INTRODUCTION
Meaning of family imply a basic social unit constituted by at least two peopl whose relationship
may fall into one of three categories, The first category is that of husband and wife or two person
living together in a manner similar to spouses, The second category it may constituted by a
parents living with one or more children and The third category is that of brothers and sisters or
other person related by blood or marriage(affinity) may be regarded as forming a family.1
According to Oxford Advanced Learner’s Dictionary family means a group consisting of parents
and their children or a group consisting of parents, their children and close relatives. In another
sense it means all blood relations who are descended from a common ancestor or all members of
the household.2
Family Law
Is defined as the law regulating matters related to family relationships such as marriage personal
and property right as between husband and wife , matters of succession separation and divorce
and other matrimonial relief this is provided for in the preamble to the law marriage Act . The
law that governs family matters in Tanzania is “The Law of Marriage Act”, [CAP 29 of 2019]. 3.
Conflict of laws
According to Black’s law dictionary Internal conflict of laws refers to situations where different
laws within the same country appear to contradict each other or create legal uncertainty about
which law should apply to a particular issue.4
Internal conflict of laws occurs when there are contradictory or overlapping legal rules within a
single country, such as statutory laws conflicting with customary or religious laws, or two
statutes providing different legal outcomes for the same issue.5
There is always possibility of judicial to find which law should there applied in circumstance
especially where by different laws provide different solution on the same matter which can lead
1
Lowe.N & Douglas.G,(2007), Bromley’s Family Law,10 E.d, page. No.1
2
According to Oxford Advanced Learner’s Dictionary
3
The Law Marriage Act, CAP. 29, R.E.2019
4
Garner, B. A. (Ed.). (2019). Black’s law dictionary (11th ed.). Thomson Reuters.
5
Rwezaura, B. A. (1985). The integration of customary and received laws in Tanzania: A jurisprudential perspective.
Journal of African Law
to different result. As provided in the case of Director of Public Prosecutions vs. Daudi Pete6. In
this case, there was a conflict between the Criminal Procedure Act and the Constitution of the
United Republic of Tanzania regarding the right to bail. The Criminal Procedure Act excluded
bail for certain offences, while the Constitution guaranteed the right to personal liberty. The
Court of Appeal held that where a statutory provision conflicts with a constitutional right, the
Constitution prevails, and declared the offending provision unconstitutional. This case reinforced
the principle that constitutional supremacy overrides conflicting statutory provisions.
POSITION WHERE LAWS ARE CONFLICTING IN TANZANIA
The following are position where more than one law provide different solution on the same
matter;
i. Where any law conflicting with the constitution of United Republic of Tanzania
Any law that conflicts with the Constitution of the United Republic of Tanzania is considered
null and void to the extent of its inconsistency, as the Constitution is the supreme law of the land.
This principle is provided under Article 64(5)7 of CURT which establish that the Constitution
prevails over all other laws, and any legislation or action inconsistent with it has no legal effect.
As provided in the case of A.G vs lohai ackonaay and Joseph lohai (1995) T.L.R 9 the Court of
Appeal of Tanzania declared the Customary Leaseholds (Rights of Occupancy) Act, 1968
unconstitutional for violating Article 248 of the Constitution, which protects the right to own
property and receive fair compensation when deprived of it. The court held that any law
conflicting with the Constitution is null and void to the extent of its inconsistency, reaffirming
the supremacy of the Constitution and the judiciary’s role in upholding constitutional rights.
ii. Where more than two written laws provide different solution on the same matter
(conflicting)
Where more than two written laws provide different or conflicting solutions on the same matter,
the conflict Generally, the superior law prevails over the inferior, the more specific law overrides
6
(1993) T.L.R 22
7
Art 64(5) of CURT of 1977
8
Art 24 of CURT of 1977
the general one, and the more recent law prevails over the older one, unless it is inconsistent with
the Constitution, in which case it is deemed void to the extent of the inconsistency.
iii. Where customary law are in conflict with written law
Applicability of customary law provide under section 11(1) of the Judicature and Application of
Laws Act (JALA) which provide for the applicability of customary law.
Where customary law conflicts with written law in Tanzania, the written law prevails, especially
when the customary law is repugnant to justice, morality, or inconsistent with statutory or
constitutional provisions.
This principle is supported by section 11(3)9 of the Judicature and Application of Laws Act
(JALA) which “Provided that, the court shall not apply any rule or practice of customary law
which is abolished, prohibited, punishable, declared unlawful or expressly or impliedly
disapplied or superseded by any written law” as it was decided in the case of Ephrahim ebongo
v horolia Pastory and Another 10 in this case, Haya customary law prohibited women from
inheriting and selling clan land. However, the Law of Customary Inheritance conflicted with
constitutional principles of equality and property rights. The High Court held that the customary
law was discriminatory and therefore invalid, affirming that written law and constitutional
principles override customary rules when there is a conflict.
iv. Where customary law is against or conflicting with customary law
Where customary law conflicts with another customary law the court resolves the conflict by
examining which customary law is applicable to the parties involved, based on factors such as
ethnic group, locality, and the specific subject matter. Courts will apply the relevant and
applicable custom of the parties, provided it is not repugnant to justice, morality, or inconsistent
with any written law,
as stated under Section 11(3)11 of the Judicature and Application of Laws Act (JALA).which
provide that “ (3) In any proceedings where the law applicable is customary law, the court shall
apply the customary law prevailing within the area of its local jurisdiction, or if there is more
9
S.11(3) of JALA [Cap. 358 R.E. 2019.]
10
[1990] TLR 188
11
S.11 of JALA [Cap. 358 R.E. 2019.]
than one such law, the law applicable in the area in which the act, transaction or matter occurred
or arose, unless it is satisfied that the proper customary law to be applied is some other law:”
As provided in the case of Maagwi Kimito vs Gibeno Warema12, the High Court resolved a
conflict between two different customary laws by ruling that the applicable law is the one
connected to the locality where the land is situated, not necessarily the ethnic background of the
parties. The court emphasized that when customary laws conflict, the one most relevant to the
subject matter and not repugnant to justice or morality should prevail, in accordance with the
Judicature and Application of Laws Act.
v. Conflict between Islamic law and customary law
Where Islamic law conflicts with customary law in Tanzania, the applicable law depends on the
personal law of the parties involved, particularly in matters of marriage, divorce, inheritance, and
succession. If the parties are Muslims, Islamic law prevails over customary law. As it was
decided in the case of salum omary and Nelly mkelemi 13 the court ruled that Islamic law prevails
over customary law in matters of inheritance where the deceased was a Muslim, affirming that in
Tanzania, personal laws apply based on the religion of the parties, and thus Islamic law governs
succession for Muslims, not customary law.
MATTERS WHERE FAMILY LAW (LAW OF MARRIAGE ACT) CONFLICT WITH
OTHER LAWS.
a) Age of Marriage
Law of marriage Act sets the minimum age of marriage at 18 years for boys and 15 years for
girls with court or parental consent, while girls under 15 may not marry under any
circumstances. Allows girls to marry at 15 with parental consent and 14 with court approval. As
provided under section 13 of the Law of Marriage Act which state that “(1) No person shall
marry who, being male, has not attained the apparent age of eighteen years or, being female, has
not attained the apparent age of fifteen years”. This provision conflicting with Constitution and
International Obligations.
12
(1985) TLR 132
13
(1974) LRT 8
The Tanzanian Constitution specific under Article 1214 guarantees equality and dignity so Law of
Marriage Act violates the principle of equality as men marries when he attain the age of 19 while
women’s are married when attained the age of 15 years.
Also international treaties like CEDAW and the African Charter on the Rights and Welfare of
the Child prohibit child marriage.
These provisions violate children’s rights and gender equality, leading to a contradiction between
the Law of Marriage Act and constitutional/international human rights law.
b) Divorce and Grounds for Dissolution
The Law of Marriage Act, applies uniformly to all marriages and provides that a divorce may be
granted only when a marriage has broken down irreparably. Grounds for dissolution include
adultery, cruelty, desertion, imprisonment, failure to maintain, or mutual consent as provided
under section 107 of the Law of Marriage Act which shows the marriage are irreparable broken
down. While under customary and Islamic laws, divorce procedures and grounds may differ
Islamic law allows a husband to initiate divorce (talaq) more freely, while customary law may
involve family elders in the process. These differences sometimes lead to conflicts in procedure
and recognition, particularly when trying to align traditional or religious divorces with formal
legal requirements.These differences create unequal access to divorce, particularly
disadvantaging women under religious/customary frameworks.
c) Inheritance and Succession
Inheritance and succession are governed by customary law, Islamic law, and statutory law,
depending on the deceased’s background and religious affiliation.
Islamic law applies to Muslims and follows specific Quranic rules of distribution, often favoring
male heirs. As it was decided in the case of Mariam Said vs Mohamed Said15, the High Court of
Tanzania addressed a dispute over inheritance where the deceased was a Muslim, and the parties
contested the application of Islamic law versus statutory succession law. The court held that
since the deceased was a practicing Muslim, Islamic law governed the distribution of his estate.
14
Art 12 of CURT of 1977
15
(1996) TLR 385
Customary law, which varies by tribe, typically follows patriarchal traditions, often excluding or
limiting women’s inheritance rights.as it was decided in the case of Ephrahim ebongo v horolia
Pastory and Another16 In this case, Haya customary law prohibited women from inheriting and
selling clan land. However, the Law of Customary Inheritance conflicted with constitutional
principles of equality and property rights. The High Court held that the customary law was
discriminatory and therefore invalid,
the Probate and Administration of Estates Act, applies mainly to civil marriages and aims for a
more balanced distribution. These parallel systems often conflict, especially in cases involving
interfaith families, gender discrimination, or unclear marital status, creating challenges in
determining which law should apply.
d) Parental Consent and Forced Marriage
Parental consent is legally required for the marriage of girls under 18 as provided under section
17 of the Law of Marriage Act which allows girls to marry as young as 15 with court or parental
consent. While the law permits consent to protect minors, it is sometimes misused to justify
forced marriages, particularly of underage girls, which contradicts constitutional rights and
international conventions against child and forced marriage.
As provided under Article 1817 of the Constitution Of United Republic of Tanzania which
provides for the freedom of expression. So parental consent on Marriage of children is violation
of freedom of expression.
As it was decided in the case of Rebeca Z. Gyumi vs Attorney General18, the High Court of
Tanzania struck down sections 13 and 17 of the Law of Marriage Act which allowed girls aged
14 to marry with court consent and those aged 15 with parental consent holding that these
provisions violated Articles 12, 13, and 18 of the Constitution19 by discriminating against girls
and permitting forced child marriage . The court emphasized that cultural or religious customs
cannot override constitutional guarantees of equality and children's rights.
CONCLUSION
16
[1990] TLR 188
17
Art 18 of CURT of 1977
18
(2016)
19
Art 12, 13, 18 of CURT of 1977
In generally Internal conflicting laws in Tanzanian family law arise primarily from the
coexistence of statutory, customary, and religious legal systems, leading to contradictions that
undermine consistency, justice, and gender equality. These conflicts are evident in areas such as
marriage age, divorce procedures, inheritance rights, property ownership, and domestic violence,
where customary and religious practices often contradict constitutional guarantees and
international human rights standards. The resulting legal uncertainty disproportionately affects
women and children, limiting their access to justice and protection
REFERENCES
BOOKS
Lowe.N & Douglas.G,(2007), Bromley’s Family Law,10 E.d,
Rwezaura, B. A. (1985). The integration of customary and received laws in Tanzania: A
jurisprudential perspective. Journal of African Law
Cotran, E., the Law of Marriage and Divorce, Sweet & Maxwell, London 1968.
Dodds .M. Family Law, Old Bailey Press, Kent, 19943
Judge (Rtd) R.J.A Mwaikasu, Enhancing the Status of African Women through Law: The Place
of Family Law.
Latey, W., Latey on Divorce: The Law and Practice in Divorce and Matrimonial Causes
Sweet & Maxwell, London, 1952.
CASES
Rebeca Z. Gyumi vs Attorney General (2016)
Ephrahim ebongo v horolia Pastory and Another [1990] TLR 188
Mariam Said vs Mohamed Said (1996) TLR 385,
Salum omary and Nelly mkelemi (1974) LRT 8
Maagwi Kimito vs Gibeno Warema (1985) TLR 132
A.G vs lohai ackonaay and Joseph lohai (1995) T.L.R 9
Director of Public Prosecutions vs. Daudi Pete (1993) T.L.R 22.
DICTIONARY
Garner, B. A. (Ed.). (2019). Black’s law dictionary (11th ed.). Thomson Reuters.
Oxford University Press. (2020). Oxford advanced learner’s dictionary (10th ed.). Oxford
University Press.
STATUTES
The Law of Marriage Act, [Cap. 29 R.E. 2019]
The Judicature and Application of Laws Act ( JALA), [Cap. 358 R.E. 2019.]
Probate and Administration of Estates Act, [Cap. 352 R.E. 2002]
CONSTITUTION
Constitution Of United RRepublic Of Tanzania of 1977
