While opening the International Women Judges meeting in Arusha on 5th May 2014, the President of the United Republic of Tanzania, his excellence Jakaya Mrisho Kikwete, expressed concern that foreign (colonial) laws that Tanzania has inherited from its former colonial masters are hampering provision of justice in the country. The President said the situation is exacerbated by the fact that most of the laws are in foreign language thus incomprehensible to most ordinary Tanzanians. You may lead the relevant article from the Daily Newspaper through this linkhttp://www.m.dailynews.co.tz/index.php/dailynews/31132-yes-justice-should-be-available-to-all
The purpose of this article is not to critise what was said by the President but to amplify on what he said with a view to proposing a solution of what has been identified as a problem. It important to ask and answer the questions; what are these colonial laws? and why are they still applied in Tanzania. What is the problem? is it the language, content (theme) or both?
Colonial laws are what lawyers call RECEIVED laws.These are laws which were introduced in Tanganyika by the British colonial regime. For the smooth and soothing operations, the British colonial government imported various laws in the territory which formed part of the over all legal sub-systems of respective colonies pegged to the imperial system. This was enhanced by the introduction of the Tanganyika Order in Council of 1920 which provided, among other things, that Tanganyika with effect from July 22, 1920 was to apply the Common Law, Doctrine of Equity and Statutes of General application in force in England at the date of the reception. The Order in Council was qualified in the sense that English laws were to be applied as the residual law of the Territory only in so far as the circumstances of Tanganyika and its inhabitants permit and subject to such qualification as local circumstances may render necessary.
These laws include, common laws, equity and statutes of general application. After Indepnedence these laws were adopted and most of them still have legal force in Tanzania. This was made possible enacting the Judiculture Application of Laws Act, Cap 358, Act No.1 of 1961 which adopted the provisions of the Tanganyika Order in Council of 1920. Section 3 of Cap.358 provides that:
“Subject to the provisions of this Act, the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation (including the laws applied by this Act) or which may hereafter be applied or enacted and, subject thereto and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twenty-second day of July, 1920, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice and justices of the Peace in England according to their respective jurisdictions and authorities at that date, save in so far as the said common law, doctrines of equity and statutes of general application and the said powers, procedure and practice may, at any time before the date on which this Act comes into operation, have been modified, amended or replaced by other provision in lieu thereof by or under the authority of any Order of Her Majesty in Council, or by any Proclamation issued, or any Act or Acts passed in and for Tanzania, or may hereafter be modified, amended or replaced by other provision in lieu thereof by or under any such Act or Acts of the Parliament of Tanzania:
Provided always that the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary“
It is over 50 years since Tanganyika attained its independence. It has various organs which are responsible to make, ammend and repeal laws which are incopartible with the wants of the society. These orgarns include the Parliament, the Law Reform Commission of Tanzania and the Office of the Attorney General. Besides, there are many civil society organisations advocating for change and repeal of oppresive laws in the country; there are many reports of different Presidential Commissions such as the Kisanga Commission, the Nyarari Commission, the Warioba (Corruption) Commission etc who called upon the change and/or repeal of oppressive laws.
The President is now calling for change…….!!!!! Our questions are:- where is the problem? and who should take the lead for change?
Article 17(2) of Tanganyika Order in Council, 1920. The date of the reception was 22 July, 1920.