major trends become apparent 6. The first of those was
equalisation in the position of men and women7, and Also abolition of the position of the
husband as possessor of his wife was addressed in the nineteenth century as major element in
the move to women's emancipation which culminated in their obtaining the franchise 8.

Marriage , According to section 9(1) of the Law of Marriage Act 9, Provide that; Is the
voluntary union of a man and a woman , intended to last for their joint life. So therefore there
are four types of marriage which as, monogamous marriage, polygamous marriage, polyandry
marriage, potential polygamous. And also there are element of marriage which as, marriage
must voluntary union , marriage must be intended last for life.

2.0 THE MAIN BODY.

This party the questions required to explain two things, first thing is historically development of
family law in Tanzania and second is Source of family law in Tanzania, so prove this statement
with relevant legal authority , book and examples

The following are historically development of family law in Tanzania as follows

2.1 Historically development of family law during pre colonial period

5
A. Garner , (199), Black law Dictionary, American, page 63, 8 Edition.

6
N.Lowe, and G.Douglas (198), Bromley's Family law, Australia, 9 Edition ,ch.1,page 3

7
Ibid

8
Holcombe wives and property (1983), stetson a woman's Issue:

9
[CAP 29 R:E 2019]
This was periods before comes of colonialism in Tanzania nzania, so in this period family law
in Tanzania was primary governed by Customary law and practice of specific to various ethnics
group and across the region and Customary law, regulate matter such as marriage, inheritance,
divorce and custody of child.Issues of marriage, in this pre colonial society, marriage was
regarded as transaction of given to rise to reciprocal rights and obligation between two groups
of kinsmen and binding those groups together in a relationship which remains effective beyond
the life time of the original individual spouses10.In this period marriage was characterized by the
parents consent as opposed to the consent by individual parties contracting marriage, so
therefore, during this period when men or women wanted to got the marry they were not
allowed to get marry until consent from their parents. The marriage was for the creation of
children and extension of kinship, in this period the men and the entire society decided to
choose fertilize women who would bear many children as marriage help lineage to expand
itself, and also they think that to have more children more wealthy as provide labour and girls
are marriage to add wealthy. to marry a woman was like to add source of labour , because the
wife join the husband family and so the labour was added and also they were thinking that a
man with many wives was seen to have a key labour power, for example , sukuma tribes and
Masai's tribe. Also marriage was characterized by payment of bride price, This was present in
mostly patrilineal societies, This was fundamental features of marriage in the sense that
marriage was not valid and was regarded as concubinage if the dowry was not paid, payment
of bride price enables husband to have some rights from the wife and other authorities, for
example, consortium right, kissing, hugging, sexual right and damages from adultery this the
husband has authority to demand damages from a person who make sex with his wife.
Payment of bride price was paid so as legitimize children thus born out of that marriage to be
legitimate, and also the bride price gave the husband authority and right over all children
resulted from the marriage not with another man. According to rule 78 of the Customary law
Declaration Rules GN 27, provide that; There was a concept that children born out of wedlock
belong to the maternal family, and also the case AMINA RASHIDI VS RAMADHAN, provide to the
effect that children born out ofthe wedlock belong to the maternal and children born during the
subsistence of the marriage was belong husband notwithstanding that the woman conceived
10
Philips ,A (1961), Survey of Africa marriage and Family life,an introductory essay
from another man. Held that; children born outside of marriage belong to maternal father. Also
during this period there are four types Customary marriage during this period, which as
polygamous types, this was divede into which as polyandry,this marriage where a woman has
more than one husband, and polygamy, where by man has more than one wife at the same
time.Leviratic marriage, This was happen where the husband died and leave the woman so
young in the name of deceased brother. Ghost marriage, This was type of Customary marriage
where by happen where the husband died before attaining the marriage age, and Also serorate
marriage, This kind of marriage where another woman is provided by the parents of the
deceased wife to there children for the husband or widower to sustain kinship. Also during this
period there are two forms of societies, which as patrilineal societies and matrilineal societies,
but starting explain the patrilineal societies , is the one where a husband plays a predominant
part as far the home concerned, Also in this case husband plays a predominant role in the
family in Tanganyika now know as Tanzania this types of societies form 80% of all societies, and
also those societies all children belong to the father, in England for instances up to the year
1992 women were having no say to their husband and the husband was free to conduct sexual
intercourse with his wife at any time wherever he wanted, According to case R .V.R 11, provide
that;Also it right to of the husband to beat his wife with out counter resistance,Like chastises
the wife . And also another form of societies was matrilineal societies, This was opposed of
patrilineal societies are the ones in which women were playing the predominant role as far as
families are concerned they forms 20% in Tanzania a societies, like mwera, makua,zaramo,
kaguru, luguru, kwere, makonde, kutu,tunda,zigua, doe and kulu, and other societies who were
matrilineal who later move to patrilineal are wapare, wasamba and wadigo, and also other was
patrilineal societies with element of matrilineal societies such sukuma,in this matrilineal
societies women had all right over the husband and also children inherited from their mother
lineage.

2.2 Historically development of family law during colonial period. During this period
Tanzania, then known as Tanganyika, Also during this period marriage was regulated by clan.in
this period Tanzania which is known Tanganyika start to interven and regulate family law

11
[1992] AC 559.
through legislation, which known as Tanganyika Order in Council (TOC) was enacted in
22/7/1920, It established the High court and subordinate Court which were vest with criminal
and Civil jurisdiction. Under 24 of the Tanganyika Order Council, Provide that; "Customary law
was applicable to all civil and criminal court with the exception that when the customary law
was inconsistent with justice and morality 12". There are native court which were chaired by
chiefs and their appeals went directly to District officer. Also during this period were comes
two groups , the first is German from 1885 -1919 and second were British period from 1919-
1961.

Historically development family law during German period from 1885 -1919. During this
period German comea in the Tanganyika now known as Tanzania , they were not introduce
anything concerning family law in Tanzania but they were prefer Customary law .

Historically development of family law during British period from 1885-1961. British comes into
Tanganyika now known as Tanzania after end of first world war in 1919 up to 1961, Also during
this period British were introduce and regulate family law through legislation, which was know
as Tanganyika Order Council was enacted in 22,07,1920, and established the High court and
subordinate Court which were vest with criminal and Civil jurisdiction. Under section 24 of
Tanganyika Order Council, provide that;"Customary law was applicable to all civil and criminal
court with the exception that when the customary law was inconsistent with justice and
morality 13, Also during comes of British in Tanzania Started of trend of colonial judges on
African marriage cases, Also during comes of period colonial judges inorder to understand
their views it is important to know how the colonial judges defined marriage under English law,
the English law Summarized the marriage in the case of Hyde .V. Hyde14, Provide that ; In that
case marriage was defines as ". Voluntary union between and woman which intended to last
for life. From this definition we get three essential elements of marriage , first, marriage should
be a man and woman a distinguished from African marriage where polygamy was allowed,
second It must be rest of the couples, and third marriage was to be voluntary. So therefore,
12
Tanganyika Order Council 1920

13
Ibid

14
[1886] LRTP and D 130.
after comes of British were introduce two form of marriage, which as Christianity marriage, Are
those marriage contracted in Christianity form by those who profess Christianity, this known
now is introduce under section 25 (3)(b) of the Law Marriage Act15, Provide that ; means a
marriage celebrate in a church in the manner recognised by the Christian faith. And other Civil
form, are those marriage contracted at the office of District commissioner. Also this form know
introduce under section 25(1) (b) of the law of marriage Act16, Provide that; in civil form or
where both the parties belong to specified religion, according to the rites of that religion. So
therefore the aim of British to introduce those two forms of marriage is to spread their culture
in the Tanzania.

2.3 Historically development of family law during post colonial period. So therefore ,
after end of British in 1961 , the Tanzania country got independence in 1961, After
independence the government of Tanzania started the efforts unity family law. This was due
to the fact that during colonial period Christian were have their own statute the same to
Muslim, in the 1969 via the white paper no 1, It was recommended that a one uniform law
which regulate family issue or marriage issue should be enacted, so therefore, as why Tanzania
government decided to enacted Law of Marriage Act [ CAP 29 R :E 2019] of 1971, The Law of
Marriage Act was meant that to recommended all types of marriage contracted under such
multiplicity of law, also it was uniting law that required to eradicate the multifunctional of law
of that time. The Law of Marriage Act was determined difference system of marriage such as ,
Islamic marriage, Customary marriage, Customary marriage and Christian marriage. And also
there are four types of marriage which as, monogamous marriage, polygamous marriage,
polyandry marriage, potential polygamous marriage, and Also Law of Marriage Act deal with
how formation of marriage, divorce, right of spouses and also introduction of presumption of
marriage . Introduction of Cases law or precedent,Is the law from the principle comes from

15
[CAP 29 R.E. 2019]

16
Ibid
decision of High court and Court of Appeal of Tanzania. So therefore after independence in
Tanzania the introduction of Cases law led to the development of family law, because
regulated the matter of marriage, divorce , child custody and even inheritance. For example the
case of BI HAWA MOHAMED VS ALLY SELF17, Provided that; Court held that, According to
section 114 (2) (b) of Law of Marriage Act18Provide that; the extent of the contribution made by
each party in money, property or work towards the acquiring of the assets. Also introduction of
Law of Marriage Act [ CAP 29 R:E 2019] led to right of spouses, So therefore before enacted of
Law of Marriage Act in Tanzania the husband when marry a woman has been all right over a
wife, he do anything to her wife whatever wanted but now husband as limit to the wife, under
section 65( a,b,c) of the Law of Marriage Act19, provide that; No husband shall be liable for the
torts his wife by reason only of his being her husband, and also husband and wife have same
liability in tort towards each other as if they were unmarried.

The following are the Sources of Family law in Tanzania as following as follow,

Constitution of United Republic of Tanzania of 1977, Also the constitution, is the

mother law of the country, or is the rules and principle that govern the country or state. So
therefore, According to Article 64 (5) of the Constitution of United Republic of Tanzania of
197720, Provide that; all law which enacted in the Tanzania must be related with provision of the
Constitution of United Republic of Tanzania , also the law which enacted and go against the
constitution that is unconstitution or invalid. Also even family law must not be against with
provisions of the Constitution, but must be related against with the provisions of the
Constitution of United Republic of Tanzania of 1977. According to Article 13 of the Constitution
of United Republic of Tanzania of 197721, Provide that; All person are equal before the law and
are entitled, without any discrimination,to protection and equality before the law.so therefore,
even family every person are all right without any discrimination.
17
[1983] TLR,no 62.

18
Ibid

19
[CAP 29 R:E 2019]

20
[ CAP 2 As amendment time to time]

21
Ibid
 Principal legislation,Is the law which enacted or made by the parliament. According to
Article 64 of the Constitution of Unite Republic of Tanzania of 197722, Provide that; legislative
powers in relation to all union matter and also in relation to all other matter concerning
Mainland Tanzania is hereby vested in parliament. So therefore, the parliament as made
several law which regulate family matters , which as , Law of Marriage Act [CAP 29 R:E 2019],
and Law of Child Act [CAP 13 R:E 2022].

Subsidiary legislation, Are the law which enacted or made by other body or
authorities than legislature. So therefore Subsidiary legislation vested by parliament to enacted
law but those law which enacted by Subsidiary legislation should be related to constitution of
United Republic of Tanzania of 1977 [CAP 2 As amended time to time] According to Article 97(5)
of the Constitution of United Republic of Tanzania of 197723. Provide that; Constitution shall
not prevent parliament from enacting laws making provisions conferring on any person or
department of Government the power to make regulation having the force of law on any
regulations made by any person, or department of Government.those law which as rule, order,
regulation, by law. e.t.c.

Case law or precedent, Is the law from the principle come from the decision of the
judge of the High court and justice of the Court of Appeal of Tanzania, So therefore , the Court
of Tanzania has made several decision that cure the lacuna , the gap in the law . According to
the case of BI HAWA MOHAMED VS ALLY SELF 24, Provided that; Where bay Nyalali S. J. theld
that, Cure that the mischief under section 114 (2) of the Law of Marriage Act 25, Provide that;
the extent of the contribution made by each party in money, property or work towards the
acquiring of the assets.

22
Ibid

23
[CAP 2 As amended time to time]

24
[1983] TLR ,no 62.

25
[CAP 29 R:E 2019]
 Customary law,Is the body of rules derived from custom, tradition and practices of
various community of Tanzania, so therefore , those rules are created by each individual society
or tribes and they govern their day to day life activities. According to section 11 (1) (a) of the
Judicature and Application of law Act 26, Provide that; Customary law shall be applicable
between members of a community in which rules of customary law relevant to the matter are
established and accept.

Islamic law,Is set of binding norm derived mainly from the holy , Qur'an ,
Sunnah,ijmah and Qiyas. So therefore , this Islamic law applicable only to Muslim people only,
According to section 10 (2) (a) of the Law of Marriage Act 27, Provide that;If in Islamic form or
according to rites recognised by customary law in Tanzania , be presumed, unless the contrary
is proved, to be polygamous or potential polygamous.

CONCLUSION

Generally, hiistorically development of family law in the Tanzania has changed from one stage
to another stage , This is because colonialism before colonialism, during colonialism, has we
soon the issues of marriage during those peeriod ,there is no any law which regulate the matter
of marriage, but their use the Customary law in formation of marriage but that give all right to
husband whob pay bride price to her wife, like right to beat her wife, but known day After
Tanzania got independence 1961 , the decide to enacted Law which regulate family matters,
which is Law of Marriage Act [ CAP 29 R:E 2019], which after enacted of law of Marriage Act,
provide all right to spouses without any discrimination, under section 65 (a) (b) of the Law of
Marriage Act 28, Provide that; No husband shall be liable for the torts his wife by reason only of
his being her husband, and also husband and wife have same liability in tort towards each
other as if they were unmarried,, but also , source of family law in Tanzania enables judge to
predictability in legal proceedings and outcome,and also enables in family law obtained new
material .

26
[ CAP 358 R:E 2019]

27
[CAP 29 R:E 2019]

28
Ibid